COURT FILE NO.: 09-30325

DATE: 2013/10/22

ONTARIO

SUPERIOR COURT OF JUSTICE

PUBLICATION BAN IN EFFECT UNDER S. 486.5 OF THE CRIMINAL CODE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TOBY LITTLE OTTER LAND

Accused

David Elhadad and Carl Lem, for the Crown

Anne London Weinstein and Neil Weinstein, for the Accused

HEARD: June 18, 2013, September 9, 2013

REASONS FOR JUDGMENT ON SENTENCING

Aitken J.

Introduction

[1] On November 9, 2012, a jury found Little Otter Toby Land guilty of second degree murder in regard to the death of Dominic Doyon on May 4, 2009. Pursuant to s. 745(c) of the Criminal Code, R.S.C. 1985, c. C-46, the Court is obliged to impose a sentence of life imprisonment against Mr. Land with no possibility of parole for at least 10 years. The sole issue for the Court to determine is whether, under s. 745.4 of the Code, the period of parole ineligibility should be increased to more than 10 years, with the maximum possible period of parole ineligibility being 25 years. The Crown asks for a period of parole ineligibility of 15 years. The Defence asks for the mandatory minimum period of 10 years.

Legal Framework

[2] In considering whether to increase the period of parole ineligibility beyond 10 years, the Court must have regard to the nature of the offence, the circumstances surrounding its commission, the character of the offender, and the recommendation made by the jury pursuant to s. 745.2 of the Code. Ultimately, the Court must decide what period of parole ineligibility is fit in the circumstances. As the Supreme Court of Canada stated in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37:

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. ... Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender.

[3] In R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227 at para. 23, the Supreme Court of Canada confirmed that prevention, deterrence, retribution and rehabilitation are all factors to consider when applying s. 745.4 of the Code; and the relevant importance of each of these factors will vary according to the nature of the crime and the circumstances of the offender. In this way, s. 745.4 dovetails with the fundamental purpose of sentencing and the objectives it is meant to address, as expressed in ss. 718 and 718.2 of the Code. In regard to sentences for manslaughter or second degree murder, it has been stated in numerous cases that denunciation, deterrence, and ensuring the safety of the public are particularly pressing objectives. That being said, rehabilitation of the offender may also be an important objective in appropriate cases.

[4] Mr. Land is of Aboriginal heritage. Consequently, pursuant to s. 718.2(e) of the Code, the Court must pay particular attention to his circumstances as an Aboriginal person in considering whether there are any available sanctions, other than imprisonment, that would be reasonable in this case. The life sentence portion of the sanction imposed for second degree murder is mandatory and is not subject to reconsideration due to Mr. Land’s Aboriginal status. However, the parole ineligibility portion of the sentence is within the discretion of the Court, and the principles enunciated in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688 and in Ipeelee regarding the sentencing of Aboriginal offenders must inform the exercise of that discretion (R. v. Jensen (2005), 2005 7649 (ON CA), 74 O.R. (3d) 561 (C.A.) at para. 28). More will be said shortly about this issue.

[5] In Shropshire, at paras. 27, 29, 31, Iacobucci J. offered guidance as to how frequently the 10-year parole ineligibility period for second degree murder might be increased in the appropriate exercise of discretion under s. 745.4:

... [A]s a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744 [now s. 745.4], the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be “unusual”, although it may well be that, in the median number of cases, a period of 10 years might still be awarded.

... In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability...

Nature and Circumstances of the Offence

The context for the attack

[6] At the time of the events giving rise to Mr. Land’s second degree murder conviction, Mr. Land was 24, his co-accused, Mr. St-Cyr, was 32, and the victim, Mr. Doyon, was 33. All have Aboriginal heritage. Mr. Land and Mr. St-Cyr had been friends for many years. In September 2008, Mr. St-Cyr met Mr. Doyon at an Aboriginal centre. Shortly thereafter, Mr. Doyon offered to let Mr. St-Cyr move into his apartment and share the rent. In approximately February 2009, with the consent of Mr. Doyon, Mr. Land started to share Mr. St-Cyr’s bedroom a few times a week. In return, he would buy some food and share in some other expenses in the apartment. At the time, Mr. Land was gainfully employed, Mr. Doyon was on disability, and Mr. St-Cyr was on social assistance.

[7] Mr. Land and Mr. Doyon were not friends. An incident had occurred in early March 2009 where Mr. Land accused Mr. Doyon of having stolen one of his marijuana joints, and Mr. Doyon had scratched Mr. Land’s face and gums quite badly. As well, Mr. Land accused Mr. Doyon of pocketing rent money that Mr. Land had given him on behalf of Mr. St-Cyr. Finally, Mr. Land was upset with Mr. Doyon for having inappropriate relationships with young girls.

[8] In February 2009, Mr. Doyon became romantically involved with J. G-M. At the time, Ms. G-M. was only 14 years of age. When Mr. Land found out her age, he told her to leave the apartment. Mr. Land spoke to Mr. St-Cyr about the situation and Mr. St-Cyr undertook to speak to Mr. Doyon. Mr. St-Cyr told Mr. Doyon that it was inappropriate for him to be in a sexual relationship with a 14-year old. When Mr. Doyon and Ms. G-M. realized that their relationship was highly disapproved of by Mr. St-Cyr and Mr. Land, they tried to give the impression that they were just friends and were no longer romantically involved.

[9] Early in the evening of May 4, 2009, Mr. Land arrived home from work and found Mr. Doyon and Ms. G-M. together on the couch in circumstances that suggested to Mr. Land that they were in a sexual relationship. When he went into the bedroom to see Mr. St-Cyr, Mr. Land was clearly upset. The two men decided they needed some beer. While Mr. St-Cyr went to the liquor store, Mr. Land stayed outside the apartment building to make sure that Ms. G-M. left without Mr. Doyon.

[10] Mr. Land and Mr. St-Cyr passed the evening in their bedroom, drinking beer and playing on the computer. It is unclear exactly how many beer Mr. Land had consumed prior to the attack on Mr. Doyon. Based on all of the evidence, I am satisfied that he had consumed several beer in quick succession, and his level of intoxication would have acted as a disinhibitor in regard to his emotional reactions and impulse control. That being said, the jury decided that Mr. Land’s level of intoxication, either alone or in conjunction with other factors, did not prevent him from having the necessary mental state for murder.

[11] At around 11 p.m., Mr. Land went into the living room and angrily confronted Mr. Doyon about his relationship with Ms. G-M., calling him a diddler. Mr. Land feared Mr. Doyon’s reaction and had a hammer in his hand to use in case the confrontation with Mr. Doyon became physical. According to Mr. Land, Mr. Doyon grabbed a sword that he had between the pillows of the couch and started to stand up. At that point, Mr. Land started to hit Mr. Doyon with the hammer.

[12] I cannot glean from the jury’s verdict whether, when Mr. Land approached Mr. Doyon, Mr. Doyon was sitting as opposed to lying on the couch, whether Mr. Doyon had the sword close by, or whether Mr. Doyon went to use the sword. On my assessment of the evidence, the Crown failed to prove beyond a reasonable doubt that, when Mr. Land first struck Mr. Doyon with the hammer, Mr. Doyon was unarmed, was lying on the couch, or was asleep – all of which, if proven, would have been aggravating factors.

