COURT FILE NO.: CR-12-0030-00
DATE: 2012-08-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Deborah Kinsella, for the Crown
Crown
- and -
CHRISTOPHER JOHN HAWK
David Dubinsky, for the Defence
Accused
HEARD: June 29 and July 6, 2012,
at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons for Sentence
Overview
[1] The accused pleaded guilty to one count of breaking and entering a dwelling house and committing robbery contrary to s.348(1)(b) of the Criminal Code. The offence was in the nature of a home invasion. The accused was also charged with second degree murder; however, the Crown accepted a plea to the lesser charge. This court must now determine what is a fit and proper sentence for an aboriginal offender, now 22 years of age.
Circumstances of the Offence
[2] On March 18, 2011, Paulette Cloutier was housesitting for her son in Thunder Bay. Around midnight, Ms. Cloutier heard male voices outside the residence and called her former partner who lived nearby, asking him to come to the residence. When she hung up the phone, three men broke down the rear door of the residence and entered. The first man was holding a knife. These men indicated that they were looking for cash, marijuana and jewellery thought to be on the premises. The three men pinned Ms. Cloutier to the floor and one held a knife to her. Shortly after, the offender, Christopher Hawk, entered the residence.
[3] Ms. Cloutier told the intruders there was no jewellery or money on the premises but that she would give them some marijuana. She provided the marijuana, then they took her Blackberry and cigarettes.
[4] The three men who initially entered the residence instructed Mr. Hawk to hold Ms. Cloutier down on the couch. He did so while the others went into the bedroom. Ms. Cloutier said that Mr. Hawk appeared to be scared. He told her that he was not going to hurt her.
[5] Next, Ms. Cloutier’s former partner, Robert Topping, entered the house. Ms. Cloutier could hear sounds of a struggle in the bedroom involving Mr. Topping and the three men. After about a minute, the offender released Ms. Cloutier and fled the residence. Ms. Cloutier also ran out of the residence and called for assistance. She saw the offender running away. He tripped and fell.
[6] Ms. Cloutier went to a neighbor and had him call the police. When she returned to the residence, she observed the three intruders leaving the house. Ms. Cloutier re-entered the house and found Mr. Topping had been stabbed. Tragically, Mr. Topping succumbed to his wounds while he was being transported to hospital. The offender and the other three men were later arrested.
Circumstances of the Offender
[7] The defence submits that Mr. Hawk was unarmed and believed the residence was unoccupied at the time of the break-in. The Crown accepts this statement. Initially, the three men broke in and encountered Ms. Cloutier in the hall. The offender was not part of that group and had no involvement in threatening Ms. Cloutier with a knife. Counsel for the offender submits that he was not a leader in the home invasion, but was following orders. Although Ms. Cloutier was not physically hurt, she was traumatized.
[8] The offender lived with his mother and step-father in Sioux Lookout until he was 14 or 15. He did not attend residential school or live on a reserve. Like his mother, he is a member of the Rainy River First Nation. Both the offender’s mother and his step-father experienced sexual abuse as children which led to abuse of alcohol later in their lives.
[9] The offender was close to his mother and step-father. His step-father was strict, insisting on discipline for the children. The offender was involved in hockey, karate, basketball and golfing as a child. The offender’s mother and step-father separated when he was about 11 years old. Mr. Hawk remained with his father until he was about 15. Then he moved to Thunder Bay where he began attending Hammarskjold High School and working. At that time, the offender’s mother was heavily involved in drinking and drugs. The offender attempted to care for his mother until he was about 17. As a result of her neglect, the offender sought help from a child welfare agency. At one point, he was hospitalized for malnutrition and dehydration. He could not care for his mother, look after himself, and attend high school.
[10] At 17, he moved in with the Jordain family. He moved to their community and found employment. However, Mr. Hawk returned to Thunder Bay to live with his mother when he was 18. He became involved in the drug scene.
[11] The offender’s mother sought drug treatment and stopped drinking when the offender was 19. Around this time, the offender began to drink to excess. Mr. Hawk’s criminal record began in 2006 as a young offender. He has eleven adult convictions since 2008. Two convictions are for property offences; one is an assault. The balance of the convictions are for breach charges.
