COURT FILE NO.: 13/10000760
DATE: 20140814
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KENNETH MACDONALD
Defendant
Jennifer Gibson, for the Crown
Alison Craig, for the Defendant
HEARD: July 25, 2014
MOLLOY J.:
REASONS FOR SENTENCE
Introduction
[1] For reasons delivered orally on July 25, 2014, I convicted Kenneth MacDonald on two counts of breaching conditions in a Long-Term Supervision Order (LTSO). Mr. MacDonald’s LTSO included conditions that he abstain from alcohol and illegal drugs. A urinalysis conducted on April 6, 2013 showed that Mr. MacDonald had ingested alcohol and cocaine, thereby breaching those two conditions. The Crown sought a sentence of four to five years. Ms Craig, for the defence submitted that I should not cause Mr. MacDonald to serve any more time in prison, which she suggested could be accomplished either by a conditional sentence or by sentencing him to time served, both of which could be with or without a period of probation. I imposed a conditional sentence of two years less a day, which after credit for time served resulted in nine months remaining to serve, plus two years probation. My reasons for this decision are set out below.
Circumstances of the Offence
[2] On February 19, 2002, following a guilty plea, Mr. MacDonald was convicted of assault causing bodily harm and breaching a probation order arising from a fight in a Sudbury bar. Mr. MacDonald had a long criminal record, including many similar violent offences, largely stemming from his addiction to alcohol and drugs. The Crown applied to have him declared a dangerous offender and he was assessed by Dr. Phillip Klassen at the Centre for Addiction and Mental Health in Toronto. Upon receipt of Dr. Klassen’s report, both the Crown and defence made a joint submission before Hennessy J. that Mr. MacDonald should be found to be a long-term offender. On February 17, 2003, in respect of the assault conviction, Hennessy J. sentenced Mr. MacDonald to an additional 30 days in prison (after crediting his pre-trial custody on a two-for-one basis) for an effective sentence of 28.5 months. The sentences for the probation breaches were concurrent. Hennessy J. also designated Mr. MacDonald to be a long-term offender and imposed a ten-year supervision order to commence at the end of his determinate sentence.
[3] In April 2013, Mr. MacDonald was still subject to the ten-year LTSO.[^1] He was residing at a half-way house in Toronto (the Keele Centre) and was subject to a number of conditions, including that he abstain from alcohol and illegal drugs. To ensure that he complied with those conditions, he was subject to random testing by urinalysis within regular 90-day intervals.
[4] Staff at the Keele Centre had received information that some residents were consuming alcohol and/or drugs on the premises on weekends. A decision was made to conduct a surprise testing operation shortly after midnight on April 6, 2013, with the assistance of members of the Toronto Police Service. Mr. MacDonald was one of the residents subject to this testing. A team of police officers and Corrections Canada personnel entered the Keele Centre just before midnight. Mr. MacDonald was provided with a written notification to provide a urine sample, which he did, and which tested positive for the presence of alcohol and cocaine.
[5] Mr. MacDonald pleaded not guilty to the charges against him and did not testify at his trial.[^2] He did, however, testify at the sentencing hearing. I found him to be a credible witness in respect of the circumstances underlying these charges. Mr. MacDonald had a problem with addiction to cocaine in the past, but not in recent years. He is an alcoholic but has successfully completed treatment programs and participated in Alcoholics Anonymous. For the most part, he has been sober for many years, but he has had lapses. On April 5, 2013, Mr. MacDonald was working at his full-time job for a roofing company and returned to the Keele Centre prior to his midnight curfew. He shared a room with two other men. He said that when he reached his room after 11:00 p.m., he discovered there was a party underway involving a number of residents. He further testified that he was offered and drank some Mike’s Hard Lemonade in a Styrofoam glass and snorted a line of cocaine. Not long after, he was taken from his room and brought to the lounge to wait for his urinalysis, which was done at approximately 12:45 a.m.
[6] Dr. Karen Woodall, a forensic toxicologist, testified that she could not tell from the test results precisely how much cocaine had been ingested or when. She was only able to say that it was more than would be possible by just being present when somebody else was using cocaine and that Mr. MacDonald himself must have ingested cocaine within the last day or two prior to testing. Dr. Woodall further testified that the amount of alcohol in Mr. MacDonald’s system was the equivalent of approximately one alcoholic drink. Thus, the expert evidence corroborates Mr. MacDonald’s evidence as to his consumption.
