Court File and Parties

Court File No.: CR 27/17 Date: 2019-02-21 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Gary Green

Counsel: Lisa DeFoe, for the Crown Jamie Stephenson, for Mr. Green

Before: K.A. Gorman

Overview

[1] Mr. Green entered pleas of guilty to the following offences:

• Count 2: mischief under $5000, contrary to s. 430(4) of the Criminal Code.
• Count 3: break and enter a dwelling house, contrary to s. 348(1)(a) of the Criminal Code.
• Count 4: theft of a 2004 Dodge Dakota pickup truck, contrary to s. 333.1 of the Criminal Code.
• Count 5: possession of a TIKKAM55 bolt action rifle without being the holder of a license, contrary to s. 91(1) of the Criminal Code.
• Count 6: possession of a Browning Medallion bolt action rifle without being the holder of a license, contrary to s. 91(1) of the Criminal Code.
• Count 7: possession of stolen property under $5000, 2013 Dodge Ram pickup truck, contrary to s. 355(a) of the Criminal Code.
• Count 18: robbery of Berndt Homburg contrary to s. 344(1) of the Criminal Code.
• Count 20: dangerous driving contrary to s. 249(1)(a) of the Criminal Code.
• Count 21: operate motor vehicle while being pursued, contrary to s. 249.1(1) of the Criminal Code.
• Count 22: operate motor vehicle while disqualified, contrary to s. 259(4) of the Criminal Code.
• Count 30: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 32: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 35: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 38: breach of recognizance, contrary to s. 145(3) of the Criminal Code.
• Count 42: breach of a weapons prohibition order, contrary to s. 117.01(1) of the Criminal Code.

[2] It now falls to the court to determine the appropriate sentence.

The Offender

[3] Gary Green is a 29 year old Aboriginal man of Iroquoian ancestry. He is a member of the Mohawk Nation Turtle Clan, on Six Nations of the Grand River Territory. A Gladue Report was prepared in 2009, and an updated report prepared in 2017.

[4] Gary Green was born on October 19, 1989 in Toronto, Ontario. His birth mother is Maxine Pattenden (Six Nations of the Grand River) and his biological father is unknown.

[5] Maxine was apprehended into the care of the Children’s Aid Society and placed in foster care because she was left alone without adult supervision. Maxine’s mother was involved with the law for stealing. Following her apprehension, Maxine was placed into three separate foster homes. She was adopted at the age of two years.

[6] Maxine struggled with education and behavioural difficulties. She became involved with the criminal justice system. At the age of 18 she began using street drugs, and began prostituting.

[7] At the time of Gary’s birth, Maxine was heavily involved in illegal drug use, particularly cocaine.

[8] After giving birth, hospital staff initially delayed the discharge of Maxine and her son because she had no place to live. Ultimately she moved in with a friend and transitioned to the Red Door Hostel.

[9] On two separate occasions, Maxine left Gary with acquaintances and disappeared. On November 1, 1989 Gary was apprehended and placed in the care of the Children’s Aid Society. A protection application was filed on November 6, 1989 and on January 1, 1990 the society obtained his Crown wardship.

[10] Harold and Audrey Green were placed on a probationary period for the purpose of Gary’s adoption. The adoption was finalized on March 1, 1991 when Gary was 10 months old.

[11] The Gladue report states that Gary was adopted to “fill a void for Audrey”. It states that:

When she came to realize the void wasn’t filled the way she thought it would be, Gary often took the “back burner” to everything, it became that Gary was often in Audrey’s way. Gary was abused emotionally, mentally, and sometimes physically. Audrey and Harold also adopted Gary’s biological sister Miranda. She was also abandoned by Maxine the same way Gary was. Miranda was also a subject to the same type of abuse as Gary. According to Gary’s maternal aunt, Gary and Miranda both had Fetal Alcohol Syndrome assessments completed.

Gary was in custody at the time of his mother’s death, and was able to see his father before he passed. In February 2016, Gary’s best friend was shot and killed in a robbery gone wrong, and it has affected him in a negative way.

