Court File and Parties
COURT FILE NO.: CR-17-023-00 DATE: 20190626 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – DANIEL ROBERT HARTWICK Defendant
Counsel: Jennifer Ferguson, for the Crown J. Michael Woogh, for the defendant
HEARD: 17 June 2019 at Kingston
BEFORE: Graeme Mew J. (Orally)
Reasons for Sentence
[1] Daniel Robert Hartwick, on 11 April 2018, a jury found you guilty of two counts of breaking and entering with intent and one count of mischief. As a result of these verdicts, a conviction was also registered for breach of a probation order requiring you to keep the peace and be of good behaviour.
[2] The offences occurred on 19 March 2016 in the basement area of an apartment building at 58 Leroy Grant Drive in Kingston. Nothing was stolen. But damage was done to some lock mechanisms on a door and some storage lockers.
[3] Videotape evidence shows you visiting the locker room corridors and trying to open the doors in the main corridor. There was evidence that items in the HVAC room had been moved around, although some copper wiring, which was in that room, was not taken. The Crown relied on the presumed intent of someone who breaks and enters into a place to thereafter commit an indictable offence, there being little or no evidence to refute that presumption.
[4] Breaking and entering in relation to a dwelling house (which would include an apartment building) carries a maximum sentence of life imprisonment. The mischief charge, when tried as an indictable offence, carries a maximum jail term of two years.
[5] What makes this sentencing decision particularly challenging are two factors:
a. Your extensive criminal record, consisting of, at the latest count, 169 offences committed over a period of approximately of 30 years; and b. Considerations arising from your Indigenous heritage, described in a Sacred Story prepared in May 2019.
[6] Although you have been sentenced on many previous occasions in relation to the numerous offences that you have been convicted of, the sentencing hearing on these charges is the first time that the court has been asked to consider your Indigenous heritage and how it should inform the court’s sentencing decision.
[7] Of your 169 criminal convictions, fifteen have been for breaking and entering. And at the time that you committed the charges now before the court, you were on probation for five separate break and enters committed in 2014.
[8] Given your lengthy record, and your persistent non-compliance with conditions set by the court in previous sentences, the Crown asserts that the starting point on this occasion should be a penitentiary sentence of three years.
[9] By contrast, the defence argues that there has been a marked change of attitude on your part. You have engaged with Narcotics Anonymous to address addiction issues that have challenged you and you have engaged for the first time, in a meaningful way, with your Indigenous heritage, which you trace through your biological father who you believe may have been Ojibwa. If a conditional sentence was an option, that is what the defence would argue for. However, because it is not available by virtue of s. 742.1 (d) of the Criminal Code, the defence, on your behalf, argues for 90 day intermittent sentence accompanied by probation for two years on strict terms.
[10] Clearly your criminal record is a significant aggravating factor. Since the charges now before the court, you have offended again. In February 2017, you were arrested for using a stolen credit card. You served 91 days for that. You breached an undertaking given to the court on 2 March 2017 by failing to notify of a change of address. During your sentencing hearing the Court was informed that in August 2018, you were arrested for driving while suspended and disqualified and you allegedly identified yourself to the police under a different name. That matter has not yet been disposed of, however, and therefore plays no part in this sentencing decision.
[11] One of the pre-sentence reports filed with the court notes that historically you have demonstrated an extremely poor response to community supervision. That pre-sentence report adopted a closing summary from a previous pre-sentence report in which you were described as “a career criminal with no regard for the law or others; he has no conventional ties in the community and no family support; overall he was transient, manipulative and sneaky with no insight into his offending behaviours…”.
[12] To the extent that there are mitigating factors, they include a period of relative stability since 2016. Although there have been new charges, they have been relatively minor. You have, as well, engaged with Narcotics Anonymous and with the Métis Nation of Ontario Healing and Wellness. A letter to the court from Samantha Alkenbrack, Community Wellness Coordinator, advises that she began working with you last month and that a referral has been made to a psychotherapist to work on counselling for your addictions and other issues with the intent that those sessions will begin in July. A referral has also been made to Addictions and Mental Health Services with a view for you to begin a day programme in July. Ms. Alkenbrack states that you have been “very focused” on changing [your] lifestyle and [have] engaged in services”.
[13] You indicated to the probation and parole officer who prepared the pre-sentence reports that you were under the influence of crystal methamphetamine at the time of the offences and that you have struggled with substance use since the age of sixteen. You claim that you are now sober.
