R. v. Doxtator, 2013 ONCJ 139

COURT FILE No.: 12-242 Citation: R. v. Doxtator , 2013 ONCJ 139 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ANDREW EDWARD DOXTATOR Submissions as to sentence made on Feb.11, 2013 Gary Nikota ........................................................................... for the Crown Rae Anne Copat ............................................................... for the Accused JUDGEMENT DEAN J: Introduction [ 1 ] Mr. Doxatator has entered guilty pleas to one count of distributing child pornography pursuant to s. 163.1(3) of the Criminal Code ( CR.C. ) and one count of luring a child by means of a computer system pursuant to s. 172.1(1) (

b) Cr.C. The Information before the court contained nine counts but the Crown accepted a guilty plea to two counts with an agreement the facts related to all counts would be read in. The Crown elected to proceed by indictment. He is before me today for sentencing. Specifics of the Offence [3] On July 26, 2011, Mr. Doxtator made contact with who he believed was a fifteen-year-old girl over the internet through Yahoo chat. He counselled the fifteen year old girl on masturbation. On January 18, 2012 he again had a conversation over the internet with the same girl he believed was fifteen years old.

Once again he counselled her on masturbation. There was no fifteen year old girl. It was a Kentucky police officer posing as a fifteen year old girl. Both of these occurrences are violations of s. 172.1(1) (

b) Cr. C . [4] On January 19, 2012, Mr. Doxtator sent via his computer, to the officer in Kentucky posing as a fifteen year old girl, a video which clearly depicted young children engaged in sexual activities with adult males. The video was disturbingly titled “Dad up my Ass”. The girls in the video were estimated to be in the 8 – 10 years old age group. The act of sending this type of video by way of the internet is clearly a violation of s. 163.1(3) Cr. C . The accused on this same date along with the child pornography sent adult pornography. [5] On January 23 and 27, 2012, Mr.

Doxtator over the internet indicated to the officer posing as the fifteen year girl that he wanted to have sexual intercourse with her. Some of the logs of the “online chats” were introduced as an exhibit. The conversations clearly indicate that Mr. Doxtator was grooming the girl. Throughout the conversations Mr. Doxtator explains or describes certain sexual acts vividly, telling the girl when they get together they could try it at least once and she can tell him if she likes it. [6] As a result of the nature of the contacts the officer in Kentucky contacted the Windsor Police Service.

On January 31, 2012 a search warrant was executed on Mr. Doxtator's residence. There were three computers seized and analyzed by the Windsor Police Service. Found on the computers were 1,071 photos depicting children as young as three to five years old up to 9 years old. There were also eleven videos of child pornography seized. The ages of the children depicted in the videos range from 8 to 14 years old. Some of the pictures and videos show the female children alone, exposing their vaginal, anal and chest area. Some show the children masturbating themselves.

Others show the children performing oral sex on adult males and some show an adult male ejaculating around or in the child’s mouth or onto the vaginal area. Some show the children being penetrated both vaginally and anally by an adult male. There is one video which shows an adult female and a boy between the ages of 10-13 years old having sexual intercourse. [7] The Crown elected to proceed by way of indictment on all charges. Thus, for the offence committed pursuant to s. 163.1(3) (

a) Cr. C . Mr. Doxtator is subject to a minimum punishment of twelve months.

Circumstances of the Offender [8] On February 11, 2013 I made a ruling regarding whether a “full Gladue ” report was required when sentencing an Aboriginal offender or if a pre-sentence report with “ Gladue content” was sufficient. I concluded that a full Gladue report was not required (Reference can be made to my written reasons for the full analysis). Therefore, I have proceeded with the pre-sentence report with Gladue content, as well as other materials and evidence provided to me by the parties. [9] The pre-sentence report indicates the offender was born in St. Thomas, Ontario. He is 49 years old.

He has no previous criminal record. He grew up here in Windsor. He is the youngest of seven children. His father originates from the Oneida Nation of the Thames River, while his mother is a member of the Six Nations Mohawk community. He spent a large portion of his childhood and youth on the Oneida Nation of the Thames reserve. He learned to hunt and to fish, as well as participate in other cultural activities. The offender indicates he was taught traditional native teachings as well as Christian values in the home.