Previous LTSO Breaches
[7] The corrections staff and police officers who dealt with Mr. MacDonald that night did not find him to be intoxicated or impaired in any way. He was cooperative and polite throughout.
[8] This is the fourth time that Mr. MacDonald has been convicted of breaching his LTSO.
[9] The first breach occurred on March 31, 2004. Again, a urinalysis tested positive for the presence of alcohol. Mr. MacDonald was returned to custody for five months, but then released, but still subject to the LTSO. He ultimately pleaded guilty before me on April 3, 2006 and both the Crown and defence submitted that a suspended sentence with 30 days probation would be appropriate, which is the sentence I imposed. At the time, one of the mitigating factors supporting that sentence was that Mr. MacDonald had successfully completed some rehabilitation programs and was about to commence the National Substance Abuse Program.
[10] The second conviction related to a breach on February 28, 2009, also involving consumption of alcohol. He was held in custody from the date of his arrest on February 28, 2009 until his guilty plea before Zisman J. in the Ontario Court of Justice on August 19, 2009. Zisman J. found that, due to the poor conditions during pre-trial custody, Mr. MacDonald was entitled to a substantial enhanced credit of 23 months, which was greater than the 18-month sentence she otherwise would have considered appropriate. She therefore imposed a suspended sentence.
[11] In addition to the breaches that were subject of criminal charges, there were a number of other breaches dealt with by correctional officials. There was evidence of this before Zisman J. in 2009, as follows:
April 25, 2003 - tested positive for alcohol-no criminal charges as appropriate programs in place;
January 18, 2005 - tested positive for opiates/morphine-no charges laid-appropriate programs in place and employed;
July 25, 2005 - failed to return to residence for one month-charged with theft under; possession under and escape lawful custody-convicted of theft under;
February 24, 2006 - fail to report use of prescriptions and in possession of Percocets-no charges laid;
May 23, 2008 - tested positive for marijuana while in Don Jail awaiting trial-no charges laid.
[12] The third conviction related to a breach that occurred on December 4, 2010, when Mr. MacDonald failed to comply with the LTSO condition with respect to residence. He was missing from the residence for about one month until his arrest on January 5, 2011. During that time, he also failed to attend a court appearance, which was the subject of a separate charge. After a guilty plea, Bassel J. sentenced Mr. MacDonald to 21 months for the LTSO breach, plus two months consecutive for the fail to appear, less 8 months and 25 days credit for time served calculated on a 1:1 basis.
Circumstances of the Offender
[13] Mr. MacDonald is now 47 years old. He grew up in Kirkland Lake. He is the youngest of a very large family, of which he was the only boy. His parents separated when he was three years old, largely because of his father’s alcoholism. He was placed in foster care briefly at the age of 10 or 11 as his mother was having mental health issues, but ran away after only two weeks. He later returned to live with his mother, with whom he continues to have a close relationship. When interviewed by Dr. Klassen, Mr. MacDonald stated that he received very little fathering as a child and that throughout his life his father was virtually always intoxicated. His father died in 1998.
[14] Mr. MacDonald said he started drinking at about the age of 12. In his teens, he started using street drugs, primarily cocaine, which he took intravenously. Before long, he was heavily addicted to cocaine, and also abused alcohol. In conjunction with his cocaine and alcohol abuse, he entered into a life of crime.
[15] The first entry on Mr. MacDonald’s criminal record is for theft under in 1981. He was 13 or 14 years old at the time of the offence. He was placed on probation. The next year, he was convicted of three counts of break and enter and also one count of assault causing bodily harm. This time he was sent to training school. In 1983 and 1984, he had several other minor entries on his record with the sentences being mainly community service and probation.
[16] Mr. MacDonald’s adult criminal record starts in 1986 with convictions for: assault with a weapon; assault causing bodily harm; assault; assault police officer x 2; mischief x 5; fail to appear; fail to attend in court x 2; and breach recognizance. He was involved in a drunken fight with neighbours, assaulted the police officers who attended the scene, and upon obtaining bail, absconded to Vancouver. He was sentenced to a few months on each count, many of which were concurrent, with the longest sentence being 6 months for assaulting the arresting officer. Although not entirely clear from the records, it would appear that the total sentence to be served was somewhere between two and three years. He was paroled in May 1987, but violated his parole and was returned to prison in September 1987.
