COURT FILE NO.: 60/17 DATE: 20180921

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DARRYL RYAN BLOOMFIELD

COUNSEL: J. Spangenberg, for the Crown C. Uwagboe, for the Defendant

HEARD: May 16, 2018

GRACE J. (Orally)

A. Introduction

[1] On January 17, 2018 Mr. Bloomfield admitted that he had broken into and entered a private residence at 375 St. James Street, London, Ontario and committed the indictable offence of theft contrary to s. 348(1)(b) of the Criminal Code.

[2] Based on the facts read into the record and admitted, a finding of guilt was made and a conviction was entered. A pre-sentence report was ordered.

[3] Submissions on sentence were made following delivery of the pre-sentence report. Decision was reserved until today. I start with the circumstances of the offence.

B. The Circumstances of the Offence

[4] On Saturday, May 21, 2016 an observant neighbour watched as two men walked up the driveway of the residence in question. They approached the garage before moving out of sight. About five minutes later the two men reappeared. Each one of them was then in possession of a bicycle they did not have when they first arrived. One of the men was later determined to be Mr. Bloomfield.

[5] The same two men returned to the St. James Street residence about an hour later and entered the side yard.

[6] The neighbour called the police. However, the individuals had left the St. James Street residence before members of the London Police Service responded. The person determined to be Mr. Bloomfield was seen carrying a black guitar case on his back and a large black bag in his hands. The second male was observed carrying two full grocery bags in addition to a backpack he had been seen wearing at the time of his return.

[7] Police officers were able to determine that entry to the garage had been gained by dislodging a small deadbolt on a rear door. Once inside the garage, entry into the residence was unimpeded as the interior door had been left unlocked. A number of items were stolen including electronics, silverware, credit cards and a purse.

[8] The home owner soon learned that one of her credit cards had been used to make purchases at various businesses along Adelaide Street North, London. Video surveillance was obtained from those locations. In addition, photographs had been taken by the neighbour. The images captured allowed the police to identify Mr. Bloomfield. He was arrested on May 23, 2016. Silverware belonging to the owner of the St. James Street residence was recovered during a search incident to arrest.

[9] I turn to the circumstances of Mr. Bloomfield.

C. The Circumstances of the Offender

[10] The defendant was born and raised in London, Ontario. He is 37 years old. Mr. Bloomfield has two sons aged 19 and 8. The eldest currently resides with his father and paternal grandmother Debra Bloomfield. The offender has regular access to his youngest son.

[11] Mr. Bloomfield is said to have had a troubled youth. Although he eventually completed high school, the journey was not smooth. Truancy and behavioural issues were reported. As well, the offender claims that he was subjected to sexual abuse at the hands of his maternal grandfather. That allegation seems to accord with information provided by Debra Bloomfield to the author of the pre-sentence report. Further, the death of an uncle while the defendant was in grade 9 appears to have dealt a particularly harsh blow.

[12] Alcohol use is said to have started at age 12. Marihuana consumption had already started. Opiates and cocaine were added to the mix at age 16.

[13] Involvement with the youth justice system started in 1996. Mr. Bloomfield was then only fifteen years old. The first entries as an adult were made in 1999 when the defendant was convicted of theft under $5,000 and possession of property obtained by crime. A long gap followed another conviction in 2001.

[14] Criminal convictions commenced again in 2013. That year corresponded with the unexpected death of the offender’s father. Two entries were made in that year, followed by six in 2014, eight in 2015 and one in 2017. They include convictions for theft and for failing to comply with an undertaking, a recognizance and probation orders.

[15] Substance abuse has undoubtedly caused or contributed in a significant way to Mr. Bloomfield’s behaviour. Crystal methamphetamine use during the last six years is admitted. The defendant told the author of the pre-sentence report that this offence was committed in order to obtain cash which would allow him to purchase drugs.

[16] Some effort has been made to address addiction issues. The offender has been admitted to a methadone program. However, his attendance has been irregular. Sometimes he has been late for appointments. Others have been missed altogether. Temptation is often present. Mr. Bloomfield’s girlfriend has had addiction issues of her own. Persons counted as friends are drug users. Regular consumption of marijuana continues.

