Her Majesty the Queen - v. -, 2019 SKPC 23

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 23 Date: April 5, 2019 Information: 991082046 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bruce Allan Napope Appearing: Gail Douglas For the Crown Estelle Hjertaas For the Accused SENTENCING DECISION M. MCAULEY , J [ 1 ] The accused pled guilty to one breach of a recognizance issued under

section 810.2, contrary to

section 811 of the Criminal Code . The breach occurred on February 19, 2019 when he failed to report to and register with the Prince Albert Police Service, Criminal Investigations Officer. [ 2 ] The Crown is seeking a 15 month jail sentence minus his remand at enhanced credit from the time of his February 21, 2019 arrest. Defence is seeking a two month jail sentence minus his remand at enhanced credit.

FACTS OF OFFENCE [ 3 ] On November 1, 2017, Mr. Napope was released on an 18 month

section 810.2 recognizance set to expire April 30, 2019. He was required to register to and report in person with Sgt. Hayes of Prince Albert Police Services every second Tuesday between the hours of 8:00 a.m. and 4:00 p.m. until the expiry of the order or unless otherwise arranged. In addition, he was also required to report to Probation Officer Kelly Palmer. [ 4 ] On January 22, 2019, Mr. Napope reported to Sgt. Hayes and was instructed to report again on Tuesday February 5, 2019.

He did not report on February 5, 2019 but did report on February 6, 2019 advising the reason for his not reporting was due to a doctor’s appointment with Dr. Lanoie. [ 5 ] Mr. Napope was again instructed to report on Tuesday February 19, 2019 but once again did not report. Sergeant Hayes contacted Kelly Palmer regarding this incident. Kelly Palmer received a phone call from Mr. Napope over the lunch hour on this same day and she cautioned him on his continued issues of non-compliance with reporting, attending appointments and attending required programs. According to Kelly Palmer she provided Mr.

Napope many chances in the past as he would repeatedly miss appointments and call the next day to reschedule. [ 6 ] On February 19, 2019, Kelly Palmer instructed Mr. Napope to report to Sgt. Hayes before 4:00 p.m. and he indicated he did remember and would do so. Mr. Napope did not report to Sgt. Hayes. As Kelly Palmer was experiencing ongoing difficulties with Mr. Napope’s reporting she submitted a breach. [ 7 ] Mr. Napope was residing with his mother at this time and had been experiencing serious medical issues because of long- standing addictions issues.

SECTION 810.2 RECOGNIZANCE BREACHES [ 8 ] The purpose of a

section 810.2 recognizance is to protect the public by preventing future criminal activity. The case of R v Zimmerman , 2011 ABCA 276 , 513 AR 374 [ Zimmerman ] is instructive in determining an appropriate sentence for such a breach. In Zimmerman , the Alberta Court of Appeal affirmed the sentencing judge’s decision in 2010 ABPC 228 . In addition to reviewing sentencing decisions from other jurisdictions, the sentencing judge also summarized eight considerations relevant to a breach of a

section 810.2 recognizance: i. the primary purpose of sentencing for a breach of a s. 810.2 recognizance is the protection of the public and paramount consideration should be placed on this purpose and on the sentencing objectives of specific and general deterrence; ii. the gravity of the breach must be examined in the context of the offender’s history; iii. the sentencing judge must never lose sight of the proportionality principle; iv. a breach of a s. 810.2 recognizance will usually result in a more serious sentence than a breach of a probation order as s. 810.2 recognizances and probation orders have different primary purposes and come with different risks when breached; v. a s. 810.2 recognizance has similar purpose and method as a long-term offender order but should not be confused with a long-term offender order; vi. when sentencing for a breach of a s. 810.2 recognizance, the sentencing judge should be concerned about managing the offender’s risk to the community; vii. deliberately absenting oneself to subvert the conditions of close supervision in a s. 810.2 recognizance is an aggravating factor; and, viii. the sentencing judge must consider all of the principles of sentencing in s. 718 to s. 718.2 of the Criminal Code .