[12] The offender has been in pre-trial custody since March 19, 2011. He has attained some credits toward high school completion while in custody and intends to pursue his high school diploma. The probation officer who prepared the pre-sentence report described Mr. Hawk as bright, though an underachiever. He plans to pursue post-secondary education once he is released. He has the support of his mother and step-father. He is likely to qualify for post-secondary funding from the Rainy River First Nation to attend Confederation College.
[13] At the sentencing hearing, Mr. Hawk made a full apology to Ms. Cloutier who was present in court. He indicated that until he heard the victim impact statement read in court, he did not understand the impact of this event on the family. He did not understand what they have been through. He indicated that he has had time to reflect while in custody and has made some life goals including the pursuit of post-secondary education in the mining field. He promised to find new friends and indicated a willingness to undertake treatment.
[14] The defence submits that the offender always wanted to plead guilty to break and enter and commit robbery. The delay in the entering the plea occurred as a result of arranging a preliminary inquiry for four co-accused. Once the Crown determined there was no evidence to support the charge of second degree murder against the offender, Mr. Hawk entered his plea.
Impact on the Victims
[15] Ms. Cloutier was deeply traumatized by the events described in the agreed statement of fact. She stated that she used to be outgoing, fun-loving and an involved and supportive parent. Now she has difficulties sleeping. She experiences nightmares, feelings of panic and depression. Ordinary activities of life overwhelm her. She has no appetite and she is afraid. She fears for her own safety and for that of her family. She is constantly looking over her shoulder. As a result of this incident, she moved to a more secure residence. She lives in seclusion. She finds it difficult to attend family events as Mr. Topping used to accompany her. She also finds it difficult to do things with her family and friends, get groceries, shop or attend school events. She takes anti-depressant medication and sleeping pills. She has been diagnosed with post-traumatic stress disorder and is in counseling. She feels deep guilt that she called Mr. Topping to come to her rescue that day and that he lost his life in trying to protect her.
[16] Jordan Topping is the son of the deceased. He also filed a victim impact statement. Jordan is about 17. He expressed deep sadness at losing his father whom he described as his room-mate and best friend. They went swimming together, travelled, and camped. Mr. Topping supported Jordan emotionally and nurtured him.
[17] Jordan found it hard to concentrate after his father died. He lost his school year. He is trying to look after his mother and help her around the house. He mourns his father and regrets that Mr. Topping won’t see him achieve his goals in life.
[18] A third victim impact statement was filed by Mr. Topping’s niece, Tammy Rhynold. She described her sorrow at losing her uncle and recognized Jordan Topping and Paulette Cloutier’s struggles in the wake of the tragedy.
[19] As I indicated at the sentencing hearing, the court recognizes that the impact on the victims of this offence is inextricably linked to the death of Mr. Topping. However, Mr. Hawk has not been convicted of Mr. Topping’s murder and cannot be sentenced for it. Nonetheless, I agree with the Crown that Mr. Topping’s death that evening is an aspect of the home invasion and that cannot be ignored.
Position of the Crown
[20] The Crown seeks a penitentiary term in the range of five to seven years less credit for pre-sentence custody on a one for one basis. At the date of imposition of this sentence on August 24, 2012, the offender will have spent 525 days in custody or 17 months and 5 days in pre-sentence custody.
[21] In support of its submission, the Crown relies on R v. Bernier, 2003 BCCA 134, [2003] B.C.J. No. 466 (B.C.C.A.); R v Burnard, [2005] O.J. No. 5854 (O.C.J.); and R v Forrester, 2004 BCSC 1310, [2004] B.C.J. No. 2116 (B.C.S.C.).
[22] In addition, the Crown seeks ancillary orders pursuant to s. 109 of the Criminal Code for a weapons prohibition in the range of 15 to 20 years and requiring the offender to submit a sample of his DNA to the DNA Data Bank.
[23] The Crown and defence made opposing submissions as to the extent of enhanced credit, if any, that should be applied to the offender’s sentence. I will deal with those arguments separately in these reasons.
Position of the Defence
[24] The defence submits that a sentence in the upper reformatory time is appropriate subject to credit for time served with the credit applied on a 1.5:1 basis.
[25] In support of its submission about the length of sentence, the defence referred to R v. Kakekagamick, [2006] 28549 (ONCA); R v. Wright, [2006] 40975 (ONCA); R v. Collins, 2011 ONCA 182, ; R v. Jacko, [2010] 452 (ONCA); and R v. King, [2012] ONSC 252.
