ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-1918
DATE: 2013/01/14
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Jason Donald Holmes
Defendant
Matthew Humphreys, for the Crown
Kate Hilbig, for the Defendant
HEARD: January 11, 2013 (in Ottawa)
REASONS FOR DECISION
Parfett J.
[1] The accused, Jason Holmes, was charged on a multiple count indictment. He pleaded guilty to several counts. Those counts were possession of a weapon, specifically a knife; carrying a concealed weapon, specifically pepper spray; possession of a firearm while prohibited; resist arrest; dangerous driving,; driving with more than eighty milligrams of alcohol in 100 millilitres of blood; and possession of stolen property, specifically an ATV. He also had a trial on a single count of robbery contrary to s. 343 of the Criminal Code of Canada.
[2] After his trial, Mr. Holmes was found not guilty of robbery, but guilty of the lesser and included offence of theft. He is now before the court for his sentencing on all charges.
Circumstances of the Offence
[3] In the early hours of the morning of December 31, 2010, Adam Bourbonnais was asleep in his second-floor master bedroom, when he heard a noise in the backyard. He looked out his window and saw someone dressed in a brown snowsuit and wearing a balaclava lying in the snow in his neighbour’s yard and wrestling with something under the barbecue. This person was later identified as Mr. Holmes. Bourbonnais then saw this individual remove the propane tank, place it on the ATV that was immediately outside the back fence of that yard, and then move the ATV until it was behind Bourbonnais’ yard.
[4] As a result of seeing this, Bourbonnais went downstairs to get his cell phone. Once back upstairs, he called 9-1-1. After he finished his conversation with the 9-1-1 call operator, Bourbonnais noticed that Mr. Holmes was waving a firearm in the direction of the rear of his house.
[5] Shortly afterwards, Constable Vo with the Ottawa Police Service (“OPS”) observed Mr. Holmes driving the ATV into the driveway of his residence. Constable Vo immediately told Mr. Holmes that he was under arrest. Mr. Holmes ignored Constable Vo’s commands to get off the ATV. Instead, Mr. Holmes reversed the ATV towards Constable Vo and fled the area. Subsequently, the ATV was found abandoned.
[6] Mr. Holmes was later found fleeing on foot and was stopped by Constable Macmillan of the OPS. At the time of his arrest, Mr. Holmes displayed signs of impairment by alcohol and was arrested for impaired driving.
[7] A search of Mr. Holmes revealed that he was carrying a box of .22 calibre rifle rounds, a hunting knife, pepper spray and the bolt action lever for a rifle. A search of the area led to the recovery of a fully loaded .22 calibre rifle with its bolt action lever missing.
[8] A breathalyser test indicated that Mr. Holmes had between 161 and 174 milligrams of alcohol in 100 millilitres of blood.
[9] At the time of his arrest, Mr. Holmes was subject to a weapons prohibition order.
Circumstances of Mr. Holmes
[10] Mr. Holmes is now 25 years of age; he was 23 in 2010 when these offences occurred. He has a fairly lengthy criminal record although most of the entries are youth-related. Alcohol has long been a problem for Mr. Holmes. He started drinking at 12 years of age. At 13 years old, he started using marijuana and at 15-16 years of age he graduated to ecstasy and cocaine. By 18, he was doing both daily. He was persuaded by a friend to stop using drugs, which he did. However, he began using alcohol more regularly. Mr. Holmes has not used either cocaine or ecstasy since he was 18 years old. However, alcohol remains a problem.
[11] Mr. Holmes went to Harvest House in 2006 where he served a conditional sentence. He spent close to 2 years at Harvest House on that occasion. While he was in Harvest House in 2006, Mr. Holmes achieved his high school equivalency. In early January 2010, Mr. Holmes was diagnosed as bipolar and began receiving medication for that condition.
[12] On this occasion, Mr. Holmes also completed an anger management program while he was in Harvest House. In addition, he participated in a program where he told high school students about his issues with alcohol and the consequences of his alcohol problem.
