ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-0084
DATE: 2012-10-11

B E T W E E N:

HER MAJESTY THE QUEEN

J. McGill , for the Crown

• and -

R.H.T.,

George Joseph , for the Accused

Accused

HEARD: September 17, 2012, at Thunder Bay, Ontario

Mr. Justice D. C. Shaw

Reasons On Sentencing

[ 1 ] On September 12, 2012, R.H.T. pleaded guilty to:

(a) assault of S.B. . , contrary to s. 266 of the Criminal Code ;

(b) failing to comply with the condition of a recognizance that he keep the peace and be of good behaviour, contrary to s. 145(3) of the Criminal Code ;

(c) failing to comply with a probation order not to contact S.B. contrary to s. 733(1) of the Criminal Code .

[ 2 ] On the same date on which these pleas were entered, the Crown chose to call no evidence on a charge of sexual assault of Ms. S.B. and a charge of breach of a recognizance. Mr. R.H.T. was acquitted of those charges.

[ 3 ] As of September 17, 2012, Mr. R.H.T. had been in custody on all of the above charges for a period of six months and five days.

The Facts

[ 4 ] In February 2012 Ms. S.B. was at a bar in Thunder Bay, sitting at a table with two friends. Mr. R.H.T., who was Ms. S.B.’s former boyfriend, approached the table and harassed Ms. S.B. and her friends. Ms. S.B. moved to another table. When the bar closed at 2:00 am, Ms. S.B. exited the bar and was standing outside it when Mr. R.H.T. came up to her, punched her in the back of the head, grabbed her and dragged her to the rear laneway. Ms. S.B. fell to the ground. Mr. R.H.T. restrained her. He punched her multiple times on the left side of her face and head. When she tried to escape he grabbed her and punched and kicked her.

[ 5 ] In hopes of avoiding a further assault, Ms. S.B. told Mr. R.H.T. that he could come home with her. He released her. They hired a taxi. When the taxi got to the Northwood Mall, Mr. R.H.T. got out. The taxi driver told Ms. S.B. to shut and lock her door. The taxi driver drove Ms. S.B. home. About 20 minutes later, Mr. R.H.T. showed up at her home and demanded to be let in. However, friends of Ms. S.B. refused to let him in.

[ 6 ] Ms. S.B. suffered swelling and bruising to her left eye and to the left side of her face and bruising on both upper arms, her legs and her rib cage.

[ 7 ] At the time of the assault, Mr. R.H.T. was on a recognizance to keep the peace and be of good behaviour. He was also subject to a probation order to have no contact with Ms. S.B..

Circumstances of Mr. R.H.T.

[ 8 ] A detailed pre-sentence report was filed outlining the background and circumstances of Mr. R.H.T..

[ 9 ] Mr. R.H.T. is 32 years of age. He was born and raised in the First Nation community of Sachigo Lake, Ontario, 425 kilometres north of Sioux Lookout.

[ 10 ] The pre-sentence report details the systemic factors common to many remote First Nations, including the historical trauma of colonization, intergenerational effects of the residential school system, loss of traditional economic practices and loss of cultural and spiritual identity. The pre-sentence report speaks to chronic unemployment, alcohol and substance abuse, frustration, anger, depression and a high rate of violence that has become normalized in these communities.

[ 11 ] The author of the pre-sentence report notes that while attempts are made to provide relevant social services, the remote location and small size of Sachigo Lake has lead to many of these services being understaffed, inconsistent and reduced or unavailable compared to services in urban locales.

[ 12 ] Mr. R.H.T. began drinking and using drugs at age 11, and was a daily user by age 13. Because Sachigo Lake is a dry reserve, Mr. R.H.T. would drink home brew, described as a potent and unpredictable substitute for conventional alcohol. On occasion, he sniffed gas. Mr. R.H.T.’s substance abuse negatively affected his schooling and he returned to Sachigo Lake at age 20 after having failed in his fourth attempt to complete high school in outside communities.

[ 13 ] Mr. R.H.T. met Ms. S.B. in 2004. Ms. S.B. was from Fort Hope. They have two sons, ages 6 and 5, and two daughters, one 3 years old and the other 9 months old. The relationship between Mr. R.H.T. and Ms. S.B. was not stable. They lived for a time in Fort Hope. Sometimes, Mr. R.H.T. would leave for Sachigo Lake after arguments; sometimes Ms. S.B. would follow; sometimes they would reconcile in Fort Hope. Mr. R.H.T. became involved in selling home brew and resumed the use of drugs. At times, Ms. S.B. and the children lived in women’s shelters in Sioux Lookout and Thunder Bay. She returned with the children to Fort Hope.

