SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
V.
ALVIN CLEMENT
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE G. M. MULLIGAN
On March 6, 2014, at BARRIE, Ontario
APPEARANCES:
T. Bryson Agent Counsel for Alvin Clement
E. Carleton Counsel for the Crown
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Legend
[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) – Indicates preceding word has been spelled phonetically.
Transcript Ordered: March 17, 2014
Transcript Completed: April 10, 2014
Ordering Party Notified: April 15, 2014
THURSDAY MARCH 6, 2014
R E A S O N S F O R S E N T E N C E
MULLIGAN, G.M. (Orally):
Mr. Clement was given an opportunity to speak to the Court at the sentencing hearing and did so. I will make reference to this in my remarks that follow.
On September 10th, 2013, Mr. Clement entered guilty pleas to two counts of assault causing bodily harm, contrary to Section 267(b) of the Criminal Code. Count one related to an assault on the victim, Darlene Lewthwaite. Count two related to an assault on Bradley McLaren. Sentencing was adjourned to January 24th, 2014, so that a pre-sentence report and Gladue report could be obtained. Because Mr. Clement was residing in British Columbia at the time of sentencing, it was agreed that a combined Gladue and Pre-Sentence Report in accordance with the procedures in British Columbia could be obtained there. When I speak of Gladue principles, I am referring to the seminal Supreme Court of Canada decision in R. v. Gladue. At the sentencing hearing, a comprehensive Pre-Sentence Report, which reflected Gladue principles, was filed with the Court. The report was prepared by Lawrie Bay, Probation Officer, Chilliwack Community Corrections. In addition, the following documents were filed:
A letter report from The Honourable Stephen Pointe. Mr. Pointe is a former Provincial Court judge with a long history of community and public service, including serving for 15 years as Chief of the Skowkale, First Nations, as well as a five-year term as Lieutenant Governor of British Columbia. Mr. Pointe spent time with Mr. Clement prior to sentencing, exploring his Aboriginal connections and introducing him to positive role models and practices within the Aboriginal community.
The defence filed a book of sentencing materials including Mr. Clement’s reporting to the local R.C.M.P. as part of his bail conditions, together with a number of letters of support from employers, family and friends, including his spouse, Lori Kelly.
In addition, the defence filed a further letter of support from friends, Mr. and Mrs. B. Webb.
The Crown filed five Victim Impact Statements. Two of those statements were read in court. The first was from the victim, Darlene Lewthwaite; the second was from her current partner, Mr. Dupuis.
An Agreed Statement of Facts was filed.
The Crown filed the exhibits from the preliminary inquiry, including photographs of injuries to the two victims.
Circumstance of the Offences
In connection with the pleas of guilty, the Crown filed an Agreed Statement of Facts with respect to the circumstances surrounding these offences. It is not necessary to review all of the Agreed Statement of Facts, but a brief summary will provide context. The offences took place on April 14th, 1998, approximately 16 years ago. Mr. Clement was in a relationship with Darlene Lewthwaite, which subsequently terminated. Mr. Clement was living and working in the Gravenhurst area.
Mr. Clement and another woman met up with Ms. Lewthwaite and Bradley McLaren at a pub in Gravenhurst. All four parties were playing pool and some were drinking.
Later in the afternoon, they all left the pub in Mr. McLaren’s vehicle to look at renting a house for the four of them. Mr. Clement stopped by his house to pick up a bottle of liqueur. The four of them looked at the house for rent, and Mr. Clement and some of the others continued consuming alcohol.
Later, while in the backseat of the vehicle, Alvin Clement and Ms. Lewthwaite began to argue. Suddenly, Mr. Clement struck Ms. Lewthwaite across her forehead and face with the liqueur bottle. He then began pulling her hair. The driver, Mr. McLaren, stopped his vehicle and ordered the parties out. Clement then began fighting with Mr. McLaren outside the vehicle and struck him over his left eye with the liqueur bottle. During the tussle that followed, Mr. Clement bit Mr. McLaren and punched and kicked him. When the fight broke up, Mr. McLaren left in his van and Mr. Clement ran away. The police were unable to locate him. A warrant was issued and he was not arrested until September of 2011 in Hamilton, Ontario. Mr. Clement left the province immediately after this attack without any concern for the obvious injuries sustained by the two victims as a result of this violent and unprovoked outburst.
