COURT FILE NO.: CR-22-00000075-0000
DATE: 2024/10/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
RICHARD JAMIESON
Accused
Andrew Scott, for the Crown
Richard Jamieson, Self-Represented
HEARD: October 18 and 24, 2024
Holowka J.
reasons for decision
sentence
Overview
[1] On May 17, 2024, Mr. Jamieson entered a guilty plea to one count of breaching his Long Term Supervision Order (LTSO) contrary to section 753.3(1) of the Criminal Code. He breached the LTSO by failing, without reasonable excuse, to immediately report to his parole supervisor any attempts to initiate intimate sexual and non-sexual relationships and friendships with females. He accepted the facts and was found guilty. Considering the Indigeneity of Mr. Jamieson, a Gladue Report was ordered.
[2] The facts of the breach are straightforward.
[3] Mr. Jamieson was convicted of sexual assault on August 6, 2014, by Justice Boswell of the Superior Court of Justice. He was found to be a Dangerous Offender and was sentenced to 6 months in prison (6 years pre-sentence custody) and a Long Term Supervision Order for 10 years.
[4] The LTSO stated that he was to abide by the following conditions:
a. Immediately report all intimate sexual and non-sexual relationships and friendships with females to your parole supervisor; and
b. Immediately report any attempts to initiate intimate sexual or non-sexual friendships with females to your parole supervisor.
[5] On or about June 24, 2022, Mr. Jamieson met a 27-year-old female waiting at a Kingston bus stop. Mr. Jamieson and the female spoke to each other and ultimately exchanged phone numbers.
[6] Mr. Jamieson, later, on June 24, 2022, met with the woman in a motel room. He did not immediately report this information to his parole supervisor. On June 27, the parole supervisor noticed that Mr. Jamieson had signed out from the Correctional Centre, where he was required to reside, to meet with a friend. Mr. Jamieson had recorded an address on the sign-out sheet for the visit. The parole officer investigated the address further and discovered it was the Seven Oaks Motel address. The parole supervisor noted that Mr. Jamieson had signed out to the same address on June 24 and 25, 2022, but had not reported it to the parole supervisor.
[7] On June 28, 2022, the parole officer met with Mr. Jamieson regarding this concern. Mr. Jamieson admitted that he had met with the female on two occasions.
[8] Police interviewed the female. She confirmed that she had met with Mr. Jamieson and exchanged numbers with him. She confirmed that she and Mr. Jamieson communicated by phone and text before meeting in the hotel on two occasions. She confirmed that no sexual relationship was established, and they were becoming friends. She told police that Mr. Jamieson had spoken of his past.
[9] On June 28, 2022, Mr. Jamieson’s LTSO certificate was revoked, and he was returned to federal custody due to the revocation. He was formally charged under the Criminal Code on September 14, 2022. The Crown argues that the effective date for the calculation is September 14, 2022. Mr. Jamieson submits that it should be June 28, 2022, as that is the date he returned to custody, and the police had a settled intention to charge him criminally by that date. There is no legislative authority for me to calculate pre-sentence custody starting on the date of the revocation of the LTSO certificate.
[10] The issue before the court is to determine a fit and appropriate sentence considering the facts of this case, the circumstances of Mr. Jamieson and the applicable law.
Principles of Sentencing
[11] Under the Criminal Code, s. 718,
The fundamental purpose of sentencing is to protect society and 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:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 or to the community.
[12] Under s. 718.1, it is a fundamental principle that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[13] Mr. Jamieson is an Indigenous person. Section 718.2(e) requires 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.”
[14] R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 is particularly relevant to the sentencing of Mr. Jamieson. The Supreme Court of Canada reaffirmed in Ipeelee the special sentencing approach in relation to Indigenous offenders. It gave specific direction regarding applying those principles to breaches of Long Term Supervision Orders.
[15] The Supreme Court identified two specific objectives of Long Term Supervision Orders as a form of conditional release:
a. First, to protect the public from the risk of reoffence, and
b. Second, to rehabilitate and reintegrate the offender into the community.
[16] In articulating the foregoing principles, the Supreme Court recognized that sentencing is a fact-specific process requiring a contextual analysis. The sentencing judge must determine an appropriate sentence proportionate to the offence's gravity and the offender's degree of responsibility. The severity of the sentence will depend on the circumstances of the breach, the nature of the condition breached, and the role that condition plays in managing the offender’s risk of reoffence in the community. This includes what the breach portends in light of the offender’s entire history of criminal conduct: Ipeelee at para. 55.