[12] Audrey Green (nee Terrence) died in 2005 from complications related to kidney failure. She suffered from diabetes and her legs had been amputated. She was Mohawk, Turtle Clan from Akwesasne [1] First Nations.

[13] Harold Green (also known as Murray) was Mohawk, Turtle Clan from Six Nations of the Grand River Territory. He died in February 2009 after suffering from pancreatic cancer.

Positions of the Parties

[14] The Crown seeks a period of incarceration of between eight to ten years, less pretrial custody at a ratio of one to one-and-a-half days. Additionally, the Crown asks that the court impose a 10 year driving prohibition as well as several ancillary orders.

[15] Counsel for the Defence asks the court to impose a sentence of one day (deemed served) having regard to the fact that Mr. Green has been in custody since his arrest on September 23, 2016. Effectively, Mr. Green has been in custody for 816 days. [2] At a rate of 1 day: 1.5 days, Mr. Green should receive credit for pre-sentence custody of 1,224 days (40 months) or 3.5 years.

Law and Analysis

[16] The fundamental purpose of sentencing 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 that have one or more of the following objectives:

• To denounce unlawful conduct;
• To deter the offender and other persons from committing offences;
• 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 acknowledgement of the harm done to victims and to the community.

[17] Denunciation is important to reflect society's condemnation of certain conduct by punishing those who disobey society's basic values.

[18] Deterrence is important to deter the offender in question and to deter others who commit such offences.

[19] However, as Chief Justice Lamer stated in R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.), para. 92:

Sentencing is an individualized process and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction.

[20] In every case there are both mitigating and aggravating factors. In this case, the mitigating factors are Mr. Green’s guilty pleas and his acceptance of responsibility and remorse, as evidenced in his letter to the court, marked as Exhibit #1 on sentencing. Additionally, I must consider his Aboriginal status, the updated Gladue report and the comments made during our Sentencing Circle.

[21] The Gladue report indicates that Mr. Green had a very difficult and unfortunate start to his life. After adoption, he appeared to have suffered emotionally and perhaps physically at the hands of his parents. It seems apparent that Mr. Green is conflicted about his parents, and clearly has not had the time, or support to adequately grieve their deaths.

[22] The aggravating factors are numerous. Mr. Green drove two stolen vehicles in a dangerous manner through a rural part of Elgin County, engaging the OPP and Oneida Police Service, and jeopardizing the safety of the public and numerous police officers. He has an extensive criminal record, comprised of 61 convictions, including convictions for: take motor vehicle without consent, dangerous operation of a motor vehicle, flight while pursued by peace officer, and attempt theft of motor vehicle. At the time of these offences, Mr. Green was the subject of three separate driving prohibitions and a s. 110 Criminal Code of Canada order prohibiting him from possessing any weapons for a period expiring in 2019.

[23] As the court stated in R. v. Gladue, [1999 CarswellBC 778 (S.C.C.)] at para. 79:

Even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances, the length of the sentence of an aboriginal offender may be less and in others, the same as that of any other offender. Generally, the more violent and serious the offence, the more likely it is, as a practical reality, that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.

[24] Further, as the court stated in R. v. Ipeelee [2012 CarswellOnt 4376 (S.C.C.)], at para. 75:

Section 718.2(e) does not create a race-based discount on sentencing. It does not ask courts to remedy the over representation of aboriginal people in prisons by artificially reducing incarceration rights.

[25] However, as the court noted in R. v. Cameron Dell Martin 2018 ONCA 1029 at para. 14:

The second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violent offences.

The passage in Gladue that has received this unwarranted emphasis is the observation that "[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing" (para. 79; see also Wells, at paras. 42-44). Numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v. Carrière (2002), 164 C.C.C. (3d) 569 (Ont. C.A.)).