[ 9 ] I am required to consider the prior offences and circumstances of Mr. Napope in determining an appropriate sentence, keeping in mind that this type of recognizance has a different purpose from an undertaking or probation order. [ 10 ] It is useful to set out the statutory principles of sentencing in the Criminal Code relevant to this sentencing:

Section 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 and to the community. … 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender…; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

CROWN SUBMISSIONS [ 11 ] The Crown submits the accused’s criminal history is relevant to determining an appropriate sentence and relies upon the following cases of Zimmerman and R v Kematch , 2016 ABPC 58 [ Kematch ]. [ 12 ] In Zimmerman , the sentencing judge concluded that an analysis of the s. 810.2 breaches was required while paying particular attention to the possibility for reasonably foreseeable consequences that could follow from such breaches .

The breaches in Zimmerman are serious and include six breaches for the following: reporting, residence, curfew, keep the peace, possession of a knife and items capable of being used as retraining devices. Mr. Zimmerman had absconded after two weeks of supervision and was located two months later where he was living under a false name.

In addition to the six breaches, he was charged with a substantive offence of fraud as well as breaching his SOIRA order. [ 13 ] The sentencing judge in Zimmerman performed a careful analysis of the history, seriousness of previous offences, likelihood that he would re-offend and the seriousness of the breaches. The need to monitor the appellant’s activities was paramount in this particular case in protecting the public from serious potential harm. The accused in Zimmerman was involved in more serious breaches than Mr. Napope and was also dealing with substantive charges at the same time. Mr.

Napope is dealing with similar charges as Mr. Zimmerman, however, I find the circumstances distinguishable in Zimmerman due to the more serious breaches, the substantive offence and the breaching of an additional order (SOIRA). The sentence imposed for Mr. Zimmerman was 17 months jail for the reporting

condition, 17 months consecutive for the restraining devices possession condition, 17 months concurrent for the residency and curfew conditions, 17 months concurrent for the keep the peace breach and knives possession condition and 1 month concurrent for fraud offence with a global sentence of 34 months in jail after receiving 6 months credit for pre-sentence custody. [ 14 ] In Kematch , the accused pled guilty to three breaches of a

section 801.2 recognizance: failing to abide by a curfew; leaving the jurisdiction; and failing to report to the local police detachment. Crown was seeking 12 to 18 months custody followed by probation. Defence suggested a 44 day time served sentence with enhanced credit. Mr. Kematch was ultimately sentenced to enhanced credit of 60 days jail. [ 15 ] With respect to the facts of the offences, Mr. Kematch failed to answer the door of his residence when police checked on his curfew. Investigations determined Mr. Kematch hitchhiked from Alberta to his reserve in Manitoba.

An aggravating factor in Kematch is that the accused deliberately removed himself completely from supervision without any plans to reconnect with his supervising officers. He also changed his residence without permission. Mr. Napope did not do either. Defence submits Kematch had more aggravating factors in the circumstances and yet received only 60 days jail for a sentence. [ 16 ] The Crown made reference to R v Wilson , 2014 BCPC 193 [ Wilson ], to support their sentence position.

In Wilson , the accused breached a two year recognizance which required him to report to a probation officer as directed and to reside in an approved residence. The accused did not report and was not located until 2013, when he was arrested. Mr. Wilson expressed no remorse for his offences but claimed to have no choice as the police and justice system wanted to see him incarcerated. He received 15 months jail less credit for pre-sentence custody followed by 18 months’ probation. Mr. Wilson was of Metis heritage and had extensive Gladue factors that were taken into consideration in his sentencing.

DEFENCE SUBMISSIONS [ 17 ] Mr. Napope was feeling ill on Tuesday, February 19, 2019. On the following Wednesday and Thursday he continued to feel ill due to a 2010 diagnosis of HIV positive and other health problems that he is currently on disability for. As a result of being HIV positive, Mr. Napope is currently suffering from a hidden infection in his joints and is under the care of Dr. Lanoie. Mr. Napope is currently in the weakest health he has ever been in and Kelly Palmer is aware of his medical condition(s).

He is also currently on the methadone or similar program due to previous addictions issues. [ 18 ] During this reporting period, Mr. Napope was at home for most of this time due to this health condition where he was residing with his mother. He did not deliberately remove himself from supervision and he had been doing his best to attend all his required programs. Although he did not report on February 19, 2019, he did contact Kelly Palmer to advise her of his situation. While he was aware of the requirement to report to Sgt. Hayes, because he was feeling ill, he did not attend to the police station as instructed.