[17] The Supreme Court in Ipeelee repeated the methodology set out in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 at para. 72, directing sentencing courts to consider the unique systemic and background factors which may have played a part in bringing the particular Indigenous offender before the courts and the types of sentencing procedures and sanctions which may be appropriate in the circumstance for the offender because of his or her specific Indigenous heritage or connection. The court clearly states that both sets of circumstances bear on the ultimate question of a fit and proper sentence.
[18] The Supreme Court in Ipeelee noted that s. 718.2(e) does not create a race-based discount on sentencing but requires courts to pay particular attention to the circumstances of Indigenous offenders to endeavour to achieve a truly fit and proper sentence in any particular case by engaging in an individualized assessment of all relevant factors and circumstances, including the status and life experiences of the person standing before them. Historically, Canadian courts have failed to take into account the unique circumstances of Indigenous offenders.
Positions of the Parties
[19] The position of the Crown is that four years, less pre-sentence custody, is an appropriate sentence with regard to the nature of the breach and its purpose, Mr. Jamieson’s lengthy criminal record and the number of times he previously failed to comply with the LTSO by way of a breach and being unlawfully at large.
[20] The Crown has conceded that it would be appropriate for me to calculate pre-sentence custody credit on a 1.5:1 ratio basis. This is a reasonable concession, especially given the reality that Mr. Jamieson is representing himself, and it would have been difficult for him to present evidence regarding the conditions he has experienced in custody since September 2022.
[21] According to Crown counsel in submissions, Mr. Jamieson has been in custody from September 14, 2022, to October 17, 2024, 25 months and five days (766 days). Given the 1.5:1 credit, Mr. Jamieson’s pre-sentence custody has been 37.7 months. As such, the Crown seeks a further ten months of custody.
[22] This period of pre-sentence custody would be increased as the imposition of the sentence was adjourned for a week so that I could consider the material and submissions.
[23] Mr. Jamieson’s position is that he is in a “time served” situation. He argues that unlike the offenders described in the cases cited by the Crown, he did not deliberately set out to breach his Long Term Supervision Order. He also provided the court with some information about his background. He described his encounters with racism from a young age and his refusal to be bowed by it. He also described his long history with foster homes and the child protection system and the lack of anyone being there for him. He recounted how his time in custody on these charges has been difficult as other prisoners repeatedly learned the nature of his predicate offence. It eventually led to conflict with the other prisoners, such that he attracted other criminal charges while in custody. He submitted that he is now 57 and wishes to move on to enjoy what is left of his life.
Circumstances of the Offence
[24] I must consider the principle that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence with the offender: Criminal Code, s. 718.2(a).
[25] The offence before the court is a serious one. The condition breached flows from a sexual offence for which a lengthy custodial sentence was imposed. The condition breached is central to the management of risk and the protection of society in this case. It is not the equivalent of a probation order where the conditions are primarily directed at rehabilitation.
[26] The breach was an intentional failure by Mr. Jamieson to immediately report his attempt to initiate a sexual or non-sexual relationship with the female. The contact in the hotel room with the female occurred on two occasions without Mr. Jamieson alerting his parole officer about his contact with the woman. While I accept Mr. Jamieson’s submission that the situation did not start in a deliberate or planned manner, neither was it spontaneous or a one-time event. Mr. Jamieson did not come forward with the information before the parole supervisor discovered it. The condition breached was clear and unequivocal.
Circumstances of the Offender
[27] A Gladue Report was prepared concerning Mr. Jamieson by Elissa Robertson, Gladue Writer and Johanna Webb, Gladue Aftercare Caseworker of Tontakayè:ri’ne, Restorative Justice and Gladue Services. It sets out the background and life of Mr. Jamieson comprehensively.
[28] Mr. Jamieson is a registered Six Nations of Grand River, Cayuga Nation member. He belongs to the bear clan.
[29] Mr. Jamieson’s mother was 16 years old when he was born. He has never had a relationship with his biological father. He has three younger siblings (one brother is deceased). Mr. Jamieson spent much of his youth in child protective services and on the streets of Toronto. Mr. Jamieson reported to the Gladue writer that he had lost many friends and family members through violence and suicide. Mr. Jamieson reports having abused alcohol and substances as a youth and adult but states that he no longer abuses substances but does use marijuana.
[30] Mr. Jamieson’s mother and grandmother attended Indian Residential School. Mr. Jamieson has experienced racism in multiple stages of his life, including the educational and social welfare systems. Mr. Jamieson reported experiencing poverty as a child, which precipitated the start of his criminal behaviour.
[31] Mr. Jamieson is proud of his Indigenous heritage and attributes Indigenous traditional practices to his mental wellness.