[13] Recently, Mr. Holmes has decided that a truck driving career is not achievable, so he wants to go to college to study electrical engineering. He has family in Ottawa area, although he is not close to all members of his family. At time of this incident, Mr. Holmes was in a long-term relationship. However, when Mr. Holmes found himself back in custody that relationship ended and he is currently single.
Position of the parties
[14] Defence contends that an appropriate sentence in this matter is two years jail, less pre-sentence custody of 19 months. Both parties agree that pre-sentence custody (PSC) should be calculated as follows: 74 days initially, after which Mr. Holmes was released to reside at Harvest House. He was re-arrested in July 2012 and has spent a further 192 days in custody for a total of 266 days PSC. The only issue with respect to PSC is whether any credit should be given for the time that Mr. Holmes spent in a residential treatment program – Harvest House.
[15] Defence asks that the court take into consideration the fifteen months that Mr. Holmes spent in Harvest House and give him some credit for that time. She argues that Mr. Holmes’ bail conditions were strict while he was in Harvest House. According to Defence counsel, it was a house arrest type situation, but the conditions were actually stricter and it was more akin to a custodial situation given that Mr. Holmes could not leave without a staff member accompanying him. Mr. Holmes was unable to work for the entire time that he was residing at Harvest House. Defence suggests that credit for 10 months is appropriate.
[16] On June 28, 2012, shortly before leaving Harvest House, Mr. Holmes was interviewed on CTV Morning Live about break and enter offences and how homeowners are vulnerable. According to Defence counsel, this video shows how articulate Mr. Holmes can be when he is sober and has his alcohol issues under control. She argues that this video also shows that Mr. Holmes has tried to give back to the community.
[17] Mr. Holmes was asked to leave Harvest House after 15 months and he resumed drinking. However, Defence argues that Mr. Holmes’ time at Harvest House was not for nought. Although Mr. Holmes began drinking again after he left that treatment program, he still managed to remain sober for a lengthy period of time. He has also learned the skills he needs to maintain sobriety when he decides that he is ready to do so.
[18] As a result of resisting arrest Mr. Holmes apparently received bruised ribs and a broken orbital bone.
[19] The Crown is suggesting a sentence of 42 months, less 266 days PSC. He argues that Mr. Holmes should not receive any credit for his time spent at Harvest House. The Crown argued that while credit is sometimes given for time spent under house arrest or similar stringent bail conditions, the court is not obliged to give credit.[^1] Each case rests on its facts. The more stringent the bail conditions, the more likely it is that some credit will be given. However, the offender does not usually receive one for one credit, and the credit given is usually a small fraction of the total time spent on strict bail conditions. The Crown referred to R. v. Downes,[^2] where the offender received five months’ credit for 18 months of house arrest.
[20] The Crown argues that in this case, there is no evidence concerning how onerous the residence condition actually was. Mr. Holmes was able to leave if accompanied by Harvest House staff or a designate, but there is no actual evidence concerning how often he went or what he was permitted to do when he was out of the residence. In addition, the Crown contends that the way in which Mr. Holmes’ time at Harvest House came to an end should also be taken into consideration – he did not ‘graduate’, he was asked to leave and he immediately resumed drinking. Finally, the Crown suggests that if any credit is given, it should be less than 10 months suggested by Defence.
[21] The Crown points to a variety of aggravating factors in this case. Mr. Holmes was carrying a firearm that was loaded and had additional ammunition with him. The Crown argues that case law has made it clear that a firearm has only one purpose – to wound or kill[^3]. This is why possession of a loaded firearm is such an aggravating factor. The serial number of the firearm was ground off making it more difficult to trace. Moreover, he was bound by a weapons prohibition order at the time of the offence.
[22] Mr. Holmes was not only armed with a rifle, he also had a knife and pepper spray with him.
[23] With respect to the dangerous driving offence, Mr. Holmes drove the ATV at a police officer and there was potential for serious injury. He was drunk at the time. In the Crown’s view, racing around a residential neighbourhood on an ATV in order to avoid police and while drunk created a significant danger to himself and those around Mr. Holmes. The ATV was stolen and its identifiers had also been altered. Finally, Mr. Holmes’ blood alcohol level on that night is statutorily considered to be aggravating pursuant to s. 255.1 of the Criminal Code of Canada.