The attack on Mr. Doyon

[13] The attack on Mr. Doyon on the evening of May 4, 2009, as he sat or lay on the couch in his living room, was brutal and unrelenting. According to Dr. Christopher Milroy, the forensic pathologist, Mr. Doyon sustained 83 injuries and four stab wounds – the one through his heart causing death within 15 to 30 seconds. It was established at trial that most of the injuries were caused by hammer blows to Mr. Doyon’s limbs, torso and head, with two such blows to the head being so severe that they caused fractures and brain damage, and likely resulted in Mr. Doyon becoming unconscious. There were approximately six or seven blows from a crutch, most being on Mr. Doyon’s head and face. Dr. Milroy testified that the hammer and crutch injuries likely occurred before the stab wounds, though the crutch injuries could have occurred very quickly after the fatal stab wound. He estimated that the period of time from the first brain injury to death would have been only a few minutes – possibly five to ten. The forensic evidence supports the conclusion that Mr. Land was in a frenzy when he repeatedly beat Mr. Doyon, and Mr. Doyon was unable to defend himself in any effective manner.

[14] At the commencement of trial, Mr. Land pled guilty to manslaughter and acknowledged that he had caused Mr. Doyon’s death unlawfully. He testified that he had repeatedly hit Mr. Doyon with the hammer, but that it had been Mr. St-Cyr who had hit Mr. Doyon with the crutches and who had stabbed Mr. Doyon with the sword. When providing his initial statement to Detective Gordon following his arrest, Mr. Land had said that he had been the one to stab Mr. Doyon with the sword, and that Mr. St-Cyr had come into the room when this was happening and had taken the sword out of his hand. He had stated that Mr. St-Cyr had then hit Mr. Doyon with the crutches.

[15] In his testimony at Mr. Land’s trial, Mr. St-Cyr asserted that he had been the one who had used both the crutches and the sword on Mr. Doyon, after he had seen Mr. Land hitting Mr. Doyon with the hammer. His credibility in this regard was challenged. At the time of his own trial, Mr. St-Cyr had relied on an Agreed Statement of Facts when he pled guilty to manslaughter in the death of Mr. Doyon. It stated that Mr. Land had stabbed Mr. Doyon with the sword and Mr. St-Cyr had hit Mr. Doyon with the crutches.

[16] It is impossible to determine from the guilty verdict at Mr. Land’s trial what conclusion the jury arrived at as to who stabbed Mr. Doyon with the sword in that Mr. Land acknowledged that he had contributed to Mr. Doyon’s unlawful death, at least through inflicting the hammer blows, and this left only his mental state in issue. On my assessment of the evidence, the Crown did not prove beyond a reasonable doubt that Mr. Land had wielded the sword.

[17] At trial, Mr. Land did not argue self-defence or extreme intoxication. He did argue that the extreme anger he felt toward child molesters and the extreme fear he felt when Mr. Doyon went for the sword robbed him of the ability to form the requisite state of mind for murder. The jury’s verdict made it clear that, regardless of the level of anger or fear being experienced by Mr. Land at the time, the jury concluded that he still had one of the requisite mental states for murder.

Mr. Land’s behaviour after the attack

[18] Following the attack, Mr. St-Cyr directed Mr. Land into the bathroom and helped him wash up. Mr. Land appeared to be in a daze at the time. Mr. St-Cyr told Mr. Land that they had to pack some clothes and get out of the apartment. Mr. Land put some clothes and the hammer in a bag, and both men put the sword in the bag. On leaving the apartment, Mr. St-Cyr told Mr. Land to wear a hat and cover his face so that the security cameras could not identify him. Before leaving, the men took no steps to get any help for Mr. Doyon. When the police later arrived at Mr. Doyon’s apartment, they discovered that the phone line had been cut. The Crown did not prove beyond a reasonable doubt that this had been done by Mr. Land.

[19] After Mr. Land and Mr. St-Cyr left Mr. Doyon’s apartment, they took a taxi to a housing project where friends of Mr. Land lived. In the Agreed Statement of Facts used at his trial, Mr. St-Cyr admitted that he had disposed of the sword and sheath down a sewer grate in the housing project. Mr. Land testified to the same effect at trial, though initially, he had told Detective Gordon that he had been the one to dispose of the sword. The Crown has persuaded me beyond a reasonable doubt that, whether or not Mr. Land actually disposed of the sword, he was either present at the time or, at the very least, was aware that the sword was being disposed of. Mr. Land made no attempt to dispose of the hammer.

[20] Mr. St-Cyr went to a bar and drank and sang karaoke until closing time before returning to Mr. Doyon’s apartment, where the police arrested him. At the time of his arrest, Mr. St-Cyr had in his possession a prepaid credit card of Mr. Doyon’s. The crime scene photographs showed that Mr. Doyon’s wallet had been gone through and had been left on the couch. The Crown did not prove beyond a reasonable doubt that Mr. Land had robbed, as well as killed, Mr. Doyon.

[21] Mr. Land changed his clothes and made his way to a local grocery store where he persuaded the staff to call the police and tell them to come and arrest him because he had done something very bad. Mr. Land had with him the bag with his bloodied clothes and the hammer. He opened the bag and put some clothes on the sidewalk in plain view of the police. Mr. Land waited almost 20 minutes for the police to arrive. He told them to arrest and handcuff him because he had seriously hurt someone. Hoping against hope that something could be done to save Mr. Doyon, Mr. Land urged the police to send emergency personnel to Mr. Doyon’s apartment right away. Once in the police cruiser, Mr. Land broke down and sobbed. After being taken to the police station and speaking with a lawyer, Mr. Land was, at first, reluctant to explain to the police what had happened. Under the expert hand of Detective Gordon, Mr. Land soon broke down and recounted the evening’s horrific events. It is heart wrenching to watch the video of this interview and to experience the level of remorse and despair expressed by Mr. Land.

Impact on Mr. Doyon’s loved ones

[22] The death of Mr. Doyon in such horrific circumstances has had a profound effect on his mother and brother and has robbed his daughter of the opportunity of sharing significant events in her life with her father.

[23] Mrs. Doyon described her son, Mr. Doyon, as being a good man with a big heart who liked to help others – a description that resonated with his friends who testified at trial. His life had not been easy, losing his father in a drowning accident when Mr. Doyon was only 10 years old, getting testicular cancer and enduring months of chemotherapy and radiation therapy, and suffering from generalized anxiety and panic attacks. Mrs. Doyon described Mr. Doyon as a rock in her life, providing her with on-going emotional support, and simply being there when he was needed. Mrs. Doyon misses him terribly and feels endless sadness and overwhelming anger. She wonders if she will ever find peace in her life.

[24] Mr. Doyon’s brother, Maxime, also described the anger and sadness that now plague him, and how he feels numb as a result of his brother’s tragic death. Mr. Doyon had provided Maxime with much support during his troubled past, and had always believed in him. Maxime has been able to turn his life around since Mr. Doyon’s death but, sadly, Mr. Doyon is not here to witness that.

[25] Rachel Lapensée, Mr. Doyon’s former spouse, described the loss experienced by her children, Yannick (18) and Nikita (13). Mr. Doyon had been a male role model for Yannick, who was five when Mr. Doyon came into his life, and Mr. Doyon continued to take an interest in Yannick following the breakdown of Ms. Lapensée and Mr. Doyon’s relationship. Nikita misses her father very much – especially at significant events in her life – such as her winning a Canada-wide bowling tournament recently. Her father will never be there to share such experiences.