Mr. McLaren was treated in hospital and received stitches to close the wound over his left eye. He had blurred vision for a time and received preventative medication because of the biting that occurred.
Ms. Lewthwaite also went to the hospital and injuries to her face, right ear, neck and finger were documented. Her injuries took about a month to resolve and during this time, she stayed at home so that she would not be seen in public. About a year later, she underwent surgery to repair damage to her nose.
Circumstance of the Offender
Mr. Clement is 55 years of age and was born May 27th, 1958. He currently resides in Agassiz, B.C.
A very thorough and detailed Pre-Sentence Report traces Mr. Clement’s family history, education, employment, and previous behavioural issues. It provides a description of his Aboriginal roots and his current involvement with the Aboriginal community where he resides.
As to his Aboriginal roots, the author notes:
The subject reports that it’s only been in recent years that he has begun to learn his family’s First Nations history, remarking that he grew up believing that his ancestors primarily came from the Mohawk Nation, only to discover that his mother was from the Ojibwa Nation, but he did have relatives with the Cree, Blackfoot and Mohawk Nation. He notes that all except him have ‘status’.
The subject indicates during his formative years that he had little involvement or exposure to First Nations cultural activities or spiritual beliefs through his family, remarking that instead he was told not to acknowledge being Aboriginal descent in order to avoid issues of discrimination. He notes that this was not difficult because he did not appear physically to be Native.
Counsel, I am going to have to take a brief break because I am suffering a cold, and I will try and continue with this. If I am not able to read this in totality, I will give my conclusion and hand out written reasons. I will return shortly.
R E C E S S
U P O N R E S U M I N G:
BRYSON: Accused before the Court Your Honour.
THE COURT: Thank you Mr. Bryson. Counsel, I will try to continue, with the assistance of the Fisherman’s friend. When I left off, I was reading from the Pre-Sentence Report and I will continue with the final paragraph from the author.
The subject reports that through conversations with his extended family in Ontario over the last couple of years, he has begun to have learn a bit more about their history, although he still does not know his specific Band of origin. He believes that all of his grandparents, as well as several of his relatives from past generations, went through the former Native residential school system, and that this has had an impact on their families to the present day.
Continuing with my sentencing decision, Mr. Clement has had a difficult childhood. He was one of five children living in a dysfunctional home. His father was an alcoholic and was abusive, often beating Mr. Clement. Mr. Clement was apprehended by the Children’s Aid Society at the age of 12 and put in a foster home, losing connection with his own family for a time. He then spent time in a number of foster homes and detention centres, and was often considered unmanageable. As a result, he had very little schooling and he feels that he was subject to Attention Deficit Hyperactivity Disorder. He was expelled from school in grade 12 and acknowledges that he continues to have significant literary deficits.
Mr. Clement has three children; two daughters and a son. He has no connection with his daughters but has recently re-established a relationship with his son, and his son’s two children.
The report indicates that Mr. Clement has had a number of problematic relationships with women in the past. His life took a change for the better when he met Lori Kelly, his current partner in 2007. Ms. Kelly is of Aboriginal descent and is employed as an administrative assistant with Band Council in the community where they reside. The author notes that she has been a positive influence on Mr. Clement over the years. She provided a letter of support at this hearing.
Mr. Clement also has positive letters of support from his landlord and other members of the community where he now resides, including his employers. He is currently a construction lead hand and is described by his employer as an exceptional employee and a strong team leader. Mr. Clement also has a number of other employment sidelines, including maintaining a nearby car wash. In addition, he has a sideline business working on special effects, pyrotechnics, in the film industry and with fireworks for local events. He is making efforts to grow this business. Mr. Clement says that he has appropriate licenses from the Province of British Columbia to handle such materials. Those licenses were subsequently filed for this hearing. This work takes him from his community to the greater Vancouver area and on occasion, other locations throughout the province. In addition, he has done some volunteer work with local high schools.
Mr. Clement has had some health issues, including being struck in a motor vehicle accident in 2007, requiring him to have surgery and be off work for a number of years. He is on pain management medication but reports that he has the medication under control. His counsel submits that he has high blood pressure, kidney problems, and has sleep apnea. He requires a medical device while sleeping.
Mr. Clement acknowledged to the Pre-Sentence Report author that he was under the influence of alcohol at the time of these offences, but otherwise has not misused liquor or hard illegal drugs since. Alcohol does not appear to be a significant negative factor in Mr. Clements’s life at this time.
