Court File and Parties
COURT FILE NO.: 23-11401985 DATE: 2023/06/21 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Thato Tobo
BEFORE: Somji J.
COUNSEL: Malcolm Savage, for the Crown Thato Tobo, Self-Represented Michael Davies, Amicus Curiae
HEARD: June 20, 21, 2023
Endorsement
[1] Mr. Tobo has entered a guilty plea to one count of theft under $5,000 and one count of breach of probation on Indictment No. 23-11401985-A. In doing so, Mr. Tobo has admitted that on March 4, 2023, he entered a Circle K convenience store located at 333 Rideau Street in Ottawa and stole cartons of cigarettes. At that time, he was on a court order with a term not to attend that store.
[2] The aggravating factor in sentencing is Mr. Tobo’s prior criminal record which includes over a 100 convictions largely for property related offences spanning a 20-year period. In the last two years alone, Mr. Tobo has accumulated 10 similar theft charges from the same Circle K store in Ottawa.
[3] Mr. Tobo admits he is addicted to cocaine and engages in what he describes as non-violent thefts to support his addiction. Forensic Psychiatrist Dr. Neil de Laplante opines in a 26-page report dated December 15, 2021, that Mr. Tobo does not have an underlying psychotic disorder, but that he requires ongoing treatment for Cocaine Use Disorder. Mr. Tobo disputes the diagnostic conclusion in the report, and claims he has continued mental health issues.
[4] During the sentencing hearing which commenced June 20, 2023, Mr. Tobo indicated that he has requested and been denied the opportunity to access drug addiction treatment through the Drug Treatment Court (DTC) or the Mental Health Court in the Ontario Court of Justice. The Crown was able to confirm that Mr. Tobo has been rejected from participating in DTC on at least two sets of past charges. The Crown notes that Mr. Tobo did have access to the Mental Health Court where an order was made for Mr. Tobo to be assessed and which resulted in Dr. de Laplante’s report.
[5] I also heard evidence, which Mr. Tobo does not dispute, that he was offered an opportunity to go to drug treatment at the Anchorage program in Ottawa several years ago but that he left after a few hours of attendance because there was limited programming available due to the pandemic. Mr. Tobo also had an opportunity to attend for drug treatment at the Georgianwood Program of Concurrent Disorders from January 8 to March 30, 2015. It was following this treatment program that he returned to Ottawa. Since that time, as demonstrated by his criminal record, Mr. Tobo has continued to engage in a pattern of criminal activity to support his cocaine addiction.
[6] Notwithstanding his failure to follow through at Anchorage, Mr. Tobo maintains that he continues to be genuinely interested in addressing his drug addiction.
[7] Having heard submissions from the Crown, Mr. Tobo, and amicus curiae counsel, Mr. Davies, I find that in order to craft a fit and appropriate sentence that takes into account the principle of rehabilitation, it is necessary to obtain a pre-sentence report. In particular, it would be of assistance to the court if the author of the pre-sentence report could address the following questions:
- Have there been any pre-sentence reports prepared for Mr. Tobo in the last 8 years. The Crown and Mr. Tobo do not believe there have been any. If so, what treatment options were considered as part of the PSRs at the time?
- What substance abuse treatment is available to Mr. Tobo in the community or in the provincial jail system? Reference has been made to Rideauwood, Harvest House, Life House, and the Anchorage Program, but the court would be interested in understanding if there are any other state funded programs available?
- What is required for Mr. Tobo to be able to access any of these stated funded programs for drug treatment including the ones mentioned above? For example: a. Are there waiting lists? b. What steps and application processes are required to attend? c. Are there pre-requisites for attendance such as a stabilization period? d. Are there certain bars to admissibility into these programs? In particular, would Mr. Tobo’s very lengthy criminal record exclude him from admission? Can exceptions be made?
- What are Mr. Tobo’s options for access to social supports in the community to assist him with his mental health or drug addiction should he be placed on a probation term? (i.e. social workers, Canadian Mental Health Association, etc.)
- What are Mr. Tobo’s prospects for finding residence in the shelter system or Ottawa community housing upon exiting custody?
[8] Mr. Tobo has indicated in court that he is prepared to participate fully in the process for obtaining a pre-sentence report and to sign any necessary consents.
[9] Mr. Davies has kindly agreed to contact Dr. Wood, a forensic psychiatrist who Mr. Tobo has been seeing while at OCDC over the years, to see if he can provide additional information on Mr. Tobo’s mental health, medications, and prospects of rehabilitation. Mr. Davies will forward an email to Dr. Wood to see if he will provide a letter explaining:
- Whether he can provide information about Mr. Tobo’s current medical diagnosis and treatment?
- What are Mr. Tobo’s prospects of rehabilitation for cocaine use?
- Would Mr. Tobo be eligible to attend St. Lawrence Valley Treatment Centre as part of a custodial sentence?
[10] Mr. Tobo has indicated that he is agreeable to sharing Dr. de Laplante’s psychiatric report with both Dr. Wood and the probation officer notwithstanding the fact that he disagrees with the final conclusion.
[11] The matter will return to assignment court on August 11, 2023, and at that time, if the PSR is completed, a date can be set before me for continuation of the sentencing hearing.