[26] The death of a son, brother, or father is always a traumatic event with long-lasting effects; however, that is all the more so when the death is sudden, violent, and so totally uncalled for. But as difficult as it is to comprehend how one human being could unleash such fury on another, when one considers the life experiences of Mr. Land and his parents and ancestors, one can understand how a person may be filled with rage and have difficulty controlling it. This brings me to a consideration of Mr. Land’s Aboriginal heritage and the impact it has on the choice of the period of parole ineligibility.

Aboriginal Offenders

[S. 718.2(e)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec718.2_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[27] In 1996, specific reference to Aboriginal offenders was added to s. 718.2(e) of the Code because of the dramatic over-representation of Aboriginal offenders in Canadian prison populations. As explained in the October 22, 2012 report of the Office of the Correctional Investigator entitled “Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act”,[^1] in the last 15 years, this statistic has only worsened.

[28] In sentencing an Aboriginal offender, a sentencing judge must consider the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts, and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for that offender because of his or her particular Aboriginal heritage or connection (R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, at para. 66). As LeBel J. explained in Ipeelee, at para. 60:

[C]ourts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and...higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. [Emphasis in original.]

[29] The purpose of sentencing an Aboriginal offender is the same purpose that applies to all sentencing: “to promote a just, peaceful and safe society through the imposition of just sanctions that, among other things, deter criminality and rehabilitate offenders, all in accordance with the fundamental principle of proportionality. Just sanctions are those that do not operate in a discriminatory manner” (Ipeelee, at para. 68). Section 718.2(e) of the Code does not require “an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is Aboriginal” (Gladue, at para. 88). The sentencing judge must consider all relevant circumstances and factors in regard to the offender, including what type of sentence would be meaningful to the offender, recognizing that not all offenders and not all communities share the same values or perceptions regarding what would be meaningful and appropriate sentences. The more serious and violent the offence, the greater the likelihood that sentences for Aboriginals and non-Aboriginals will be the same or close to each other (Gladue, at para. 79).

[30] An Aboriginal offender does not have to establish a causal link between the systemic and background factors and his or her commission of the offence. Section 718.2(e) of the Code requires the sentencing judge to “give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts” (Gladue, at para. 69). However, as clarified in Ipeelee, at para. 83: “This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.”

[31] It is distressing that the local probation office in Ottawa was unable to incorporate Gladue considerations in the initial pre-sentence report prepared for Mr. Land. The Court was advised that the office does not currently have adequately trained personnel to prepare such reports. Section 718.2(e) of the Criminal Code provides hollow protection to Aboriginal offenders if services are not available throughout the country to provide meaningful Gladue reports. As a result of the inadequacy of the initial pre-sentence report, there was a further delay in the sentencing hearing in order to have a Gladue report prepared by personnel associated with the Aboriginal Legal Services of Toronto. The report was comprehensive, well-written, and invaluable – my one criticism being that the author should avoid leading questions when interviewing an offender or collateral personnel. The Crown did not challenge any of the factual assertions in the Gladue report.

Mr. Land’s unique circumstances

[32] If ever there was a case where the systemic factors affecting Aboriginals in this country, as experienced in the life of an Aboriginal offender, played a role in bringing that Aboriginal offender before the court, it is this case.

[33] Mr. Land was born in Ottawa on June 2, 1984 to an Ojibway mother and Inuit father. In all, his parents had five children together in five years, starting when Mr. Land’s mother was only 19 years old. Mr. Land was the second oldest. He had one brother two years older, twin brothers a year younger, and another brother two years younger. Ten years after Mr. Land’s birth, his mother had a daughter by another father. Mr. Land’s mother was unable to cope with all of these children, and their childhood was characterized by neglect, disadvantage, and abuse.

[34] Mr. Land’s father, who was born to Inuit parents in Igloolik, Nunavut, was removed from his home to attend a residential school in Chesterfield Inlet when he was six or seven. He experienced extreme homesickness while at the institution. His older sister, whom he loved very much, was also at the school, but he was not allowed to interact with her. His older brother had been sent to another institution. The children were taught in English and were made to practise the Roman Catholic faith. They were given food they were not used to. They were not allowed to be outside to the extent they had been at home. A priest sexually abused the young boys of six, seven, or eight, including Mr. Land’s father. They were told not to tell anyone what had happened, and they were forced to pray after the incidents. It took years before Mr. Land’s father was able to tell his parents and other community elders what had happened and before the priest in question was sent away. When Mr. Land’s father was at residential school, his life was completely regimented, and independent thought and actions were not allowed. When he returned home to his parents, he had trouble making independent decisions and fitting back into the life to which he had been accustomed as a young child. When testifying before the Truth and Reconciliation Commission, Mr. Land’s father acknowledged that it had taken him many, many years to try to process what had happened to him at the residential school. His life since his teenage years has been characterized by alcohol and drug abuse, violence, criminality, unemployment, instability, and periods of homelessness.

[35] In Pathways to Healing: A Mental Health Guide for First Nations People, published by the Canadian Collaborative Mental Health Initiative, the effects of unresolved issues of trauma and abuse experienced by survivors of the residential school system are described as follows:

As these residential school children grew up, most of them did not have the skills, knowledge, or emotional strength to parent their own children. In many communities, our next generation of children were raised in families with chaos, substance abuse, and violence... Parents, unable to care for themselves, leave children to care for each other. Kids turn to alcohol, drugs, unsafe sex, and acting out as a means of coping and numbing their pain. This is how they see their parents cope ... Violence has replaced the true strength that comes from knowing who you are as a person and as a people: to know where one belongs in the world; to find one’s place and create a healthy space.[^2]

[36] Mr. Land’s mother did not attend residential school, but both of her parents did. In 1964, when she was two years of age, she and her two older brothers were apprehended from their parents by the child welfare authorities as part of what has become known as “the Sixties Scoop”. During the sixties, non-Aboriginal child welfare authorities apprehended Aboriginal children at an alarming rate. Most were placed in non-Aboriginal foster or adoptive homes or institutions. Mr. Land’s mother was adopted by a non-Aboriginal family. There were three biological children and two adopted children in the family. The parents were strict and believed in physical punishment. The farming community in which the family lived did not make Aboriginal children feel welcome. At the age of five, Mr. Land’s mother started running away from home, in part to find her birth family. Between the ages of 11 and 13, Mr. Land’s mother was sexually abused by one of her adoptive brothers. When she told her adoptive parents what was happening, they did not really believe her. Mr. Land’s mother lived at a foster home between the ages of 13 and 17. She began drinking by 15 years of age and by 16 was drinking a lot. She left the foster family when she was 17 and made her way to Ottawa. She finished high school, but shortly thereafter met Mr. Land’s father and became pregnant with their first son.

[37] The relationship of Mr. Land’s parents was marred by instability, alcohol abuse, violence, and child neglect.

[38] Mr. Land’s parents moved to Igloolik after their first son was born, moved back to Ottawa before the birth of Mr. Land, and moved back to Igloolik following the birth of the twins. Mr. Land’s mother then relocated to Ottawa with the four boys after a particularly violent incident with Mr. Land’s father. She was pregnant with their fifth son at the time. The life of Mr. Land’s mother and the children continued to be one with frequent moves, instability in living arrangements, and uncertainty in having basic needs met. For a brief period of time, Mr. Land’s mother tried working for an Inuit Housing organization. Due to inadequate daycare, she quit this position and went on social assistance. Money was always scarce. There were periods when the family had very little food. They were evicted from their home on a couple of occasions. Mr. Land’s father did not contribute financially to the support of his children. The family relied heavily on the support of Bill Brant, a support worker at the Shawenjeagamik Aboriginal Drop-in Centre, and Albert Dumont, an Aboriginal elder.