The author of the Pre-Sentence Report provided a review of Mr. Clement’s criminal record. In 1983, he was convicted of assault with intent to resist arrest. In 1986, he was convicted of assault with a weapon, and in 1987, he was convicted of assault and theft under. Mr. Clement served short periods of incarceration with respect to these offences. However, I pause to note that these offences are now dated, having occurred approximately 30 years ago, and so I put very little weight on them.
The author of the Pre-Sentence Report provides a summary of his report and proposed recommendation. The author then concludes about Mr. Clement:
He feels that over recent years, he has made some profound changes in his outlook on life and is not the same person that he was while living in Ontario. He provided this officer with several other letters of support, in addition to the one cited in this report. He would seem to have strong community support and appears to have led a responsible lifestyle since coming to British Columbia.
Mr. Point’s Report
A word about Mr. Point’s report. Mr. Point provided a detailed report as a result of his meetings with Mr. Clement. Although he appears to have adopted the role of advocate for Mr. Clement, his final, general comments bear repeating:
Mr. Clement spoke about these offence and he appears truly remorseful and regrets his lifestyle choices at the time of these offences. He is ready to make amends for his conduct and wants to truly remain on a positive and healthy life path. Mr. Clement struck me as someone who has changed his life, who has taken responsibility for his past behaviour, and wants to live his life as a productive member of society. He enjoys a positive relationship with his current spouse of some six years. He has a good job working in the movie-making industry performing special effects. I have enjoyed my time working with Mr. Clement.
Victim Impact Statement
A word about the Victim Impact Statements. The Crown filed Victim Impact Statements, including statements from the victim Darlene Lewthwaite, her mother, Joanne Bray, her brother, Trevor Lewthwaite, her boyfriend, Kevin Dupuis, as well as a statement from the victim Bradley McLaren.
Bradley McLaren, who was assaulted by Mr. Clement in the incident, spoke about the physical injuries he suffered. He was incapable of working for six months and required social assistance. He still suffers from headaches and states:
I find it sometimes hard to concentrate and keep my emotions in check. I suspect that much of this stems from the head trauma I suffered as a result of the beating from Mr. Clement.
Darlene Lewthwaite spoke about the difficulties she has had over the past 16 years since this incident. About six years after the incident, she heard rumours that Mr. Clement had passed away and she felt that she was starting to make some progress. She expected that things took a downturn when she learned of his arrest in 2011.
After the incident in question, she had a marriage which was short-lived. About a year later, she had surgery on her nose. She moved to B.C. to be with the family, but by coincidence, saw Mr. Clement from a distance and returned back to Gravenhurst out of fear. Two years after the incident, she had a seizure and learned she was an alcoholic-induced diabetic. At one point, she was admitted to a psychiatric hospital for eight weeks and stated that she was diagnosed with Post Traumatic Stress Disorder. She pursued a career as a painter and then as a plumber, earning several levels. However, she was unable to complete the certificate to become a licensed plumber. Darlene Lewthwaite thinks of herself as a fighter, who continues to pursue her plumbing certificates.
Joanne Bray, Darlene’s mother, detailed in her statement:
For the past 15 years, Darlene has never been the same person she was back then, her actions have been that of a battered woman syndrome, she thinks that she is no good and is always wrong, like she deserves to be treated badly by everyone she knows.
Trevor Lewthwaite, her brother, stated:
My sister has not been the same since this incident. She has always been outspoken, opinionated and stubborn, but these traits have mixed with an over-compensation for fear, in the form of alcoholism and instantaneous mood shifts, they have made her difficult to be around for any length of time.
Her boyfriend, Kevin Dupuis, started dating Darlene Lewthwaite several years ago. He spoke about her panic attacks and states, “Now, she was reliving this incident all over again, and the stress and anxiety set in.” He indicated that he assists her by volunteering, in connection with his job, but she is not capable of regular employment. As he stated, “Emotional pain is still pain, it has no bruises, but it does exist.”
Both Darlene Lewthwaite and Kevin Dupuis read their Victim Impact Statements in court.
Victim Impact Statements play an important role in the sentencing process. Victims are given an opportunity in writing and orally, to describe the harm done or loss suffered by them as a result of the offence. Victims therefore have a voice in the sentencing process and the effect on them becomes another factor to be considered by the Court in the sentencing calculus that determines a fit sentence for a particular offender.