He would have called Sgt. Hayes if he had his phone number. Mr. Napope turned himself in on February 21, 2019. While Mr. Napope was periodically late in keeping his appointments, he never quit reporting at any time nor did he completely remove himself from supervision. [ 19 ] Mr. Napope struggled with life-long drug addictions but had only most recently managed to break the cycle and got himself on the methadone or a similar program. He had been taking his programming as required. While in custody, Mr.

Napope completed all the required programming that was available to him. [ 20 ] With respect to Gladue factors, Mr. Napope had a most difficult childhood. He attended the Duck Lake Residential School between the ages of 6 to 12 years old. Mr. Napope did not have a good experience while at the school. When he was old enough to live on his own, he eventually started getting arrested as a young offender. He gave up on himself and in ever having any hope for a normal life. When he was eventually released from youth detention, he progressed to being arrested as a young adult. Mr.

Napope grew up within the jail system – from residential school to the penitentiary. His mother and father also attended the residential school system. [ 21 ] Defence filed numerous cases including R v Ballantyne , 2012 SKPC 168 , 408 Sask R 58 [ Ballantyne ]. Terrance John Ballantyne of Deschambault Lake was arrested on June 16, 2012 and charged for breaching a condition of his

section 810.2 recognizance that he not consume or possess drugs or alcohol and other intoxicating substances. On September 21, 2012, the Crown asked the Court to sentence Mr. Ballantyne to two years jail in a federal penitentiary while defence counsel requested a sentence of time served. [ 22 ] The background to Mr. Ballantyne’s circumstances was that he was released from custody on May 18, 2012 after completing

a sentence Judge Robinson imposed on him for an earlier breach of his

section 810.2 recognizance. The recognizance was for a period of two years and was to expire on April 5, 2013. One of the conditions of his recognizance was a curfew. From Mr. Ballantyne’s release from custody on May 18, 2012 to his arrest on June 16, 2012, the Deschambault Lake RCMP attended to the accused’s residence on nine different nights to do curfew checks. Mr. Ballantyne was home on the first eight occasions but he was not home on June 16, 2012. [ 23 ] When the RCMP attended Mr. Ballantyne’s residence at 1:50 a.m. for the curfew check, his mother answered the door showing signs of intoxication. Mr.

Ballantyne’s mother initially stated he was sleeping in the bedroom, but then when she came back from checking his bedroom, she indicated he was not there. About two minutes later the police saw Mr. Ballantyne walk from the back of his house and go up to the house entrance. He had glassy eyes and advised he only had one beer. He was very cooperative and appeared only slightly intoxicated. [ 24 ] Mr. Ballantyne said that his mother is an alcoholic and usually drinks away from home. However, on this night, she was drinking at the house with one of her male friends.

He could not sleep and his mother gave him two cans of beer that he took back to his bedroom. Because of the noise in the house, he left through his bedroom window and into the backyard which slopes down a hill to the lakeside. He admitted to consuming the beer his mother gave him. As he did not consume alcohol since November 2008 the beer affected him. He noticed the RCMP vehicle and went up to the door of his house waving at the officers in their vehicle. Mr. Ballantyne’s version of events was consistent with the Crown’s. [ 25 ] Mr. Ballantyne’s childhood years were difficult.

His mother was an alcoholic and his father did not participate in his upbringing. As a result of his mother’s excessive drinking, Mr. Ballantyne was required to reside with other family members. He was apprehended by Social Services at 11 years of age and placed in various foster homes. His experience in foster homes was negative due to abuse. He ran away but was re-apprehended and placed in a foster home in Pelican Narrows. Mr. Ballantyne also spent time in the residential school in Prince Albert. By the age of 12 or 13 years, he was already involved in the youth criminal justice system. Mr.

