Court File and Parties
COURT FILE NO.: 18-93 DATE: 2020-09-11 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Tammy McCargar Defendant
Counsel: Andre White, counsel for the Crown Yashar Tahmassebipour, counsel for the Defendant
HEARD: August 25, 2020
AMENDED REASONS FOR SENTENCE
Lacelle, J.
Introduction
[1] The offender, Tammy McCargar, is before me for sentencing. She was found guilty after a trial on one count of robbery.
[2] The Crown seeks a sentence in the range of 21-24 months in custody followed by 3 years probation in addition to various ancillary orders. The defence urges the court to impose a conditional sentence of 15-18 months, or alternatively, a jail sentence in the intermittent range, in addition to a period of probation.
[3] The issue before me is what sentence is fit given all the circumstances involved in this case and the principles of sentencing that apply.
The circumstances of the offence
[4] The circumstances of the offence are fully described in my reasons for judgment following the trial of this matter (R. v. McCargar, 2019 ONSC 6102). In summary, the offender participated in a robbery of fentanyl patches from a 67-year old victim. The victim had been prescribed this medication for pain. At the time of the robbery, he was living alone in a rural area. He had spent the day with his grand-kids. Fortunately, because a snow storm developed that day, the victim had taken his grand-kids home early and they were not in the home at the time of the robbery.
[5] The offender attended the victim’s home with another woman, Roxanne Hanson. I am satisfied beyond a reasonable doubt that they attended the victim’s home to rob him and the crime was planned. I am satisfied beyond a reasonable doubt that the glass in the door to the victim’s kitchen was smashed during the robbery and that the initial demand made of the victim was that he give the two women at his door $2000. I am also satisfied beyond a reasonable doubt that during the course of the robbery, the offender threatened the victim and told him that there was a gun pointed at his head from a window. The victim was scared and he provided fentanyl to the offender under threat of violence.
[6] Additionally, I am satisfied beyond a reasonable doubt that the victim was also threatened during the course of the robbery that he should not go to the police. He was further told that if he did, his son, whose name was known to the offender and Ms. Hanson, would be harmed.
The circumstances of the offender
[7] The offender is now 48 years old. She is the mother of 4 children. She is also a grand-mother. Counsel advises that she is currently working full-time hours at a funeral home. She is also volunteering 15 hours per week at a senior’s centre.
[8] The offender comes from a disadvantaged background. Her father was alcoholic and abusive. He subjected his family to significant trauma, such as locking the family in the porch and setting fire to it or threatening to shoot the family. She and her siblings would run away to protect themselves. The offender witnessed her father abusing her mother and siblings and suffered from his physical abuse herself. As a result of this, she believed abuse was something normal.
[9] As a child, Ms. McCargar also suffered the trauma of being sexually abused by a neighbour and then later, by another man who owned a local business.
[10] The offender was married at 16 years old because she was pregnant. This was the first of many abusive relationships for the offender. One particularly tragic incidence of abuse occurred when one of her partners kicked her in the stomach while she was pregnant causing her to lose her baby. The offender remains in fear of her last partner, who as recently as September of 2019 was involved in an incident targeting her.
[11] The offender has endured a number of additional traumas as an adult. One of her former partners committed suicide, following which she attempted suicide. At that time (2010) she sought counselling. She has not had any since.
[12] During her relationship with one of her partners, the offender developed an addiction to “speed” and later cocaine. Her use of these substances became more problematic after she was diagnosed with cancer in late 2016. She began not to care what happened. At the time of the offence for which I am sentencing her (March 2017), she was using drugs and was high. The offender reports that she was under the influence of alcohol during past offences.
[13] The offender has managed to rehabilitate herself from her drug addiction and no longer uses alcohol. She rehabilitated herself by going to a place she has in the woods for 33 days. She feels like she has been given a second chance at life and says she will never use drugs again. Collateral contacts indicate she has continued with her sobriety.