[39] Mr. Land’s four grandparents were alcoholics. His parents are alcoholics. Mr. Land’s mother continued to drink during the first three to four months of her pregnancy with Mr. Land. Following his birth, she resumed drinking and only gained sobriety when Mr. Land was about four years of age. It is likely that Mr. Land suffers in some fashion from Fetal Alcohol Syndrome Disorder, though this has not yet been established through testing. Mr. Land’s father has abused alcohol throughout his life. All of Mr. Land’s brothers have drug and alcohol issues. Mr. Land started to use alcohol and marijuana when he was about 14 years of age. Aside from a one-year period when he was 21 and was attending AA, Mr. Land continued to use both substances until the time of his arrest for Mr. Doyon’s murder. Mr. Land’s dependence on alcohol and marijuana has made it difficult for him to have stable employment and stable relationships.

[40] Mr. Land’s mother was subjected to serious physical abuse by his father starting during her pregnancy with Mr. Land’s older brother and continuing until she left Mr. Land’s father after a violent episode in Igloolik, when Mr. Land was approximately 16 months old. Mr. Land’s father was drinking and fighting with other members of his family. Mr. Land’s mother tried to leave with the four boys under her care at the time. Mr. Land’s father attacked his mother, knocking her to the ground. Mr. Land was on his mother’s back in an amauti. His father repeatedly kicked Mr. Land and his mother. A neighbour heard her screams and contacted the RCMP. When the police arrived, Mr. Land’s father was standing over Mr. Land’s unconscious mother with a hunting knife. Mr. Land’s mother believes that his father would have killed her if the police had not intervened when they did. It is possible that Mr. Land suffered a brain injury as a result of the fall and beating. This could not be determined at the time because all that was available in the community where they were living was basic nursing care. Mr. Land’s mother left his father after this incident and has not resided with him since.

[41] In December 1985, shortly after Mr. Land’s mother had returned to Ottawa with the boys, she was found on the street, intoxicated, holding Mr. Land, who was not properly clothed for winter weather. According to Mr. Land’s mother, a cousin of Mr. Land’s father had tried to rape her in her bedroom, where the boys were also sleeping. She wanted to get help, but did not have a telephone. She went out to find a pay phone and took Mr. Land with her because he was awake. She left the other three infants asleep in the room. Passersby contacted the Children’s Aid Society and, when Mr. Land’s mother returned to her apartment, Society workers were there and apprehended the four boys. Mr. Land and his older brother were returned after weeks in foster care. The twins stayed in hospital for about three months because they were sick.

[42] This event occurred shortly before Jordan was born. Mr. Land’s mother recalls that, over the next year, she drank a lot. She was a binge drinker who would go out for two or three days at a time, leaving the children with babysitters. Some of the babysitters were physically abusive with the children. In addition to her alcoholism, Mr. Land’s mother was emotionally fragile and had considerable difficulty maintaining a home and caring for her five sons. The Children’s Aid Society remained involved with Mr. Land’s mother and the children throughout Mr. Land’s childhood.

[43] Mr. Land’s father followed his mother to Ottawa and continued to be a presence, albeit a negative one, in their lives. When Mr. Land’s father was around, the children would visit him. Mr. Land recalled that when he was four or five, his father sexually abused him on two occasions. Even though Mr. Land was physically hurt on the first occasion, he did not fight his father on the second occasion because he did not want his father to do the same things to his brothers instead of himself. Mr. Land’s mother found out about the sexual abuse when Mr. Land was 12 or 13 years of age. She recalled that the events took place when Mr. Land was between eight and 10 years of age, which I consider more likely. The police were notified but did not take the allegations seriously, and Mr. Land’s father was never charged. But sexual abuse had found its way into the next generation. When Mr. Land’s younger sister was about 10 years of age, she was taken into the care of the Children’s Aid Society as a result of sexual abuse she suffered at the hands of her older twin brothers. She has lived with a non-Aboriginal family since that time and reportedly is doing well.

[44] When the boys were older and were with their father, they had access to alcohol and drugs, and their father did nothing to discourage them from using either.

[45] Racism and discrimination darkened Mr. Land’s life as a child. For about eight years, the Land family lived in Inuit Housing in a predominantly non-Aboriginal neighbourhood. The Aboriginals were not welcome, and the neighbourhood harassed them and took legal measures to try and get them to leave. Mr. Land was targeted and bullied throughout grade school by other students and some teachers. The parents of non-Aboriginal children did not want their children playing with an Aboriginal child. When he was very young, Mr. Land had food and rocks thrown at him at school. He was spat on, kicked, and punched, and had his hair pulled. When he defended himself, he got into trouble. At his first school, Mr. Land had one good non-Aboriginal friend but, sadly, that friend died when he was in grade two. Mr. Land linked his death to his friendship with Mr. Land and somehow felt responsible. As Mr. Land got a bit older, he took on the role of protector of his younger brothers and his friends. That often resulted in his being disciplined or suspended.

[46] Mr. Land struggled in school. As a young child, he had recurrent ear infections and developmental difficulties related to speech and language development. He was held back in grade two. Although Mr. Land made it through elementary school, he lasted only a few days in high school. He dropped out of school to work at odd jobs. It was at this point that he started drinking to excess, smoking marijuana, living on the street as much as he was living at home, and getting into a life of crime along with his brothers.

[47] According to Albert Dumont, the Land family was a very dysfunctional family, with neither parent being able to be a positive role model for the boys. Mr. Land’s mother turned a blind eye to what her sons were becoming involved in and did not have the emotional capacity to provide good nurturing to her children. The children were “out on the street” at an early age. Mr. Land’s father was absent for much of his children’s lives and was drunk and violent with them when he was around. Mr. Brant and Mr. Dumont both recalled how difficult it was for the Land boys to stick to anything or to hold down jobs. In that regard, substance abuse played a big role but also the twins were both diagnosed with schizophrenia.

[48] The more the Land brothers became involved with the criminal justice system, the more they were subjected to harassment, beatings, and illegal searches by some police officers in Vanier, experiences which the Land family, Bill Brant, and Albert Dumont interpreted as being racially motivated. This resulted in formal complaints being lodged with the Chief of Police. Things improved to a point, but not to the extent that Mr. Land developed any trust in the police.

Mr. Land’s Character

Dr. Gojer’s psychiatric report

[49] Dr. Julian Gojer, a forensic psychiatrist, met with Mr. Land during the course of the trial, arranged for him to have psychological testing, reviewed much of the evidence from the trial, and spoke to collateral sources. His conclusions can be summarized as follows:

• Mr. Land has above average non-verbal intelligence and low-average verbal intelligence, and the difference could be attributed to poor education, a childhood brain injury, or a learning disability.
• Mr. Land has difficulty changing a mental set and profiting from correction.
• Mr. Land was not suffering from a major depression, any delusional disorder, or a borderline personality disorder; however, he was depressed and sad and had a discouraged outlook on life.
• Mr. Land likely suffered from Post-Traumatic Stress Disorder.
• Mr. Land suffered from both an Alcohol Dependence Disorder and Cannabis Abuse, but both were in remission while he was incarcerated.
• Mr. Land had a personality disorder with antisocial traits as evidenced by his antisocial behaviour during adulthood.
• Mr. Land has some speech and hearing problems.
• Mr. Land has some subtle brain damage in the form of executive deficits that can impact on planning, judgment, complex reasoning, and impulse control. This brain damage could be related to Fetal Alcohol Syndrome Disorder, the head injury he suffered as an infant, or chronic alcohol use. The brain damage could result in a tendency to be impulsive and more disinhibited when under the influence of alcohol.