Ballantyne has a limited education and a significant substance abuse history. He also has a very long criminal record comprising over 50 convictions – both youth and adult. [ 26 ] Mr. Ballantyne served lengthy sentences for breaches of his

section 810.2 recognizances. He received a total of 28 months jail for six previous breaches. He was on remand for 122 days for these latest breaches and with enhanced credit at 183 days, makes the total amount of 34 months in jail for breaching such orders. Judge Robinson states in paragraph 31 in Ballantyne : The stark reality is that the accused’s jail terms, adding up to almost three years, have been imposed for behaviour that would, at least ordinarily, be perfectly legal for Canadian citizens not bound by court conditions. [ 27 ] Mr. Ballantyne had been on three

section 810.2 recognizances since the end of his four year jail sentence for sexual assault. Defence argued on behalf of Mr. Ballantyne that he should not have been subjected to more than one application under

section 810.2 and that his current recognizance was ordered without due process. Defence further argued that any risk of serious and imminent danger that might have been present when the accused entered into his first

section 810.2 recognizance would have faded by the time the Crown brought its next application. [ 28 ] Judge Robinson anticipated that future cases will see Provincial Court judges taking a more rigorous approach to Crown applications for such recognizances and cited the case of R v Toulejour , 2012 SKPC 86 , 398 Sask R 292 a decision dealing with the admissibility of documents in such hearings. [ 29 ] The Crown contends in Ballantyne that the decisions in Ipeelee and Gladue have no bearing on the present case because the purpose of long-term offender orders is to facilitate the rehabilitation of offenders under the Corrections and Conditional Release Act SC 1992, c 20 [ CCRA ].

The Crown further argued that rehabilitation is not an objective of

section 810.2 recognizances. Judge Robinson disagreed with this position as the rehabilitation of offenders is clearly not the only focus of the CCRA , due to the Supreme Court of Canada’s recognition that the protection of the public is also of equal importance. Judge Robinson states in paragraph 51 that

section 810.2 is itself alive to the prospect of rehabilitating an offender as 810.2(3.1) speaks of securing “the good conduct of the offender” and, in so doing, surely envisages a rehabilitated defendant. One listed condition for such a recognizance is that a defendant “participate in a treatment program”. This condition is clearly aimed at rehabilitation. [ 30 ] In the Court of Appeal in R v Ballantyne , 2009 SKCA 27 , 324 Sask R 71, in paragraph 5 , the Court emphasized that the purpose of a

section 810.2 recognizance is to protect the public by preventing future criminal activity. It did not state that rehabilitation could never be used to achieve that objective.

[31] Judge Robinson states in Ballantyne at para 58: A distinction must necessarily be drawn between the facts giving rise to the accused’s

section 810.2 peace bond and the facts giving riseto his current charge. ... With regard to the 2002 and 2007 matters, I sentenced the accused to lengthy jail sentences. I did not intend thatthe accused would be further sentenced on those matters by jail terms coming in future instalments. [32] Mr. Ballantyne did commit a breach by consuming alcohol. Drinking alcohol places the public’s safety at risk and is to beavoided which was the purpose of the recognizance condition. However, on this night in question his drinking was not excessive norwas he grossly intoxicated. Mr.

Ballantyne was sentenced to time served at enhanced credit of 183 days in custody which was equivalentto four months actual jail. Judge Robinson’s view was that Mr. Ballantyne’s release back into the community was important if he was tomake any progress on the restorative path as contemplated by Ipeelee and Gladue. Mr. Ballantyne had accumulated more breaches onhis recognizance than did Mr.

Napope and yet only received a four month jail sentence. [33] R v Ladue, 2011 BCCA 101, 271 CCC (3d) 90 [Ladue] involved an appeal by the accused from a three year sentence forbreaching a condition of his long-term supervision order by consuming intoxicants. The supervision order was imposed for a convictionfor breaking into a residential home and committing a sexual assault by touching the complainant’s breasts over her clothing. This wasthe accused’s fourth conviction for similar sexual offences, all involving the consumption of alcohol or drugs. His criminal record wascomprised of 40 prior convictions.

The accused was a 48 year old Aboriginal. He suffered physical, sexual, emotional, and spiritualabuse as a child in a residential school. He had abused alcohol and drugs for most of his life and had made numerous attempts atovercoming his addictions. The accused argued that the sentencing judge erred when she failed to give effect to the accused’sAboriginal heritage. [34] The appeal was allowed in Ladue and the sentence was reduced to one year’s imprisonment.