He was able to integrate these beliefs and benefited greatly from both teachings. [10] The offender informed that his maternal grandmother was taken from her family home as a child and placed in a church-run residential school. He stated the schools were called "mushpits" by survivors. He was told stories about how his grandmother was verbally and physically abused in the school. The offender himself attended elementary and secondary school in Windsor. He completed his grade 12 education.

He reports there were no significant issues in the school system. [11] With respect to his father's side of the family, his paternal grandfather was adamant about keeping his children out of the residential school system. The offender's grandfather took his children out of the home and they hid elsewhere. As a result, the offender's father was not placed in a residential school. [12] The offender’s parents divorced when he was approximately fourteen years old. He shared that his father was unfaithful to his mother. His mother abused alcohol as a way of coping with her emotions and her troubled marriage.

He reported she went to treatment at a native treatment center 30 years ago and that assisted her in attaining sobriety. He lived with his father after the divorce. He described growing up in a strict home. [13] The offender indicates there was never any violence between his mother and father. His father died eight years ago. His mother is now seventy-nine years old and resides approximately a half hour away from Windsor. He advises she is experiencing significant health problems.

He also shares a close relationship with his mother's husband, although he is now suffering from dementia. [14] The offender married when he was twenty-three years old, to a lady he knew in high school. When they married she had a two- year-old daughter. As a result of the marriage, he has two biological children, a son (born in 1988) and a daughter (born in 1990). Unfortunately his wife began abusing alcohol and drugs after the children were born. According to the offender his wife was occasionally violent when abusing substances.

He reported over time his wife's substance abuse issues worsened and approximately ten years ago he and his wife separated. He realized he could not help her anymore with her addiction issues. Apart from his wife's addiction issues they shared a close relationship with each other during their marriage. He advised their three children remained in the family home with him after the separation. Despite the separation, he and his wife have occasional contact with one another. [15] The offender's employment history consists of transport truck driving.

Approximately five years ago he was involved in a truck driving accident. He suffered a shoulder injury and to this day experiences dizziness which has impacted on his ability to drive for long periods of time. He was laid off approximately seven years ago due to the company's ownership changes. He was able to secure another job as a delivery truck driver but only for one year and then was laid off due to lack of work.

He has been unemployed for four years and is financially supported by social assistance. [16] According to the pre-sentence the offender has suffered some significant familial consequences as a result of these offences. He reported his family is divided due to his court involvement. Three of his siblings do not speak to him because of the matter before the court. He advised he and his step daughter are no longer in contact with each other, reportedly due to her personal issues and his court involvement. His biological daughter is disappointed in him and they are currently not speaking to one another.

Apparently she inquires about him through his son. He is in regular contact with his son as they share a close relationship. He was residing with his son at the time of this offense. He cited his son as a source of strength for him. He expressed hope that his family relationships will improve over time. He currently resides with his sister and her husband. [17] The offender is an active member of his native community and he is greatly supported by that community. Indications are that he acquires knowledge, guidance and support from the elders in the community.

He was once on the Board of Directors for the Can-Am Friendship Centre before he resigned due to political differences. He does not attend any programs or events at the Indian Friendship Centre at the current time. He does attend pow-wows and other aboriginal ceremonies and gatherings on a regular basis throughout Southwestern Ontario and Michigan. He participates in smudging ceremonies with the elders of his native community in order to maintain focus and regain his “spiritual center”.

He indicated he may have ownership rights to a piece of land on the Oneida Nations of the Thames reserve which he eventually wants to pass down to his son. [18] His sister was interviewed for the preparation of the pre-sentence report. The sister advises she and the offender have always shared a close, loving and supportive relationship with one another. She identified herself as being a traditional native woman, of the Oneida nation. She is the eldest of the seven siblings, and 10 years older than the offender. She shared their father was employed as a truck driver and was often away from the family home.

She indicated the family has experienced racism on a regular basis since they were children. She recalled she and her eldest siblings were targets of racist behaviour in the school system. She was uncertain if the offender had the same difficulties in school. She indicated she and the offender are often treated unfairly by other non-native people, including being followed in stores and ignored by salespeople. [19] The offender’s sister and her husband are vendors of a native craft and supply company. They attend pow-wows and other various events to sell their goods.

