CITATION: R v. Matheson, 2015 ONSC 3029

COURT FILE NO.: 0404/13

DATE: 20150512

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v. Dwayne Matheson

BEFORE: E.M. Morgan J.

COUNSEL: Matthew Giovinazzo, for the Crown

David Adanja, for the Defendant

HEARD: February 9 and April 23, 2015

SENTENCING JUDGMENT

[1] On July 17, 2012 the Defendant stole a ladder from 63 Caroline Ave., Toronto. An eyewitness saw him using the ladder to gain entry to the house next door, at 65 Caroline Ave. The police arrived and saw him exiting the main entrance. He fled the scene but left behind his backpack containing his identification.

[2] The Defendant was later arrested without incident and advised of his right to counsel and transported to 55 Division.

[3] At the opening of trial on February 9, 2015, counsel for the defense and the Crown advised me that the Defendant is pleading guilty to one count of break and enter. Sentencing submissions were heard on April 23, 2015, after the court received a pre-sentence report as well as a Gladue report in relation to the Defendant’s aboriginal background.

[4] The Crown seeks a sentence of 12 to 15 months in custody. The Defendant served 10 days of pre-trial detention, and so the Crown concedes that he should receive 15 days’ credit for this time. The Crown also seeks 18 months’ probation, as well as an order that the Defendant have no contact with Benjamin Carter, the owner of the home he broke into. Finally, the Crown seeks a prohibition order under s. 109 of the Criminal Code and an order that the Defendant provide a DNA sample.

[5] The defense takes the position that I should issue an 18 month conditional sentence order (CSO) plus 18 months of probation. Counsel submits that the Gladue principles apply to the Defendant and that an extended period of substance abuse counselling and employment training will be far more effective for the Defendant than any period of incarceration.

[6] The pre-sentence report provides some background on the Defendant as well as some context for the offense. It explains that he began using cocaine at age 13, and has a grade 6 education. He has had a troubling relationship with his mother, and has been diagnosed with Fetal Alcohol Spectrum Disorder. In addition, the report provides:

Ms. Sarah Doxtater, bail supervisor with the College Park Bail Program, has been supervising the subject since July of 2012. She also noted that the subject consistently seeks out professional assistance with addictions and housing…The subject readily admitted to having committed the current offence and said that he’d been high on crack cocaine at the time. He says that he is remorseful, knowing how it feels to have his privacy invaded and to be stolen from.

[7] Frances Harris, the Case Manager at the NaMeRes Sagatau Program, has written a letter of support for the Defendant. She indicates that he is successful in this program, and is no longer transient and has secured a bachelor apartment and is about to sign a lease.

[8] Furthermore, the Defendant has also begun participating in employment training programs. He has participated in 65 group sessions for substance abuse while on bail over the past two years. He volunteers at the Toronto East Drop In program and has participated in Anishnawbe Health Toronto’s Aboriginal Mental Health and Addiction program.

[9] In 2005, the Defendant connected with his aboriginal heritage, which is through his mother’s side of the family. This has been an evolutionary process for him, and has given him substantial insight into his own history and behaviour. He now understands that he had a relationship of “co-dependence” with his mother, who also had substance abuse issues. He has been on a journey of rehabilitation for a number of years now.

[10] The Gladue Report lists the Defendant’s short term goals, which include securing stable and secure housing, enrolling in school and obtaining his GED, acquiring a forklift operator’s license, and taking first aid training. These are available to him at the Miziwe Biik Aboriginal Employment and Training facility. His employment counsellor there confirms that the Defendant has in fact already enrolled in these programs. In addition, the Defendant has indicated to the author of the Gladue Report that he wishes to continue his volunteering services, and that he finds this work therapeutic.

[11] The overall picture that emerges from the two reports is that the Defendant is in the process of transforming himself. For the past 2 ½ years he has been on bail and has been out of trouble and seeking to better himself. His bail supervisor confirms in the pre-sentencing report that she “has no concerns regarding his performance under bail supervision and believes that he would do well under community supervision.”

[12] Counsel for the Crown argues that a conditional sentence would not be appropriate here, as the Defendant has already breached a conditional sentence order in relation to a previous conviction for break and enter. The purpose of a conditional sentence is to give someone an opportunity to help themselves. The Crown submits that there is a concern that this will be ineffective going forward.

[13] In support of his position, Crown counsel relies on R v Baylis, [2000] OJ No 4780, at para 19, where the court stated that, “With the offender’s record for crime, generally, and particularly for breaches of Court orders, and having in mind the fact that whatever…Court enforcement is available through the probation service, it simply has not been adequate. In terms of specific deterrence, a conditional sentence is simply inappropriate.”

[14] It is the Crown’s view is that the Defendant presents a similar case – i.e. he is a person with a prior criminal record for whom a conditional sentence is not adequate. Counsel for the Crown cites R v Jaffary, 2013 ONSC 215, para 19, where it was held that, “a period of incarceration will assist in the rehabilitation of [the Defendant] who has up to now not shown himself to be amenable to court orders.”

