R. v. Boucher, 2015 ONSC 3326
COURT FILE NO.: CR-13-0100
DATE: 2015-05-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Gordon Fillmore and Elaine Burton, for the Crown
- and -
Christopher William Boucher,
Mason Millar, for the Accused
Accused
HEARD: May 27, 2015,
at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
(Delivered Orally) Reasons On Sentencing
[1] The trial of the accused, Christopher Boucher, was heard August 18, 19, 20 and 22, September 22 and 23, and October 16, 2014.
[2] On September 22, 2014, during the trial, Mr. Boucher, pleaded guilty to Count No. 4 in the indictment, namely, breach of recognizance by failing to attend court, contrary to s. 145(2)(a) of the Criminal Code.
[3] At the conclusion of trial on October 16, 2014, Mr. Boucher was found guilty of the remaining three counts in the indictment:
(1) aggravated assault of Jonah Bedard by wounding, contrary to s. 268 of the Criminal Code;
(2) assault of Raider Bedard, contrary to s. 266 of the Criminal Code;
(3) unlawfully being in a dwelling house with intent to commit an indictable offence, contrary to s. 349(1) of the Criminal Code.
Background Facts
[4] Jonah Bedard and Mr. Boucher lived across the street from one another, with their respective spouses and young children, in a townhouse development on Trillium Way in Thunder Bay. An unfriendly relationship developed between the two men.
[5] On July 5, 2013, while Mr. Bedard was walking on Trillium Way, Mr. Boucher came up from behind him, spun him around and pulled out a knife. Mr. Bedard ran to his home. Mr. Boucher pursued him.
[6] Mr. Bedard dove through his front door, tripped and fell into his living room. Mr. Boucher came in on top of Mr. Bedard, hitting and punching Mr. Bedard with the knife in his hand.
[7] Mr. Bedard’s three year old son, Raider, came into the room toward to the two men. Mr. Boucher knocked Raider out of the way with his hand, sending Raider flying across the room, landing in a toy box.
[8] Mr. Bedard’s spouse, Michaela Ivall-Besignano, came into the room and, together with Mr. Bedard, forced Mr. Boucher out the front door.
[9] The police were called. Mr. Boucher was arrested.
[10] Mr. Bedard suffered a deep cut across the width of his right forearm, a cut under his armpit, a puncture wound on the top of his right shoulder and a light cut on his right rib cage. There is scarring from the wounds to his forearm, shoulder and armpit. He sometimes experiences numbness in his right hand and pain in his right shoulder.
[11] Raider had a small mark on his back from where he landed in the toy box. Ms. Ivall-Besignano testified that after the incident Raider was increasingly agitated and engaged in violent behaviour. He was enrolled in grief and trauma counselling. He was kept out of daycare for three weeks.
[12] Ms. Ivall-Besignano testified that following the incident she had multiple anxiety attacks and difficulty sleeping.
Circumstances of Mr. Boucher
[13] Mr. Boucher is a Band member of Fort William First Nation, which is adjacent to Thunder Bay. A comprehensive pre-sentence report, with a Gladue component, was prepared by the Ministry of Community Safety and Correctional Services.
[14] Mr. Boucher is 36 years of age. He comes from a very difficult background.
[15] His maternal grandfather was involved in the residential school system. This grandfather beat and threw his spouse out of the family home so that he could sexually abuse their children and grandchildren. In particular, he sexually abused Mr. Boucher’s mother, which led to the birth of a developmentally handicapped girl who was adopted out at birth.
[16] Mr. Boucher’s mother was gone for long periods of time, leaving Mr. Boucher in the care of sitters. He is the only child of his parents’ union. He has two known surviving older half-siblings. His siblings moved to British Columba when Mr. Boucher was about two years of age, to live with their father. Mr. Boucher’s father then moved to Montreal. Mr. Boucher had limited contact with his father until Mr. Boucher resided briefly with him in Montreal at about age 10.
[17] On multiple occasions, as a child, Mr Boucher was placed in foster care because of his mother’s substance abuse, dysfunctional family relationships, child abandonment, physical abuse and truancy. Mr. Boucher witnessed domestic abuse between his mother and multiple partners. His mother put her partners ahead of her children.
[18] The addiction issues of Mr. Boucher’s mother culminated in a fatal overdose in 1997. Mr. Boucher had intervened on previous occasions to stop his mother from taking her life through drug use. His step-brother also committed suicide.
