R. v. Lazore, 2015 ONSC 1090

R. v. Lazore, 2015 ONSC 1090

COURT FILE NO.: CR-13-45

DATE: 2015/02/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Oren Lazore

Mark Seebaran, for the Federal Crown

Daniel Brisebois for the Provincial Crown

Michael Crystal, for the Accused

HEARD: November 8, 2013; July 17, 2014

Justice Rick leroy

reasons on sentencing

CHARGES AND FACTS

1The offender was a member of an organization whose purpose was to smuggle a Nigerian family of five, two parents and three children, across the US/Canadian border on June 18, 2012. He was the final courier. He collected the cargo at a hotel in Massena, New York, drove them to the river to a stolen bass boat and delivered them to the Canadian shore near the college.

2In the process, he displayed remarkable narcissistic amorality. He gratuitously endangered the lives of his charges who pleaded with him to stop. He fled from police on the road and river, driving both vehicles dangerously. To top it off, he appropriated their passports leaving them bereft of documentation in foreign territory.

3He was addicted to OxyContin at the time and he did what he did for $500.00 to replenish his drug supply.

4The offender pled guilty before me on November 8, 2013 on the basis of an agreed statement of facts. The sentence hearing set for July 18, 2014 was adjourned to accommodate completion of a comprehensive Gladue report.

STATUTORY PROVISIONS

5These are serious offences and can attract significant sanction.

6At the time of offence, a contravention of s. 117(1) of the Immigration and Refugee Protection Act with respect to fewer than 10 persons attracted liability for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both. The sentence consequences have been increased to a minimum sentence of three years imprisonment.

7Every person who fails to appear and report on entry to Canada contravenes section 11 of the Customs Act and is guilty of an indictable offence and liable to a fine of not more than five hundred thousand dollars or to imprisonment for a term not exceeding five years or to both.

8Section 355 of the Criminal Code provides that everyone who commits an offence under section 354 (possession of stolen goods) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years.

9Section 249.1 of the Criminal Code provides that a conviction for failing to stop for police in order to evade the officer is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

10Section 249(1)(a) of the Criminal Code provides that everyone who is convicted of dangerous driving is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

POSITIONS OF COUNSEL

11The Federal and Provincial Crowns argue for a period of incarceration in the global range of 18 to 24 months. Defence agrees with the range but argues for a conditional sentence.

Position of the Akwesasne Aboriginal Justice Committee

12Input from the Akwesasne community could have been helpful in formulating a fit and just sentence. Our traditional sentencing ideals of denunciation, deterrence and separation are often far removed from the understanding of sentencing held by aboriginal offenders and their community and do not resonate. Frequently, those concepts have not responded to the needs, experiences and perspectives of aboriginal people or aboriginal communities: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 at para. 73.

13Notwithstanding the Gladue investigation, no evidence was adduced in respect to the views of this Aboriginal community in respect to sentence options for these offences and this offender. The Crown directed me to excerpts from a paper written by Akwesasne Grand Chief Mike Mitchell in 1999 wherein he confirmed Mohawk community disapproval of the smuggling trade citing valid reasons. Unfortunately, that doesn’t illuminate the sentence calculus.

14When an aboriginal community has a program or tradition of alternative sanctions, and support and supervision are available to the offender, it may be easier to find and impose an alternative sentence. When that community support is not before the Court, every effort should be made in appropriate circumstances to find a sensitive and helpful alternative – Gladue at paragraph 92.

THE OFFENDER

15Mr. Lazore is 24 years of age. He is the father of one child and expects the second in March this year. He and his partner reside together with his parents in St. Regis. He and his partner are recovering OxyContin addicts. His first child, born February 12, 2011 suffered withdrawal at birth.

16He became addicted to OxyContin at age 16/17 in 2007/2008. He reported using three or four 80 milligram doses daily. His adult criminal record includes convictions for an Excise Act offence in December 2009 in relation to smuggling tobacco, a Customs Act offence in 2010 and Criminal Code offences related to possession of stolen goods and house breaking instruments in 2011. He was given a 9-month conditional sentence for the Customs Act offence on May 17, 2010 that was increased to 9 months and 22 days on July 5, 2010 after a breach.