[17] This pattern of offending and re-offending continued over the next two decades of Mr. MacDonald’s life. During this time, he was addicted to cocaine, and was selling drugs and stealing to sustain his habit. He was also drinking heavily. His criminal record reflects this lifestyle. There are typically multiple convictions every year, with sentences (for the most part) being for a period of months. There are breaches of recognizance, failing to appear and breaches of probation too numerous to list. There are also convictions for theft, drug possession, causing a disturbance, possession of stolen property, multiple impaired driving convictions, and many assaults some of which were with a weapon and some of which included bodily harm. For the most part, the weapons offences involved things that came to hand – a knife, a screwdriver, a pickaxe, a belt, a bicycle chain.
[18] The only break in the criminal record is the period from 1989 to 1993. During that time, he was serving a three year sentence for break and enter and armed robbery. This is the most serious entry on his criminal record and the only sentence longer than a few months.
[19] At the time of his assessment in 2002, Dr. Klassen found Mr. MacDonald to have a substance abuse/dependence disorder with respect to both cocaine and alcohol. He also diagnosed him as having an antisocial personality disorder and opined that there was a high risk he would engage in future violent behaviour. He did note, however, that “the bulk of his convictions for violent behaviour might be considered to be of modest severity, relative to those frequently seen in sentencing proceedings of this nature.” Dr. Klassen was not optimistic about the prospects of managing Mr. MacDonald’s behaviour in the community. He did not recommend any form of psychological treatment other than treatment for alcohol and street drug abuse. He recommended that he be closely monitored, abstain from alcohol and drugs, not associate with criminal peers, obtain vocational or educational training and maintain employment. Dr. Klassen also suggested that there might be an age-related decline in Mr. MacDonald’s offending behaviour over the period of the 10-year supervision order.
[20] Mr. MacDonald’s progress throughout the course of the LTSO has not been without problems. As I noted above, this is his fourth conviction for breaching terms of the LTSO and there have also been other more minor breaches that did not result in criminal charges. As a result of his convictions and suspensions, it has actually taken him 12 years to complete the LTSO. It is now finished. As of the time of sentencing, he remained in custody only in relation to the charges before me.
[21] It is worth noting that over the course of the LTSO, Mr. MacDonald was subject to random urinalysis testing 91 times, and his test result was clean 87 times. He has participated in a number of treatment programs for alcohol and drug addiction, including regular attendance at Alcoholics Anonymous. Most importantly, although there have been lapses with respect to some of the conditions in the LTSO, there has not been a single incident of violent or assaultive behaviour throughout the past 12 years. Given Mr. MacDonald’s prior criminal record, this is a remarkable achievement.
[22] Another significant change in Mr. MacDonald’s life is his relationship with Lucy Dinis, whom he met 12 years ago prior to starting the LTSO. Mr. MacDonald’s prior relationships were superficial and brief, usually with women also involved in the criminal and street drug subculture. Ms. Dinis is nothing like that. She is a decent, hard-working individual with no criminal record and no problems of any kind with the police. She does not drink and has never had any substance abuse issues. She and Mr. MacDonald have been engaged to be married since December 2012, but have not yet set a date pending the outcome of this proceeding. They have a child together who is now eight years old. Mr. MacDonald is a caring and committed father and very obviously adores his son. From all accounts, he has an excellent relationship with his son and has demonstrated good parenting skills. The stability of this family relationship has been a very positive force for Mr. MacDonald.
[23] The other significant change for Mr. MacDonald is that he has maintained steady employment. Upon starting the LTSO, he got training in roofing and has been successful at obtaining and keeping regular full-time jobs in that field. His former employer, Gordon Bailey, attended court for this entire proceeding and testified on Mr. MacDonald’s behalf at the sentencing hearing. Mr. Bailey owns his own roofing business. He described Mr. MacDonald as “exceptionally skilled” on the job, and indeed had promoted him to foreman of his work crew. Mr. Bailey said that Mr. MacDonald learns knew things quickly, is a hard worker, and is completely reliable. He testified that he always told his customers up front about Mr. MacDonald’s legal issues and did not receive a single complaint. On the contrary, he said that Mr. MacDonald received excellent ratings and that some customers even took the unusual step of writing letters of commendation about his work. He reported that on one occasion Mr. MacDonald took his son with him to a jobsite due to daycare problems and that the customer afterwards commented to Mr. Bailey about what a good relationship Mr. MacDonald had with his son. If Mr. MacDonald is released from prison, Mr. Bailey will provide him with immediate full-time employment. In fact, he described this as a life-saver for him as he has some health issues that make it difficult to do the heavy work himself. He has more than enough work available and has had considerable difficulty finding anyone as skilled and reliable as Mr. MacDonald to fill this position.
