R. v. Ashamock, 2020 ONSC 6774

COURT FILE NO.: 19-109

DATE: 2020/11/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Michael Eric Ashamock

Accused

Michael Jones, for the Federal Crown

John Dillon, for the Accused

HEARD: Kingston Matter heard by Zoom, Guilty Plea November 3, 2020

REASONS FOR SENTENCE

A.E. London-weinstein j.

Introduction and Background

1Mr. Ashamock has pleaded guilty to one count of possession for the purpose contrary to s. 5(2) of the Controlled Drugs and Substances Act.

2Mr. Ashamock was arrested after a project where the RCMP were investigating allegations that drugs were being trafficked to First Nations communities by staff who accompany patients on flights for treatment. A search warrant was issued at the hotel where Mr. Ashamock was residing and a bottle with 52 percocets on a night table was seized along with a paper containing a list of names and phone numbers.

3I must determine the appropriate sentence to be imposed. I have concluded that a conditional sentence of one year is appropriate having regard to the availability of such a sentence now, pursuant to the decision of the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 78, the global COVID-19 pandemic and the increased risk of infection faced by inmates in Canadian jails.

4The Crown seeks a jail sentence of 18 months to two years less a day. The defence seeks a conditional sentence of one year.

Circumstances of the Offender

5In the case before me, Mr. Ashamock is a 50 year old aboriginal man who is in his fifth year awaiting a kidney transplant. He resides in a hotel in Kingston, leaving only to receive dialysis three times a week.

6Mr. Ashamock uses a wheelchair. He is a large man, weighing about 340 pounds. He developed an addiction to opioid pain killers after having them prescribed for him. His physical condition causes him considerable pain.

7Unfortunately, a Gladue report was not available at the time of sentencing. Counsel attempted to track down a report which was prepared for sentencing of Mr. Ashamock in another jurisdiction, but he was unsuccessful. It would have been preferable to have a Gladue report to fully inform myself regarding the circumstances of Mr. Ashamock’s life and history, given his aboriginal heritage. However, in the circumstances of this case, it did not seem appropriate to delay a sentence which would inure to the benefit Mr. Ashamock while waiting for a report to be prepared, which would engender further delay. Instead, Mr. Ashamock provided some information regarding his background when I requested that he do so.

8Mr. Ashamock grew up in Fort Albany, which is near James Bay, Ontario. He attended St. Anne’s residential school for two years. He endured sexual and physical abuse while attending St. Anne’s. Both of his parents also attended the residential school and also endured physical, psychological and sexual abuse. The abuse is not discussed in the family.

9He has a criminal record including two entries for assault. He also has a conviction for trafficking in a Schedule I substance. I note that CPIC records the sentence for this offence as being a 90 day conditional sentence, although such a sentence would not have been available in 2018.

Aggravating and Mitigating Factors

10The aggravating factors in this case is that Mr. Ashamock appeared to be at least associated to an organized trafficking ring, that he is alleged to be involved in an organization which arguably exploited other Aboriginal individuals, and that he has a criminal record, including a prior conviction involving drugs.

11The mitigating factors are his plea of guilt.

Impact of COVID-19

12In regard to COVID-19, I take judicial notice of the fact that recommended social distancing and frequent hand washing which are required as protection from transmission of the virus are not readily available when a person is in custody. This is not a criticism of the facilities where prisoners are housed. I accept that those tasked with caring for prisoners are doing what they can to protect the health of inmates.

13I agree with the reasoning of Copeland J., in R. v. J.S., 2020 ONSC 1710 (Ont. S.C.J.). In that case, the court found that the greatly elevated risk posed to detained inmates from the coronavirus is a relevant factor to be considered within the context of bail.

14Similarly, the greatly elevated risk posed by the virus is also a relevant sentencing consideration. All prisoners are at a greater risk of infection when compared to someone who is not incarcerated. This reality is due to the inability to physically distance. I do not find that Mr. Ashamock must demonstrate a subjective personal characteristic in order to accept that he is at increased risk of infection by virtue of incarceration. However, in the case of Mr. Ashamock, he is at grave risk of dire consequences should he contract the virus while imprisoned. I take judicial notice of the fact that at present Ontario is in the second wave of the virus.

15The impact of the threat of the virus in regard to sentence was discussed in R. v. Hearns, 2020 ONSC 2365. Justice Pomerance discussed the impact of COVID-19 in relation to the conception of fitness of sentence. Fitness is a related concept to proportionality, but not co-extensive with it. While proportionality mandates that a given sentence should be no more than necessary to reflect the gravity of the crime and the moral blameworthiness of the offender, fitness has regard to a broader array of factors. (Hearns, para 16)

16A sentence may be fit although not perfectly proportionate. The concept of fitness encompasses both the length and conditions of a sentence to be served. As Justice Pomerance noted, “As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high risk environment with little ability to control exposure. (Hearns, supra, para 16)

17In R. v. Lacasse, 2015 SCC 64 (S.C.C.) at para 58, the court endorsed the existence of circumstances which could justify a departure from the usual range of sentence.

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.

18I concur with Justice Pomerance’s conclusion in Hearns, that the “specific circumstances of each case” would in today’s environment, include the impact of the current pandemic.