[ 14 ] Mr. R.H.T. was convicted in August 2009 of assaulting Ms. S.B.. He was briefly jailed, released on a conditional sentence and returned to live with her. In November 2009, he was again charged with assaulting her. There were further assault charges in 2010 and 2011. Upon his release in January 2012, Mr. R.H.T. was prohibited by the conditions of his probation order from having further contact with Ms. S.B. other than through a mutually agreed third party or under a court order for access to his children. The facts giving rise to the current charges occurred while this probation order was in effect.

[ 15 ] Mr. R.H.T. is one credit short of his Grade 12. He has had a number of short term jobs. His last job ended when he was incarcerated in 2012. He has not worked since then.

[ 16 ] He has been unable to maintain sobriety for any significant length of time. He has used Percocets and Oxycontin. Alcohol is a factor in his criminal record and a factor in the charges before the court.

[ 17 ] He has attended programs for substance abuse and domestic violence, to little apparent effect. He indicates that he is agreeable to attending treatment for substance abuse as a condition of a probation order.

[ 18 ] He advised the author of the pre-sentence report that he is highly remorseful for his behaviour that lead to the present charges. He expressed his remorse, as well, to the court during sentencing submissions.

[ 19 ] The pre-sentence report describes Mr. R.H.T.’s parents as having provided a stable home for their children, although there were some marital problems early in their relationship involving domestic violence. Mr. R.H.T.’s parents and siblings are still living in Sachigo Lake. His family is described as supportive. His parents are eager to have him return to Sachigo Lake because of their concerns that he has no positive connections in Thunder Bay. His father indicates that there are jobs in the Band Office available to him.

[ 20 ] The author of the pre-sentence report assesses Mr. R.H.T. to be a high risk to re-offend because of his criminal history, non-compliance with court orders, substance abuse, marital conflict and anger management deficits.

[ 21 ] Mr. R.H.T. has a significant criminal record, as follows:

Date: Offence: Disposition :

1998-06-25 Possession of Property Obtained by Suspended Sentence
Crime, Sec. 354(1)(a) CCC 12 months probation

2003-04-01 1) Assault a Peace Officer 1-2) 90 days on each
Sec. 270(1)(a) CCC concurrent and 10
2) Assault probation
Sec. 266 CCC
3) Fail to Attend Court 3) 30 days concurrent
Sec. 145(2) CCC

2009-08-25 1) Assault 1) 6 mos Conditional
Sec. 266 CCC Sentence Order
2) Fail to Comply with Recognizance 2) 6 mos Conditional
Sec. 145(3) CCC Sentence Order

2009-12-07 Breach of Conditional Sentence Orders Orders Terminated
Sec. 742.6(9)(d) CCC

2010-07-07 1) Assault 1) 1 day and probation for
Sec. 266 CCC 1 year
2) Fail to Comply with Recognizance 2) 1 day conc. (13 days PSC)
Sec. 145(3) CCC and probation for 1 year

2011-06-14 1) Assault 1) 2 months jail, 18 mos
Sec. 266 CCC probation
2) Harassment 2) 4 months consecutive, 18
Sec. 264(1) CCC mos. probation conc.
2(b) Assault 2(b) 4 mos. consecutive, 18
Sec. 266 CCC mos. probation conc.

Position of the Defence

[ 22 ] The defence submits that because Mr. R.H.T. is an aboriginal offender, the principles set out in R. v. Gladue , [1999] S.C.R. 688 (S.C.C.) are engaged.

[ 23 ] The defence submits that when the Crown first received the charges, it indicated on its screening form that it would proceed summarily, with a resulting maximum of six months custody. However, because the Information setting out the charge also contained a charge of sexual assault, the matters had to proceed by indictment. On September 17, 2012, the Crown produced no evidence on the sexual assault charge and Mr. R.H.T. was therefore acquitted of that charge. The defence submits that because Mr. R.H.T. spent more than 6 months in custody awaiting trial on the sexual assault charge, which the Crown did not in the end pursue, he has served more than the six months maximum that could have been imposed if the Crown had proceeded summarily on the assault charge as it originally indicated it would do.