17He was expelled from school in Grade 12 and did not return until after these offences.

18Mr. Lazore is Mohawk. His parents are middle class and substance abuse is not featured in the family. Factors such as residential schools, lack of education, lack of employment often associated with Aboriginal substance abuse are not featured here. He describes a ‘normal’ childhood. Mr. Lazore attended Mohawk immersion school through Grade 5 after which he attended English-speaking schools. He is not afflicted with learning disabilities. He was an indifferent student.

19He described his operational state of mind going into these offences to the report officer as follows: “I was feeling like shit; my legs were shaking; I was puking and shitting. It was bad. I knew there was work and I knew it was easy money. I knew once I was done I’d get drugs.”

20Mr. Lazore determined to recover and voluntarily entered a 56-day Native in-patient program on July 20, 2012 which ended September 15, 2012. He chose to eschew after care. In the interim, he completed high school equivalency. He attended the first component of a carpentry program in college, but failed to complete as the result of admitted indolence. More recently, he worked for a relative in a garage and attends college in a welding program. He has good intentions.

21His father reports that he has to motivate his son who spends a lot of time on the couch watching television.

SENTENCE PRINCIPLES

22Section 718 of the Criminal Code describes the fundamental purpose of sentencing persons convicted of crime. That purpose is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions on offenders. Among the sentencing objectives that factor into sentencing decisions are denunciation; deterrence, specific and general; assistance in rehabilitation; reparation for harm done; promotion of offender responsibility; and acknowledgement of harm. The last four demonstrate the influence of restorative justice components in the sentencing decision.

23Restorative objectives are of particular importance in determining the sentence to impose on youthful offenders, including immature recidivists. Restorative justice, which underpins s. 718(d)-(f), involves some form of restitution and reintegration into the community. Central to the sentencing process is the need for offenders to take responsibility for and acknowledge the harm caused by their conduct: Gladue, at para. 43.

24A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing is an individualized process, ill-suited to a "one- size-fits-all" approach. The sentence judge has an affirmative duty to account for the surrounding circumstances of the offender, including the nature of the offence, the victims and the community – R. v. Wells, 2000 SCC 10, [2000] S.C.J. No. 11, para 41.

25A sentence should be reduced to account for any mitigating circumstances relating to the offence or offender, or increased to account for any aggravating circumstances, including those deemed to be aggravating in s. 718.2(a)(i) through(v).

26Predictably, this individualized focus in sentencing decisions spawns disparity among sentences for similar crimes: Gladue, at para. 76.

27A measure of the objective gravity of a crime is its maximum punishment as prescribed by Parliament. Degrees of responsibility vary. Some are principals. Others are aiders, abettors, counsellors or parties to a common unlawful purpose. And even within each mode of participation, some bear greater responsibility than others. Although all are parties in law and equally guilty of the offence, greater punishment is the usual consequence of greater responsibility.

Section 718.2(e) and Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688

28The Gladue principles are a codification of recognized sentencing principles, applied to a particular segment of society, wherein early and repeated exposure to substance abuse, family violence, domestic abuse, poverty and overt discrimination reduces moral blameworthiness of the offender’s conduct in later years.

29Section 718.2 (e) requires a sentencing judge to consider alternatives to the use of imprisonment as a penal sanction. This sentencing factor embodies the principle of restraint and is of general application. Except in cases in which no other sanction or combination of sanctions is appropriate to the offence and offender, imprisonment is a penal sanction of last resort: Gladue, at para. 36.

30Aboriginals are more adversely affected by incarceration and less likely to be “rehabilitated” thereby because the internment milieu is often culturally inappropriate and discrimination against them is often rampant in penal institutions – Gladue para 68.

31A sentencing judge must pay particular attention to the circumstances of aboriginal offenders because they, or their circumstances, are unique and different from those of non-aboriginal offenders. The sentencing judge has the duty to give the remedial purpose of the provision real force in relation to aboriginal offenders: Gladue, at paras. 34 and 38.