[24] Mr. MacDonald has always had a close relationship with his mother, but has not seen her since 2008. Sadly, his mother has been diagnosed with terminal cancer and is now in hospital in New Liskeard, on oxygen, with not much longer to live. Her 83rd birthday was on July 27, 2014, two days after the sentencing hearing. Mr. MacDonald expressed considerable anxiety about not being able to see his mother to say goodbye.
Principles of Sentencing
[25] The leading case on sentencing for breach of an LTSO is the Supreme Court of Canada’s recent decision in R. v. Ipeelee.[^3] Prior to Ipeelee, LTSO breach cases had focused primarily on the protection of the public as the paramount goal of sentencing. The Supreme Court firmly rejected that approach, holding that the “duty of a sentencing judge is to apply all of the principles mandated by ss. 718.1 and 718.2 of the Criminal Code in order to devise a sentence that furthers the overall objectives of sentencing.”[^4] Further, the Court identified the purpose of the LTSO as being two-fold: “to protect the public and to rehabilitate offenders and reintegrate them into the community.”[^5] The Court also noted that this focus on rehabilitation is the key feature of the long-term offender regime that distinguishes it from the dangerous offender regime, citing its own earlier decision in L.M.[^6]
[26] In determining the appropriate sentence for an LTSO breach, a contextual approach should be taken. The relative weight to be given to each of the sentencing principles will vary according to the circumstances of the individual case. However, generally, the sentencing judge should consider the severity of the breach in relation to “the nature of the condition breached, how that condition is tied to managing the particular offender’s risk of re-offence, and the circumstances of the breach.”[^7]
[27] It must be recognized that breaching an LTSO is a more serious offence than breaching a probation order. The latter is a hybrid offence with a maximum sentence of either 18 months or two years imprisonment, whereas the former is an indictable offence and carries a maximum sentence of ten years. That said, a period of incarceration is not always required. The Court held, at para. 54:
The lengthy maximum penalty certainly indicates that Parliament views the breach of an LTSO differently (and more seriously) than the breach of a probation order. However, it would be too much to suggest that the mere existence of a high statutory maximum penalty dictates that a significant period of imprisonment should be imposed for any breach of an LTSO. Breaches can occur in an infinite variety of circumstances. Parliament did not see fit to impose a mandatory minimum sentence. Where no minimum sentence is mandated by the Criminal Code, the entire range of sentencing options is open to a sentencing judge, including non-carceral sentences where appropriate. In its recommendations, the Task Force specifically stated that a key factor to the success of a long-term offender regime is “a speedy and flexible mechanism for enforcing the orders which does not result in lengthy re-incarceration in the absence of the commission of a new crime”.
Proportionality
[28] A sentence is required to be proportionate to the gravity of the offence and the degree of responsibility of the offender. Mr. MacDonald is clearly fully responsible for his own actions. He was not forced to drink alcohol and snort cocaine. He chose to do so. On the other hand, I accept his evidence that he did not bring either alcohol or drugs into the Keele Centre. A party was going on in his room when he arrived just before curfew and, in a weak moment, he simply succumbed to the temptation. These are not the most serious of circumstances in which LTSO breaches often arise. The alcohol and street drug prohibitions in Mr. MacDonald’s LTSO are directly related to managing the risk he presented to the community. His previous criminal record for violence was directly related to his alcoholism and drug addiction. That makes the breach more serious. However, it must also be noted that Mr. MacDonald was not intoxicated and the breach was not associated with violence. Indeed, Mr. MacDonald has not committed any acts of violence in over a decade. The fact of the breach is a warning signal that Mr. MacDonald is not entirely “out of the woods” yet in terms of managing the circumstances that in the past have caused him to engage in criminality. However, this breach is not so severe that further imprisonment is necessarily mandated.