The sentencing judge was awareof the accused’s history and circumstances, but overemphasized the principle of separating the offender from society and not givingenough weight to rehabilitation. The sentencing judge also erred in not giving sufficient weight to Gladue factors. The direction toexercise restraint with particular attention to Aboriginal offenders was still to be applied even in the circumstances of a long-termoffender. The sentence imposed was not proportionate to the gravity of the offence and the accused’s degree of responsibility.

Asentence of one year would be enough time for the accused to achieve sobriety and for the correctional staff to find an appropriate half-way house for him which emphasized Aboriginal culture and healing. [35] Mr. Ladue had completed treatment programs for both substance abuse and sexual offending. While he had not offendedsexually since 2002, he had great difficulty staying away from drugs and alcohol. The Pre-Sentence Report indicates that “alcoholand/or drug use is a direct precursor to his criminal activity”. He was identified as a “serial sexual offender” in the Pre-Sentence Report.

He obviously met the criteria for a long-term offender, which means that there is a substantial risk he will re-offend. Mr. Napope is nota long-term offender. [36] In R v M.A.P., 2006 SKPC 96, 287 Sask R 71 [M.A.P.], the accused was charged with breaching his

section 810.2recognizance when he rode his bicycle past an elementary school ground and looked in the direction of the children who were out forrecess. The recognizance was imposed as there existed reasonable grounds for the potential he would commit a sexual offence against achild under the age of 14 years. The Crown asked for a two year jail sentence in a federal institution and defence proposed a three yearprobation order. The accused was diagnosed with FASD and served nearly two years at the Regional Psychiatric Center. M.A.P. is notparticularly helpful with respect to Mr. Napope’s circumstances.

I find it distinguishable for numerous reasons including the differencein the mental states of the accuseds. [37] In R v Lanferman, 2011 BCCA 438, the accused entered into a similar recognizance following his release from custody. Three days later, he was seen just after his curfew, some eight kilometers from his residence, hitchhiking in a direction that would takehim away from his residence. On appeal, the Court upheld the nine month jail sentence followed by a two year probation order. TheCourt of Appeal found that Mr.

Lanferman had many prior convictions for non-compliance and was seen by experts in the field as aviolent untreated offender who continued to minimize the seriousness of his conduct. [38] In R v Labbe (2006), (ON CA), 214 CCC (3d) 362 (Ont CA), the accused breached a similarrecognizance by failing to carry a copy of his recognizance and then spitting into the face of the arresting police officer. On appeal, Mr.Labbe received 12 months jail concurrent to each other for the two breaches and a further three months for assaulting a police officer.

The Court indicated that persons required to enter into recognizances under

section 810.2 should not be automatically treated as worstoffenders for sentencing purposes, which approach would effectively emasculate principles of proportionality and rehabilitation that trialjudges must take into account in arriving at fit and just sentences. Mr. Labbe has a long and violent criminal record (paragraph 3) in that

his criminal history was appalling and he had no ability to comply. [ 39 ] In R v Fraser , 2010 ONCJ 566 , the accused was on a similar recognizance with a condition to not be found in any place where the sale of alcohol was the primary source of revenue. He was observed entering a liquor store and purchasing alcohol. Mr. Fraser was an alcoholic and had a lengthy criminal record which included crimes of violence. Alcohol and/or drugs played a role in the commission of most of his offences. This was his third conviction for breaching a

section 810.2 order in less than a year. Mr. Fraser received 40 days jail for the first breach and 11 months jail for the second breach which also consisted of a serious assault. For the third breach, Mr. Fraser received 10 months jail less credit for pre-sentence custody. [ 40 ] In R v Bambrick , 2011 NLCA 79 , the accused breached his recognizance by purchasing beer at a store close to a residence. He was required to stay at least 200 meters away from this residence. He was arrested as he was walking towards that residence with a mickey of rum in his pocket.

On appeal, the Court indicated that the breaches were not sufficiently grave to justify the maximum sentence of two years jail and the sentence was replaced by five weeks jail time served. [ 41 ] In R v Green , 2013 ONCJ 423 , the accused was a 32 year old Aboriginal male who pled guilty to two breaches of his recognizance in addition to possession of 2.4 grams of marijuana. Drug and alcohol addictions were the main reason for his offending behaviour. He had extensive Gladue factors, lacked insight into his problems and was assessed as a high risk for potential sexual violence.