[32] Mr. Jamieson has an extensive criminal record commencing in 1983. It is contained in Exhibit 2, the Crown’s Book of Materials for the Sentencing. The offences include a multitude of crimes, including crimes of violence, property crimes, weapon offences and breaches of probation and recognizance.
[33] In 2014, Mr. Jamieson was convicted of sexual assault. He received a sentence of 6 months (6 years pre-sentence custody) and a Long Term Supervision Order for 10 Years. In 2017, he was convicted of aggravated assault and was sentenced to one day of custody and the equivalent of 37 months of pre-sentence custody.
[34] In April 2021, he was convicted of criminal harassment. A suspended sentence was imposed with 30 months probation. He received credit for the equivalent of 365 days of pre-sentence custody. This conviction focused on Mr. Jamieson repeatedly communicating with Laura Paquette in the context of divorce proceedings.
[35] Aside from two assaults while in custody, Mr. Jamieson has accumulated several convictions for non-compliance with court orders since 2017. They include the following:
a. 2017-07-13 Disobey Court Order and Breach of LTSO
b. 2018-01-16 Breach of LTSO
c. 2018-12-10 Fail to Comply with Probation
d. 2019-03-01 Unlawfully at Large
e. 2019-09-19 Unlawfully at Large and Fail to Comply with Probation
[36] The 2017-07-13 conviction for disobeying a court order and breach of the LTSO consisted of Mr. Jamieson attempting to contact his wife, Laura Paquette, contrary to the LTSO. Mr. Jamieson was sentenced to 1-day of custody on each count and was placed on three years of probation. He received credit for the equivalent of 250 days of pre-sentence custody.
[37] The 2018-01-16 conviction for breach of a LTSO related to the possession of alcohol and marijuana contrary to the LTSO. Mr. Jamieson was sentenced to 10 months and 16 days imprisonment and was credited for 74 days of pre-sentence custody.
[38] The information regarding the 2018-12-10, 2019-03-01, and 2019-09-19 convictions is based on charge sheets from the Toronto Police Service and Kingston Police Services. Mr. Jamieson agrees that they accurately reflect the facts upon which he was sentenced in those cases.
[39] The 2018-12-10 failure to comply with probation consisted of Mr. Jamieson contacting his ex-wife, Laura Paquette, by telephone and text.
[40] The 2019-03-01 conviction consisted of Mr. Jamieson arriving at the Keele Community Correctional Centre, where he was directed to reside later than expected. When he arrived, he smelled strongly of alcohol and marijuana. After his parole officer confronted him with this concern, Mr. Jamieson left the building. He was located and arrested a week later.
[41] Finally, the 2019-09-19 conviction resulted from Mr. Jamieson's failure to return to the Henry Trail Community Correctional Centre, where he was to reside.
[42] The Crown has filed the Assessment For Decision prepared by The Henry Trail Community Correctional Centre of the Correctional Service Canada. It is dated July 22, 2022. It sets out the circumstances of Mr. Jamieson, including the facts surrounding his sexual assault conviction in 2014. It states that Mr. Jamieson’s Long Term Supervision Order expires on October 10, 2026.
[43] The Assessment for Decision sets out the circumstances of the breach of the Long Term Supervision Order and the assessment of Correctional Services Canada regarding the nature of the risk posed by Mr. Jamieson. While I have read it, I do not rely on its opinions—they are untested, and the writer's qualifications are unknown.
Aggravating and Mitigating Factors
[44] The following aggravating factors are present in this case:
a. Mr. Jamieson was subject to parole and the LTSO conditions at the time of this offence. This is an aggravating circumstance pursuant to s. 718.2(a)(vi) of the Criminal Code.
b. Mr. Jamieson’s criminal record is aggravating. It contains multiple entries for non-compliance with court orders, including breaches of probation, recognizance, the LTSO, and being unlawfully at large.
c. Mr. Jamieson’s compliance while subject to the LTSO is problematic. This is demonstrated by the prior LTSO breach, the breach of probation, and the unlawfully at large charges.
d. The nature of the non-compliance with the Long Term Supervision Order is concerning. Mr. Jamieson’s criminal record contains prior entries for sexual assault and criminal harassment. In this case, the LTSO condition breached by Mr. Jamieson is central to managing the risk he poses to females.
[45] The following mitigating factors are present:
a. Mr. Jamieson pleaded guilty to the offence before the Court. It should be noted that the plea occurred shortly before the trial was scheduled to commence. Nevertheless, it is a mitigating circumstance deserving of weight, particularly because Mr. Jaimeson represents himself.
b. Mr. Jamieson's upbringing is a mitigating circumstance. He was subject to racism in the educational and social welfare systems. He spent most of his youth in the care of child protective services or on the street.