[15] The offense at issue here pre-dates the amendments to the Criminal Code which have eliminated conditional sentences for break and enter. The Crown contends that by eliminating conditional sentences, we can glean Parliament’s general disapproval of them for this kind of offense. Crown counsel also points to the parliamentary debates over the issue, to the effect that, “Over the years there has been a loss of public confidence in the appropriateness of conditional sentence orders because of the wide array of offences that received conditional sentences of imprisonment, including offences punishable by the highest maximum in the Criminal Code.” Shelly Glover, M.P., Parliamentary Secretary to the Minister of Finance, House of Commons Debates, Sept. 22, 2011, at 1356.

[16] The Crown observes that the pre-sentence report says that the Defendant has trouble with “commitment and following through”, and so submits that he is therefore unlikely to show the commitment to treatment and counselling that would justify a conditional sentence. With that in mind, the Crown analogizes this case to R v Downey, [2006] OJ No 1289 and R v Sanko, [2011] OJ No 5772, where the Court of Appeal confirmed sentences for 10 months and 12 months, respectively, for similar break and enter offenses.

[17] In my view, the Crown is using the Defendant’s obvious need for substance abuse treatment and other forms of counselling as an argument against just such treatment and counselling. Counsel for the defense analogizes this case to R v Lazore, 2015 ONSC 1090, where a conditional sentence of two years was given to an aboriginal defendant who had been subject to a conditional sentence in the past and had breached it. As is the case here, the defendant in Lazore was facing charges that have recently been subjected by Parliament to mandatory minimums (here break and enter, there human smuggling).

[18] Similar to Lazore, at para 50, “The criminal conduct evidenced here was but a component of the substance abuse cycle – fast money to feed the habit.” This is the kind of case the Supreme Court of Canada had in mind in R v Proulx, 2000 SCC 5, [2000] 1 SCR 61, at para 100, where they stated that, “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… 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.”

[19] In view of the Defendant’s aboriginal heritage, section 718.2(e) of the Criminal Code requires me to consider any alternatives other than incarceration that are reasonable in the circumstances. This must always be examined in light of the individual circumstances of the defendant before the court, but can never be ignored altogether. “Application of the Gladue principles is required in every case involving an Aboriginal offender”: R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, at para 87.

[20] Those principles require that in fashioning an appropriate sentence, I make every effort to remedy the Defendant’s problems and not to simply punish him. In the Supreme Court’s words:

The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in section 718.2(e), intended to attempt to redress this social problem to some degree. The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process.

R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, at para 64.

[21] Here, the Defendant pleaded guilty, which helped expedite matters considerably for the court. Further, defense counsel points out that this plea was entered despite the fact that the defense may have had a good strategic position in respect of an absent witness that the Crown wanted to introduce via transcripts of the preliminary hearing.

[22] Perhaps more importantly, the Defendant has expressed remorse and has taken responsibility for his actions. While on bail he has engaged in no criminal conduct, and has made impressive strides in rehabilitating himself. As already indicated, his bail supervisor and his pre-sentence report author have both recommended a conditional sentence.

[23] Specific deterrence against this Defendant is far more likely to be accomplished through a continuation of his counselling and other programs than it is through a period of physical incarceration. And as for general deterrence, that is to be considered in light of the Gladue principles. The issues highlighted in the pre-sentence and Gladue reports here cry out for a form of intervention other than imprisonment. Although their circumstances are quite different, I would say of the Defendant what the Court of Appeal said of the defendant in R v Lai, [2008] OJ No 1342, at para 39: “Society has nothing to gain by incarcerating [the Defendant]…”

[24] I consider this an appropriate case for a conditional sentence order followed by a period of probation. The defense has submitted a detailed proposal for a conditional sentence and probationary period, which I accept.

[25] Mr. Matheson, please stand up at this time.

[26] In all of your circumstances and those of the offence, I sentence you to a period of 18 months, to be served in the community under the following conditions:

a) You are not to possess any non-medically prescribed drugs.

b) For the first 6 months, you are to remain under house arrest – i.e. you are to remain in your residence at all times. The only exceptions to this are when you are travelling directly to and from and attending a counseling, healing, educational, employment, or Aboriginal program, with approval from your CSO supervisor, or medical emergencies or Saturdays between 1:00 p.m. and 3:00 p.m. for necessities.

c) For the remaining 12 months, you are to remain in your place of residence daily between 10:00 p.m. and 6:00 a.m. Again, the only exceptions to this are for medical emergencies or for employment, education, or other counseling with prior approval from your CSO supervisor.

d) You are to have no contact with Benjamin Carter or any member of his family.

[27] In addition, there shall be a prohibition order under s. 109 of the Criminal Code with respect to the use and possession of weapons for ten years. You shall also provide a DNA sample as required by the police or your CSO supervisor.

[28] Following this 18 month period, you are to be under a Probation Order for another 18 months. The terms of your probation, in addition to the statutory terms, are the following:

a) You are not to possess any non-medically prescribed drugs.

b) You are to continue counselling as directed by your probation officer, and you are to sign releases so that your probation officer can monitor the counselling.

c) You are to continue to have no contact with Benjamin Carter or any member of his family.

d) You are to keep the peace and be of good behaviour.

Morgan J.

Date: May 12, 2015