32Restorative justice objectives do not trump other sentencing objectives in every case involving aboriginal offenders. Separation, denunciation and deterrence retain their fundamental relevance for some offenders who commit serious offences. It is reasonable to assume that for some aboriginal offenders, depending on the nature of the offence, the goals of denunciation and deterrence are fundamentally relevant to the offender’s community. As a general rule, the more serious and violent an offence, the more likely it is that the terms of imprisonment imposed on similarly circumstanced aboriginal and non-aboriginal offenders will not differ significantly, and indeed may be the same. That said, in some instances of serious and violent crime, the length of a sentence of an aboriginal offender may be less than that imposed on a non-aboriginal offender: Gladue - at paras. 79 and 80.

33By way of example, when Madam Justice Lafrance-Cardinal imposed sentence in R. v. Montgomery, the prevalence of OxyContin abuse on the island was devastating the community. She wrote that the bench needed to assist law enforcement by emphasizing denunciation and deterrence hoping to send the message that things needed to change. Fortunately, change came. OxyContin use and police chases have been significantly reduced.

34Every case is different. Serious crime and the objectives of restorative justice are not incompatibles in the sentencing process. Restorative justice objectives may predominate in the sentencing decision for aboriginal offenders convicted of serious crimes: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, at para. 49.

The Availability of Conditional Sentences

35The appellants' claim for conditional sentences of imprisonment requires examination of the statutory requirements and principles governing the imposition of conditional sentences.

36The sentencing judge is required to consider several criteria in deciding whether to impose a conditional sentence. Were any of the offences punishable by a minimum term of imprisonment? Was a sentence of less than two years fit and appropriate? Would the safety of the community be endangered if the appellants served their sentence in the community? Was a conditional sentence consistent with the fundamental purpose and principles of sentencing in ss. 718 to 718.2: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, at para. 46.

37Counsel agree that in all the circumstances, a sentence of imprisonment of less than two years is fit and appropriate.

38To assess the risk of endangerment of community safety, a sentencing judge should take into account both the risk of reoffending and the gravity of the harm that could ensue in the event of recidivism. The risk of recidivism must be assessed in light of the conditions proposed and the supervision available under the conditional sentence order: Proulx, at para. 72.

39The Crown conceded that the offender’s circumstances have changed and the risk of re-offence is minimal.

40A conditional sentence is available in principle, though not always in practice, for all offences in which the statutory prerequisites are met. Apart from offences excluded by the terms of s. 742.1 for example, offences punishable by a minimum term of imprisonment, no specific or category of offence is presumptively excluded from the conditional sentence option: Proulx, at paras. 79-81, Wells, at para. 30.

41Depending on the severity of the conditions imposed, a conditional sentence may nonetheless be reasonable even where denunciation and deterrence are the predominant sentencing objectives: Wells, at para. 35. A conditional sentence can achieve both punitive and restorative sentencing objectives. As Lamer C.J.C. explained, in para. 100 of Proulx:

To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.

42A conditional sentence with house arrest carries a substantial stigma for the offender, especially in a smaller, tightly-knit community such as Akwesasne where privacy is elusive.

43Aboriginal status does not guarantee a conditional sentence. It is, nonetheless, an important factor for the sentencing judge to consider in determining whether to impose a conditional sentence: Wells, at para. 30.

Aggravating and Mitigating Circumstances

44Aggravating and mitigating factors are those that impact on the moral blameworthiness of the offender. The absence of behavior that would constitute one or the other is generally a neutral factor. Had the offender attended the aftercare rehabilitation segment of the program, it would have been a mitigating factor. That he did not is neutral.

AGGRAVATING FACTORS

45Mr. Crystal concedes that Mr. Lazore’s actions were atrocious. His treatment of the Nigerian victims was gratuitously callous and repugnant.

46Section 121 of the Customs Act identifies offence for profit and degrading treatment of the victims as aggravating factors.