Mr. Land’s criminal record

[50] Mr. Land’s criminal record dates back to September 1999, when he was 17 years old and was convicted of two break and enters, an assault, uttering threats, failure to attend court, and failure to comply with a disposition. In 2000, still as a youth, he was convicted of three robberies, escape lawful custody, and failure to comply with an undertaking. As an adult, prior to this conviction, Mr. Land had seven convictions for failure to comply with a disposition, failure to attend court, or failure to comply with a recognizance. He had one conviction for being the occupant of a motor vehicle taken without consent, one for possession of a scheduled substance, and two for assault. Mr. Land’s youth sentences mostly involved open custody and probation. His adult sentences were mostly suspended sentences and probation or custodial sentences of a matter of days and probation.

[51] While Mr. Land was in the Ottawa-Carleton Detention Centre waiting the completion of this trial, he viciously attacked another inmate whom he understood to be a child molester. Before this incident, Mr. Land had asked the correctional staff to move the other inmate to another range because he warned that he could not control himself in the presence of a child molester. The correctional authorities did not move the other inmate. A short time later, when Mr. Land and the other offender were in a communal area, Mr. Land approached the other inmate from behind, beat him with his fists and, once the other inmate was on the ground trying to protect himself, continued to beat him until he was pulled off him by correctional staff. The attack was sudden, unprovoked, and brutal. Mr. Land pled guilty to assault causing bodily harm and was sentenced to eight months incarceration.

[52] Aside from this last offence, Mr. Land’s criminal record is consistent with what one might expect of someone addicted to drugs and alcohol, living on the street, and lacking social support and stability. The murder of Mr. Doyon and the assault on the other inmate are in a different category. It would seem that, when Mr. Land is confronted with someone whom he believes is or has been sexually abusing children, an underlying rage surges to the surface and takes over his actions. This is probably the result of the sexual assaults Mr. Land suffered at the hands of his father. Those he attacked became his father’s surrogates and suffered the brunt of his rage. This assessment is consistent with the psychological profile outlined by Dr. Gojer. It is also consistent with much of the evidence presented about Mr. Land’s character and the protective role he has assumed within his family and with his friends.

[53] The eruption of Mr. Land’s rage in the presence of those he suspects of sexually abusing children also fits with the evidence that Mr. Land’s father was never held accountable for the harm he caused Mr. Land, the police did not take Mr. Land’s allegations seriously, and Mr. Land never received adequate counselling to assist him to cope with what had happened to him, in part due to the limited funding available for such interventions. Mr. Land continues to suffer from flashbacks and intrusive thoughts about the abuse he suffered at the hands of his father.

Other evidence regarding Mr. Land’s character

[54] Mr. Land described how he has historically stepped in to protect his younger siblings if they were being hurt or threatened by others. This included his going with his father the second time his father sexually assaulted him so that his father would not take one of his younger siblings. Mr. Land’s younger sister described how Mr. Land would take on a caregiving role toward her when her mother, for whatever reason, was unavailable. He volunteered at her school, would pick her up from school, and would take her wherever she needed to be. She described him as being very kind and always trying to help out. Mr. Land volunteered at numerous places that helped disadvantaged people, including the Ottawa Food Bank and the Odawa Friendship Centre. Staff at the Odawa Centre remembered how helpful and approachable Mr. Land had been there. After Mr. Land left school, he did babysitting, shovelled snow, and did various other odd jobs to help support the family. Later, he obtained casual employment in the courier, construction, landscaping, and roofing industries. Mr. Land’s friends, Jocelyn Cayer and Josée Ethier, described Mr. Land’s generosity with the money he had earned, giving them bus money and bringing over food for their children. In fact, on the morning of May 4, 2009, Mr. Land had made breakfast for Ms. Ethier’s family before heading to work.

Recommendation of the Jury

[55] The jury unanimously recommended that the period of parole ineligibility be 10 years. Jury recommendations need not be slavishly followed in that jurors, though aware of all of the evidence presented at trial, are not aware of the further evidence available on sentencing or of the jurisprudence relating to the calculation of the period of parole ineligibility. (See R. v. Barry, [1991] O.J. No. 2666 (S.C.J.) aff’d [1993] O.J. No. 3955 (C.A.); R. v. McKnight (1999), 1999 3717 (ON CA), 44 O.R. (3d) 263 (C.A.) at 278; R. v. Jensen (2005), 2005 7649 (ON CA), 74 O.R. (3d) 561 (C.A.) at para. 29). That being said, a unanimous recommendation for parole ineligibility of 10 years following a graphic trial involving a brutal murder does suggest that the jury, as representatives of society, saw reasons to reduce Mr. Land’s moral culpability for the murder he committed. The jury heard evidence about the sentence given to Mr. St-Cyr, and I am confident that they gave that consideration in arriving at their recommendation.

Plea and Sentence of Co-Accused, Carl St-Cyr

[56] Initially, Toby Land and Carl St-Cyr were charged with first degree murder. Following a preliminary hearing, they were committed to stand trial on second degree murder. In January 2012, with the consent of the Crown, Mr. St-Cyr pled guilty to manslaughter. He received a seven and a half year sentence. With two for one credit for time served, Mr. St-Cyr’s remaining sentence was two years less a day, with a statutory release date of August 12, 2013. In sentencing Mr. St-Cyr, Lalonde J. ordered that his term of imprisonment be followed by an eight-week program at the Mamisarvik Centre, followed by a one-year residency in the Centre’s treatment facilities, and three years of probation.

[57] Mr. St-Cyr’s Pre-Sentence Report is not that dissimilar from Mr. Land’s. Mr. St-Cyr is of Inuit/French Canadian heritage. Both of his parents were alcoholics. His father was physically abusive. Mr. St-Cyr was in foster care from age six to age twelve and was then in a juvenile detention centre. He started committing criminal offences by 14 years of age. His life was marred by unstable living arrangements, alcohol and drug abuse, criminal activity, anger management issues, and repeated periods of incarceration. Most of Mr. St-Cyr’s offences related to automobile thefts and other property offences, though three involved assaults. His response to community supervision was poor and he made minimal efforts to deal with his emotional and substance abuse issues.

[58] A basic sentencing principle is that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” (Code, s. 718.2(b)). Regardless of who ultimately wielded the sword, the accounts of both Mr. Land and Mr. St-Cyr support the conclusion that Mr. Land initiated the attack on Mr. Doyon and was the most persistent attacker. Mr. St-Cyr was assumed to be the secondary actor and was convicted of manslaughter, an offence carrying less moral culpability than second degree murder. Mr. St-Cyr’s sentence reflected that reduced culpability. Nevertheless, Mr. St-Cyr actively participated in assaulting Mr. Doyon, did not seek help for Mr. Doyon, helped Mr. Land to flee the scene, and participated in disposing of the sword. In these circumstances, would it be appropriate, as the Crown asserts, for Mr. Land to be incarcerated for a minimum period that is twice as long as Mr. St-Cyr’s formal sentence and four times as long as the period during which Mr. St-Cyr was actually incarcerated?