He may have also had Fetal Alcohol Effects. Mr. Green was sentenced to 4 months jail less credit for remand time, followed by a two year probation order. [ 42 ] In R v Sheppard , [2014] NJ No 6 (QL) (NL Prov Ct) , the accused pled guilty to one count of a breach of an undertaking and five counts of breach of a

section 810 recognizance. One of the conditions of the recognizance was to stay away from his former girlfriend and her residence. Mr. Sheppard ignored that order and was arrested and charged for breaching the

section 810 recognizance. He was later released on an undertaking that also required he abstain from communicating with same former girlfriend and he refused to comply with that order also. The Court sentenced him to 60 days jail on each count, concurrent, followed by a two year probation order. ADDITIONAL CASE LAW [ 43 ] In R v Neil , 2014 BCPC 175 [ Neil ] the accused breached a condition that he not “possess or access any computer, cellular phones or other devices capable of accessing the internet”.

The grounds for the recognizance included a conviction that Neil was making and distributing child pornography posted on the internet. The breach arose when authorities discovered an HP laptop, a Kindle and a slide-type cellular phone in his possession. Although no offending material was found on any of these devices, he was in possession of encryption software and software that enabled him to erase data from entire hard drives. With respect to sentencing, the Court first noted that the recognizance did not amount to a conviction but was designed to prevent future offending.

The breach of such an order should be viewed seriously and these breaches in particular were deemed serious. The accused was sentenced to 90 days jail minus 42 days of pre-sentence custody and probation to follow. [ 44 ] In Neil , the breach was considered flagrant and directly related to his conviction in that he was accessing the internet hitting at the heart of his risk behavior. However, the Court imposed 90 days jail minus his remand time only. [ 45 ] In R v Brass , 2013 MBPC 40 , 295 Man R (2d) 281 the accused had been convicted of a sexual assault and received 3.5 years jail.

The accused was released from custody and failed to update his supervisor on his current situation, moving without the required permission. Due to his criminal record and the nature of his previous conviction, the accused did not have the luxury of moving to wherever he wanted due to his high-risk behavior. The accused also had a violent criminal record dating back to 1991. [ 46 ] The Court’s concern was that Mr. Brass was no longer being monitored and the list of possible destabilizing factors were no longer being assessed by the professionals charged with monitoring this order and his behavior.

The offence that preceded this order was a brutal attack that very nearly took the life of the victim. There also existed previous assaults on the same victim which is indicative of the accused’s escalating behavior, regardless of the situation or the victim’s reaction. [ 47 ] The concerns with Mr.

Brass were well founded in that they were based upon his past offences against women, his resistance to sexual offender counseling while incarcerated, his aversion to being placed on conditions in the community, his inclination towards violence and non-compliance in the institution and his limited periods of compliance prior to breaching upon his release. These conditions were put in place to prevent future harm to other individuals. Simply walking away from the recognizance is not an option for

Mr. Brass. [48] Mr. Brass is an Aboriginal offender with a troubling criminal record and past. His offence of relocating without permissionwas less serious than in Neil. Mr. Brass received a 10 month jail sentence due to the seriousness of the inability to monitor or contacthim when there were high risk factors present. GLADUE FACTORS [49] R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee] re-examined R v Gladue, (SCC), [1999] 1 SCR 688[Gladue].

At the time of Gladue, the rate of incarceration of Aboriginal offenders is described as a “crisis.” In Ipeelee, the SupremeCourt of Canada looked at the incarceration numbers and found that the problem was much worse than previously. Ipeelee concernedtwo sentence appeals for breaches of long-term supervision orders. The Court reiterated the seriousness of the incarceration problem andcalled on the justice system to address it. Previous decisions stating that Gladue principles are not applicable in serious cases were overruled.

Rehabilitation was emphasized and sentencing judges were directed to ensure that they were not contributing to “ongoingsystemic racial discrimination”. [50] First, sentencing judges can endeavour to reduce crime rates in Aboriginal communities by imposing sentences that effectivelydeter criminality and rehabilitate offenders. These are codified objectives of sentencing. To the extent that current sentencing practices donot further these objectives, those practices must change so as to meet the needs of Aboriginal offenders and their communities.