The offender accompanies his sister and brother-in-law to assist them with their business, as well as attending community events and celebrations. She noted the offender is a great help to their business. She indicated her brother is positively influenced by the men in their native community. He is also supported by a large group of friends and an uncle on the Oneida Nation of

the Thames reserve. According to her the offender is a skilled craftsman in wood and she hopes he will continue to create woodcraft andremain strong in his traditional beliefs as part of his healing journey. [20] The sister is contemplating a return to the Oneida reserve to live once the offender's court matters are resolved. She will encouragethe offender to join her and her husband. She advises she was shocked when she first learned of the offense. She is confident he won’tdo it again. In her opinion, her brother is sincerely remorseful. [21] The offender reported no substance abuse issues.

He has never abused alcohol or drugs. He stated he will typically drink alcoholtwice per month, and he will not drink to intoxication. He denied any gambling behaviour. His sister expressed no substance abuseconcerns regarding her brother now or in the past. She confirmed he does not use illegal drugs. She did indicate he drinks regularly butit does not cause him problems. [22] With regards to the offences before the court, the offender expressed sadness and shame when discussing it with the author of thereport. He appeared to take full responsibility for his behaviour and acknowledged it was wrong.

He referred to the offence as foolishand stated it won't happen again. He shared with the author that he became caught up in the internet child pornography culture out ofcuriosity. He would play online games regularly, and through those websites he began chatting with people who were involved withchild pornography. He estimated he participated in online gaming and internet chatting for eight months prior to his arrest. He stated hehas never had concerns about disturbing sexual thoughts or sexually inappropriate behaviour. According to him he does not experience apreoccupation with sex or pornography.

The offender expressed in open court, while fighting his emotions, his sorrow for committingthe offences. He recognized the harm he has caused to his family and community. He is ashamed of his actions. He does not believe hewould have acted on his fantasies. He is willing to accept and face the sentence he receives. [23] I have received as exhibits letters of support for Mr. Doxtator from his sister and his mother. [24] In the letter his sister indicates she does not believe her brother will be before the courts again. Although the charges her brotherfaces overwhelmed her she has not turned her back on him.

She indicated in her letter that she follows the Native Longhouse teachingsand believes her brother wants to as well. She has put him in touch with Healers and Elders of their home nation’s community. Shebelieves her brother wants to be more involved in the native community in the future. [25] His mother’s letter describes how she is struggling to understand how and why her son became involved in these crimes. It hasbeen difficult for her to grasp. She describes her son as having many talents. She also mentioned her son is studying the teachings oftheir culture.

She described her son’s childhood as successful with respect to school and friendships. Position of the Parties [26] The Crown submits the appropriate range of sentence is between twelve to fifteen months. The Crown asks this court to impose asentence at the higher end of the range, suggesting that it is a somewhat lenient position considering the luring charge alone could carrya sentence of between 18-24 months. The Crown asks the court to impose a three year probation order as well.

Crown counsel hasprovided a large thorough book of authorities (19 cases) to assist the court. [27] Defence counsel submits the court should sentence Mr. Doxtator to the minimum sentence pointing out several mitigating factorspresent. She also submits a two year probation order is sufficient. Analysis [28] One of the hardest tasks confronting a trial judge is sentencing.

The stakes are high for society and for the individual (R. v.Gardiner, [1982] 368 SCR 2 at p.414). [29] In approaching sentencing, the court must turn its mind to the basic purposes and principles of sentencing directed by Parliament inS. 718-718.2 Cr.C. I have reviewed those sections in their entirety. According to s. 718, the fundamental purpose of sentencing is tocontribute to respect for the law and the maintenance of a just, peaceful and safe society.

This is accomplished by imposing justsanctions that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation ofoffenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgment of the harmdone to victims and to the community. The fundamental principle of sentencing is that the sentence must be proportionate to both thegravity of the offence and the degree of responsibility of the offender: see R. v.

Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433 atparas. 36-37. [30] It is well recognized in the case law that a primary focus for sentencing in cases of this nature must be denunciation and generaldeterrence. [31] Child pornography involves the exploitation of children. Possession of child pornography contributes to the market for childpornography, a market which in turn drives production involving the exploitation of children. It continues to be an increasingly pervasiveevil in our society. These children are victimized for the first time when the pornography is created.