47This was a criminal organization similar in design and pursuit to the organization Justice Malloy described in R. v. Alzehrani, [2009] O.J. No. 5797, affirmed in 2010 ONCA 110. At paragraph 50 she wrote:

“It is important for national security and public safety to send a message that those who would compromise our international borders … will be dealt with severely.”

48Mr. Lazore’s involvement was limited to role as courier, however; the decision to elude police and engage in a high-speed escape was his own. His actions suggested a fellow incapable of planning and deliberation. He risked the lives of the victims, parents and children both in the car and boat. He thoroughly frightened the victims who understood they were to enter Canada through legitimate process. He liberated their Nigerian passports. He did this for money. He is a repeat smuggling offender.

MITIGATING FACTORS

49His role in the offences relating to the illegal smuggling was not dominant or central. He was tasked with a dangerous undertaking, for minimal remuneration by men who knew he was an addict and vulnerable to offerings for any remunerative activity, no matter how risky.

50The criminal conduct evidenced here was but a component of the substance abuse cycle – fast money to feed the habit.

51He pled guilty and takes responsibility for his actions.

52He is a young man, age 23 with a spouse and infant child in their care.

53Remorse, when genuine, will mitigate. In the meantime, he successfully withdrew from the opiate and other substance addictions that were ruining his life. He attended a treatment center for 56 days shortly after these offences were committed. Acknowledgement and ownership of harm done are significant components of a successful 12-step recovery program. They do not come easily.

54He no longer associates with pro-criminal peers.

55He is working and supporting his spouse and child – he secured his first full time employment early this year and is considered a good employee.

56He is viewed by the PSR author as a suitable candidate for community supervision.

57He has a healthy relationship with his father.

58The family embraces abstinence.

The Principles Applied

59This has been a difficult sentencing decision and not without misgivings. The facts of the offence offended my sensibilities and penitentiary was my initial response. In arriving at the sentence I am about to impose upon Oren Lazore, I considered the crimes and his personal circumstances. I have taken the aggravating features of these crimes into account.

60Denunciation and deterrence are recognized priorities. The offender’s conduct was inexcusable. I am alert to Mr. Brisebois’ observation to the point that the Crown position on length of sentence reflects recognition of the offender’s recovery. Human smuggling undermines border integrity and immigration management. Illegal human smuggling for money cannot be permitted. The enhanced sanctions for offending bespeak Parliament’s concern for this issue.

61He risked the lives of the victims’ including three children without regard for any sense of humanity. Then he removed their passports, their only connection to anywhere in the world. He summarily deposited them on the north bank of the St. Lawrence River in Cornwall and left.

62Mr. Lazore experienced a smuggling-related conditional sentence and other sentencing but didn’t learn from it. I attribute that to unmanaged effects of addiction during that part of his life.

63That said, there is a significant difference between the offender who simply stays out of trouble and someone who embraces the program that obviates the cause of the criminality. If he is to be believed, he has actually learned from this and now eschews drug consumption. He is, for the first time in his short life, committed to family lifestyle and legitimate income sources.

64I am persuaded by Mr. Crystal’s submission to the point that the principles of denunciation and deterrence are not fulfilled only in the negative. Parliament expects Courts to hesitate before concluding that actual prison is required. I also agree with his premise to the point that when a young aboriginal person commits to meaningful change, that should be factored into sentence and I should meet him half way.

65Here, Mr. Lazore lost eight or nine years of his life to the illness of drug addiction. His soul was engulfed. That is the effective message.

66We also need to communicate to addicts the value of recovery in the sentence process. Recovery is not an easy achievement and brings its own value that is invisible without ancillary benefit of judicial recognition.

67We cannot change the past but can enhance the future. Mr. Lazore and society cannot benefit from the overt anti-aboriginal discrimination in the jail setting and exposure to antisocial behavior. I agree that incarceration would be a step back in this man’s recovery. The side door exit may send a message but the risk to recovery from odious warehousing is too great and pointless for this individual.