[14] Currently the offender is not in a relationship. She lives with two of her children (although her 18 year old daughter may be going to school in a post-secondary program with the offender’s assistance). One of her children, a son in his 20s, also lives with her. He has suffered a brain injury and requires a great deal of assistance. The PSR confirms that the offender assists her son with daily living, his finances, and making sure he gets to his various appointments. The offender’s family is concerned about who will provide this support if the offender is incarcerated. All the collateral sources contacted for the PSR confirm that the offender is dedicated to supporting her children. Letters they have written in support of the offender confirm that as well.
[15] The offender is Metis. She has also been informed by a relative that her lineage is connected to the Mohawks of Tyendinaga. She has not had the benefit of growing up in her culture. Even so, because of the colour of her skin, she has faced racism. She recalls being pointed at as the “native kid” and often being told that she was a “bad little wagon burner”. At school, she was made fun of and excluded, or feared. She noted to the author of the PSR that negative behaviour was almost normalized and expected of her due to her heritage.
[16] Both the PSR and Gladue report make clear that, for some time, the offender has been seeking the knowledge, insight and support her culture can bring. She has maintained contact with the Mohawk community in Tyendinaga. Her father taught her to hunt, trap and fish, and she has maintained these practices.
[17] The offender dropped out of high school in grade 11 due to her pregnancy, but she later completed her grade 12 equivalency. She also completed a welding course. She has worked at various jobs, including at a chicken farm, in construction driving dump-trucks, and cleaning houses. She hunted, fished, and grew vegetables to help support her family. She has worked as a tour guide for a company which showcases wild edibles and the basics of bow hunting. She has worked for a moving company. At the time the PSR was written, she was hoping to attain a truck driver’s license and pursue a new career path.
[18] The author of the Gladue report indicates that the offender has also recently been involved in volunteering at a senior’s centre as a means of networking and acquiring work experience. This is confirmed by a letter from the senior’s centre where she has offered support, including during the pandemic, by cooking, cleaning, and providing companionship to elderly residents.
[19] The offender has a criminal record. It involves a number of property offences. It also includes convictions for assault in 1992, 2013, and 2019. The Gladue report and PSR suggest that some of these convictions occurred in the context of domestic relationships where the offender was physically abused by her partner.
[20] To date, the offender has not been sentenced to a jail sentence. Her lengthiest sentence was a four-month conditional sentence in 2018. She received another 75-day conditional sentence following the assault convictions in 2019. She served both without incident.
The conclusions in the Gladue report
[21] The author of the Gladue report concludes that the inter-generational impacts of cultural dislocation and destruction (as occurred as a result of residential schools and other policies) are apparent in the offender’s history. The offender’s circumstances exhibit a number of unique systemic factors that affect Indigenous peoples in general and which have contributed to her current circumstances. These include the breakdown of her connection to her Indigenous community, abuse, substance abuse, a history of low income and lack of educational opportunity, mental and physical health impacts (suicide attempts, depression, anxiety, trauma), and poverty.
[22] Ms. McCargar has expressed to the author of the Gladue report her willingness to address the underlying factors that have contributed to her being before the court and is particularly interested in doing counselling for abused women. She reports that she will do anything she has to keep her life on track with “no more drugs or trouble with the law”.
The positions of the parties
[23] In support of its position, the Crown relies on the following cases: R. v. Ramta, 2015 ONSC 2716, R. v. Bramwell, 2003 CarswellOnt 6718 (Ont. S.C.J.), R. v. Hussin-Marca, 2017 ONSC 4033, R. v. Drepaul, 2013 ONSC 8023, R. v. Mohammad, [2017] O.J. No. 2366 (C.J.) and R. v. Seip, 2019 CarswellOnt 19334 (Ont. C.J.). The Crown submits that this case involves a home invasion type offence and emphasizes the principles of sentencing that apply to those cases. In the most similar case to this one (at least insofar as the motive for the offence was concerned), the offender was sentenced to 20 months imprisonment (Ramta). In Bramwell, Ratushny J. declined to impose a conditional sentence and sentenced the offender to 2 years in custody. In other home invasion cases, the sentences have been higher still.