[17] While the defendant told the probation officer that he had attended Addiction Services of Thames Valley, that organization had no record of any contact during the past seven years. However, Mr. Bloomfield’s counsel advised the court that the defendant is receiving ongoing assistance from the Ontario Works Addictions team.

[18] Mr. Bloomfield’s income is currently generated from two sources: social assistance and the periodic collection of scrap metal. However, Mr. Bloomfield’s history includes a period of regular employment. He provided customer service support for a telecommunications company for several years before being terminated. He has expressed an interest in a career in culinary arts.

[19] Debra Bloomfield provided a letter to the court dated April 25, 2018. She described positive changes she has noticed in her son since September, 2017. He is more responsible and helpful. Friction between mother and son has dissipated. Vast improvement in his parenting skills have been noted. The defendant’s relationship with his current girlfriend has been a positive one. She concluded her letter by saying that the offender “has come a long way from where he was in May, 2016”.

D. Victim Impact

[20] The owner of the St. James residence provided a brief statement to the court. She spoke of the inconvenience and upset that followed the break-in and theft. She added:

We do not feel as safe in our home after such a bold invasion of our privacy, in broad daylight on a Saturday afternoon! I am afraid to be alone in my own home!!

[21] Remorse is mentioned in the pre-sentence report. The author noted that Mr. Bloomfield would apologize to the victim if given an opportunity to do so. Indeed, Mr. Bloomfield expressed regret when given a chance to address the court.

[22] I turn to the applicable legal principles.

E. The Applicable Principles

[23] A minimum sentence for the offence of break, enter and theft is not prescribed. Given the fact a dwelling-house was involved, the maximum sentence that may be imposed is imprisonment for life: s. 348(1)(d) of the Criminal Code.

[24] The statutory purpose and principles of sentencing are set forth in the Criminal Code.

[25] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct and the harm done to victims; to deter the offender and others from committing offences; where necessary, to separate offenders from society; to assist in rehabilitating offenders; to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

[26] The court must also take into account the following principles: (i) a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; (ii) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances including evidence that the offence had a significant impact on a victim; (iii) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (iv) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (v) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.

[27] I have reviewed the cases supplied by counsel. All of them involved home invasions and are quite different from the case before me. Nonetheless, after reading those decisions I make these observations:

a. Mr. Bloomfield has been convicted of a serious offence. As Trafford J. wrote in R. v. Soares, [1996] O.J. No. 5488 (S.C.J.) at para. 286:

The sanctity of one’s home is of fundamental importance in a free and democratic society…Everyone must not only be, but feel secure in their residence…

b. The sentences imposed in one case may not be appropriate in another. The relevant considerations can vary widely. As LeBel J. wrote in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 43:

The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case…No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.

c. A general range of sentence established by the case law should not be blindly applied. As LeBel J. added at para. 44:

…it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing…Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

[28] In addition to the cases provided by counsel the court has reviewed the following decisions involving the subject offence: R. v. Pilon, [2006] O.J. No. 5804 (C.A.); R. v. Carvalho, [2006] O.J. No. 1626 (C.A.); R. v. Snow, 2007 ONCJ 426, [2007] O.J. No. 3634 (S.C.J.); R. v. Alves, [2008] O.J. No. 2597 (S.C.J.) aff’d 2009 ONCA 666; R. v. Greene, 2009 ONCJ 545; R. v. Bastien, 2011 ONCA 240; R. v. Clark, [2011] O.J. No. 3247 (O.C.J.); R. v. Campbell, 2011 ONCJ 593; R. v. Simoes, 2012 ONSC 278 (S.C.J.); R. v. Johns, 2012 ONCA 114; R. v. Douglas, [2014] O.J. No. 1456 (S.C.J.); R. v. Tucker, [2017] O.J. No. 6687; R. v. Miller, 2018 NSSC 6.