Aggravating and Mitigating Factors
[29] The focus of this sentencing process is on the breach of the LTSO and what it signifies, rather than on Mr. MacDonald’s criminal record. Mr. MacDonald’s record prior to the long-term offender designation is not an irrelevant consideration, but it must be remembered that in every LTSO breach, there will be an underlying criminal record of some considerable concern. Otherwise, there could not have been an LTSO in the first place. Taking that into account, Mr. MacDonald’s criminal record is less serious than most, and involves less extreme harm to others. For example, he was not a sexual predator, he did not harm children, and his criminality arose more from poor impulse control than from deliberate planning.
[30] It is an aggravating factor that this was not the first, or even second, time that Mr. MacDonald breached his LTSO. The three prior convictions for breaching the LTSO is the most aggravating factor on sentencing. It is also troubling that Mr. MacDonald rarely goes for a full year without some sort of slip. Often those slips have been minor, but this is still a matter for concern.
[31] The most significant mitigating factors are the positive steps Mr. MacDonald has taken to change his life. He is in a stable, long-term relationship with a fine person. He is a devoted father. He has learned a trade, obtained employment, and been promoted to a management position. He has, for the most part and with only minor and infrequent missteps, remained sober for over a decade.
Rehabilitation
[32] At this point, Mr. MacDonald’s LTSO is over. The only thing standing between him and freedom is this sentence for breaching the LTSO. The question is whether imposing a further prison term would be a constructive step for Mr. MacDonald right now. I do not believe that it would be. On the contrary, I fear that any additional time in prison could well be a crushing blow for Mr. MacDonald who is now at a crossroads. His mother is dying, and he both wants and needs to see her. He also wants to be a good father. His son is anxious and missing him. His former employer has a well-paying position available for him, with no shortage of work, in a job he loves to do. He has a strong relationship with his fiancée, but even the strongest of relationships can be jeopardized by the stress of separation. In short, right now, he has a family, a job and a home – all of which are strong motivators for him to succeed. If these opportunities are lost, his prospects for rehabilitation will be dramatically reduced.
[33] It is to Mr. MacDonald’s credit that he has achieved these things. It cannot have been easy, given his past. He told me at the sentencing hearing that the long-term offender designation was the best thing that ever happened to him. That is probably true. It broke the cycle of repeated offences that sent him back to jail for months at a time, only to re-offend upon release, over and over again. It provided a structured environment in which he could concentrate on building the kind of skills he would need to survive in the community. He had help and support along the way. However, he is the one who learned those skills and developed those bonds. I am impressed with his resolve to continue along this path.
[34] The plan proposed for Mr. MacDonald’s release is a responsible one, and one which in my view has a good likelihood of success. He will be living in a house which his fiancée, Ms. Dinis, inherited from her parents (along with her siblings who are consenting to her living there). The home is in a good community away from any of Mr. MacDonald’s past criminal activity. Ms. Dinis has a firm grip on reality. She recognizes there will be challenges, but is committed to maintaining the relationship. She does not drink herself and keeps no alcohol in the home. Mr. MacDonald already has a good relationship with a sponsor through Alcoholics Anonymous. Ms. Dinis has made plans for them to attend AA as a family, with both she and their son being directly involved.
[35] Mr. MacDonald’s employer, Mr. Bailey, has also been extremely supportive. He will be in close and frequent contact with Mr. MacDonald at job sites and will not tolerate any substance abuse. His reputation and that of his company depends on that and Mr. MacDonald is fully aware of it. Mr. Bailey also is prepared to assist with AA meetings where needed.
[36] Mr. MacDonald is 47 years old. He has been in and out of some form of institution – foster homes, group homes, training schools, prisons, and half-way houses – since he was a boy. It is time for a more normalized living environment. He recognizes that living full-time in a home with his family will be an adjustment. His fiancée recognizes this as well. There is a risk that with the increased freedom, Mr. MacDonald’s resolve to abstain from alcohol and drugs will crumble. Along with that risk is the concurrent risk that he could fall back on previous patterns of crime and violence associated with alcoholic and drug-induced binges. However, he has to start somewhere and sometime and his current circumstances represent the best chance he is ever going to have to succeed. In my view, sending Mr. MacDonald back to jail right now would be the worst possible plan for his rehabilitation.