Case Law
[26] I will first review the case law provided by the defence.
[27] In R. v. Kakekagamick, the Court of Appeal cautioned trial judges that aboriginal offenders are over-represented in Canada’s prison population. The court advocated a different approach to sentencing aboriginal offenders be applied. The court’s approach in Kakekagamick dovetails with Gladue principles enunciated by the Supreme Court of Canada in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688
[28] In R. v. Collins at para. 32, the Court of Appeal concluded that an aboriginal person bears no burden to demonstrate there is a link between systemic and background factors in the aboriginal experience and the commission of the offence.
[29] The Court of Appeal considered the range of sentence appropriate to home invasion crimes in R. v. Wright. The court characterized a home invasion as a forced entry into a victim’s home for the purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home was being occupied, and by the accompanying use or threatened use of violence with guns, together with the confinement of the occupants of the home.
[30] For offences that violate the sanctity of the home, the court held that a lengthy penitentiary term is required. Noting that ranges for home invasion are not inflexible, the court referred to ranges between four or five years upwards to eleven to thirteen years, and suggesting that higher sentences are appropriate where a home invasion includes kidnapping, serious injuries, sexual assault or death.
[31] In Wright, a sentence of eight years was approved where the offender and others wearing gloves and disguises and armed with hand guns confined a business man and his family (including a child), threatening to hurt the father if he did not disclose the combination to his office safe. The offenders took cash and other items from the home, confining the family for forty-five minutes.
[32] The defence submits that the facts in Wright are more serious because in that case, the home was targeted, knowing the occupants would be there. The defence also submits that the break-in at the Cloutier residence was not planned as a home invasion as the offender believed the owner was out of town. At best, he was reckless as to whether the home was occupied. Nevertheless, he did not leave when he saw Ms. Cloutier there.
[33] The Court of Appeal considered principles of restorative justice in a home invasion case called R. v. Jacko. While masked, Mr. Jacko and three other men pushed their way into an occupied apartment at Wikwemikong, punched and kicked the male occupant in the head and ribs, causing injury, pushed his head through the drywall and took his necklace and watch. Another man, who was the leader, held a knife to the throat of a female occupant. Others vandalized her room.
[34] The Court of Appeal varied Mr. Jacko’s sentence of four years to a conditional sentence of two years less a day in view of the exceptional rehabilitative efforts made by the offender. These include the offender graduating from high school with honours, giving up alcohol and drugs, getting a job, starting a family and settling down. By the time his case reached the Court of Appeal, he had embarked on a community college program with success. The court described the offenders in this case as youthful and immature recidivists. Notably, the sentence for the co-accused, Manitowabi, was varied to two years less a day in reformatory plus probation for eighteen months. Manitowabi had not made efforts at reformation pending sentence.
[35] In R. v. King, the offender engaged in a home invasion. He pleaded guilty to break and enter with intent to commit robbery, unlawful confinement and masking his face with intent to commit an indictable offence. The accused and his co-accused ransacked an apartment, confining its occupants; when they did not find the drugs they searched for, they left. Mr. King, an aboriginal man, was 24 at the time of the offences, but had a significant youth and criminal record, including convictions for violent offences. The offender was sentenced to a global sentence of 25 months with a recommendation that his sentence be served in Thunder Bay Correctional Centre so that he could participate in the Turning Full Circle program. This program deals with aboriginal drug and alcohol problems.
[36] Next, I will review the Crown’s cases.
[37] In R. v. Bernier, the offender was found guilty at trial as a party to offences related to a home invasion: robbery, assault, break and enter, and possession of property under $5,000 obtained by commission of an indictable offence. At trial, he was sentenced to a global sentence of fourteen years, which was varied on appeal to six years for the break and enter and time served for other offences. Mr. Bernier was a 19 year old Métis man at the time of the offences. He had one prior conviction for assault and other convictions for property offences including break and enter. He was addicted to drugs and had experienced neglect as a child.
[38] At para. 52, the Court of Appeal held that he had “enmeshed others in committing crimes for his benefit.” The evidence suggested that Mr. Bernier had coordinated the plan. The appellate court makes no analysis of Bernier’s aboriginal background and does not appear to consider Gladue factors in pronouncing a deterrent sentence.