AsProfessors Rudin and Roach ask, “[if an innovative] sentence can serve to actually assist a person in taking responsibility for his or heractions and lead to a reduction in the probability of subsequent re-offending, why should such a sentence be precluded just because otherpeople who commit the same offence go to jail?” (J. Rudin and K. Roach, “Broken Promises: A Response to Stenning and Roberts’‘Empty Promises’” (2002), 65 Sask. L. Rev. 3, at p. 20) (Ipeelee, at para 66). [51] Second, judges can ensure that systemic factors do not lead inadvertently to discrimination in sentencing.

Professor Quigleyaptly describes how this occurs: Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convictedpersons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail foroffences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates forimprisonment.

When the social, political and economic aspects of our society place Aboriginal people disproportionately within theranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination. (T. Quigley, “Some Issues in Sentencing of Aboriginal Offenders”, in R. Gosse, J. Y. Henderson and R. Carter, eds., ContinuingPoundmaker and Riel’s Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (1994), 269, at pp. 275-76).

Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure thatthey are not contributing to ongoing systemic racial discrimination (Ipeelee, at para 67). [52]

Section 718.2(

e) is therefore properly seen as a “direction to members of the judiciary to inquire into the causes of theproblem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process” (Gladue, at para 64). [53] No two offenders will come before the courts with the same background and experiences, having committed the same crimein the exact same circumstances.

Section 718.2(

b) simply requires that any disparity between sanctions for different offenders bejustified. To the extent that Gladue will lead to different sanctions for Aboriginal offenders, those sanctions will be justified based ontheir unique circumstances — circumstances which are rationally related to the sentencing process. Courts must ensure that a formalisticapproach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e). As Professor Quigley cautions, at p. 286: Uniformity hides inequity, impedes innovation and locks the system into its mindset of jail.

It also prevents us from re-evaluating thevalue of our aims of sentencing and their efficacy. It is true that on the surface imposing the same penalty for the nearly identical offence is only fair. That might be closer to the truth in asociety that is more equitable, more homogenous and more cohesive than ours. But in an ethnically and culturally diverse society, thereis a differential impact from the same treatment. Indeed, that has been recognized in the jurisprudence on equality rights under the

Charter . Thus, there is a constitutional imperative to avoiding excessive concern about sentence disparity ( Ipeelee , para 79 ). [ 54 ] In addition to being contrary to this Court’s direction in Gladue , a sentencing judge’s failure to apply s. 718.2 (

e) in the context of serious offences raises several questions. First, what offences are to be considered “serious” for this purpose? As Ms. Pelletier points out: “Statutorily speaking, there is no such thing as a ‘serious’ offence. The Code does not make a distinction between serious and non- serious crimes. There is also no legal test for determining what should be considered ‘serious’” (R. Pelletier, “The Nullification of

Section 718.2 (e): Aggravating Aboriginal Over-representation in Canadian Prisons” (2001), 39 Osgoode Hall L.J. 469, at p. 479). Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to “the relative ease with which a sentencing judge could deem any number of offences to be ‘serious’” (Pelletier, at p. 479). It would also deprive s. 718.2(

e) of much of its remedial power, given its focus on reducing overreliance on incarceration. A second question arises: who are courts sentencing if not the offender standing in front of them? If the offender is Aboriginal, then courts must consider all of the circumstances of that offender, including the unique circumstances described in Gladue . There is no sense comparing the sentence that a particular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive, because there is only one offender standing before the court ( Ipeelee , para 86 ). [ 55 ] The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality.

Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention ( Ipeelee , para 87 ). [ 56 ] Consequently, as Mr. Napope has significant Gladue factors, I am required to consider them when contemplating a fit sentence. CONCLUSION [ 57 ] In reviewing the case law, it is clear that there are two important points related to sentencing a breach of a

section 810 recognizance. First, these are more serious cases than regular

section 810 breaches, breaches of bail recognizances or probation orders. Second, the nature of the breach and its relation to the offender’s criminal past and risk are key aspects in determining an appropriate sentence ( Wilson ). [ 58 ] While I find that specific and general deterrence are significant factors in assessing these types of breaches, I find Mr. Napope’s past and criminal history at this time and in this particular breach does not give me any reason to fear that the public is at risk of some type of violent crime. When examining the gravity of Mr.