[ 24 ] The defence submits that Mr. R.H.T. should receive a six month custodial sentence on the assault charge and 30 days concurrent on each of the charges of breach of a recognizance and breach of a probation order. The defence submits that these latter two charges stem from the same transaction as the assault and therefore should result in a concurrent sentence.

[ 25 ] The defence submits that if the court determines that further custodial time is required, that the court should impose a lengthy term of probation.

Position of the Crown

[ 26 ] The Crown emphasizes Mr. R.H.T.’s criminal record as an aggravating circumstance and, in particular, the fact that three of the assaults were against Ms. S.B. and one was against her brother.

[ 27 ] The Crown also points out that Mr. R.H.T.’s breach of recognizance and breach of probation order were as a result of the assault on Ms. S.B..

[ 28 ] The Crown submits that Mr. R.H.T. be given a custodial sentence of one year, plus the 6 months and 5 days of time served as of September 17, 2012.

[ 29 ] The Crown observes that on his last sentencing in 2011, Mr. R.H.T. received a global sentence of 10 months, namely two months for assault and four months consecutive for each of two breaches of probation.

[ 30 ] The Crown submits that Mr. R.H.T. has continued to drink notwithstanding the substance abuse programs in which he has been enrolled.

[ 31 ] The Crown points to the nature of the present assault charge, when Ms. S.B. was held on the ground, punched repeatedly in the face and her body and kicked.

[ 32 ] With respect to the principles in R. v. Gladue , the Crown submits that non-custodial orders have not protected Ms. S.B. and that Mr. R.H.T. has engaged in a pattern of assault, harassment and breach of non-contact orders.

Principles of Sentencing

[ 33 ] The fundamental purpose of the criminal law is the protection of society. This principle has been codified in s. 718 of the Criminal Code which emphasizes that the fundamental purpose of sentencing is to encourage respect for the law and the maintenance of a “Just, peaceful and safe society” by imposing just sanctions. These sanctions must have one or more of the following objectives:

• to denounce unlawful conduct;

• to deter the offender and other persons from committing crimes;

• to separate offenders from society, where necessary;

• to assist in rehabilitating offenders;

• to provide reparations for harm done to victims or to the community; and

• to promote a sense of responsibility in offenders and an acknowledgement of harm done to victims and to the community.

[ 34 ] The principle of denunciation focuses on the conduct of the offender, not on the personal characteristics of the offender. It is a public expression of society’s attitude towards an offence committed, an expression of society’s disapproval of an act that encroaches on our society’s basic code of values. The principle of deterrence seeks to provide a threat or an example to the offender (individual deterrence) or to others (general deterrence) in order to discourage crime, by making it clear that criminal behaviour will result in punishment. Rehabilitation mandates punishment to fit the offender. It is aimed at the renunciation by the offender of his wrongdoing and his re-establishment as an honourable, law-abiding citizen. Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Every sentence must meet this fundamental and overarching principle of proportionality. The punishment must fit the crime.

[ 35 ] The Criminal Code directs in s. 718.2 that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating circumstance relating to the offence or the offender. Section 718.2 also requires the sentencing court to take into consideration, among others, these principles:

• a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances;

• an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;

• all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

It is essential that the sentencing court consider and blend all the relevant sentencing principles.

Discussion

[ 36 ] Because Mr. R.H.T. is an aboriginal offender, it is important to firstly consider the principles in R. v. Gladue , as discussed by the Supreme Court of Canada in R. v. Wells , 2000 SCC 10 , [2000] 1 S.C.R. 207 (S.C.C.), and by the Court of Appeal in R. v. Kakakagamick (2006), 2006 28549 (ON CA) , 81 O.R. (3d) 664 (C.A.), R. v. Whiskeyjack (2008), 2008 ONCA 800 , 93 O.R. (3d) 743 (C.A.), R. v. Jacko 2010 ONCA 452 (C.A.) and R. v. Collins 2011 ONCA 182 (C.A.).