[39] In R. v. Burnard, the offender was sentenced to six years upon a plea of guilty to offences related to a home invasion. At the time of the offences, Burnard was 18. He was aboriginal and afflicted with fetal alcohol syndrome. He came from a dysfunctional background and had a related record for violence which was not extensive.
[40] During the home invasion, Burnard’s victim was beaten with objects, fracturing his nose and bruising him. He required reconstructive surgery. A knife was held to his throat and he was threatened with death. He pleaded for his life. The intruders also threatened to rape the victim’s girlfriend when she returned to the residence and then kill her in front of him. The residence was vandalized with significant damage. The victim was seriously traumatized.
[41] The Crown’s final case is R. v. Forrester. In that case, the offender was convicted at trial of aggravated assault and break and enter. He was a 23 year-old aboriginal man at the time of the offence, the father of two young children. The facts are that Forrester’s friend got into a dispute with the victim over a bicycle. Forrester and his friend put on balaclavas and broke into the victim’s residence where the occupants were beaten with baseball bats. They were left seriously injured. The perpetrators did not call for help.
[42] Forrester had no criminal record at the time of the offence, though he had a subsequent offence for assault causing bodily harm. He was employed at the time of the offences. He used his time in pre-trial detention to attempt to complete high school. The court imposed a global sentence of five years, based on R. v. Bernier.
Mitigating and Aggravating Factors
[43] The court must consider mitigating and aggravating factors as part of its sentencing deliberations.
[44] The offender’s youth is a mitigating factor; he was 21 years old at the time of the offence with a limited criminal background. He was a follower, not a leader, and he was not armed. He did not expect the house to be occupied. There is no evidence that he was involved in planning the break-in.
[45] Mr. Hawk treated his victim, Ms. Cloutier, with compassion, telling her he would not hurt her. He took responsibility for the offence that night by releasing Ms. Cloutier, and leaving the premises, permitting her to summon help.
[46] He has pleaded guilty to the charges and has demonstrated some insight into the harm he caused that night. He is deeply remorseful and has apologized to Ms. Cloutier and her family for the harm he has caused. While he has not shown insight into his substance abuse problem, he does show motivation to better himself. He is intelligent and has been working on completing his high school credits. He has plans to do college work with a view to becoming employed.
[47] Mr. Hawk has the benefit of family support. His step-father has a steady work history. His mother has taken rehabilitative programs to gain control of her drug and alcohol addictions. Both parents can be an asset to Mr. Hawk.
[48] However, it is aggravating that Mr. Hawk was on probation at the time of the offence. He has a prior record, consisting mainly of property and breach – type offences, although, there is one prior conviction for common assault.
[49] Mr. Hawk helped others that night, leading to a cascade of events that ended in the death of Mr. Topping. Ms. Cloutier was badly traumatized by the violence and Mr. Topping’s son is now fatherless. Others within Mr. Topping’s circle mourn his loss.
Rehabilitative Programs
[50] The Crown has filed a description of programming for aboriginal offenders within the federal penitentiary system. The provincial reformatory system also features programming aimed at the aboriginal offender. While I agree that the offender may find some of this programming helpful, the existence of programming in either system is not determinative of the length of sentence in this case. Until the offender addresses his issues with addiction, he will continue to be at risk to re-offend.
Principles of Sentencing
[51] Section 718 of the Criminal Code sets out the fundamental purpose of sentencing. It states:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to promote reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to the victims and to the community.
[52] The Criminal Code directs that all available sanctions other than imprisonment that are reasonable be considered for offenders, with particular attention to the circumstances of aboriginal offenders. The Court of Appeal in R. v. Kakekagamick at para. 34 observed that it is not a mitigating factor to be an aboriginal offender, but directed sentencing judges to approach the sentencing process differently.
[53] The Supreme Court of Canada in R. v. Gladue noted that a sentencing court must consider all individual factors in sentencing an aboriginal person. The court held at para. 79 that generally, the more violent and serious the offence, the more likely that terms imposed for aboriginal and non-aboriginal offenders will be similar.
[54] It is also a principle of sentencing that like offenders and like offences should be similarly treated. Thus, the court considers other similar offences and sentences that were imposed.
Enhanced Credit
[55] The defence seeks enhanced credit against sentence of 1.5 days per day in pre-sentence custody, pursuant to s. 719(3.1) of the Criminal Code. It argues that circumstances justify enhanced credit. The defence bases this argument on four points:
• the lack of remission time for those in pre-sentence custody;
• the lack of programming for inmates in the District Jail;
• the lack of services at the District Jail; and
• the Crown’s failure to accept an earlier plea of guilty so that sentencing could proceed.