[14] You know very little about your biological father. You believe that he may have come from the Timmins area. Your mother, who was not Indigenous, came from Cochrane. Your information about your father’s Ojibwa heritage came from your mother.
[15] What is certain is that within a month or two of your birth, you were placed with the Catholic Children’s Aid Society in Toronto. You lived in numerous group homes and foster homes while maintaining some contact with your mother.
[16] The Sacred Story – or Gladue Report – filed with the court notes the loss of the opportunity for you to be provided with child welfare services and placements that were appropriate to your Indigenous heritage.
[17] The general principles of sentencing are set out in section 718 of the Criminal Code. Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives:
a. To denounce unlawful conduct; b. To deter the offender and others from committing offences; c. To separate offenders from society when necessary; d. To assist in the rehabilitation of offenders; e. To provide reparation for harm done to victims or to the community; f. To promote a sense of responsibility in offenders and acknowledge harm done to victims and to the community.
[18] Other sentencing principles set out in s. 718.2 provide that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Furthermore, s. 718.2(e) provides that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[19] Because so little is known about your actual Aboriginal connections, much of the Sacred Story prepared for the court’s assistance can only comment generally on the effect of intergenerational traumas resulting from indigenous people being marginalised, neglected and placed in the foster care system.
[20] It can be said with certainty that you had a very challenging childhood. Your education went no further than grade 10, you have limited work experience and you have been reliant on Ontario Works for many years. Although the impact, if any, of Indigenous factors is, as I have indicated, at best speculative, I accept that your recent efforts to seek assistance from the Métis Nation are genuine and hope that, regardless of the disposition which I make today, you will in due course pursue the opportunities that have been presented to you to engage with that community.
[21] While I am required to give tangible weight to systemic and background factors which may have played a substantial part in bringing you to court and which attenuate your moral blameworthiness (see R. v. Martin, 2018 ONCA 1029, at para. 14), if the evidence does not demonstrate that those systemic and background factors have impacted you in a way that bears on your moral blameworthiness, little, if any, weight should be given to Gladue factors (see R. v. F.L., 2018 ONCA 83) at para. 49.
[22] The Crown referred me to R. v. Biwer, 2017 BCCA 424. This is a case in which the appellant had a similar offending pattern to your own, albeit that the offences that he was being sentenced for were considerably more serious than those that bring you before this court. In upholding the trial judge’s reduction of the sentence that would otherwise have been imposed of eleven years to ten years, the court was able to point to evidence of the effect of Gladue factors on the appellant and his family. Similar evidence is not available in your case.
[23] I wish to be respectful of your heritage and want to reiterate that I regard your assertion of the existence of that heritage as part of your own is genuine. But the evidence before the court leaves open to considerable doubt the extent to which, if at all, Gladue factors have a bearing on your blameworthiness on this occasion.
[24] The offences that bring you before the court now are not, in and of themselves, particularly serious. They would normally attract at most a modest custodial sentence. But I cannot ignore the magnitude of your criminal record. Although the length of your record might not be as significant as it would be if the offences you have committed in the past were in fact more serious, the sheer number of offences, and your repeated failure to comply with conditions imposed by the court and with undertakings given by you to the court, indicates the need for a condign sanction.
[25] I have concluded that it is time for you and society to take a meaningful break from each other. This will afford society some relief from the nuisance that results from your persistent and repeated offending. It will also provide you with the opportunity for some structure, routine and, I hope, access to services that may be of benefit. In that regard, I commend to you the suggestions made in the Gladue report concerning the application of the National Correctional Centre Referral Guidelines to prisoners with Indigenous heritage and in particular, the Aboriginal Multi Targeted Programme.
[26] Having carefully considered and weighed the sentencing principles contained in the Criminal Code, applied to the circumstances of your case and having particular regard to your history of offending, non-compliance with court orders and probation terms and the information and advice concerned in the pre-sentence report and the Sacred Story, I have determined that an appropriate sentence is that you serve a term of imprisonment of 25 months for the break and enter and nuisance charges on the first indictment. On the breach of probation charge, the sentence is 30 days’ imprisonment, to be served concurrently.
[27] You are entitled to a credit of 30 days for pre-sentence custody, with the result that the net term of imprisonment to be served by you will be 24 months.