Sentences Imposed in Similar Circumstances
[46] The Crown referred the court to three cases concerning the range of sentences for breaches of Long Term Supervision Orders.
[47] In R. v. Bourdon, [2008] O.J. No. 5034 (S.C.J), the accused pleaded guilty to failing to comply with a Long Term Supervision Order for failing to provide detailed monthly billing information, meeting with one or more females, and failing to report the contacts. He established relationships with two teenage females and travelled with them. Mr. Bourdon was sentenced to four years imprisonment. (I note that sentencing cases for LTSO breaches that pre-date Ipeelee are of little precedential value. See Ipeelee at para. 48.)
[48] In Bourdon, the index offences were sexual assault and administering a stupefying drug to enable him to commit sexual assault. He was sentenced to 25 months imprisonment and a seven-year Long Term Supervision Order. Mr. Bourdon had a very minor record for property crimes.
[49] In R. v. Archer, 2014 ONCA 562, the Court of Appeal reduced a six-year sentence to four years, six and one-quarter months, holding that the sentencing judge gave undue emphasis to deterrence and inadequate emphasis on the appellant’s rehabilitation and reintegration into society. In Archer, upon release from prison, the offender failed to report to a designated Community Correctional Centre. Instead, he returned to Oxford County, where he was not to attend and later travelled to Winnipeg, where he was arrested. He had previously breached his LTSO, resulting in a four-year sentence.
[50] Finally, in R. v. Jordan, [2021] O.J. No. 4529 aff’d [2022] O.J. No. 4081, the sentencing imposed a three-year sentence upon a plea to a breach of an LTSO. The sentence was upheld on appeal.
[51] The accused in Jordan possessed a lengthy criminal record for offences regarding his intimate partners. The index offence was concerning his intimate partner. The breach involved him attending the complainant's residence, who had initiated contact. The LTSO conditions breached were designed to protect the complainant and the accused’s intimate partners.
Analysis
[52] Long Term Supervision Orders have two purposes: protecting the public from the risk of reoffence and the rehabilitation and reintegration of the offender into the community. Here, the nature of the condition to immediately report any attempts to initiate intimate sexual or non-sexual friendships with females to the parole supervisor is central to the purpose of protecting females from the risk of reoffence. It cannot be characterized as ancillary to the central aim of managing Mr. Jamieson’s recidivism. This failure to comply with the LTSO is a serious breach. Because of this central purpose and the breach committed, denunciation, general deterrence, and specific deterrence are the focus of this sentencing.
[53] Mr. Jamieson’s criminal record is concerning. He has repeatedly failed to comply with court orders since the commencement of the record in 1983. More importantly, this history of non-compliance has continued since the imposition of the Long Term Supervision Order. The breaches during the term of the LTSO include failures to return to the Community Correctional Centre where he was to reside and communicating with his ex-wife when prohibited from doing so. Both are central to managing Mr. Jamieson’s reoffending risk and the community's protection.
[54] The sentence imposed must reflect the seriousness of the breach and the need for specific and general deterrence as well as denunciation.
[55] Rehabilitation remains a relevant consideration. This is particularly important, having regard to the sentencing considerations relating to Indigenous persons. Mr. Jamieson’s personal circumstances are comprehensively set out in the Gladue Report before the Court. It is compelling information that Mr. Jamieson’s mother and grandmother attended Indian Residential School. Mr. Jamieson discussed with the Gladue Report Writer the challenges he faced as a child living alone in Toronto and reflected on how this experience impacted him:
I had no choice. I had no choice. That choice was taken away from me when I was six years old. I went from trouble as a, you know, group home, foster home, this home, that home, to the fucking street…And I had no choice but to be a criminal to survive. You know, so that’s what I did…When I actually ended up on the street was I was what, 11, 12. Yeah, well, you know what I mean? Back in those days it was a free for all, you know? It wasn’t like today where you have fucking safety for the people, you know what I mean? You have safety nets all over the place. Back then it was like, you survive, or you don’t.
[56] Doubtlessly, Mr. Jamieson’s formative years are critical in today’s situation. I have taken judicial notice of the historical mistreatment of Indigenous persons. I take judicial notice of both historical and current discrimination against Indigenous people, leading to inequitable results in the justice system. Over-incarceration of Indigenous persons is but one way discriminatory attitudes have been expressed in our system.