[56] The Crown submits that the circumstances do not justify application of an enhanced credit in Mr. Hawk’s case. It also submits that a review of the Crown’s discretion in prosecuting cases should be a rare occurrence.
[57] As of the date of sentencing, Mr. Hawk will have spent 525 days in pre-sentence custody at the District Jail. This is equivalent to 17 months and 5 days. If the enhanced credit of 1.5:1 is allowed, Mr. Hawk could be credited with 25 months and 22 days of pre-sentence custody.
[58] Parliament enacted the Truth in Sentencing Act, 2009 which has been incorporated into the Criminal Code. Implicit in this enactment is Parliament’s intention to change the former practice that developed of giving enhanced credit at sentencing for pre-sentence custody. The usual credit allowed was 2:1, although it was expanded to 3:1 in unusual circumstances. The jurisprudence leading to enhanced credits recognized that there was no entitlement to remission for pre-sentence custody and that time spent in remand centres awaiting sentence was more onerous in light of the lack of facilities and more limited programming.
[59] The principles for the application of enhanced credits on sentencing were discussed in R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555 (Ont. C.A.), paras. 23 – 25. This discussion pre-dates the change in the Criminal Code as a result of passage of the Truth in Sentencing Act, 2009. At para. 23, the court commented:
It is now well-established that an offender should be given credit for pre-sentence custody. The rationale for doing so comes from the provisions of the Criminal Code and judicial recognition of the conditions under which pre-sentence custody is served. Section 719(3) of the Criminal Code expressly provides that the sentencing court may take pre-trial custody into account. As Arbour J. said in R. v. Wust (2000), 2000 SCC 18, 143 C.C.C. (3d) 129 (S.C.C.) at para. 41, “while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender’s conviction, by operation of s. 719(3)”.
[60] Effective February 22, 2010, the Criminal Code was amended as follows:
s. 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
s. 719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
[61] Neither of the qualifications attached to s. 719(3.1) apply to Mr. Hawk’s circumstances. Mr. Hawk has not applied for bail.
[62] At the time of sentencing submissions, this amendment to the Criminal Code had not been considered by any level of appellate court. The Crown has drawn to my attention two competing lines of authority interpreting this amendment. There is no consistency of approach to interpretation in either the Ontario Court or the Superior Court.
[63] As an example of this divergence of opinion, the Crown filed four cases. In R. v. Johnson, 2011 ONCJ 77, [2011] O.J. No. 822 (O.C.J.) and R. v. Sabatine, 2012 ONCJ 310, [2012] O.J. No. 2258 (O.C.J.), the sentencing judge allowed enhanced credit of 1.5:1 for pre-sentence custody. The rationale adopted in this line of cases is that the sentencing judge has a wide discretion to consider the circumstances of the offender when sentencing. Judges favouring a broad application of the 1.5:1 enhanced credit held that because Parliament used the more permissive language, “if circumstances justify it,” rather than the narrower term, “in exceptional circumstances,” their discretion to apply enhanced credit was not constrained. They continue to consider factors that justified the 2:1 credit that was routinely given before the amendment was enacted. These factors included lack of remission or parole for prisoners awaiting sentencing compared to remission or parole available to sentenced prisoners and more oppressive conditions in remand centres which usually offered little programming for those detained.
[64] The alternate approach to the question of what credits to apply focuses on the principles of statutory interpretation. R. v. Morris, 2011 ONSC 5206, [2011] O.J. No. 3995 (S.C.J.) and R. v. Abubeker, [2011] O.J. No. 2927 (O.C.J.) are illustrative of this approach. The sentencing judges concluded that the new amendments establish that, as a general rule, credits of “up to” one day of pre-sentence custody may be credited against sentence, while enhanced credit of 1.5 days may be applied as an exception. Madam Justice Harvison Young described this as the “default rule” in Morris at para. 31.
[65] In my view, this is the correct approach for the reasons articulated in Morris.