[19] Mr. Boucher was a victim of sexual assault as a youth by a family member now deceased. He was exposed to, and experienced first hand, acts of violence, emotional abuse and neglect.
[20] As a means of coping, Mr. Boucher began using solvents at age nine and was in treatment in Minneapolis at age nine or ten. By age 12, Mr. Boucher was consuming alcohol and drugs. By age 21, he was using opiates, often daily if possible. He also used cocaine, administered intravenously. He attended residential treatment twice, successfully completing the program on the second occasion, but soon relapsed. He has been on a methadone program while in jail.
[21] He became involved with the legal system at an early age. He had approximately 20 convictions in Youth Court. As an adult, he has approximately 40 convictions. He was sentenced in 2002 to a penitentiary term of 33 months for multiple charges of break and enter. He has convictions for violence, including assaults of a peace officer, assault with intent to resist arrest and aggravated assault. His most recent convictions were on September 24, 2013, for possession of a firearm while prohibited and careless use of a firearm. He received a sentence of one year imprisonment less credit for one month of pre-sentence custody.
[22] Mr Boucher struggled with school and was diagnosed with Attention Deficit Hyper Activity Disorder and placed on Ritalin. Mr. Boucher did not attend high school, but received his equivalency while incarcerated. He completed a welding program at Confederation College in 2008. He worked seasonally for approximately five years installing windows.
[23] Mr. Boucher had a relationship with Laura Lee Cordoni from 2003 to 2013. He has two young children from that relationship. Because both he and Ms. Cordoni used illicit drugs, the children were apprehended. In 2013, the children were placed with Mr. Boucher’s sister, Michelle Yantz, under a Kinship Agreement.
[24] Ms. Yantz has been very supportive of Mr. Boucher. She works at Beendigen Crisis Home, a home for abused women and children. She attended throughout the trial. She advised the author of the pre-sentence report that Mr. Boucher is in need of long term intervention and strongly suggested that his needs be met through Aboriginal programming in a structured setting. She voiced concerns about his well-being and is afraid that he will not survive his present lifestyle.
[25] Although Mr. Boucher’s maternal family did not practice Aboriginal traditions and his paternal family is not native, Mr. Boucher indicated that he first began to participate in traditional ceremonies while in custody and this is an area he would like to continue to explore.
[26] The author of the pre-sentence report provides the following assessment of Mr. Boucher:
“Mr. Boucher presents as an affable individual who appears sincere in wanting to make positive changes. He has also shown he has difficulties doing this on his own within a community setting.”
Impact on the Victims
[27] I have previously set out the injuries received by Mr. Bedard and the evidence at trial of Ms. Ivall-Besignano as to the effect of the incident on her and the child, Raider.
[28] On the sentencing hearing, Ms. Ivall-Besignano read from a letter in which she spoke of the chaos and pain which Mr. Boucher’s actions have caused to her family and of the suffering of his own children and Ms. Yantz. She expressed the hope that Mr. Boucher would be able to take responsibility for his actions so that he would not hurt someone else or continue to hurt himself.
Expression of Remorse
[29] At the sentencing hearing, Mr. Boucher apologized to the victims for what he described as “senseless, tragic acts”. He also apologized to his sister, Ms. Yantz, and thanked her.
Legal Parameters
[30] Aggravated assault carries a maximum of 14 years imprisonment. Assault carries a maximum of five years imprisonment. Being unlawfully in a dwelling house, with intent, carries a maximum penalty of 10 years imprisonment. The maximum penalty for breach of recognizance is two years imprisonment.
Pre-Sentence Custody
[31] Counsel agree that Mr. Boucher’s custodial sentence imposed on September 24, 2013, effectively expired on May 5, 2014. Between May 5, 2014 and today’s date, May 27, 2014, Mr. Boucher has served 388 days of pre-sentence custody.
Position of the Crown
[32] The Crown submits that Mr. Boucher should receive a penitentiary term of between three and five years, with credit for time served on a 1 to 1 basis.
[33] The Crown refers to s. 718.01 of the Criminal Code:
718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.”
[34] The Crown submits that in this case, s. 718.01 is triggered by Mr. Boucher’s conviction for assault of the child, Raider, and by the fact that Raider was traumatized by seeing the aggravated assault upon his father in his home.
[35] The Crown submits that, although Mr. Boucher was not charged with break and enter, and therefore, although s. 348.1 of the Criminal Code, relating to home invasion, is not engaged, nevertheless, the fact that the incident occurred within the victims’ home should be regarded as an aggravating circumstance.