To the extent that these Victim Impact Statements go outside the bounds of appropriate comments such - what a sentence should be, I expressly have ignored such suggestions or comments.
Pre-Trial Custody
Mr. Clement was arrested in 2011, and spent 12 days in pre-trial custody before being granted bail. However, the charges were laid years before the arrest date. Given the provisions of the Criminal Code in place at the time, I am satisfied that Mr. Clement should be given credit for two days for each day spent in custody. I therefore give Mr. Clement credit for having served 24 days due to pre-trial custody.
Sentencing Conditions
The Court’s role is to determine a fit sentence for this offender. In this case, there are a number of tensions in play. Mr. Clement has Aboriginal roots and has reconnected with the Aboriginal community, so Gladue principles must be considered. Almost 16 years have elapsed since these offences occurred. On the one hand, Mr. Clement immediately left the area without any regard for the harm done to his victims. On the other hand, he has gone through a process of self-rehabilitation by maintaining employment, entering into a stable relationship with his partner, and volunteering with First Nations and other community organizations. In addition, he has entered guilty pleas, expressed remorse at the sentencing hearing and apologized to his victims for the harm done.
Position of the Crown
Crown counsel submits that a jail sentence of 6 to 12 months in the reformatory, followed by a period of probation should be ordered, together with ancillary D.N.A. orders and a weapons prohibition order pursuant to Section 100 of the Criminal Code at the time. The Crown acknowledge that Mr. Clement has done much to turn his life around, but points out the gravity of the sudden and unprovoked attack on these two victims. Although specific deterrence may not be a factor here, general deterrence and the message to the community takes on importance, especially with respect to the circumstances surrounding the passage of time from the initial event until Mr. Clement’s arrest when he returned to Hamilton in 2011.
The Crown acknowledges that a conditional sentence would be an available sentence for consideration if the range of sentence falls within the reformatory term, but submits that such sentence ought not to be available here given the factors at play. In addition, the Crown submits that a conditional sentence would not be practical because of Mr. Clement’s varied and unpredictable work hours.
Position of the Defence
The defence submits that an appropriate sentence under all the circumstances is a conditional sentence that can be crafted to constitute a fit sentence for this offender, while still meeting the needs of the community to express general deterrence. Defence submits that a period of probation is not needed under these circumstances.
The defence does not oppose the D.N.A. order or the weapons prohibition order with respect to firearms and ammunition, provided that such order makes an exception for Mr. Clement’s use of pyrotechnics and fireworks in connection with his employment, for which he has appropriate licenses.
Mitigating Circumstances
Mr. Clement entered a plea of guilty to two counts before the Court and these pleas of guilty can be seen as an expression of remorse.
Mr. Clement spoke to the Court and offered an apology to both the victims for harm done by him. I accept his apology as genuine, given all the evidence that indicates he has clearly turned his life around since the incident in question.
Mr. Clement appears to have turned his life around when he moved to British Columbia 16 years ago, partnered with Lori Kelly and connected with the Aboriginal community there.
Mr. Clement has successfully maintained employment over the years, except for a period of time when he was recovering from a motor vehicle accident, and has participated in some volunteer work in the community.
Mr. Clement has strong support from employers and other community members, as well as support from his partner, Lori Kelly.
Although Mr. Clement has a previous criminal record, he does not appear to have had any involvement with the law over the last 16 years.
Mr. Clement complied with all bail conditions, including reporting as required to the local R.C.M.P. and attending court in Ontario as required.
Mr. Clement appears to have some health issues, including high blood pressure and sleep apnea. He is on a partial disability pension due to a previous workplace accident. The pension does not prevent him from pursuing gainful employment and he continues to do so.
Aggravating Circumstances
Mr. Clement has a record for previous assaults. Although the record was dated, it was reasonably current at the time of this incident.
This was a crime of violence; an impulsive and unjustified attack on two victims.
These are overtones of domestic assault. One of the victims, Darlene Lewthwaite, was a former domestic partner of Mr. Clement.
These attacks had a profound effect on the victims, including physical injuries. Although the physical injuries have healed, the victims continue to be affected by these events.
Mr. Clement left the area, indeed, the province, immediately after the incident. The injuries to his victims would have been obv