[66] The court is bound to give effect to the plain meaning of the enactment. A plain reading of the amendments sets out a standard of 1:1 credit for pre-sentence custody with limited discretion to further enhance that credit to 1.5:1. Had Parliament intended that factors that are common to all prisoners awaiting sentence would result in credits of 1.5:1 on sentencing, the amendments would have been drawn differently. The Criminal Code is a penal statute; however, there is no ambiguity in the amendments such that an offender is entitled to benefit from that ambiguity, as described in R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, paras. 27 and 29, and other authorities.
[67] It is a fair conclusion that Parliament decided to alter the existing practice of giving 2:1 credits in sentencing absent circumstances that are unique to an individual awaiting sentencing. Circumstances that are personal to an offender do not include inability to accrue statutory remission or apply for parole. They do not, absent an evidentiary basis, include onerous conditions in remand centres.
[68] Bail reforms were a measure previously enacted by Parliament to permit individuals charged with offences to obtain their release pending trial. District jails and remand centres were never constructed with the intention of housing prisoners on a long-term basis. Yet, in some instances, under the previous regime for crediting prisoners for pre-trial custody, individuals preferred to wait in the remand centre and “earn” the 2:1 credit that would be applied at sentencing rather than apply for bail. This widespread use of this credit became a strategic choice for accused persons to reduce the impact of an in-custody sentence. It undoubtedly contributed to conditions of crowding in the remand centres.
[69] With respect to Mr. Hawk, there is no evidence about conditions or lack of programs at the District Jail where he is housed affecting him in a unique or particular way. I conclude that factors such as lack of remission time or parole eligibility are common to all individuals incarcerated before sentence. These factors in and of themselves do not, in my view, justify credit of 1.5:1.
[70] Should Mr. Hawk be entitled to enhanced credit because the Crown did not accept his plea at or shortly after his arrest?
[71] In this case, the offender was charged with second degree murder as well as the charge to which he has pleaded guilty. He was arrested on March 19, 2011. At the time the charges were laid, three other co-accused were charged with second degree murder. A preliminary inquiry was conducted involving all accused. Following committal to trial, the Crown delivered an indictment on February 21, 2012. A pretrial was scheduled for Mr. Hawk on April 30, 2012 at which time he re-elected trial by judge alone. He tendered his plea the same day. Upon the plea being entered, pre-sentence and Gladue reports were ordered and sentencing submissions were heard on June 29th and July 6, 2012.
[72] The defence does not suggest that there is any abuse of process by the Crown. However, it does submit that the offender always intended to plead guilty to these charges and the delay in being able to do so is a circumstance that should entitle him to enhanced credit.
[73] I do not agree. Plea agreements are a common feature of criminal prosecutions. Without them, the legal system would be swamped by trials.
[74] There is nothing about these plea discussions that sets the offender apart from other offenders. The time taken from arrest to plea is not excessive in view of the nature of the charges and the number of co-accused charged.
[75] All persons in custody must await the outcome of plea negotiations before tendering a plea prior to trial. Especially where there are co-accused, both Crown and defence must be afforded some reasonable time to engage in plea discussions. Even when a plea is agreed upon, time is required to schedule the case so that a plea may be taken. As in this case, further adjournments may be required to commission reports for use at sentencing, and for submissions to be made. Affording enhanced credit based on the time it takes to have these discussions and take these proceedings would adversely affect the Crown’s discretion in prosecuting cases.
[76] In R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, at para. 34, the Supreme Court observed:
That courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They have been so as a matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice and the fact that prosecutorial discretion is especially ill-suited to judicial review.
For these reasons, I decline to enhance credits to Mr. Hawk’s sentence, beyond 1:1.
Reasons
[77] Crafting a sentence is custom work. Each sentence must be tailored to the offender and the circumstances. A judge is charged with the task of imposing punishment on her fellow citizens. In this case, the court must balance the objectives of denunciation and deterrence with the possibility that Mr. Hawk might reform himself. It is a weighty task. Judges rarely get feedback on whether they have struck the right balance. It is only when we look at a criminal record that we learn whether an individual has been deterred or rehabilitated.
[78] The Court of Appeal and other appellate courts in Canada have said that home invasion cases call for a denunciatory sentence. The more violent the conduct associated with a home invasion, the longer the sentence will be. This is because Canadians should feel safe in their own homes. They are entitled to expect that their families will be safe in their homes. This is fundamental to a civil society.
[79] The Court of Appeal has, in one instance, departed from imposing a jail term for home invasion; however, generally that is not the case. In Jacko, the court recognized the importance of sustained efforts at remorse and rehabilitation in opting for leniency.
