SUPERIOR COURT OF JUSTICE
Neutral Case Citation No. ONSC 4064
Court File No. CR-14-0161
HER MAJESTY THE QUEEN
v.
JAMES SMITH
R E A S O N S F O R S E N T E N C I N G
BEFORE THE HONOURABLE JUSTICE G.M. MULLIGAN,
on June 10, 2015, at BARRIE, Ontario
APPEARANCES:
K. Jokinen
Counsel for Crown
M. Kelly
Counsel for James Smith
Neutral Case Citation No. ONSC 4064
WEDNESDAY, JUNE 10, 2015
REASONS FOR SENTENCING
MULLIGAN J., S.C.J. (Orally)
Because of the circumstances here, I will perhaps say more than I ordinary would in a joint submission.
Mr. Smith has pleaded guilty to three counts of trafficking, and that matter came before the court on April 13th, 2015. One offence occurred on July 3rd, 2013. The second offence and the third offence he pleaded to occurred on July 22nd, 2013. Those offences involved two drugs: one was Fentanyl, the other was Buprenorphine.
Mr. Smith's record has been filed before the court. He has a record for offences in 2008, possession and theft, and he received a term of probation. In 2012, he received a three-month conditional sentence for a drug related charge, not dissimilar to what is before the court today.
I have received a joint submission from counsel and obviously they have considered a number of factors, including the seriousness of the charges; the Gladue Report filed; the previous record of Mr. Smith; the totality of the sentence with respect to these charges; the pre-trial custody and the seriousness of the offences here, including trafficking in Fentanyl.
The joint submission is that there be a global sentence of four years, one and a half months, less 25 and a half months pre-trial custody, leaving us a reformatory term to be served of two years less a day.
The Crown has also sought, and it's not opposed, that there be a DNA order, as this is a secondary offence, and a weapons prohibition for life under section 109.
I want to speak about the circumstances of the offender, Mr. Smith. Much of this comes from the Gladue Report, which is a very comprehensive report done in this kind of case based on the principles of the Supreme Court of Canada in R. v. Gladue.
Much can be learned about James Smith through the Gladue Report. Mr. Smith is 30 years of age and is considered an Aboriginal person. His parents divorced when he was 11 years of age. He is uncertain about his ancestral background but believes his mother and grandparents were Aboriginal. He had a close relationship with his grandmother, Doris Smith, until she passed in 2009.
Doris lost her Aboriginal status when she married a non Aboriginal man under the provisions of prior legislation. She lost her status. Doris grew up on Manitoulin island. Her parents were Dominic and Rose. Dominic attended residential schools. It's unclear if Rose attended a residential school.
As a child, James Smith visited his grandmother, Rose, at Manitoulin Island every summer. As he stated in the report, "As a kid, I used to go up there, Manitoulin Island, every summer. All my cousins are full native. My great-grandmother, Rose, was up there too."
The Gladue Report noted several background reports. As the report states at page 7:
Today the children and grandparents of those who went to residential schools also live with the same legacy of broken families, broken culture and broken spirit.
- At page 10, the report quotes from Reclaiming Connections: Understanding Residential School Trauma Among Aboriginal People, that report states:
The intergenerational Residential School effects are threefold: the trauma experienced by many former students of Indian Residential Schools affects not only the individual, but their family as well as their descendants, and the community. The effects include, but are not limited to:
i) Communication barriers, especially an inability to express affection;
ii) Families where no nurturing or affection was present for generations;
iii) Discomfort expressing love for children in physical ways, especially hugs;
iv) Lack of communication within the family;
v) Children taken into custody by the Children's Aid Society;
vi) Addictive and self-destructive behaviours.
When Mr. Smith was in elementary school he was diagnosed with Attention Deficit Disorder and prescribed Ritalin for a period of time. His mother had a serious accident at work when he was five. She broke her back and suffered from depression and subsequent issues involving abuse of drugs. Later, Mr. Smith was diagnosed with Obsessive Compulsive Disorder.
His father spent time in custody when Jimmy was a child. His parents separated when he was in grade five. He recalled a lot of fighting and drinking in the home. His parents abused alcohol. He considered them both alcoholics. After separation, he lived with his mother but he was exposed to a negative home environment. As a 12-year-old, the home was used for drugs, drinking and sexual activity and he was exposed to this environment. As he stated, "I tried weed. My sister locked me in the room and her friends made me try it."
When his mother was subsequently hospitalized, he ran away from home and lived with his dad. His sister followed him. He attended several high schools in Barrie while living with his dad. His mother disappeared from his life for a time. He went through a series of jobs after high school but began using oxycodone. He had some good jobs but didn't pursue a welding licence because, as he stated, "I didn't because drugs were too important." He was laid off from some jobs and he felt that his OCD was a factor in his employment difficulties.
He had contact with the Canadian Mental Health Association beginning in 2008 and attended different programs. He attended a residential treatment program which had some native aspect to it but as soon as he exited the program, he began using drugs again.