[24] While the co-accused in this matter (Ms. Hanson) received a sentence of 10.5 months in addition to pre-sentence custody of 81 days, the Crown says Ms. McCargar is not entitled to the same mitigation of sentence as is obtained following a plea of guilty, or to the same restraint that applies to youthful offenders. The Crown submits that its position that the offender should be sentenced to a period of custody of between 21-24 months reflects all the appropriate circumstances in this case, including the impact of Gladue considerations and the changes the offender has made in her life. The Crown submits that the defence position gives too much consideration to these circumstances and not enough to the principles of general deterrence and denunciation, which it says cannot be given sufficient effect with a conditional sentence.
[25] The defence relies on the following cases: R. v. Sharma, 2020 ONCA 478; R. v. Butler, 2008 NSCA 102; R. v. Caleya, [2017] O.J. No. 2960 (S.C.J.); R. v. Schell, 2015 ONSC 6013; R. v. Chand, 2015 BCSC 484; R. v. Cadienhead, 2014 ONSC 618; and R. v. Soderberg, 2014 BCSC 436. The defence submits that a conditional sentence of 15-18 months is fit. Alternatively, the defence argues that the offender should be given credit for the time she has spent on bail and the sentence imposed should be in the intermittent range. The defence highlights that the offender was arrested on August 31, 2017 and she has been on bail since that time (although some of it included a period of 75 days when she was serving a conditional sentence for another offence). The defence argues that given the nature of her bail conditions, she should be credited with 6 months custodial time.
[26] Counsel emphasizes that since the recent decision of the Court of Appeal for Ontario in Sharma, the conditional sentence is a tool available to the court to address Gladue considerations. The defence submits that the offender is no longer the person she was when she committed these offences. She has devoted herself to her children and grand-children and recovered from her drug addiction. She poses no risk of re-offending. She has been able to persevere through the considerable adversities in her life and has addressed the circumstances that led to her offending. She is now contributing to her community through her volunteer work. The offender is willing to do all the proposed programmes in the Gladue report to permit her to heal further. The defence submits that a jail sentence would undermine the progress the offender has made and is not necessary in the public interest.
The fundamental principles of sentencing
[27] In determining what sentence is fit in this instance, I must consider a number of legal principles. I highlight some of these now.
[28] The Criminal Code sets out a number of principles of sentencing which must be considered in determining a fit sentence.
[29] The fundamental purpose of sentencing is confirmed in s. 718. That section provides that the sanction imposed by the court should have one or more of the following objectives:
a. To denounce unlawful conduct;
b. To deter the offender and other persons from committing offences;
c. To separate offenders from society, where necessary;
d. To assist in rehabilitating offenders;
e. To provide reparations for harm done to victims or to the community; and
f. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[30] In sentencing an offender, s. 718.1 provides that the court must adhere to the fundamental principle of ensuring that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
[31] Section 718.2 of the Code identifies additional principles of sentencing, including that the court should increase or decrease the sentence to account for any relevant aggravating or mitigating factors.
[32] In this case, s. 718.2(d) and (e) have particular relevance, and merit further discussion.
The principle of restraint and consideration of the circumstances of Indigenous offenders (the Gladue principles)
[33] Sections 718.2(d) and (e) codify the principle of restraint in sentencing. Section 718.2(e), which requires the court to consider all available sanctions other than imprisonment for all offenders, “with particular attention to the circumstances of aboriginal offenders”, is also intended to be remedial. It is intended to ameliorate the serious problem of overrepresentation of Indigenous people in custody, and to encourage sentencing judges to have recourse to a restorative approach to sentencing: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 at para. 93.
[34] There is a judicial duty to give the provision’s remedial purpose real force: Gladue at para. 93. Unfortunately, as noted by the Supreme Court in R. v. Ipeelee, notwithstanding this direction in Gladue, the circumstances requiring the remedial function of s. 718.2(e) remain pressing. Rates of incarceration of Indigenous persons increased from 12 percent of all federal inmates in 1999 when Gladue was released, to 17 percent in 2005: Ipeelee at para. 62.