[36] The Crown acknowledges that the court must consider the principles in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R 688 (S.C.C.). However, the Crown submits that because of the seriousness of the aggravated assault, Gladue recognizes that differences in terms of imprisonment between aboriginal and non-aboriginal offences will be narrower.
[37] The Crown submits that Mr. Boucher should not receive enhanced credit for the 388 days in pre-sentence custody. The Crown notes that on July 19, 2014, Mr. Boucher was charged with assaulting a jail guard with a weapon (namely, a T-shirt). He has been in custody on consent on that charge. The Crown submits that because of his history, the circumstances of the case and the July 19, 2014 charge, granting Mr. Boucher enhanced credit would not be appropriate.
Position of the Defence
[38] The defence submits that Mr. Boucher should receive a sentence of time served, with enhanced credit on a 1 to 1.5 basis, plus probation with conditions to address his substance abuse.
[39] The defence submits that the principles of Gladue should apply but acknowledges the seriousness of the offences.
[40] The defence refers to the support that Mr. Boucher has from his sister, Ms. Yantz.
[41] The defence submits that Mr. Boucher’s biggest concern is his children whom he has not seen while he has been incarcerated. The defence states that Mr. Boucher wants to re-establish a bond with his children.
Principles of Sentencing
[42] The fundamental purpose of the criminal law is the protection of society. This principle has been codified in s. 718 of the Criminal Code which emphasizes that the fundamental purpose of sentencing is to encourage respect for the law and the maintenance of a “just, peaceful and safe society” by imposing just sanctions. These sanctions must have one or more of the following objectives:
• to denounce unlawful conduct;
• to deter the offender and other persons from committing crimes;
• to separate offenders from society, where necessary;
• to assist in rehabilitating offenders;
• to provide reparations for harm done to victims or to the community; and
• to promote a sense of responsibility in offenders and an acknowledgement of harm done to victims and to the community.
[43] The principle of denunciation focuses on the conduct of the offender, not on the personal characteristics of the offender. It is a public expression of society’s attitude towards an offence committed, an expression of society’s disapproval of an act that encroaches on our society’s basic code of values. The principle of deterrence seeks to provide a threat or an example to the offender (individual deterrence) or to others (general deterrence) in order to discourage crime, by making it clear that criminal behaviour will result in punishment. Rehabilitation mandates punishment to fit the offender. It is aimed at the renunciation by the offender of his wrongdoing and his re-establishment as an honourable, law-abiding citizen. Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Every sentence must meet this fundamental and overarching principle of proportionality. The punishment must fit the crime.
[44] As noted in the Crown’s submissions, s. 718.01 provides that when a court imposes a sentence for an offence that involved the abuse of a person under 18 years of age, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[45] Section 718.2 directs that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Evidence that the offender, in committing the offence, abused a person under 18 years of age shall be deemed to be an aggravating circumstance. Section 718.2 also requires the sentencing court to take into consideration, among others, these principles:
• a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances;
• an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;
• all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[46] It is essential that the sentencing court consider and blend all the relevant sentencing principles.
[47] Because Mr. Boucher is an aboriginal offender, it is important to firstly consider the principles in Gladue, as recently reviewed by the Supreme Court of Canada in R v. Ipeele [2012] S.C.R. 433 (S.C.C.), and as discussed by the Court of Appeal in R. v. Kakekagamic (2006), 2006 28549 (ON CA), 81 O.R. (3d) 664 (C.A.). R. v. Whiskeyjack (2008), 2008 ONCA 800, 93 O.R. (3d 743 (C.A.), R. v. Jacko 2010 ONCA 452 (C.A.) and R. v. Collins 2011 ONCA 182 (C.A.).
[48] Ipeelee emphasizes that the overrepresentation of aboriginal people in Canadian prisons was the impetus for the specific reference to aboriginal people in s. 718.2 of the Criminal Code. In speaking about Gladue’s response to this “sad and pressing social problem”, Lebel J. states, at paras 59-60:
“The Court held, therefore, that s. 718.2(e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84).
Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.”
[49] The systemic and background factors may bear on the culpability of the offender. They are mitigating in nature in that they may diminish the moral blameworthiness of the offender: Ipeelee at para 73. The types of sanctions which may be appropriate also bear not only on the degree of culpability of the offender but on the effectiveness of the sentence itself. Ipeelee at para 74. In R v. Jacko, at para 61, Watt J.A. expands on this second set of circumstances: As Gladue teaches, “it is important to recognize that, for many, if not the vast majority of aboriginal offenders, our current sentencing concepts have not responded to the needs , experience and perspectives of aboriginal people or aboriginal communities: Gladue, at para 73.”