[29] From those cases I discern these principles:

a. Those who break into and enter a private residence should expect a serious response. In R. v. Snow, supra Trotter J. (as he then was) explained at para. 6:

Because of the sense of security that people enjoy while in their homes, the law punishes intrusions by individuals into homes more severely than other types of break-ins.

b. While the prospect of rehabilitation is of importance, deterrence and denunciation may be paramount considerations if dealing with an offender with a relevant and lengthy criminal record: R. v. Alves, supra at para. 20;

c. Such persons should also expect a higher penalty than was imposed previously: R. v. Carvalho, supra at para. 5. However, the increase or jump must be measured and fundamentally fair: R. v. Pilon, supra;

d. Penitentiary sentences have frequently been imposed on persons with a significant and related criminal history: see, for example, R. v. Alves, supra; R. v. Bastien, supra; R. v. Johns, supra; R. v. Simoes, supra; R. v. Douglas, supra.

F. Position of the Parties

[30] Some aspects of the sentence are not in dispute. I will deal with them at the end of these reasons.

[31] The parties agree that Mr. Bloomfield should be placed on a lengthy period of probation. The Crown submits the probation order should be for a term of two years and commence after a custodial term of at least twelve months. The prosecution argues such a sentence fairly balances the purpose and principles of sentencing including the applicable mitigating and aggravating circumstances.

[32] The guilty plea and pursuit of some steps toward rehabilitation are acknowledged. However, Mr. Bloomfield has a long and unenviable criminal record that includes the identical offence. There have been repeated breaches of probation orders. As noted in the pre-sentence report, the offender has not responded well to community supervision.

[33] The defence maintains that a custodial term is not appropriate in the circumstances. It asks the court to suspend the passing of sentence and direct, instead, that Mr. Bloomfield be released on strict conditions prescribed in a three year probation order. Its terms should include a curfew and electronic monitoring.

[34] The defence recognizes that deterrence and denunciation are important considerations. However, the prospects of rehabilitation warrant serious thought. Past failure is not predictive of future behaviour because progress has been made since this offence was committed in May, 2016. Mr. Bloomfield has been increasingly forthcoming. Counselling to address the underlying causes of drug dependency is underway. Positive personal relationships have developed or been restored. The process of self-improvement has started. There has been no suggestion of further criminal behaviour. There is momentum. It should continue without interruption. A period of incarceration will, Mr. Bloomfield’s counsel submits, stop the progress made so far.

G. Analysis and Decision

[35] In the circumstances, what is a just and fit sentence? Mr. Bloomfield’s experience in the criminal justice system has had two phases: the first while he was a youth and a young adult. A number of painful experiences undoubtedly contributed to those periodic interactions with the court.

[36] The second stage started about five years ago. A twelve year hiatus came to a crashing end in 2013, the year the defendant’s father died. Since then the offender’s name has appeared frequently and regularly on court dockets. I accept that drug use and the loss of a loved parent played a role in Mr. Bloomfield’s fall from grace.

[37] Nonetheless, the nature, number and frequency of the entries on Mr. Bloomfield’s criminal record are a source of significant concern. Convictions have been registered for theft, mischief and possession of a Schedule I substance. The history evidences a dozen times when Mr. Bloomfield has failed to do what he promised or was ordered. Convictions for failures of some kind appear with regularity: the terms of an undertaking, a recognizance, and probation orders have been breached. He has failed to appear in court when required to do so. Frankly, it would be foolish for this court to believe that yet another probation order is, on its own, sufficient in this case. Mr. Bloomfield faces a formidable task in regaining trust that has frequently been betrayed.

[38] Nonetheless, positive things can and should be said about Mr. Bloomfield. He has accepted responsibility for his actions. He plead guilty. He has expressed remorse. Those are mitigating factors.

[39] The prospects of rehabilitation seemed, at worst, low and at best uncertain based on the pre-sentence report. Debra Bloomfield’s letter increased the level of optimism a little. The representation of the defendant’s counsel that the Ontario Works Addictions team is involved does too.

[40] I accept that the defendant is more motivated thanks, in large part, to the efforts of his romantic partner and his mother. Maintaining a loving relationship with his children and being a positive influence in their lives should be a source of ongoing inspiration too. For now, I rate the prospect of rehabilitation as fair.