[35] The provision applies to all Indigenous offenders. It does not require an Indigenous offender to establish a causal link between his or her background factors and the commission of the offence before those factors are considered by the sentencing judge: Gladue at para. 93 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at paras. 82 and 87.
[36] Judges must take a special approach in sentencing Indigenous offenders. A judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular 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 heritage or connection: Gladue at para. 93. Courts must take judicial notice of the history of aboriginal persons in Canada, including the history of colonialism, displacement and residential schools, and how that history continues to translate into various social problems in Indigenous communities, including higher rates of substance abuse, unemployment, suicide, and incarceration for Indigenous peoples: Gladue at para. 93 and Ipeelee at para. 60.
[37] While in some cases the jail term for an Indigenous offender may be less than that imposed on a non-aboriginal offender for the same offence (see Gladue at para. 93), these factors will not necessarily lead to a different sentence. They will always, however, provide a context for considering the circumstances of the offender involved in the case: Ipeelee at para. 60. As explained in Ipeelee, “systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness”. They are understood to be mitigating in nature because “they may have played a part in the aboriginal offender’s conduct”. In other words, for many Indigenous offenders, “the reality is that their constrained circumstances may diminish their moral culpability”: see Ipeelee at para. 73.
[38] As far as the sentencing analysis is concerned, the Court of Appeal for Ontario in R. v. Kreko, [2016] ONCA 367 at para. 23 explained that “what is required is that the factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives in sentencing” [emphasis added](see also Ipeelee at para. 83). The fundamental principle of sentencing, that is of ensuring that the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender, is thus respected: Ipeelee at paras. 37 and 73.
[39] This distinct methodological approach to sentencing is required in all cases involving Indigenous offenders and applies to cases involving serious offences: see Ipeelee at paras. 84-87 and Kreko at para. 23. The court in Gladue directed that “even where an offence is considered serious, the length of the term of imprisonment must be considered”: see para. 79. While the court in Gladue went on to state that the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between Indigenous and other offenders, it later cautioned in R. v. Wells that this “was not meant to be a principle of universal application”: see Wells, 2000 SCC 10, [2000] 1 S.C.R. 207 at para. 49. In the end, as stated in Gladue, “[a]s with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis. … The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances”: see Gladue at paras. 80-81.
[40] As regards the need to consider the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his particular aboriginal heritage or connection, the Supreme Court recognized in Wells that “it is often the case that imposing a custodial sentence on an Indigenous offender does not advance the remedial purpose of s. 718.2(e)” for the offender or his community. This is particularly true for less serious or non-violent offences where the goal of restorative justice may be given greater weight: Wells at para. 39.
[41] At the same time, the court clarified that it is reasonable to assume that for some Indigenous offenders, depending on the nature of the offence, the goals of denunciation and deterrence are relevant to the offender’s community: see para. 42 and Gladue at para. 78. Further, even if they are not, those goals may predominate in appropriate cases: see Gladue at para. 78. Accordingly, it is open to trial judges to give primacy to the principles of denunciation and deterrence on the basis that the crime involved is a serious one: Wells at para. 44.
[42] Nevertheless, in the appropriate circumstances, a sentencing judge may accord the greatest weight to the concept of restorative justice in a case involving a serious crime. These circumstances may include cases where there is evidence of the manner in which the community is addressing “criminal activity associated with social problems … in a manner that emphasizes the goal of restorative justice”: Wells at para. 49. Regardless, sentencing judges must consider the effectiveness of the sentence itself given the offender’s Indigenous history and heritage: see Ipeelee at para. 74.
Home invasion offences
[43] There is some dispute between counsel as to whether this offence may be characterized as a “home invasion” since the offenders ultimately did not enter the victim’s home. The Crown says that in breaking the glass to his kitchen door, on the facts, the offenders were in the course of attempting a break-in. The defence argues that the most aggravating features of “home invasion” offences described in the case law are not present here. For instance, the victim was not confined in his home or assaulted.