[50] Ipeelee emphasizes the distinct history of aboriginal people. At para 77: “The overwhelming message emanating from reports and commissions on Aboriginal peoples’ involvement in the criminal justice system is that current levels of criminality are intimately tied to the legacy of colonialism...”
[51] Ipeelee discusses two errors which have arisen in the jurisprudence applying s. 718.2(e).
[52] Firstly, some cases have erroneously suggested that there is an onus on an Aboriginal offender to prove a causal link between background factors and the offence in question before those factors may be considered by the sentencing judges. There is no such evidentiary burden.
[53] Secondly, some courts have erroneously interpreted Gladue to mean that it does not apply to serious or violent offences. Ipeelee holds that the application of the Gladue principles are required in every case involving an Aboriginal offender.
Mitigating and Aggravating Factors
[54] The mitigating factors on this sentencing are:
• Mr. Boucher’s background and personal circumstances as an aboriginal offender with systemic issues including the intergenerational effect of the residential school experience of his maternal grandfather, alcohol and drug abuse and violence in his family;
• Mr. Boucher was, himself, a victim of violence, sexual abuse, abandonment and neglect. He had no role models for parents. He experienced the suicide of his mother and his half-brother. He began substance abuse at age nine;
• he has recognized his substance abuse issues by taking treatment, albeit unsuccessfully. He is prepared to re-address treatment for his substance abuse;
• notwithstanding his failure to attend high school, he has worked to obtain his high school equivalency while in custody. He has completed a his welding program. He has held part-time employment with the same employer for approximately five years;
• he has expressed remorse to his victims for his criminal acts;
• he has the support of his sister;
• he is reported to be a loving father.
[55] The aggravating facts are:
• the offence of wounding Mr. Bedard with a knife was very serious. The seriousness was compounded by the fact that it occurred within Mr. Bedard’s home and in the presence of Mr. Bedard’s spouse and young child, Raider;
• Raider was assaulted during the incident and, on the evidence of Ms. Ivall-Besignano, was emotionally affected by what he experienced;
• the direction of s. 718.01 of the Criminal Code that because of the abuse of Raider, the court shall give primary consideration to the objectives of denunciation and deterrence of such conduct;
• Mr. Boucher’s extensive criminal record, including crimes of violence.
Discussion
[56] I will deal firstly with the issue of enhanced credit.
[57] The Crown acknowledges that Mr. Boucher was detained on consent and not pursuant to a revocation under s. 524(4) or (8) of the Criminal Code. Therefore enhanced credit for time served is not statutorily prohibited under s. 719(3.1). The Crown agrees that Mr. Boucher is eligible for credit on a 1.5 to 1 basis, but submits that 1 to 1 is appropriate in the circumstances.
[58] In my view Mr. Boucher is entitled to credit on a ratio of 1.5 to 1. In R. v. Summers, [2014] 1 S.C.R. 577 (S.C.C.), the Supreme Court of Canada held that crediting a day in pre-sentence custody as a day served is insufficient to account for both loss of eligibility for parole and early release (circumstances with quantitative impact) and the harshness of conditions in a detention centre (circumstances with qualitative impact).
[59] Mr. Boucher has spent 388 days in the Thunder Bay District Jail. This is a long time to have been incarcerated in an aged remand centre, with minimal programing for prisoners. At para. 82 in Summers, the court stated:
It has long been recognized that credit for pre-sentence detention is intended to ensure that individuals are punished equally, whether they are released on bail or remanded in custody prior to trial. Consequently, any circumstances that speak to the relative harshness of pre-sentence custody, as opposed to serving a sentence, are relevant.
[60] I do not agree with the Crown’s submission that because of the nature of the offences and the history of the accused, Mr. Boucher should be denied enhanced credit. Those factors do not trump the principles set out in Summers.
[61] I also disagree with the Crown’s submission that because Mr. Boucher was charged with assaulting a jail guard on July 19, 2014, he should be denied enhanced credit. Mr. Boucher has not been convicted of that offence. As noted by Wein J. in R. v. Dinardo 2015 ONSC 1804 (S.C.J.), at paras. 94-97, pursuant to s. 724(3)(e), if the Crown wishes to rely on an aggravating fact on sentencing, it must prove the fact beyond a reasonable doubt.