Protection of the Community, Denunciation, and Deterrence
[37] Protection of the community will always be a consideration any time there is a breach of an LTSO. However, in the circumstances of this case, I do not see this as a strong factor influencing sentencing. That is mainly because I do not see Mr. MacDonald as a current threat to the safety of our community. He has not committed an act of violence in over ten years. Even in those situations where he breached his LTSO conditions, there was no accompanying dangerous or criminal behaviour.
[38] I have also considered the role of denunciation and deterrence. In my opinion, a conditional sentence has a sufficient denunciatory effect to meet this objective of sentencing, and the same can be said for general deterrence. Mr. MacDonald is an alcoholic who is struggling to overcome his addiction. He recognizes the value of what he has now and has no wish to lose his family and employment or to return to his past life. That will be his deterrent. He does not need a further period of time in jail to bring that home to him.
[39] The best protection for the community at this point will be to further Mr. MacDonald’s rehabilitation. Keeping him on that path will be the best hope for avoiding recidivism, and preventing recidivism is the best protection for the community.
Parity
[40] As much as possible, similar offenders should receive similar sentences for similar offences. This is a particularly difficult principle to apply in this case for three reasons. First, Mr. MacDonald does not fit the profile of a typical long-term offender. Although he was a frequent repeat offender who often re-offended within a short time of release, as noted by Dr. Klassen the bulk of his violent behaviour was of “modest severity” when compared to other long-term offenders. Second, Mr. MacDonald’s progress constitutes a success story that is not often seen in these cases and his LTSO is now completed. Third, many of the reported cases precede Ipeelee and must be viewed with caution as there is an over-emphasis on protection of the public and insufficient weight given to rehabilitation.
[41] The Crown relies on the sentences ultimately imposed in Ipeelee (which involved both Mr. Ipeelee and another offender, Frank Ladue). In my view, both cases are distinguishable.
[42] Mr. Ipeelee had been sentenced by the trial judge to three years for breaching a condition that he abstain from alcohol. He had been arrested while riding a bicycle in downtown Kingston in a state of intoxication and with two bottles of alcohol on his person. This sentence was upheld by the Court of Appeal, but reduced to one year by the Supreme Court. This was Mr. Ipeelee’s first criminal conviction for breaching his LTSO, but the LTSO had been suspended four times in the past because of breaches and aggressive behaviour. Mr. Ipeelee pleaded guilty, which was a mitigating factor not present here. Also, he was an Aboriginal offender, which the Supreme Court found was not adequately addressed in the lower court decisions. Again, that is not a factor in Mr. MacDonald’s case. However, there are three factors that warrant more leniency for Mr. MacDonald as compared to Mr. Ipeelee. First, Mr. Ipeelee had not otherwise completed his LTSO; the LTSO started in March 2007 and his breach occurred in August 2008. Therefore, he had not demonstrated the degree of rehabilitation shown by Mr. MacDonald. Second, Mr. Ipeelee was very intoxicated and in possession of additional alcohol while riding a bicycle erratically on the public streets. The circumstances of Mr. MacDonald’s breach are less serious. Third, Mr. Ipeelee’s prior record for violence was significantly worse than that of Mr. MacDonald, including gratuitous violence perpetrated on vulnerable people, more than one occasion of kicking victims into a state of unconsciousness and more than one violent sexual assault. He therefore represented a greater risk of harm to the community than does Mr. MacDonald.
[43] Mr. Ladue was also initially sentenced to three years for breaching his LTSO. This was reduced to one year by the British Columbia Court of Appeal, which was upheld by the Supreme Court of Canada. This was Mr. Ladue’s fourth breach of the LTSO, each such breach involving consuming intoxicants. The main reason for the reduction was the failure of the sentencing judge to properly take into account Mr. Ladue’s Aboriginal status and the fact that there had been bureaucratic bungling of Mr. Ladue’s placement with the result that he was residing in an area of Vancouver where he had ready access to cocaine (to which he was addicted) and the criminal element, rather than in a center with emphasis on Aboriginal culture and healing. These are not factors for Mr. MacDonald. However, as was the case with Mr. Ipeelee, Mtr. Ladue still had a long time to serve on his LTSO and had not achieved the degree of success realized by Mr. MacDonald. Also, Mr. Ladue’s prior record of violence was far more serious including multiple sexual assaults and there was a psychiatric report that found him to be a sexual sadist.