[41] There is another side to the equation. This offence was committed during daylight hours. It was brazen. This offence was not an impulsive act. Mr. Bloomfield and his partner broke into, entered and removed items from the St. James Street residence not once, but twice. Once access was gained and some items removed, Mr. Bloomfield and his partner left, changed clothes and returned. The offence was committed over an extended period. Much of the property stolen was never recovered.

[42] The victim was impacted economically and emotionally. The sense of violation and loss of a feeling of security has endured. Crimes of this kind are a well-known and a significant problem in this community.

[43] I agree with the Crown that the disposition sought by the defence is wide of the mark. Probation orders have featured in previous sentencing decisions. Respect for the administration of justice must surely suffer when courts repeatedly issue the same form of order despite a previous failure to comply. At some point another, more aggressive response is necessary. This is such a case.

[44] Acceptance of the defence position would elevate the prospects of rehabilitation to a level it does not deserve. It would ignore the principles of denunciation and deterrence. It would trivialize Mr. Bloomfield’s criminal history. It would attach no consequences to the multitude of past breaches of probation orders. It would not recognize the impact this offence had on its victim or the effect these offences have on the community.

[45] The defendant is no longer a young man. He is approaching middle age. He has children. He has responsibilities to them and to society. He must be held accountable for his behaviour. The world accessed with the assistance of drugs is not a safe haven. Breaking, entering and stealing are unacceptable whether the perpetrator has a drug habit or not. Self-awareness and improvement are important but something stronger than probation is needed to bring home to Mr. Bloomfield the importance of walking a much straighter and law abiding line. In my view, this case demands a custodial sentence.

[46] I have considered the nature and circumstances of the offence, its gravity, Mr. Bloomfield’s legal responsibility for his actions, their impact on the home owner, the personal history and present situation of the offender, applicable mitigating and aggravating circumstances and the purpose and principles of sentencing as drawn from the authorities and the Criminal Code. I have concluded the following is a fit and just sentence:

i. Mr. Bloomfield shall serve a custodial sentence of nine (9) months;

ii. During the custodial term Mr. Bloomfield shall not communicate directly or indirectly with Catherine Lavelle-Smith;

iii. Upon the conclusion of the custodial term, Mr. Bloomfield shall be on probation for a period of two years. He shall be subject to the following terms pursuant to s. 732.1(2) and (3) of the Criminal Code:

a. Mr. Bloomfield shall keep the peace and be of good behaviour;

b. He shall appear in court when it requires him to do so;

c. He shall report to a probation officer within two working days of his release and thereafter, when required and in the manner directed by the probation officer;

d. He shall notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation;

e. Any change of residential address from 64 Deveron Crescent, London, Ontario (the “residence”) shall also require the prior written approval of the court or the supervisor;

f. He shall be subject to a curfew from 11 p.m. until 6:30 a.m. each day unless in transit to a hospital as a result of a medical emergency;

g. He shall enroll and actively participate in counselling, treatment programs and/or assessments as are recommended or directed by a probation officer including in relation to drug addiction, relapse prevention, grief and/or post-traumatic stress;

h. He shall sign such releases and other forms as are required by a probation officer from time to time to monitor his entry to, attendance and progress at any such counselling, treatments and/or assessments;

i. He shall not communicate directly or indirectly with Catherine Lavelle-Smith and shall not, at any time or for any reason, travel within 100 meters of 375 St. James Street, London, Ontario.

iv. Mr. Bloomfield has been convicted of a primary designated offence within the meaning of s. 487.04(a.1) of the Criminal Code. Consequently, as required by s. 487.051(1), an order in Form 5.03 is hereby made authorizing the taking of the samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis;

v. Pursuant to s. 737 of the Criminal Code, Mr. Bloomfield shall pay a victim surcharge of $200 within one year of his release from custody.

“Justice A.D. Grace”

Grace J.

Delivered: September 21, 2018

COURT FILE NO.: 60/17 DATE: 20180921 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Darryl Ryan Bloomfield REASONS FOR JUDGMENT Justice A.D. Grace

Released: September 21, 2018