Safety Concerns

[59] When determining the appropriate period of parole ineligibility for Mr. Land, ensuring the safety of the public is a very important consideration. That being said, it is important to remember that saying Mr. Land will be eligible to apply for parole after a certain number of years does not mean that he will be granted parole by the Parole Board at that time. When Mr. Land applies for parole, it will be for the Parole Board to decide whether the public’s safety can be protected adequately with Mr. Land on parole. Mr. Land is receiving a life sentence, and there is no guarantee that, at any time, the Parole Board will see fit to grant him parole. That is a privilege that he will have to earn while incarcerated.

[60] Mr. Land’s unprovoked and vicious attacks on Mr. Doyon and on the inmate at the Ottawa-Carleton Detention Centre demonstrate what rage Mr. Land has and what little impulse control manages that rage when it comes to those he suspects of sexually abusing children. Until Mr. Land has dealt with that rage and can control his behaviour, he will continue to be a risk to anyone whom he puts in that category. Bill Brant, who has known Mr. Land for more than 15 years, is of the opinion that, at the current time, Mr. Land would need strict supervision upon release from custody because Mr. Land does not have much in the way of internal capacity to organize himself.

[61] Those in the Aboriginal community who have known Mr. Land since he was a child, and who are aware of the various traumas he experienced as a child, reinforce how important it is for Mr. Land to get long-term, intensive, counselling to deal with his pain and his limitations.

[62] Elder Dumont, who has extensive experience working with Aboriginal people in conflict with the law, and who has tried to help the Land family over many years, recommends that Mr. Land receive long-term counselling. “He needs to have spirituality, he really needs to embrace the spirituality of his ancestors, sweatlodges, fasting, circles, respect for the Eagle Feather and for ceremonies. He needs sobriety, and he needs to have true remorse.”[^3]

[63] Jennifer Printup, a family support worker and crisis counsellor at the Residential School Healing Centre with Pinganodin Lodge in Ottawa, has known Mr. Land since he was a child. She offered the following observations about Mr. Land:

Toby needs in-depth counselling. It would help him sort out the stuff he’s living with – the trauma in his world. He’s been offered opportunities by a lot of people, he’ll start, and then he backs away. I can see his hesitation and why he would be hesitant to accept help in the community. He’s very involved with Ottawa. My thinking is if we get him to a facility away from here, he may come far enough to continue with it. It has to be an Aboriginal facility, initially. I don’t think he’ll do well in a non-Aboriginal setting because he’s so much involved in his culture. He needs to be at a facility that allows him to express himself culturally as a Native person.

He’s always trying to heal himself on his own, without taking the big leap for counselling for an extended period of time. He has had a lot of trauma as a child. He was a middle child. He tried. It was a lot for him to take. He’s always been caring, it’s his nature, he was born that way. He’s such a sweet guy, and loving guy. He just gets caught up and he feels like he’s losing control and everything bubbles up, and he can’t deal with it.[^4]

[64] Mr. Land has been incarcerated at the Ottawa-Carleton Detention Centre since May 5, 2009. It is well-known that conditions at the Centre are challenging for inmates due in great measure to overcrowding and the absence of any programming or services that would start offenders on the road to rehabilitation and re-integration into the community. John Maracle, the Native Inmate Liaison Officer at the Ottawa-Carleton Detention Centre, explained that Mr. Land has had little or no access to any programming since he was incarcerated because the Detention Centre is a place where the inmates are supposed to move through – not stay for years on end. There are psychiatric and mental health services at the institution but, due to staff shortages, the wait times can be long. Mr. Land has been trying to see a psychiatrist for over a year. Mr. Maracle stated: “This office and myself totally support Toby. He is more than worth rehabilitating. Given the right circumstances he would really be on his way to being a good artist. He has a really good heart and sense of community. He’s a protector of youth and people who have a hard time protecting themselves.”^5

[65] In short, Mr. Land has been “on hold” for the last four and a half years in an environment that cannot have done much for his spiritual or psychological health. That being said, since he was incarcerated, Mr. Land has been able to stay away from alcohol and marijuana, staying away from alcohol being an important step in regaining control over his impulsivity. He has also started to develop as an artist.

[66] John Contois, the Regional Administrator for Aboriginal Initiatives with the Ontario Region of Corrections Canada, testified as to the general and Aboriginal-specific programming that would be available to Mr. Land at federal institutions and what Mr. Land’s correctional plan might look like. Initially, Mr. Land would spend two to four months at the Assessment Unit at Millhaven Institution, where a correctional plan would be developed for him. As an inmate with a life sentence, Mr. Land would be required to spend at least his first two years in a maximum security institution. In the Ontario Region, Millhaven Institution is the only maximum security institution. Since Millhaven Institution does not have adequate space to accommodate all inmates with a maximum security rating, maximum security inmates are regularly transferred to less crowded west or east coast institutions to serve their sentences.

[67] As of June 2013, there were approximately 476 Aboriginal male inmates in the federal system in the Ontario Region, spread out over several institutions. Aboriginal programming was concentrated in three institutions: Kingston Penitentiary (maximum security), Warkworth Institution (medium security), and Fenbrook Institution (medium security). With the closing of Kingston Penitentiary, it is anticipated that Aboriginal programming will be increased at Millhaven Institution; however, as of June 2013, that had not yet happened.

[68] On intake, proportionally more Aboriginal offenders than non-Aboriginal offenders are classified as maximum security risks. This gap also exists regarding classification at the medium instead of minimum security level. As well, the percentage of offenders scoring a minimum security rating and actually receiving a minimum security placement is significantly less for Aboriginals than non-Aboriginals. Obviously, there are systemic reasons why these discrepancies occur. One reason is the spotty availability of Aboriginal programming at federal institutions in the Ontario Region. Completion of required programming is a significant factor in attaining a lower security classification. If the Aboriginal inmate cannot complete a program because it is not offered at the institution where he is housed, then his move to a lower security classification will likely be delayed. This, in turn, can impact on when the inmate is seen as a suitable candidate for release into the community.

[69] At the current time, as an inmate at Millhaven Institution, Mr. Land would be caught in a Kafkaesque situation. Normally an Aboriginal inmate’s correctional plan starts with the Basic Healing Program which Corrections Canada describes as “a moderate intensity program that targets Aboriginal male offenders who need help with problem-solving, aggression and emotions management, goal setting, and interpersonal and communication skills. The program is culturally-based, designed to introduce and reinforce Aboriginal culture and values. It includes exercises to help offenders develop positive social attitudes and beliefs, set goals, and motivate them to follow their correctional plans. The program also allows offenders to develop their own healing and self-management plans.” There seems to be little disagreement that this is what Mr. Land likely needs as the first step in his correctional plan. Mr. Land’s other option would be to take the Alternatives, Associates and Attitudes Program available to all male inmates, though it is not deemed appropriate for offenders whose offences are related to substance abuse.