[44] Counsel are no doubt focused on this characterization of the offence because of the clear direction that has been given by the court of appeal in sentencing offenders who commit such offences. This is a particularly serious type of offence, as noted by our Court of Appeal in R. v. J.S., 2006 CanLII 22101 (ON CA), [2006] O.J. No. 2654 (C.A.) at paras. 28-36. At paragraph 34, the court explained why home invasions are such a serious type of offence:
There is also widespread agreement in the authorities that such offences are very serious because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes – highly cherished values in our society – and because they are frequently perpetrated against vulnerable individuals. As Nordheimer J. observed, in R. v. H. (P)., supra, at para 73:
Home invasions are particularly threatening to individuals, because such robberies strike at the fundamental and natural desire and expectation that every person has, that is, to feel safe and secure in their own homes. Whatever may happen in the outside world, people have an innate feeling that their homes are their one inviolate sanctuary.
[45] The seriousness of this type of offence was again recognized by the Court of Appeal for Ontario in R. v. Wright, 2006 CanLII 40975 (ON CA), [2006] O.J. No. 4870. In that case, the court affirmed the following explanation by Trafford J. in R. v. Soares, [1996] O.J. No. 5488 at para. 14, where he explained why these offences must be dealt with sternly by the courts:
The sanctity of one’s home is of fundamental importance in a free and democratic society. It is constitutionally recognized in our country. Everyone must not only be, but feel, secure in their residence. A society that tolerates significant criminal intrusions into the privacy of one’s home is a society that forces its citizens to resort to self-help to protect themselves against such wrongs. Absence effective responses from the judiciary, the alternative is for citizens to arm themselves in anticipation of a need to defence themselves against such criminal enterprises. A society like that is not ours today, has not been in ours in the past, and will not be ours in the future. The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public’s confidence in the administration of justice.
[46] While the label “home invasion” may be useful in categorizing the offence for the purpose of identifying the relevant principles of sentencing, as noted in J.S. at para. 38, it “does not necessarily lead to any particular sentencing disposition”. As further indicated by the court in Wright at para. 21, courts must be mindful of the “elastic nature of the home invasions offence, and the myriad of circumstances to which the label may apply”.
[47] After considering whether the trial judge had erred in setting the appropriate range of sentence by determining that courts had moved beyond a range of five to eight years for home invasion offences to a range of seven to ten or eleven years, the court in Wright provided the following direction at para. 24:
… “home invasion” cases call for a particularly nuanced approach to sentencing. They require a careful examination of the circumstances of the particular case in question, of the nature and severity of the criminal acts perpetrated in the course of the home invasion, and of the situation of the individual offender. Whether a case falls within the existing guidelines or range – or, indeed, whether it may be one of those exceptional cases that falls outside the range and results in a moving of the yardsticks – will depend upon the results of such an examination. … in cases of this nature the objectives of protection of the public, general and denunciation should be given priority, although of course the prospects of the offender’s rehabilitation and the other factors pertaining to sentencing must also be considered. Certainly, a stiff penitentiary sentence is generally called for.
[48] The sentencing principles and approach to sentencing identified by the court in Wright inform my approach to the sentencing analysis in this case, since the facts here are sufficiently similar to make the directions in those cases relevant to my analysis. In applying those principles, I also consider the ways in which this case differs from those cases where a victim is also confined or abused in his or her home.
Parity
[49] The principle of parity is central in the sentencing analysis. As noted by Watt J.A. in R. v. Roks, 2011 ONCA 618, [2011] O.J. No. 4266 (C.A.), the principle may be expressed as follows: “[s]imilar offenders should receive similar sentences for similar offences committed in similar circumstances”: para. 16. As Watt J.A. further noted at para. 16, “[w]hen the similarities begin to fall away, however, so does the principle. Offenders may be at different ages and stages, have different antecedents and realistic prospects for rehabilitation, and greater or less involvement in or responsibility for an offence.” Roks confirms that in applying the principle of parity, a court will also consider other factors, such as whether an offender is entitled to the mitigation that comes with a guilty plea.