[57] In terms of rehabilitative measures that may be put in place, the Gladue Report addresses previous and proposed interventions. It states, “When asked about participating in programs to address individual trauma, Richard appeared uncertain if he would benefit from such. He stated. “I don’t know if I need it…I don’t really know. All I know is I’m walking this road alone. That’s it. It’s all I know…I wasn’t even expecting to live this long, let alone, you know, you know anything else.” He described living a lifestyle where he had access to financial resources, and now feels “…stupid. I feel like an idiot now when I think about it…I didn’t expect to live. I lived like every day was my last day.”
[58] The Gladue Report states that Mr. Jamieson reported that while in a halfway house, he completed anger management, substance abuse and sexual offending programs. The Report makes recommendations for restorative justice programs going forward.
[59] Given the sentencing positions of the Crown and Mr. Jamieson, it is challenging to craft a restorative justice component to the sentence to be imposed. Mr. Jamieson’s uncertainty regarding the benefits of such programs increases the challenge. Mr. Jamieson has little insight into his performance while on the LTSO.
[60] Mr. Jamieson remains on an LTSO until October 10, 2026. The restorative recommendations cited in the Gladue Report should be considered by Mr. Jamieson and Correctional Services Canada during the balance of his Long Term Supervision Order. On page 21 of the Gladue Report, Mr. Jamieson states that “he was on LTO for over 6 years with minimal issues in the community.” Respectfully, this is an inaccurate characterization. Mr. Jamieson’s compliance with his LTSO is troubling. While not ignoring the need for rehabilitation, specific deterrence remains essential.
[61] The Crown concedes that Mr. Jamieson is entitled to credit for pre-sentence custody on a 1.5:1 ratio. While the case law varies on this issue concerning credit for pre-sentence custody when the accused is subject to a Long Term Supervision Order, this is a reasonable concession in the particular circumstances of this case. Mr. Jamieson is self-represented. During submissions, he has made repeated reference to the conditions of his pre-sentence incarceration. Moreover, while awaiting trial, Mr. Jamieson has remained in a detention center instead of a federal penitentiary. He has experienced inferior access to rehabilitative programs as a result. Ultimately, awarding credit for pre-sentence custody is a matter within the sentencing judge's discretion.
[62] I accept the Crown’s concession and Mr. Jamieson's submission that he should be credited on a 1.5 to 1 ratio basis. Mr. Jamieson was charged on September 14, 2022—772 days to today. At a 1.5 to 1 basis, Mr. Jamieson is credited with 1158 days of pre-sentence custody. This is 3 years, 2 months and 3 days.
[63] The cases presented by the Crown reflect sentences for breach of LTSOs between 12 months and four years. The case of R. v. Middleton, 2019 ONCJ 280 places the range of sentences for LTSO breaches between 9 months and 5 years. I find that the range articulated in Middleton is accurate.
Conclusion
[64] I have considered the nature of the breach. In this case, the breach violates the core object of the LTSO—the protection of the community.
[65] In this case, I considered Mr. Jamieson’s criminal record and global performance while subject to the Long Term Supervision Order. General and specific deterrence is central to this case. Mr. Jamieson has poor insight into his performance while under supervision. Mr. Jamieson must respect the LTSO if it is to be effective in managing the risk of reoffence posed by him. If meaningful rehabilitation is to be achieved, the conditions must be respected.
[66] I have also considered the Gladue/Ipeelee principles articulated by the Supreme Court of Canada. Today, Mr. Jamison’s punishment must be tempered as much as possible without displacing the fitness of the sentence by the exercise of restraint.
[67] A sentence of imprisonment is the only option to address the relevant factors in this case. A conditional sentence would offend the fundamental purposes and principles of sentencing. No submissions were made in support of a conditional sentence.
[68] I conclude that the correct sentence for Mr. Jamieson’s breach of the long-term supervision order is imprisonment for a period of 42 months (1278 days), less presentence custody. As Mr. Jamieson has already served the equivalent of 38 months and 3 days (1158 days), Mr. Jamieson is sentenced today to a further 120 days.
[69] This sentence is within the range articulated in Middleton and reflects a significant step up in terms of the length of sentence imposed upon Mr. Jamieson in the past for non-compliance with the LTSO. It is tempered to the degree possible.
[70] I am grateful for Crown Attorney Andrew Scott's advocacy in this matter. Mr. Jamieson, I encourage you to embrace the rehabilitative opportunities available during the balance of the Long Term Supervision Order. I wish you good luck.
Mr. Justice Brian C. J. Holowka
Released: October 24, 2024
COURT FILE NO.: CR-22-00000075-0000
DATE: 2024/10/24
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
RICHARD JAMIESON
REASONS FOR JUDGMENT
The Honourable Justice B. Holowka
Released: October 24, 2024