At the age of 27, in 2012, he moved out of his father's home for awhile and had a brief relationship with a woman.
It would appear that his time in pre-trial custody has had some positive influences on him. He is working toward his high school diploma and he hopes to attend Georgian College as a heavy equipment operator. While in custody, he attended Aboriginal programming offered. He was a unit server. He has been on methadone and during the time in custody, has been able to reduce his dose in half.
In reflecting on his time in jail, he stated to the author of the report:
I need to get my priorities straight. I don't want to say I'm happy I came to jail for two years because if I didn't I'd be dead. Fentanyl is actually the worst for people. I'm taking this as a rehab kind of like.
In determining sentencing, the court's role is to determine a fit sentence for this offender. In this case there are a number of tensions at play.
Mr. Smith has Aboriginal roots and has somewhat reconnected with his community, so Gladue principles must be considered.
Parliament has codified many former common law sentencing principles in the Criminal Code. The fundamental purpose of sentencing, described in s.718 of the Code, 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."
The Code sets out six objectives for sentencing judges to consider at s.718, and I highlight one of them, which is important here, and that is "to assist in rehabilitating offenders".
Parliament has signalled that sentencing judges ought to use a different method of analysis to determine a fit sentence for Aboriginal offenders. That issue was canvassed in Gladue and also a subsequent case, R. v. Ipeelee.
Section 718.2 (e) of the Criminal Code provides as follows: A court that imposes sentence shall also take into consideration the following principles:
(e) 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.
In Gladue, the Supreme Court of Canada reviewed the over-representation of Aboriginal people in the Canada criminal justice system and Parliament's intent with respect to that section.
Recently, in Ipeelee, the Supreme Court of Canada reinforced and expanded upon the principles set out in Gladue.
In Ipeelee, the court signalled that the court could take judicial notice of systematic and background factors affecting Aboriginal people in Canadian society.
But, in Ipeelee, the court indicated that aboriginal factors do not create a race based discount on sentencing. The court clarified that it would be an error to suggest that an offender must establish a causal link between background factors and the commission of the offence before being entitled to have background factors considered.
In Ipeelee, the Supreme Court of Canada made it clear that Gladue principles must be applied even to the most serious of offences.
Much of Mr. Smith's Gladue Report indicates the mitigating and aggravating circumstances here and I won't go through them in great detail.
As far as mitigating circumstances, there was a guilty plea with respect to these three counts, although offered late in the process.
Aggravating factors would include the record of Mr. Smith, including the drug related offence and his previous involvement with the judicial system.
So Mr. Smith, would you please stand up.
I impose a global sentence on these three counts of four and a half years. But, having given you credit for pre-trial custody, the time remaining to be served is two years less a day.
I also impose ancillary orders, including a DNA secondary order and a weapons prohibition for life order.
As well as this sentence, I recommend you serve your term at the Brampton Institute and I will ask the registrar to see that a copy of the Gladue Report is sent with you to that institution.
The court is required to adjourn the other matters to October 3rd of 2016.
THE COURT: Is there any clarification on that date, Mr. Kelly? The date you chose is not Thanksgiving Monday, is it?
MR. KELLY: No, actually I think it's Rosh Hashanah, actually, looking in my 2016 calendar, sir, and it had an asterisk beside it, so it obviously caused me concerned.
THE COURT: I said October 3rd. Is that still an acceptable date for everyone?
MS. JOKINEN: Yes, sir. Is that at 9:30?
THE COURT: Yes.
MR. KELLY: Yes, because I think the Thanksgiving is on October 10th of that year. So October 3rd, please.
THE COURT: At 9:30. The balance of the remaining counts are adjourned to that date. Are there any other matters that we need to attend to with respect to Mr. Smith, counsel? Does that cover it?
MS. JOKINEN: Yes, sir.
THE COURT: I just want to, once again, thank counsel for their comprehensive review of this matter and working it out over obviously a period of time the joint submission. The court always benefits by a joint submission from experienced counsel who are aware of the many factors the court ought to consider in any sentence, and I think counsel for their assistance.
MR. KELLY: Thank you, sir.
MS. JOKINEN: Thank you, Your Honour.
THE COURT: Mr. Smith will have to sign a few things, as will I before we proceed.
MR. KELLY: Thank you, again, sir. If I might be excused, please, sir.
THE COURT: Yes, thank you. And good luck to you, Mr. Smith. Good luck to.
JAMES SMITH: Okay, thank you. Thank you, very much.
...Whereupon, proceedings adjourned
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, JANICE CRANE, certify that this document is a true and accurate transcription of the recording of R. v. SMITH, James, in the Superior Court of Justice held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording(s) No. CD NO. 3811-04-20150610-081840-30-MULLIG.DCR which has been certified in Form 1, by J. Crane.
22 June 2015
(Date) Janice L. Crane
Authorized Court Transcriptionist
Act #8478483787