[44] I also note that by the time these cases reached the Supreme Court of Canada, both offenders had already completed their sentences. Therefore, it is not surprising that although the sentence ultimately imposed was within the range for a conditional sentence, there was no discussion of whether it would have been appropriate in those cases.
[45] The Crown also relies upon the Ontario Court of Appeal decisions in R. v. Archer, R. v. Bourdon, and R. v. Matte,[^8] all of which are subsequent to the Supreme Court of Canada’s decision in Ipeelee. In Archer, the offender had been released to start his LTSO and directed to report to the Keele Centre. He was subject to a condition that he stay out of Oxford County. Upon release, he went directly to Oxford County, and from there to Winnipeg. The Court of Appeal, in a brief endorsement, reduced the sentence from six years to four years, citing Ipeelee. Due to the brevity of the decision, it is difficult to compare it to the case before me, except to say that the facts are in no way similar.
[46] The central issue in Bourdon was the credit to be given for time served, and in particular whether it was appropriate to give an enhanced credit in light of the fact that the LTSO continues to run while the offender is being held in pre-trial custody. The Court of Appeal held that it was not appropriate to give enhanced credit because this would amount to double counting. The Court of Appeal also held that the three-year sentence imposed by the trial judge was fit.[^9] The circumstances, however, were very different from those of Mr. MacDonald. For example, the underlying conviction and prior record was for sexual offences including the use of a stupefying drug. One of the breaches was that Mr. Bourdon was found in possession of a computer capable of accessing the Internet and a CD containing pornographic images of young women. Further, Mr. Bourdon’s conduct during the LTSO and his lack of commitment to rehabilitation stand in stark contrast to Mr. MacDonald’s progress. The Court of Appeal noted, at para. 15:
In his reasons, the sentencing judge noted that the appellant had never completed any of the treatment programs he had started and that the risk he posed to the public remained "high". He did not take supervision seriously and blamed others continuously for his circumstances and did not accept responsibility for his actions.
[47] I would also distinguish Matte on a similar basis. In that case, the offender was under an LTSO which included a condition that he abstain from taking non-prescribed drugs. He took one pill of Dilaudid, thereby breaching that condition. There was a strong correlation between Mr. Matte’s prior drug abuse and his history of violent re-offending. He had multiple past breaches of the LTSO and other court orders, as indeed does Mr. MacDonald. In that sense the two cases are similar – a relatively minor breach, but of a condition linked to past risk behaviour and a history of multiple breaches. The Court of Appeal upheld the one-year sentence imposed by the trial judge (the equivalent of nearly two years with the credit for pre-trial custody). However, there is one key factor that distinguishes that case from the one before me – the poor attitude of the offender. Watt J.A. held as follows, at paras 45 and 46:
The appellant's response to long-term supervision has been tepid, characterized by minimal effort, negligible motivation and spotty and superficial participation.
Of greater concern in the assessment of responsibility is the appellant's attitude towards rehabilitative programs. Despite many chances to participate in programs for violent offenders and drug abusers, the appellant's history is littered with failures to attend, suspensions for inappropriate behaviour and superficial responses. His attitude towards authority is consistently negative and he disagrees with the conditions of his release.
[48] The Court of Appeal therefore concluded that although the trial judge had failed to address the prospects of rehabilitation as mandated by Ipeelee, rehabilitation was not a primary factor because of the attitude of the offender. Watt J.A. held, at para 48:
Rehabilitation requires effort on an offender's part. It cannot be force fed to the unwilling. It ill lies in the mouth of the unwilling to complain that rehabilitation should have been accorded a prominent place in the sentencing decision, particularly where, as here, the offender complaining has been unswerving in his resistance to rehabilitative efforts for several years.
[49] That reasoning simply does not apply to Mr. MacDonald. Although he has had lapses, he has not resisted rehabilitation. On the contrary, he has embraced it and has been extraordinarily successful in changing the patterns of his previous life.
[50] The defence relies on a number of decisions in which sentences of under two years were imposed despite multiple prior breaches of an LTSO.[^10] These are all provincial court decisions, many of them from outside Ontario, and are not binding on me. More importantly, none of them mirror the circumstances of Mr. MacDonald so closely that I find them to be of much assistance in sentencing him.