[70] Although not a formal pre-requisite, successful completion of the Basic Healing Program is recommended for all Aboriginal offenders whose correctional plans require other Aboriginal-specific programming such as violence prevention programs and substance abuse programs – programming that likely would be required before Mr. Land would be seen as a suitable candidate for release into the community. The problem is that Millhaven Institution does not offer the Basic Healing Program because, currently, it does not have a large enough Aboriginal population to make Corrections Canada consider one warranted, and it is not at all clear whether Millhaven Institution will offer this program in the future. The program is offered at some medium security institutions, but Mr. Land would not be placed in one of those for at least two years, and the likelihood of his being reclassified downward to medium security is minimal if he has not completed any programming to deal with the issues that got him incarcerated and classified as a maximum security risk in the first place. Completion of the Alternatives, Associates and Attitudes Program is a pre-requisite for any inmate proceeding with other substance abuse and violence prevention programs offered to the general inmate population. If Mr. Land chose this route because this program is available at Millhaven Institution, he would not be benefitting from the specific Aboriginal programming which he likely needs.

[71] Corrections Canada theoretically offers four types of violence prevention programs: High Intensity Violence Prevention Program, Moderate Intensity Violence Prevention Program, In Search of Your Warrior Program, and Violence Prevention Maintenance Program. The In Search of Your Warrior Program is “a high intensity program that targets Aboriginal male offenders who have a history of engaging in and/or committing violence. Typically, the program consists of 75 group sessions that include spiritual and ceremonial activities. The program is culturally-based, combining traditional Aboriginal teachings and spirituality with western approaches. It helps offenders develop skills and insight, including awareness surrounding anger, violence, family of origin and culture.” This program normally takes six months to complete and takes a holistic, rather than cognitive, reasoning-based, approach. Mr. Contois was unaware of any federal institutions in Ontario where this program is being offered.

[72] Corrections Canada theoretically offers six types of substance abuse programs: High Intensity National Substance Abuse Program, Moderate Intensity National Substance Abuse Program, High Intensity Aboriginal Offender Substance Abuse Program, Moderate Intensity Aboriginal Offender Substance Abuse Program, National Pre-Release Substance Abuse Program, and National Maintenance Substance Abuse Program. The High Intensity Aboriginal Offender Substance Abuse Program “targets Aboriginal male offenders who have been assessed as a high risk for re-offending and whose substance use was directly linked to their criminal behaviour.” Mr. Contois could not identify where in Ontario this program is being offered.

[73] A further program called Pathways is offered to Aboriginal inmates at medium and minimum security institutions. Aboriginal inmates who have been accepted into this program due to their commitment to following a healing path and a traditional Aboriginal way of life are housed on the same range or in the same unit and are given intensive elder services, programming, and interventions beyond what is available to the general Aboriginal population. The focus is on moving the inmate through Pathways in approximately a year so that he can be classified downward or released into the community. Very few Aboriginal inmates with life sentences are chosen for the Pathways program unless their parole eligibility date is in the near future. Pathways ranges do not exist in maximum security institutions. At some, there is a Pre-Pathways program where Aboriginal inmates housed with the general population can access enhanced services from elders and Aboriginal liaison officers. One is anticipated for Millhaven Institution but does not yet exist.

[74] At this point, no Aboriginal-specific programs are offered at Millhaven Institution, though it is hoped they will be in the future if the Aboriginal population is large enough. In the Ontario Region, most Aboriginal programming is offered at medium security institutions where most Aboriginal offenders are housed; however, without completing any such programs while in maximum security, it is unclear when, if ever, Mr. Land would be reclassified to medium security. If Mr. Land was transferred to an East Coast facility, the programming available to him would be different. One advantage is that he could be in an institution with an Aboriginal Integrated Correctional Program Model – something not available in the Ontario Region. Such a program would focus on the multi-faceted nature of Mr. Land’s challenges, without requiring Mr. Land to take a line-up of separate programs that may or may not be offered at the institution where he is housed.

[75] Mr. Land is someone who likes to be busy and to help out. He wants there to be more in his daily life than dead time. He has expressed an interest in learning more about his Aboriginal background and would welcome access to Aboriginal-specific programming. In my view, this programming is essential before Mr. Land could be considered for parole. Mr. Contois’ evidence makes it clear that, the longer the period of Mr. Land’s parole ineligibility, the longer the likely delay in his being offered Aboriginal programming that has been proven effective for other Aboriginal offenders. Such programming is not only limited to substance abuse and violence prevention, but also includes Pathways and healing lodges – the latter only being available to Aboriginal offenders with a minimum security classification.

[76] The more progress Mr. Land can make in terms of his personal healing, the safer everyone around him will be – whether inside or outside the institution. Mr. Land has already been “on hold” for four and a half years, without access to any programming or mental health services. Keeping Mr. Land incarcerated for a further lengthy period of time without access to appropriate programming will not only prevent progress with his healing, but could also make him a greater danger to society. If Mr. Land’s parole ineligibility period was set at 10 years, there would be a further five and a half years for him to complete the programming that likely will form part of his correctional plan. Based on the evidence of Mr. Contois, I consider this an adequate period of time in which Mr. Land could complete such programming – provided Corrections Canada makes it available to him. That, in my view, is its obligation as part of its overall obligation to ensure that Aboriginal offenders are given the same opportunities for reclassification downward and eventual release as non-Aboriginal offenders are afforded. The unavailability of Aboriginal programming in federal institutions should not become simply the latest example of how Canadian society let Mr. Land fall through the cracks.

Aggravating and Mitigating Factors

[77] There are several aggravating factors in this case:

• Mr. Land’s attack on Mr. Doyon was brutal, relentless, and unprovoked.
• Mr. Doyon was attacked in his own home while he sat or lay on his couch.
• Mr. Land was in the apartment because Mr. Doyon had given him permission to stay there when he needed a roof over his head.
• In attacking Mr. Doyon, Mr. Land was acting as the accuser, the judge, and the executioner in the space of a few minutes, giving Mr. Doyon no chance to defend himself in any meaningful fashion.
• Mr. Land did not seek help for Mr. Doyon immediately following the attack.
• Mr. Land fled the scene, taking the sword and hammer with him.
• Mr. Land has a significant criminal record.
• Prior to this offence, Mr. Land had not taken any serious steps to deal with his substance abuse issues.
• While incarcerated for this offence, Mr. Land committed another brutal attack on a suspected child molester and had three other disciplinary infractions.
• Mr. Doyon’s death has been a devastating blow to his mother and brother.

[78] There also several mitigating factors:

• Mr. Land’s lack of control over his emotions is directly related to his experiences as a child and a youth: suffering severe parental neglect, enduring the chronic alcoholism of both of his parents, witnessing his father’s violence toward his mother, being sexually abused by his father, being evicted and having unstable housing, going hungry, possibly having Fetal Alcohol Disorder Syndrome, incurring a brain injury, having learning difficulties, being bullied by other children at school, being poorly treated by some teachers, experiencing racism and intolerance at an early age at school and in the community, and being the target of aggression and victimization by some police officers.
• Shortly after the murder of Mr. Doyon, Mr. Land turned himself into the police and begged them to send emergency personnel to Mr. Doyon’s apartment. He provided the police with his bloodied clothes and the hammer. He eventually told the police where to find the sword.
• Going against the advice of his lawyer, Mr. Land confessed to his involvement in Mr. Doyon’s death. Mr. Land displayed considerable remorse at this time for what he had done.
• At the beginning of trial, Mr. Land pled guilty to manslaughter.
• Mr. Land was working at the time of the offence.
• Mr. Land was known for being generous with others in need – providing money or food to his friends.
• Mr. Land tried to look out for those more vulnerable than himself or for those being bullied or harassed by others, and still tries to do that at the Detention Centre.
• Mr. Land had tried on a number of occasions, quite appropriately, to get Ms. G-M away from Mr. Doyon due to his concern about her young age.
• It is understandable, if regrettable, that Mr. Land may not have wanted to call either the police or the Children’s Aid Society about Mr. Doyon’s relationship with Ms. G-M due to his earlier experiences with both organizations.
• Although Mr. Land has a criminal record, the offences that predated this offence were not in the same league in terms of seriousness.
• Mr. Land is an alcoholic and was under the influence of alcohol at the time of the attack on Mr. Doyon.
• Mr. Land has the support of his mother, his sister, and counsellors within the Aboriginal community.
• Mr. Land has various job skills that could assist him in his reintegration into the community.
• Mr. Land was only 24 when the murder was committed.