[62] I find that Mr. Boucher is entitled to enhanced credit on both the quantitative and qualitative grounds explained in Summer.
[63] Based on 388 days in pre-sentence custody between May 5, 2014 and May 27, 2015, a ratio of 1.5 days credit for 1 day in pre-sentence custody results in credit of time served of 582 days.
[64] I am satisfied that Mr. Boucher has been affected by the systemic factors discussed in Gladue and Ipeelee. His maternal grandfather attended residential school. His maternal grandfather sexually assaulted Mr. Boucher’s mother. She gave birth to her own father’s child. Mr. Boucher’s maternal grandfather sexually abused his grandchildren. Mr. Boucher’s mother descended into alcoholism and drug dependency. She took her own life. Mr. Boucher was a neglected and abused child, who began his own substance abuse at the incredibly young age of nine. The systemic Gladue factors flow down intergenerationally from grandfather, to mother, to son.
[65] In imposing a fit and just sentence on Mr. Boucher, the Gladue and Ipeelee principles also require consideration of the impact that those same systemic factors have had on the Aboriginal population at large and the fact that because of these systemic factors, Aboriginal offenders are seriously overrepresented in Canada’s prison population.
[66] These considerations must have a tangible impact on the length of the sentence in order to give meaning to the principles of s. 718.2(e) and the forceful directives in Gladue and Ipeelee.
[67] I cannot accept the submissions of the defendant that time served would be a fit and proportionate sentence for Mr. Boucher, given the serious nature of the offences and his extensive criminal record, including multiple convictions for offences of violence.
[68] In my view, a sentence with respect to the incident of July 5, 2014, of three years imprisonment, with credit for time served of 582 days, calculated on a 1.5 to 1 basis, best recognizes the sentencing objectives and principles discussed above and the circumstances of Mr. Boucher. This is a sentence which, in my opinion, is at the low end of the range that could reasonably be imposed.
[69] I impose a sentence on Count No. 1, namely aggravated assault, of three years imprisonment, less time served of 582 days, leaving an effective sentence of one year and 148 days. On Count No. 3, entering a dwelling with intent to commit an indictable offence therein, I impose the same sentence, to be served concurrently.
[70] On Count No. 2, assault of Raider Bedard, I impose a sentence of one year, to be served concurrently.
[71] On Count No. 4, breach of recognizance by failing to attend court on June 3, 2013, I impose a sentence of 30 days, to be served consecutively.
[72] On completion of the term of imprisonment, Mr. Boucher shall be bound by a probation order for a further period of 36 months. In addition to the statutory terms, the probation order shall include the following additional conditions:
(i) report to a probation officer forthwith upon his release from custody and thereafter as required by the probation officer;
(ii) attend and complete any counselling programs as required by the probation officer;
(iii) attend and complete any treatment programs for substance abuse as may be required by the probation officer, including residential programs and aftercare;
(iv) sign releases of information so that his progress in counselling and treatment programs can be monitored;
(v) abstain from the possession, purchase and consumption of alcohol, controlled substances as defined in the Controlled Drugs and Substances Act and other intoxicating substances of any kind; and
(vi) not contact Jonah Jeremiah Bedard, Michaela Ivall-Besignano or any of their children, directly or indirectly.
[73] An order is made under s. 109(3) of the Criminal Code prohibiting Mr. Boucher from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.
[74] An order is made under s. 487.051 of the Criminal Code, authorizing the taking of samples from the accused for DNA analysis.
[75] In light of Mr. Boucher’s history of substance abuse, his willingness, as expressed through his counsel, to enter programs for substance abuse, and the concerns of Ms. Yantz, as expressed to the author of the pre-sentence report, I recommend that while Mr. Boucher is incarcerated he be given the opportunity for counselling, treatment and rehabilitation programs directed at his substance abuse and any related issues. Mr. Boucher should also be given the opportunity to attend counselling and treatment and rehabilitation programs that recognize his aboriginal heritage. If Mr. Boucher requests that his sentence of imprisonment be served at the Northern Treatment Centre, I would support his request.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: May 27, 2015
CITATION: R. v. Boucher, 2015 ONSC 3326
COURT FILE NO.: CR-13-0100
DATE: 2015-05-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
- and -
Christopher William Boucher,
Accused
REASONS FOR JUDGMENT
Shaw R.S.J.
Released: May 27, 2015
/mls