[ 37 ] It is clear from those cases that s. 718.2(e) requires the sentencing judge to give attention to the unique background and systemic factors which may have played a part in bringing this aboriginal offender before the court. As noted in R. v. Collins , there is nothing in the governing cases that places the burden of persuasion on an aboriginal accused to establish a causal link between the systemic and background factors and commission of the offence. At para. 32 of Collins, Rosenberg J.A. stated :

“… s. 718.2(e) and the Gladue approach to sentencing Aboriginal offenders is not about shifting blame or failing to take responsibility; it is recognition of the devastating impact that Canada’s treatment of the Aboriginal population has wreaked on the members of that society.”

[ 38 ] To similar effect are the following passages from Watt J.A. in R. v. Jacko , at paras. 60, 61 and 64 :

“Section 718.2(e) alters the method of analysis a sentencing judge must undertake in their determination of a fit sentence for an aboriginal offender. The sentencing determination must take into account the unique circumstances of aboriginal peoples: Gladue , at para. 75.

As Gladue teaches, it is important to recognize that, for many, if not the vast majority of aboriginal offenders, our current sentencing concepts do not resonate. Frequently, those concepts have not responded to the needs, experiences and perspectives of aboriginal people or aboriginal communities: Gladue , at para. 73.

Restorative justice objectives do not trump other sentencing objectives in every case involving aboriginal offenders. Separation, denunciation and deterrence retain their fundamental relevance for some offenders who commit serious offences. As a general rule, the more serious and violent an offence, the more likely it is that the terms of imprisonment imposed on similarly circumstanced aboriginal and non-aboriginal offenders will not differ significantly, and indeed may be the same. That said, in some instances of serious and violent crime, the length of a sentence of an aboriginal offender may be less than that imposed on an non-aboriginal offender: Gladue , at paras. 79 and 80. Serious crime and the objectives of restorative justice are not incompatibles in the sentencing process – restorative justice objectives may predominate in the sentencing decision for aboriginal offenders convicted of serious crimes: R. v. Wells , 2000 SCC 10 , [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, at para. 49 ; R. v. Whiskeyjack (2008), 2008 ONCA 800 , 93 O.R. (3d) 743, [2008] O.J.. No. 4755 (C.A.), at para. 29 .”

[ 39 ] As noted above, the pre-sentence report sets out in some detail examples of the systemic factors and background circumstances affecting the First Nation community of Sachigo Lake that are relevant to an analysis of a fit and proper sentence for Mr. R.H.T. – colonization, a culture of hunters and gatherers confined to a small, isolated community with minimal economic opportunities, chronic unemployment, loss of culture and identity, the intergenerational effects of residential schools, pervasive substance abuse, the lack of social services.

[ 40 ] Notwithstanding this environment, Mr. R.H.T.’s mother and father have done relatively well. Although there was domestic violence early in their relationship, the couple resolved their problems and have been married for 33 years. They are well-respected in the community. They work as security at the community’s airport and Mr. R.H.T. is a Band Constable, assisting the Nishnawbe Aski Police Services detachment.

[ 41 ] Although Mr. R.H.T.’s immediate family is relatively stable, Mr. R.H.T. is the product of an unstable community. Mr. R.H.T.’s substance abuse problems are long standing. As noted, he began using alcohol and drugs at age 11 and was using them daily by age 13. There can be no doubt that Mr. R.H.T.’s subsequent criminal behaviour has its roots in the systemic factors unique to his life as an aboriginal on a troubled remote northern community. One cannot be addicted to alcohol and drugs as a young child and emerge unscathed as an adult.

[ 42 ] Mr. R.H.T. was sent out of the community to other larger communities for post-secondary schooling. Not unexpectedly, as a daily user of alcohol and drugs, it did not take long for his usage to interfere with his schooling. He was expelled during the years from schools in Sioux Lookout and Thunder Bay.

[ 43 ] To his credit, while incarcerated in 2011, he attended Adult Education and is now one credit short for his Grade 12. His plans to complete his Grade 12 and to move on to Community College fell through when he was arrested on the present charges.