[50] Parity is a guiding principle of sentencing, but it is not absolute: Mann at para. 17. Because of the individualized nature of the sentencing process, sentences imposed for offences of the same type will not always be identical. “The principle of parity does not preclude disparity where warranted by the circumstances, because of the principle of proportionality” (emphasis in original): R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 36; R. v. Mann, 2010 ONCA 342, [2010] O.J. No. 1924 (C.A.) at para 17.
The aggravating factors
[51] The offence of robbery is always serious, as is clear from the maximum penalty for that offence set out in the Criminal Code. In this instance, there are a number of circumstances relating to how the crime was committed, and its consequences, that are aggravating.
[52] To begin with, it is aggravating that the victim was threatened with a firearm even if none was actually used. This caused the victim significant fear. The offence also involved a threat to harm the victim’s son if the victim went to police. This was an interference with the administration of justice and caused the victim even more distress.
[53] The fact that the robbery occurred at the victim’s home is severely aggravating, particularly having regard to his age and vulnerabilities living alone in a rural area. The comments in the “home invasion” sentencing cases relating to the psychological impact of this violation of the sanctity of the home, which I have already highlighted, apply equally in this case, regardless of whether the offenders were in or outside of the victim’s home as they committed the robbery.
[54] The offence has had a significant impact on the victim and this is a very serious aggravating factor (s. 718.2(iii.1). The victim has made real changes in his life because of what he went through that night in March of 2017. The trial evidence established that he has modified his medical treatment because he feels vulnerable knowing that he could again be targeted for his medication. He now feels very cautious in his home and has taken steps to protect himself, including getting a dog and installing cameras. His sleep has been affected, particularly when his grand-kids are visiting overnight. He has had to give his 12 year old grand-child instructions on how to call 911 should anything happen. He reports that his life is not the same now.
[55] It is aggravating that the offender comes before the court with a criminal record, including for offences of violence.
[56] Finally, it is aggravating that this offence was planned, and this vulnerable victim was deliberately targeted. The fact that he was robbed of his prescribed fentanyl is also aggravating given the extremely dangerous impacts that drug may have.
Time on bail
[57] As I have indicated, the defence seeks credit of 6 months towards any custodial sentence imposed given the time the offender was bound by restrictive bail conditions. She was released on a recognizance with a surety on August 31, 2017. She was bound by the restrictive condition that she not to leave her residence unless in the presence of her surety.
[58] The parties agree that the offender sought a variation to her recognizance. That was on December 19, 2017. The Crown responded in early January 2018 and requested that the defence advise when it had a plan with a suitable surety. The Crown was not made aware that the reason for the request related to concerns with the surety who the offender alleged was involved in the drug trade and abusive.
[59] It appears nothing further was done about the variation until May of 2019. At that time, the Crown agreed to permit the offender to reside with her children (then young adults), provided the existing surety remained in place. The surety refused to agree to this variation and the variation did not occur.
[60] At some point after January 5, 2018 and before May 6, 2019, the offender moved out of her surety’s residence. The Crown was also unaware of this circumstance.
[61] Given these facts, I cannot conclude how long the offender lived under the initial house arrest type terms imposed by her recognizance. It appears that the offender abided by those terms for a period of time. I do not find on this record that the Crown acted unreasonably in response to the variation request given the limited information that was provided to that office. So, while I consider the global length of time the offender has been on bail generally, I decline to impose the specific credit sought by the defence. I recognize that the time on bail has unfortunately been prolonged in this case because of repeated adjournments to permit the preparation of the Gladue report. The offender is not responsible for any of that delay.
Analysis
[62] The cases cited by counsel demonstrate a broad range where the ultimate sentence imposed reflects a number of factors, including the offender’s prior history for similar offences, aggravating factors like the use of a firearm or additional violence during the robbery, and other circumstances, such as whether the robbery involved fentanyl. I have reviewed and considered these cases and I am guided by the range of sentence they demonstrate. I consider that this case has a number of elements included in “home invasion” type of offences, although some of the more aggravating features of some of those offences are not present here. Regardless, what is clear from the case law is that the primary principles of sentencing for this type of offence are general deterrence and denunciation, and protection of the public.