Napope’s breach, I cannot say his lack of reporting is as significant as completely removing himself from supervision, which he has not done here. What we have here is lackadaisical reporting as opposed to complete non-compliance. Mr. Napope turned himself in on February 21, 2019 at the earliest opportunity. He did not commit any other substantive offences. While a

section 810.2 recognizance has a similar purpose and method as a long-term offender order, Mr. Napope is not a long-term offender. He was reporting and participating in his programs, albeit not as stringently as he should have been concerning his attendance. While these types of breaches are something the Court should be concerned about there is no evidence Mr. Napope has fallen back into his addictions that would open up a risk to the public. [ 59 ] Mr.

Napope’s convictions for offences of violence are of particular concern: a. 1993-03-08: (Youth charge) Robbery with violence – 1 year secure custody b. 1997-07-07: Manslaughter with firearm – 10 years jail c. 2004-03-05: Statutory Release d. 2004-06-02: Statutory Release Violator – Recommitted e. 2006-06-14: Statutory Release f. 2006-09-06: Statutory Release Violator – Recommitted g. 2009-05-22: Robbery – 7 years jail and 4 months credited with 8 months pre-sentence custody h. 2014-04-11: Statutory Release i. 2014-10-08: Statutory Release Suspended

j. 2014-11-07: Apprehended k. 2015-01-06: Statutory Release Revoked l. 2017-11-01: Released on

Section 810.2 Recognizance (18 months) m. 2018-04-26: Breach of

Section 810.2 Recognizance (2 breaches) – 12 months jail minus 108 days pre-sentence custody [ 60 ] In R v Lacasse , 2015 SCC 64 [2015] 3 SCR 1089 [ Lacasse ], the Supreme Court of Canada stated: Proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. … Both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of jus​tice.

Moreover, if appellate courts intervene without defer​ence to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts. Although sentencing ranges are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sen​tences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.

However, they should not be considered “averages,” let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. 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 math​- ematical 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 par​ticular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Every​thing depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.

Thus, the fact that a judge deviates from a sen​tencing range established by the courts does not in itself justify appellate intervention. [ 61 ] One of the main objectives of Canadian crimi​nal law is the rehabilitation of offenders. Rehabili​tation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropri​ate ( Lacasse , at para 4 ). [ 62 ] Mr.

Napope was not intoxicated; it is a less serious breach than most; he committed no substantive offence; and he did not remove himself from supervision. Mr. Napope suffers from serious health concerns which may have impacted his ability to get to his appointments and to attend programming. However, he always kept in touch with his supervisor, albeit late. His last substantive charge is dated May 22, 2009. For this robbery, he received a 7 year and 4 month jail sentence, with a credit of 8 months for pre-sentence custody. A lot of time has passed since then. [ 63 ] An aggravating factor is that this is not Mr.

Napope’s first breach of this recognizance. He was sentenced on two breaches of this recognizance on April 26, 2018 for not complying with assessment/treatment/programming and a curfew where he received 12 months jail less 108 days pre-sentence custody. He also has a lengthy criminal record with violent convictions. [ 64 ] In reviewing case law with similar breaches, it is clear the range of sentence varies significantly anywhere from two months to two years depending on the circumstances of the offence and offender. I find the Crown’s position of 15 months jail excessive given Mr.

Napope’s personal circumstances, where no alcohol or drugs were involved, that there was no substantive offence and that he did not remove himself from supervision. Although Mr. Napope struggles with compliance, he has not shown a willful or blatant disregard for the order. The nature of this breach does not put the public at risk. He is not more likely to commit a violent crime because he missed an appointment. In addition, it is my view that Mr. Napope’s release back into the community is important if he is to make any progress on the restorative path as contemplated by Ipeelee and Gladue . I sentence Mr.

Napope to time served of 44 days actual jail time but will give him credit for 66 days at enhanced credit.

___________________________ M. MCAULEY, J