68Mr. Lazore’s recovery is a signal that the system can work. When he was arrested and released on bail, he had choices. He chose the right one and he and his community benefit from the experience.

69Mr. Lazore is no longer a risk to his community. He is a good candidate for conditional sentence. I do have reservations about the merit of repeated conditional sentences and Mr. Lazore would do well to recognize that the window for such disposition is just about closed.

70I agree with Mr. Brisebois to the point that general deterrence in these cases is directed at the adolescent tempted by the first offering of the highly addictive substance.

71Strict conditional sentence terms can further the objectives of denunciation and deterrence. These offences are most serious and erode community safety and integrity and cannot go unpunished. Denunciation and deterrence are central and necessary considerations in disposing of this case.

72Notwithstanding the paucity of typical Gladue factors, there is nevertheless the fact of pervasive intractable discrimination.

73The author of the preliminary PSR described the culture clash in Akwesasne. On the one hand, there is the rich pro-social aboriginal culture, which includes trade without boundaries. On the other, are every day expectations resulting from contemporary externalities inherent in the dearth of legitimate income earning options, the epidemic of prescription opiate consumption on the reserve, the fast money associated with smuggling and the urge to have easy material wealth. He concluded that to be the genesis for the poor decision-making inherent in these offences.

74He concluded that the very conduct evidenced here is specific to the First Nations community of Akwesasne. The risk reward assessment was distorted by the addiction and promise of easy money with notionally little at risk. That is, until apprehension when he is abandoned by his pro-criminal “friends” and his prospects are tied again to rich culture and family, where it should have been all along.

CONCLUSION AND RELATED ORDERS

75The federal and provincial offences are discrete and I accept the submission that sentence for each is to run consecutively. Mr. Lazore is sentenced to 15 months on the human smuggling convictions and 9 months less one day on the Criminal Code convictions for a total of 24 months less one day to be served consecutively and in the community. He will remain on probation for a further two years.

76The 2-year conditional sentence terms to include: 12 months house arrest, exceptions limited to medical attention for he and his dependent family, educational pursuits at St. Lawrence College, employment obligations and recovery programs as directed by his supervisor to include enrolment and attendance in the Partridge House after care program and the Anger Management and Withdrawal Management Programs offered by the Mohawk Council of Akwesasne Department of Community and Social Services, together with the one-on-one traditional counseling offered by the Akwesasne Department of Health, all to be pre-approved by his supervisor; followed by 364 days curfew between 8 p.m. and 6 a.m.; written apology to Akwesasne police services. If the supervisor thinks it appropriate, Mr. Lazore could offer his experiences to youth in the community.

77Other conditions to include door-knock, no non-prescribed drugs, no association with known users, no association with the other conspirators – Omoghan and Seth Lazore and reside at approved address.

78He is to be on probation for an additional 2 years on the statutory and the same ancillary terms.

79There will be a ten-year weapons prohibition, DNA order and two-year licence suspension.

80Mr. Lazore has been under supervision for 3 years and will be under supervision for four more. When this is over, he will be 27. This outcome is denunciatory and ought to serve as deterrence. There are few fast fixes once someone embarks on the road to addiction.

81This is not the end of the sentence for Mr. Lazore; rather it is a beginning and he needs to be aware that breach of the peace over the next four years attracts significant consequences. It bears emphasizing that Mr. Lazore must have his documents with him at all times when he is away from the home. Any absences need to be approved by his supervisor beforehand.

Justice Rick Leroy

Released: February 17, 2015

ADDENDUM

February 18, 2015

On the issue of whether the offender needs to establish a causal link between his circumstances and offending, I rely on the following excerpt from R. v. Ipeelee, 2012 2 S.C.C. 13 where the Supreme Court said ”it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue at page 86 – Cultural oppression, social inequality, loss of self-government and systemic discrimination which are the legacy of the Canadian Government’s treatment of Aboriginal people, are intertwined and interdependent factors, and, in very few cases, is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated. The operation of s. 718.2(e) does not logically require such a connection.” – Paragraph 87.