[51] I was referred to only one case in which a conditional sentence was imposed, the decision of Low J. in R. v. Edgar.[^11] Mr. Edgar’s Aboriginal status was a major factor for the trial judge in imposing that sentence, a factor that is not present for Mr. MacDonald. However, there is much about Mr. MacDonald’s childhood and early adult years that is similar to Mr. Edgar’s circumstances and the sentencing judge was also influenced by the degree to which any risk of Mr. Edgar re-offending could adequately be addressed in the community, rather than in custody.
[52] I am not aware of, and was not referred to, any case in which the offender had already completed a lengthy LTSO at the time of the sentencing for breach, such as is the case with Mr. MacDonald.
Conclusion
[53] Based on these principles and precedents, and in all of the circumstances of this case, I am satisfied that this particular breach for this particular offender at this stage in his life does not warrant a sentence of more than two years.
[54] There is no minimum sentence for breaching an LTSO and this offence does not fall within the category of offences for which a conditional sentence is not available. In Ipeelee the Supreme Court specifically recognized the availability of a conditional sentence for breaching an LTSO.[^12] I must therefore consider whether a conditional sentence to be served in the community rather than in a correctional institution would meet the principles of sentencing and would not endanger the safety of the community.
[55] For the reasons I have already stated, I do not consider Mr. MacDonald to be a danger to the community at this stage. He continues to require some structure in his life and some supervision. It is appropriate that he report to a sentence supervisor on a regular basis and that he participate in programs to address his addictions, particularly with respect to alcohol. However, I can see no good reason why that cannot be done in the community as opposed to a prison. On the contrary, in my view, for this offender a sentence served in the community is more consistent with the goals and principles of sentencing than a term of incarceration would be.
[56] Accordingly, I sentenced Mr. MacDonald to a sentence of two years less a day, to be served in the community. That is to be followed by a period of two years’ probation. It is a condition of the sentence that he reside with his common-law spouse and that he attend counselling as advised by his sentence supervisor. I consider the living arrangements to be a crucial factor contributing to the management of Mr. MacDonald’s risk. Accordingly, I have directed that any variation of this provision must come back to the court for approval, preferably before me if I am available. The prohibition of alcohol and illegal drugs contained in the LTSO is continued. There were also a number of other conditions set out in the Orders which I signed in court, and which I will not repeat here.
[57] Mr. MacDonald is entitled to a credit for the time he has served, which I have calculated as 15 months on a 1:1 basis. In my view, an enhanced credit is not available based on the reasoning of the Court of Appeal in Bourdon.[^13]
MOLLOY J.
Released: August 14, 2014
COURT FILE NO.: 13/10000760
DATE: 20140814
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KENNETH MACDONALD
Defendant
REASONS FOR SENTENCE
MOLLOY J.
Released: August 14, 2014
[^1]: More than ten years had expired, but the LTSO had been suspended at various points over its history for various reasons. [^2]: He raised a technical defence based on errors in the documentation relating to the time the sample was taken, which I held did not raise a reasonable doubt as to timing or the continuity of the sample. [^3]: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 [^4]: Ibid, at para 51 [^5]: Ibid, at para 50 [^6]: Ibid, at para 50, citing R. v. L.M., 2008 SCC 31, [2008] S.C.R. 163 [^7]: Ibid, at para 52 [^8]: R. v. Archer, 2014 ONCA 562; R. v. Bourdon, 2012 ONCA 256, 110 O.R. (3d) 168; and R. v. Matte, 2012 ONCA 504, 111 O.R. (3d) 791 [^9]: In reaching its decision, the Court of Appeal referred to its own earlier decision in Ipeelee, but not to the Supreme Court of Canada’s decision. However, the appeal in Bourdon was argued in the Court of Appeal on March 2, 2012 and the Reasons were released on April 23, 2012. The Supreme Court of Canada’s decision in Ipeelee was released on March 23, 2012, in between those two dates. [^10]: R. v. Barnhardt, 2008 ONCJ 487; R. v. Boudreault, 2010 CarswellOnt 11053 (O.C.J.); R. v. Boudreault, 2012 CarswellOnt 10600; R. v. Edgar, 2014 BCPC 20; R. v. J.A.R.M., 2007 BCPC 29; R. v. McLean, 2014 BCPC 74. [^11]: Note 10 [^12]: R. v. Ipeelee, supra, Note 2, at para 54 [^13]: R. v. Bourdon, supra, Note 7.