Jurisprudence

[79] Case law is of modest assistance in arriving at an appropriate period of parole ineligibility because each case is unique and involves a myriad of considerations.

[80] It has been held that a period of parole ineligibility in the range of 12 to 15 years is appropriate for the brutal second degree murder of an unarmed spouse. (See R. v. McKnight (1999), 1999 3717 (ON CA), 44 O.R. (3d) 263 at para. 48 and the cases cited therein; R. v. Barry, [1993] O.J. No. 3955 (C.A.); R. v. K.E.R. (2003), 2003 14779 (ON CA), 65 O.R. (3d) 723 (C.A.); R. v. Chalmers, 2009 ONCA 268; R. v. Florence 2013 BCSC 194.) In these cases, in addition to the brutality of the slayings, two factors that were deemed relevant to higher parole ineligibility periods were the breach of trust between spouses and a history of domestic abuse. Neither of these factors is present in this case. Of these cases, only Florence involved an Aboriginal offender, and she was held ineligible for parole for a period of 12 years.

[81] Lengthier periods of parole ineligibility have also been given in the following circumstances:

• where the offender is considered psychopathic, extremely dangerous, unlikely to change his ways, and/or completely lacking in remorse or insight (R. v. Boucher, 2006 YKSC 53 (15 years), R. v. Grimsson, (1997) B.C.A.C. 253 (15 years), R. v. Price, 2001 BCCA 323 (21 years), R. v. Lane, 2008 ONCA 841 (20 years); R. v. Krasniqi, 2012 ONCA 561 (14 years));
• where the murdered victim was elderly and unable to defend him or herself (Boucher, Grimsson, R. v. Pelletier, 2004 BCCA 264 (15 years), R. v. Van Osselaer, 2004 BCCA 3 (18 years), R. v. Swite, 2012 BCSC 1755 (13 years));
• where the victim previously or at the time of the murder had tried to help the offender (Boucher, Van Osselaer);
• where the murder was associated with theft (Boucher, Grimsson, Pelletier, Price, Van Osselaer, Swite);
• where the offender fled and went underground after the murder (Krasniqi);
• where the offender was under court order not to possess a weapon and used a weapon to commit the murder (Krasniqi);
• where the murder was a cold-blooded execution with a gun in a drug-dealing situation (R. v. Maciel, 2007 ONCA 496 at para. 8 (12 years); R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227) (12 years); and
• where the offender committed an indignity to the victim’s body after the murder (Swite).

[82] The period of parole ineligibility has also been left at 10 years for some Aboriginal offenders found guilty of second degree murder. See, for example, R. v. Nayotchekeesic, [1995] O.J. No. 1916 (Gen. Div.) where the victim died from a hatchet blow to her skull and suffered other lacerations from a knife, and the offender had consumed a significant amount of alcohol prior to committing the offence.

Disposition

[83] One of the factors relied on by the Crown in asserting that the period of parole ineligibility should be lengthened to 15 years is the moral culpability of Mr. Land in brutally and relentlessly attacking Mr. Doyon, an unsuspecting person who was minding his own business while on his own couch in his own home. There is no doubt that such a crime cries out for strong denunciation and forceful deterrence. However, surely society writ large must share some of the moral culpability associated with this terrible crime. How can we expect someone to be able to follow societal norms when they, and their parents and grandparents, have so clearly not been the beneficiaries of those same societal norms? How can someone who, as a child, suffered the trauma just described, be expected to behave in the same way as someone who never suffered such trauma? How can we expect a child raised in an environment of alcohol and drug abuse, physical and sexual violence, neglect, poverty, hunger, and instability to grow into a psychologically healthy adult with good impulse control and judgment?

[84] As was graphically illustrated during his initial interview with Detective Gordon, Mr. Land knew he had done something very wrong, and he realized he had to assume responsibility for that. He showed remorse then, and he showed remorse again in pleading guilty to manslaughter. While Mr. Land has continued to struggle with impulse control within the Ottawa-Carleton Detention Centre, there is also evidence that he is trying to get help to heal himself and learn how to manage the pain emanating from his past so that he can function in society in the future. He has made some progress in regard to his sobriety and in finding alternative outlets for his emotions. That being said, as is evident from this crime and the more recent assault within the Detention Centre, until true healing has happened, Mr. Land remains someone who is dangerous in certain situations. Only long-term counselling and hard work on Mr. Land’s part is likely to change that. If Mr. Land were to make significant progress over the next five and a half years so that the Parole Board would consider releasing him on parole, should he be denied this opportunity due to the aggravating factors just enumerated? In my view, he should not. Based, in great measure, on Gladue considerations, I conclude that a 10 year period of parole ineligibility is fit and appropriate in the circumstances of this case.

[85] Mr. Land please stand. For the murder of Mr. Doyon, I sentence you to life imprisonment with no eligibility for parole for a period of 10 years starting May 5, 2009. You will also be subject to a mandatory order prohibiting you from possessing any firearms, cross-bows, prohibited or restricted weapons or devices, ammunition and the other items set out in s. 109(1) of the Criminal Code, and this prohibition is for your lifetime. You are also required to provide a DNA sample under s. 487.051(1) of the Criminal Code.

[86] Mr. Land, you have indicated an interest in being placed in a federal institution on the East coast. You are concerned about the pressure you would experience in institutions in the West, and to a lesser extent Ontario, to become involved in gang activity, and the danger you would face if you refused. You have expressed an interest in learning more about your Aboriginal heritage and in getting psychiatric help. I strongly recommend to Corrections Canada that you be placed in an institution where, without further delay, you can benefit from Aboriginal programming and services, which I consider necessary tools on your road to rehabilitation, and where your progress will be hampered as little as possible by negative influences. Many people see your potential, Mr. Land. Good luck in achieving it.

[87] Finally, to the Doyon family, I would like to express my sympathy for your deep loss and my hope that the end of this trial will start you on what will no doubt be a very long road to some sort of peace. Thank you counsel.

Aitken J.

Released: October 22, 2013

COURT FILE NO.: 09-30325

DATE: 2013/10/22

PUBLICATION BAN IN EFFECT UNDER S. 486.5 OF THE CRIMINAL CODE

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

And:

TOBY LITTLE OTTER LAND

REASONS FOR JUDGMENT ON SENTENCING

Aitken J.

Released: October 22, 2013

[^1]: Office of the Correctional Investigator, Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act (October 22, 2012), at paras. 17-18.

[^2]: Canadian Collaborative Mental Health Initiative, Pathways to Healing: A Mental Health Toolkit for First Nations People. A Toolkit for Consumers, Families and Caregivers by Martin, M., and Mussell, B. (Mississauga, February 2006).

[^3]: See Gladue Report for Little Otter Toby Land at 40.

[^4]: Ibid at 39.