[63] As the cases demonstrate, and as the jurisprudence of the Supreme Court confirms, in some instances, a conditional sentence may serve to meet the objectives of general deterrence and denunciation. Since the recent decision in Sharma, a conditional sentence is available in these circumstances. The chief issue before me is whether such a sentence would be consistent with the fundamental purpose and principles of sentencing, and particularly, the principles of general deterrence and denunciation. There is no suggestion that a conditional sentence would be inappropriate either because the appropriate range of sentence in this case is in excess of two years, or because such a sentence would endanger the safety of the community.
[64] Sharma re-iterates that “[e]ven in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is served”: Sharma at para 171, citing Proulx at para. 114 and Wells at para. 35. Given the totality of the circumstances in this case, I am satisfied that a conditional sentence gives effect to all the sentencing principles that are paramount, including deterrence, denunciation and protection of the public.
[65] In arriving at that conclusion, I have considered all the principles and circumstances I have outlined above. My conclusion is particularly affected by the presence of certain features of this case. In particular, I consider that the offender has demonstrated insight into her offending behaviour and firm resolve in addressing the drug addiction that led her to commit this offence. I am satisfied that she poses no risk of re-offence and she is not a danger to the community. The protection of the public is achieved with a conditional sentence, which is the sentence which is best suited to permit the offender to maintain the significant progress she has made towards her rehabilitation and strengthen her supports within her cultural community.
[66] I also consider that since the offences, the offender has led a productive life. She is now working, caring for her children and grand-children, and doing volunteer work to assist seniors. Given the risks associated with the pandemic, this commitment to volunteer work in a senior’s centre is even more impressive.
[67] Most critically, I consider my duty as a judge to give meaningful effect to the Gladue principles in this case, and the considerable evidence of the impacts of those factors on the offender. It is appropriate in this case to apply restraint in sentencing to reflect the circumstances that led to this offence and which reduce the moral blameworthiness of this offender.
[68] I have considered the sentence imposed on Ms. Hanson and the principle of parity. Ms. Hanson received a sentence of 10.5 months and was credited with pre-trial custody of 81 days. I have some information about Ms. Hanson and the circumstances of her guilty plea. I find that there are important differences in this case, including the fact that this offender has been able to rehabilitate herself, and her prior criminal record is considerably less concerning. Nor, in Ms. Hanson’s case, did she present with the Gladue factors that are present here. While I recognize Ms. Hanson pleaded guilty to the offence, I do not think the presence of this mitigating factor in Ms. Hanson’s case compels the conclusion that Ms. McCargar should not receive a conditional sentence.
[69] As for the length of sentence, this permits me to address issues of parity, as well as denunciation and deterrence. The sentencing authorities support a range of sentence in this instance in the upper reformatory range. Since this sentence will be served as a conditional sentence with terms of house arrest, the range of sentence is appropriately higher than if a jail sentence were imposed (Sharma at para. 185). This means that if the offender is not compliant with the terms of the conditional sentence, she might serve an even longer period of time in jail should she breach the terms of the conditional sentence order. This serves to reinforce the principles of denunciation and deterrence.
[70] Ultimately, in order to give effect to all of the principles of sentencing in this case, I fix the term of the conditional sentence at 24 months. The first 12 months will be under house arrest, with exceptions for employment and certain other circumstances. During the conditional sentence, the offender shall attend for all treatment and counselling that might be deemed appropriate for her by her supervisor, including those programmes described in the Gladue report.
[71] This will be followed by a period of probation for 12 months during which time Ms. McCargar is to continue with the culturally based programmes outlined in the Gladue report. I am not satisfied that a longer period of probation is necessary to meet any sentencing objective.
[72] Finally, I impose a weapons prohibition order under s. 109 for life. Ms. McCargar shall also provide a sample of her DNA.
The Honourable Justice Laurie Lacelle Released: September 11, 2020