Mitigating and Aggravating Factors

[ 44 ] The mitigating factors on this sentencing can be summarized as follows:

• Mr. R.H.T.’s background and personal circumstances as an aboriginal offender from a remote northern reserve with systemic problems that played a role in these charges. Mr. R.H.T. has been addicted to alcohol and drugs since he was a child. The assault charge on which he is being sentenced was fuelled by alcohol. The factors unique to aboriginal offenders must be taken into account;

• Mr. R.H.T. has pleaded guilty, sparing Ms. S.B. from having to testify and relive the assault and saving the Crown from having to prove the charges;

• Mr. R.H.T.’s expression of remorse;

• Mr. R.H.T.’s willingness to participate in programming for substance abuse, anger management and domestic violence;

• The fact that despite his problems, Mr. R.H.T. has persisted in his attempts to further his education and is now one credit short of his Grade 12, with plans to enrol in college;

• If he returns to his community of Sachigo Lake, he has the support of his parents who can provide him with stability; and

• He is the father of four young children.

[ 45 ] The aggravating factors are as follows:

• Mr. R.H.T. has five previous assault convictions;

• The nature of the present assault, involving punching and kicking, with resulting bruising;

• The fact that Mr. R.H.T. has previously assaulted Ms. S.B.;

• The fact that this latest assault occurred while Mr. R.H.T. was under court order to refrain from contact with Ms. S.B.;

• The fact that Mr. R.H.T. has been in breach of at least four previous court orders; and

• The fact that Mr. R.H.T. has not been able to successfully address a long standing substance abuse problem which fuelled the assault before the court.

[ 46 ] Because of the aggravating factors, the sentencing objectives of separation, denunciation and deterrence and the safety of the community, and of Ms. S.B. in particular, retain their relevance. A custodial sentence is required. The issue is of what length.

[ 47 ] On his most recent sentencing in June 2011, Mr. R.H.T. was sentenced on three separate offences of assault, harassment and another assault, to two, four and four months consecutively, for a total of 10 months.

[ 48 ] In my view, the Crown’s submission for a sentence of effectively 16 months incarceration would not be an appropriate sentence in the circumstances of this case. It would result in a significant jump in the sentences that were most recently imposed on Mr. R.H.T. and would not recognize the remedial purpose of s. 718.2(e) in relation to Mr. R.H.T.’s aboriginal background. It also does not accord with what the Crown, according to its screening form, had initially considered would be appropriate, namely proceeding by way of a summary conviction offence with a maximum penalty of six months custody. I am concerned that Mr. R.H.T.’s assault sentence not be caught up in the sexual assault charge for which no evidence has been presented and of which he has been acquitted.

[ 49 ] I do not agree with the submission of the defence that the charges of breach of recognizance and breach of the non-contact provision of the probation order should both be subsumed in the sentence for the assault by way of a concurrent sentence for both breaches. Mr. R.H.T. has a history of breaching court orders. Breaches carry consequences.

[ 50 ] In my view, appropriate sanctions for these offences for this offender are six months for the charge of assault (count number 3), 60 days consecutive for the charge of breach of recognizance (count number 4) and 30 days concurrent for the charge of breach of probation (count number 5). Mr. R.H.T. shall be credited for time served, which I calculate as of today to be 6 months and 29 days, leaving an effective sentence to be served of 31 days.

[ 51 ] In view of Mr. R.H.T.’s history of assaults on Ms. S.B. and his substance abuse issues, it is also an appropriate sentence that following this term of imprisonment, Mr. R.H.T. be bound by a probation order for a further period of two years. In addition to the statutory terms, the probation order shall include the following additional conditions:

(i) report to a probation officer forthwith upon his release from custody and thereafter as required by the probation officer;

(ii) undertake any counselling and actively participate in treatment recommended by the probation officer, including residential treatment and traditional guidance of a community elder, if deemed appropriate, for substance abuse, anger management and domestic violence;

(iii) reside in an alcohol free residence;

(iv) abstain absolutely from the possession, purchase and consumption of alcohol, controlled substances as defined in the Controlled Drugs and Substances Act and other intoxicating substances of any kind; and

(v) not contact S.B. directly or indirectly by any means except through legal counsel or as set out in a court order under the Children’s Law Reform Act for the purposes of custody of, or access to, his children.

[ 52 ] In addition, an order is made under s. 109 of the Criminal Code prohibiting the accused from possessing any firearm and ammunition, crossbow and explosive substance for a period of five years.

[ 53 ] The Victim Impact Surcharge is waived.

The Hon. Mr. Justice D. C. Shaw

Released: October 11, 2012

COURT FILE NO.: CR-12-0084

DATE: 2012-10-11

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – R.H.T., Accused REASONS ON SENTENCING Shaw J.

Released: October 11, 2012

/mls