[26] Curiously, the facts upon which Cameron Dell Martin was convicted are quite similar to the case at bar [3]:

On June 10, 2014, the appellant was driving a stolen Silverado in an erratic manner in a mall parking lot. After a short pursuit by police at a speed of 60-70 kmph he went through a red light and collided with another vehicle (dangerous driving, possession of a stolen vehicle). The Silverado was now inoperable. He went to another vehicle, a black Jetta, stopped at the intersection. The occupant of that vehicle tried to roll up the window. The appellant ordered him to get out of the car, tried to reach in to unlock the door and, according to the account of one witness, grabbed the driver by the shirt to try to get him out of the driver's seat (attempted robbery). The occupant slapped the appellant, applied the parking brake and removed the keys from the ignition.

The appellant went to another vehicle in the intersection, a Ford Explorer. He tried to open the driver's side door for about 30 seconds (attempted theft).

After arrest, bolt cutters, pliers, a screwdriver, a hammer and a socket set were found in the stolen Silverado. These formed the basis for the conviction for possession of an instrument suitable for the purpose of breaking into some place.

The licence plate on the Silverado, a driver's licence hanging from the rear view mirror and a GPS device and screwdriver found inside the vehicle were all stolen, and led to convictions on four counts of possession of stolen property.

Finally the appellant was convicted of driving while disqualified. [4]

[27] The Court of Appeal reviewed Mr. Martin’s criminal antecedents at para. 12. His record comprised 123 entries:

The appellant has a lengthy record dating back to 1991 consisting mostly of property offences, and breach-type offences related to probation orders or conditions of bail. The most significant previous convictions consist of the following:

1. Some 11 previous convictions for driving while disqualified.
2. Convictions in 1999 for assault and uttering a threat for which he received two sentences of 30 days, consecutive to each other.
3. A global sentence in 2006 of ten months, in addition to five months of pretrial custody, for three counts of assault with a weapon and a count of uttering a threat and forcible confinement.
4. A previous conviction in 2012 for dangerous driving and flight while pursued by police.
5. On June 26, 2015 the appellant was sentenced to two years less a day, followed by probation, for assault and two counts of assault with a weapon. He had served just over one year on this sentence at the time of the sentencing now the subject of this appeal.

[28] The court concluded at para. 16:

Here the offences were not of such gravity as to justify disregard of the systemic and background factors affecting the appellant. No one was physically hurt. The brief evasion of police at 60-70 km/ph was far from the most dangerous driving this court has seen. The attempted theft and attempted robbery of two other vehicles in the intersection were brief, impulsive acts.

[29] I am however mindful of the fact that in the present case, there were injuries suffered by the police officers. Mr. Green was however, acquitted of the offences that involved those injuries.

[30] There is no question that given Mr. Green’s criminal record, and the nature and number of the offences to which he has plead guilty, that a penitentiary sentence is required.

[31] In terms of the sentencing principle of rehabilitation, it should be noted that Mr. Green has used his pre-sentence custody to his advantage. He pursued a Neurological Assessment which confirmed a childhood diagnosis of ADHD and ADD, and also ruled out FASD. It further indicated a possible diagnosis of OCD and PTSD.

[32] Throughout his pre-sentence custody Mr. Green has pursued his education, and will shortly obtain his GED. Additionally he has taken courses in Anger, Stress and Mindfulness Management.

[33] The Sentencing Circle was of great assistance to the court. Its unique feature allowed the court to hear from the very people upon whom Mr. Green intends upon relying. All of Mr. Green’s extended family – including Paula Hill, are supportive of him, and there is a plan in place to continue that support.

[34] Section 718.2(e) of the Criminal Code emphasizes the importance of restraint in resort to imprisonment:

(e) 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, with particular attention to the circumstances of Aboriginal offenders.

[35] The Crown submits that a fit sentence in all of the circumstances is one of 8 – 10 years.

[36] The longest period of incarceration previously imposed upon Mr. Green was 18 months in 2013. A “jump” to 8 or 10 years is too much having regard to the nature of the offences, and the principles of sentencing, including the Gladue factors.