[80] I am mindful that Parliament and the courts recognize that aboriginal people are over-represented in the prison population of Canada. The Criminal Code requires the court to consider all available sanctions other than imprisonment for aboriginal offenders. In this case, Mr. Hawk has already served time in prison awaiting sentence. Whether this experience has deterred him from future home invasions, only he can say.
[81] One of the sentencing objectives is protection of the public. In my view, the public is best protected from crime when young people are educated, meaningfully employed, involved in a positive peer group, knowledgeable about their own culture, and free of addictions.
[82] The risk of sending young men to penitentiary is that they can learn the business of crime there. They become involved with criminal gangs or with those involved in the drug and crime culture, and that becomes their profession. Once a young person is enmeshed in an anti-social culture, he embarks on a career of crime. His fellow offenders become his family, his cheering section. When this happens, he is at grave risk to re-offend. The public is then at risk from his career choice.
[83] What I have to decide is whether Mr. Hawk is a good risk for redemption. Might he make this a turning point, so that he takes back control of his life and never re-offends? Should society take a chance on him?
[84] There are some positive signs in his case. He is young so his life pattern is not yet set. His apology to Ms. Cloutier and her family showed some insight.
[85] Ms. Cloutier said he seemed frightened that night. That is a good sign. While he should never have entered the house, he did not come with a weapon and did not hurt her. He recognized her fear and told her he would not hurt her. That took empathy, also a good sign. He released her when the others fought with Mr. Topping. He abandoned his friends, left the scene, and took no further part in the violence. I accept that he expected the house to be empty. An empty house does not justify breaking in and stealing others’ possessions, but on a continuum, it is less serious than a home invasion where the occupants are terrified.
[86] It appears that Mr. Hawk was a follower, not a leader in the break-in. However, Mr. Hawk needs some new friends. The friends whose plan he went along with that night are not true friends. They were involved in a culture of drugs and crime. They have dragged him down with them. He has spent many months in jail because he could not say “no” to his friends.
[87] Mr. Hawk is beginning to recognize the value of goals in life. Perhaps he is growing up. If he gives his life over to crime, he will lose the ability to control the way he lives his life and achieve those goals. He will spend much of his life locked up or under the control or supervision of others. The choice is his. No one else can choose for him. The fact that he has pursued his high school credits while in jail is encouraging. He is intelligent and has the ability to do college work and gain meaningful employment. It appears there may be some financial support for Mr. Hawk to attend college. College would be a good choice for Mr. Hawk. He is young enough to turn his life around. He will meet young people at college who also have goals and who are not involved in the crime and drug culture.
[88] He has a supportive family. His mother has addressed her addictions issues and is living a new life. She is a good model. His step-father could be a steadying influence. He has a history of employment and a stable lifestyle.
[89] Having regard for all these considerations, I have concluded that Mr. Hawk is a good risk for redemption. In arriving at a length of sentence, I also consider the Gladue factors previously discussed.
[90] I sentence him as follows:
To a term of imprisonment to two years less a day with credit for time served on a 1:1 basis of 525 days with a recommendation that he be considered for culturally appropriate programming while in custody.
Upon his release, to a term of probation for three years on the following conditions:
a) that he keep the peace and be of good behavior;
b) that he report as required to a probation officer;
c) that he tender a written apology to Ms. Cloutier and her family;
d) that he abstain from the possession or consumption of illicit drugs;
e) that he take whatever rehabilitative programs that may be recommended by his probation officer, including assessment for substance abuse and culturally appropriate programming;
f) that he apply himself to his schooling and/or employment;
g) that he advise the court in writing on each anniversary of this sentence, and every anniversary thereafter until his sentence is complete, of his goals and his achievements.
Ancillary Orders
[91] There is no dispute about ancillary orders the Crown seeks. Therefore, the offender is also sentenced as follows:
to a weapons prohibition pursuant to s. 109 of the Criminal Code of 10 years;
to submit a sample of his DNA to the DNA Data bank.
[92] The victim fine surcharge is waived.
Regional Senior Justice H.M. Pierce
Released: August 24, 2012
COURT FILE NO.: CR-12-0030-00
DATE: 2012-08-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and –
CHRISTOPHER JOHN HAWK
Accused
REASONS FOR SENTENCE
Pierce J.
Released: August 24, 2012
/nf