[24] In addition, the Crown indicates that Mr. Holmes’ criminal record shows an ongoing pattern of theft, break and enter, weapons offences, and breaches of court orders.
[25] In the circumstances of this case, the theft occurred while Mr. Holmes was armed with a firearm and was waving it around. According to the Crown, this factor is also aggravating. In all the circumstances, the Crown suggests that 42 months is an appropriate sentence. The Crown acknowledges that this sentence is a significant increase over the last sentence, which was a conditional sentence, but states that Mr. Holmes’ last sentence was generous primarily as a result of his attendance at Harvest House.
[26] Finally, the Crown asks for several ancillary orders – a DNA order, a forfeiture order, s. 109 weapons prohibition for life and a two year driving prohibition with respect to the over 80 conviction. With respect to the ancillary orders, defence is not opposed to the DNA order, the weapons prohibition or the forfeiture order. However, she suggests that an 18 month driving prohibition is more appropriate.
Sentence
Governing principles
[27] Section 718 of the Criminal Code of Canada sets out the governing principles of sentencing. That section 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 provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.
[28] Consideration must be given to any mitigating and aggravating factors in this case. I agree with the Crown that there are a number of aggravating factors that are outlined earlier in these reasons. There are not many mitigating factors. However, consideration should be given to the fact that Mr. Holmes pleaded guilty to a number of charges, thereby showing some remorse. While his struggles with alcohol do not constitute a mitigating factor, I nonetheless take into consideration the fact that Mr. Holmes has tried, and will undoubtedly continue to try, to deal with his substance abuse problems and to remain sober.
[29] In my view, the facts of this case are serious. Moreover, this case is not Mr. Holmes’ first brush with the law. He has a considerable criminal record that shows repeated convictions for property-related crimes, breaches of court orders, weapons offences, resisting arrest and dangerous driving. I agree with the Crown that Mr. Holmes’ most recent sentence was very generous. That sentence was undoubtedly handed down in the expectation that Mr. Holmes had beaten his alcohol addiction and would not come before the courts again. It is now apparent that Mr. Holmes’ struggle with substance abuse will take a lot longer to resolve.
[30] Furthermore, s. 718.1 of the Criminal Code of Canada provides that, “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” while sections 718.2(d) and (e) state, “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;” and “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.”
[31] It is clear from Mr. Holmes’ criminal record that all measures short of imprisonment have been tried. Defence counsel has implicitly accepted that the only option left to the court is imprisonment and I agree. Consequently, 36 months is the appropriate sentence for these offences from which must be deducted any pre-sentence custody. I also agree with Defence that some credit should be given for the fact that Mr. Holmes was subject to stringent bail conditions for a long time. He will be given credit of five months for the fifteen months that he spent at Harvest House. Pre-sentence custody is therefore 416 days or the equivalent of 14 months.
[32] That sentence will be apportioned as follows:
On counts 4 (possession of knife), 7 (carry concealed weapon), 18 (resist peace officer), 20 (dangerous driving), 22 (over 80), 24 (theft) and 25 (possession of stolen property), the sentence will be two years concurrent on each charge; and
On count 15 (possessing a firearm while prohibited), the sentence will be 12 months consecutive to all other charges.
[33] There will also be the following ancillary orders:
Forfeiture order;
DNA order;
Section 109 weapons prohibition order – lifetime; and
A two-year driving prohibition.
Madam Justice Julianne A. Parfett
Released: January 14, 2013
COURT FILE NO.: 11-1918
DATE: 2013/01/14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Jason Donald Holmes
Defendant
REASONS FOR Decision
Parfett J.
Released: January 14, 2013
[^1]: R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81
[^2]: 2006 3957 (ON CA), [2006] O.J. No. 555 (C.A.)
[^3]: R v. Felawka, 1993 36 (SCC), [1993] 4 S.C.R. 199 at para. 21.