[37] As the court stated in Martin (supra) at para. 20:

[…] Section 718.1 of the Criminal Code mandates that a sentence must be proportionate both to the gravity of the offence and the degree of blameworthiness of the offender. In other words, a sentence must not "exceed what is appropriate, given the moral blameworthiness of the offender": Ipeelee, at para. 37.

[38] In my view, an appropriate sentence – one that balances specific and general deterrence, denunciation and rehabilitation and the Gladue factors is time served plus one day deemed served. The breakdown is as follows:

• Count 2: mischief under $5000, contrary to s. 430(4) of the Criminal Code: 10 months concurrent [5].
• Count 3: break and enter a dwelling house, contrary to s. 348(1)(a) of the Criminal Code: 10 months concurrent; DNA order secondary designated offence; s. 109 order for life.
• Count 4: theft of a 2004 Dodge Dakota pickup truck, contrary to s. 333.1 of the Criminal Code: 12 months concurrent.
• Count 5: possession of a TIKKAM55 bolt action rifle without being the holder of a license, contrary to s. 91(1) of the Criminal Code: 12 months concurrent.
• Count 6: possession of a Browning Medallion bolt action rifle without being the holder of a license, contrary to s. 91(1) of the Criminal Code: 12 months concurrent.
• Count 7: possession of stolen property under $5000, 2013 Dodge Ram pickup truck, contrary to s. 355(a) of the Criminal Code: 12 months concurrent.
• Count 18: robbery of Berndt Homburg contrary to s. 344(1) of the Criminal Code: 12 months concurrent; s. 109 order for life; DNA order primary designated offence.
• Count 20: dangerous driving contrary to s. 249(1)(a) of the Criminal Code: 40 months; 5 year driving prohibition; s. 109 order for life.
• Count 21: operate motor vehicle while being pursued contrary to s.249.1(1) of the Criminal Code: 10 months concurrent.
• Count 22: operate motor vehicle while disqualified contrary to s. 259(4) of the Criminal Code: 10 months concurrent; 5 year driving prohibition.
• Count 30: breach of recognizance, contrary to s. 145(3) of the Criminal Code: 10 months concurrent.
• Count 32: breach of recognizance, contrary to s. 145(3) of the Criminal Code: 10 months concurrent.
• Count 35: breach of recognizance, contrary to s. 145(3) of the Criminal Code: 10 months concurrent.
• Count 38: breach of recognizance, contrary to s. 145(3) of the Criminal Code: 10 months concurrent.
• Count 42: breach of a weapons prohibition order, contrary to s. 117.01(1) of the Criminal Code: 12 months concurrent; s. 109 order for life.

[39] There will be a period of probation for two years [6]. You will report to a probation officer within 48 hours of your release and thereafter as directed by them. You will take whatever counselling that may be deemed appropriate for you, including grief counselling. You will make every reasonable effort to complete your GED within the period of your probation, and provide proof thereof to your probation officer. You will not possess any controlled drugs or substances without a valid prescription in your name. You will keep the peace and be of good behaviour.

[40] The probation period may terminate if Mr. Green relocates, as is his plan, to the United States. The termination will be upon satisfactory proof having been provided to the probation officer.

[41] There will be a non-association clause for all of those named in the indictment.

[42] This is your opportunity to rebuild your life. It is clear that you have used your time in custody wisely. You have the support of your extended family. Your sister Miranda is proof that a life can be turned around and valued. This is your chance.

Justice K. A. Gorman Justice Kelly A. Gorman Released: February 21, 2019

Footnotes

[1] The Mohawk territory of Akwesasne is jurisdictionally unique in that it includes portions that are in Ontario and Quebec within Canada and in New York State within the United States.

[2] The actual time in custody is 876 days, however Mr. Green used 60 days of this time towards another charge.

[3] I, in fact, was the trial judge. Upon conviction Mr. Martin was sentenced to 6 years in the penitentiary. On appeal, this was reduced to 4 years.

[4] R. v. Martin (supra) at paras. 2-6.

[5] “Concurrent” means concurrent one to another.

[6] The probation order is transferred to the Six Nations of the Grand River.