Availability of a Conditional Sentence

19As indicated, a conditional sentence is now available. In R. v. Sharma, 2020 ONCA 478, Justice Feldman for the majority, struck down s.742.1(c) of the Criminal Code and a similar provision in s.742.1(e)(ii) on the basis that they contravene two sections of the Charter. The relevant sections removed the ability of a conditional sentence for offences, prosecuted by indictment, where the maximum penalty is 14 years or life in prison.

20They contravene s.15 of the Charter because their effect is to discriminate against Aboriginal offenders on the basis of race, and they contravene s.7 of the Charter because they are arbitrary and over broad in relation to their purpose. (Sharma, para 3 and 4).

21Ms. Sharma was a 25 year old Canadian woman of Ojibwa ancestry and was a member of the Saugeen First Nation. She plead guilty to importing two kilograms of cocaine contrary to s.6(1) of the CDSA.

22In Sharma, the court noted that among the general sentencing principles in ss.718, 718.1 and 718.2 of the Criminal Code, s.718.2(e) is relevant to the sentencing of an Aboriginal offender like Ms. Sharma. That provision, which is similarly applicable to Mr. Ashamock, who is also an Aboriginal offender, stipulates that “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.” The Supreme Court has held that s.718.2(e) specifically instructs courts to consider whether to impose a conditional sentence, namely a sentence served in the community under strict conditions, pursuant to s.742.1 of the Criminal Code: Gladue, para 40.

23As a result of the decision in Sharma, a conditional sentence is available to Mr. Ashamock.

Sentencing Analysis

24Conditional sentences are intended to assist in reducing society’s reliance on incarceration. R. v. Proulx, 2000 SCC 5. During a public health crisis such as the one we are currently facing, the availability of a community based sentence is an effective tool where appropriate, for reducing prison population. A conditional sentence would permit Mr. Ashamock to avoid imprisonment, but not punishment, Proulx, para 35.

25I find that in the circumstances of this case, the criteria which would permit the imposition of a conditional sentence have been met: the lack of a minimum term of imprisonment, imprisonment of less than two years, no danger to the community posed by the offender serving sentence in the community, and the imposition of a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss.718 to 718.2. Further, Sharma now allows for the imposition of a conditional sentence.

26A conditional sentence in this case would meet the need for specific deterrence, general deterrence and rehabilitation, which are the relevant sentencing principles in this case.

27The words of Pomerance J., are fitting. She wrote: “During these challenging times, people are being asked to call upon their sense of community, decency and humanity. That humanity must obviously extend to all individuals, including those incarcerated due to criminal charges or convictions. There will be cases where release from custody is not a viable option. There must be consideration of the safety of the community and the need for a proportionate sentence. Where, however, a period of time served can address sentencing principles, even imperfectly, our sense of humanity tells us that release from prison is a fit and appropriate response.” Hearns, para 24.

28I have also given consideration to the relevant Gladue factors. Mr. Ashamock’s family has suffered as a result of residential schools. In all of the circumstances mentioned above, I am of the view that a sentence of one year is appropriate.

29Sentencing judges are among those decision-makers who have the power to influence the treatment of Aboriginal offenders in the justice system. They determine most directly whether an Aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim and community and in preventing future crime. R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, para 65.

30In my view, the proportionate, if imperfect sentence, to coin the phrase employed by Pomerance J., in all of the above mentioned circumstances of this case is a 12 month conditional sentence.

Conditions of Sentence

31The conditions of the conditional sentence shall be as follows:

• Mr. Ashamock rarely leaves his hotel, except for dialysis four times a week. Defence counsel suggested that no period of house arrest be imposed. However, in my view a period of house arrest for the first 45 days of the sentence is required in order to increase the punitive aspect of this sentence to meet the needs of specific and general deterrence. After 45 days has elapsed, Mr. Ashamock will no longer be on conditions of house arrest where he is required to remain in his hotel room at all times.

• Mr. Ashamock shall reside at Confederation Place Hotel at 237 Ontario Street in Kingston. A change of address must be requested and approved from the conditional sentence supervisor before moving.

• For the first 45 days of the sentence Mr. Ashamock shall be on house arrest. That is, he is to remain in his hotel room with the exception of travelling to receiving his dialysis treatment, receiving the treatment, and returning home. He is permitted to leave his room to eat in the hotel. There shall be a further exception in the first 45 days of sentence that Mr. Ashamock be permitted to attend for medical treatment if he is experiencing a medical emergency. Further, he shall be permitted four free hours a week on a day of his choosing, to be provided to his conditional sentence supervisor, when he is allowed to attend to the necessities of his life such as shopping. He is required to keep the peace and be of good behaviour. He is to report to a supervisor within a week of my making this order and thereafter as required by his conditional sentence supervisor.

• He shall be required to remain within the jurisdiction of the court unless written permission to go outside of that jurisdiction is obtained from the court or the supervisor; and notify the court or 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.

• There shall be a s.109 order for the period of 10 years with the exception that as Mr. Ashamock is a person who needs a firearm or restricted firearm to hunt or trap in order to sustain himself, he is eligible to be considered for an order under s. 113 of the Criminal Code.

• At the conclusion of his conditional sentence, Mr. Ashamock may apply for a firearms or restricted weapon licence. At that time, I order that he be issued the appropriate authorizations to permit him to possess a firearm or restricted weapon solely for sustenance hunting. I have considered his criminal record, the fact that no weapons were involved in the case before me, and that the safety of others are not at risk. There shall be a DNA order.

A.E. London-Weinstein J.