They are re-victimized time andtime again whenever someone views these images. The days of mourning for our children are at hand. Is it possible for a human heart to

grieve more than it grieves than when having to observe children abused in such horrific ways? It is crucial that ways be found to deter those who might be, or are collectors and/or distributors of child pornography. Ways must also be found to deter those who prey on our children over the internet, luring them into sexual activity long before they have the ability to make reasonable and appropriate decisions. These persons (predominately men) use their worldly experience to groom and persuade children that the reprehensible acts or sexual requests are “normal” or acceptable.

It is hard to imagine a more vivid example of the deceitfulness and wickedness of a human heart than the heart of those involved in exploiting children in such appalling ways, whether they are the makers, the distributors or the collectors. Who among us is able to understand it? [32] People who access, collect and distribute child pornography must be made aware that it is a reprehensible crime and must be dealt with severely for the protection of society as a whole and of its most vulnerable members, our children.

Thankfully, police have become more adept at tracking and catching those who roam, loiter and trade in these dark alleys of the internet. More and more people are being caught, and when caught, they are being sent to jail for longer period of times, particularly since Parliament enacted the mandatory minimum sentences. Prior to Parliament enacting mandatory minimum sentences it was not unheard of for offenders to receive conditional sentences. [33] I am mindful as a judge that I must guard against being swept up by emotion.

While it is quite proper to be outraged by the ready availability and prevalence of the kinds of repulsive filth that surrounds the making, distribution and downloading of child pornography, sentencing judges must not be swept up in the emotion and moral panic. [34] Although rehabilitation is not the primary sentencing objective in these cases, it cannot be ignored. If rehabilitation can be achieved and at the same time a strong and proportionate message of deterrence and denunciation can be sent, society is much better off and the overall purpose of sentencing will have been better served.

Section 718.2(e) [35]

Section 718.2 (

e) Cr.C . directs that “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 ”. The reason Aboriginal persons were specifically referred to is that they are sadly overrepresented in the prison populations of Canada: see Ipeelee , supra, at para. 56 .

Section 718.2 (

e) is a remedial provision designed to alleviate that serious problem and encourage sentencing judges to have recourse to a restorative approach to sentencing. It calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. It directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders. When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection: see R. v.

Ipeelee , supra, para. 59 . [36] At paragraph 60 in Ipeelee , supra Lebel J. writing for the Supreme Court stated: …courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders.

Rather, they provide the necessary context for understanding and evaluating the case- specific information presented by counsel. [37] The above principles apply to all offences and it is the duty of the sentencing judge to apply them. [38] Some critics of s. 718.2 (

e) might suggest the direction to pay particular attention to the circumstances of Aboriginal offenders invites sentencing judges to impose more lenient sentences simply because an offender is Aboriginal. It might be seen as a race-based discount on sentencing, devoid of any legitimate tie to traditional principles of sentencing. [39] The Supreme Court addressed this criticism at paragraph 75 in Ipeelee , supra: 75

Section 718.2 (

e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case.

This has been, and continues to be, the fundamental duty of a sentencing judge. [40] I have outlined earlier the offender’s background which describes the offender’s native heritage, upbringing, schooling, relationships and involvement within his native community. The offender grew up in Windsor, and went to school here, completing grade 12. Although the offender’s sister indicated experiencing difficulty with racism growing up and as an adult, the offender himself does not. The offender’s mother indicates he was successful in schooling and friendships.

Despite the fact the offender does not seem to have experienced directly some of the common negative experiences that many Aboriginal’s have faced, his life has been touched negatively by those experiences. His maternal grandmother was taken from her home and placed in a residential school. The offender has been told stories about how his grandmother was verbally and physically abused while in that school. It would be naïve to think that did not have a negative impact on the offender’s mother and therefore on him. As indicated earlier, the offender’s mother abused alcohol.

It is unclear from the information I have whether that abuse is attributable to her Native status and the sufferings that result directly from having that status. As my reference to paragraph 60 of the Supreme Court’s ruling in Ipeelee , supra, indicated, sentencing judges must take judicial notice of the historical factors and consequences that have faced individuals as a result of their Aboriginal status, and I do so. [41] Both counsel have given attention to Mr. Doxtator’s status as an Aboriginal when arriving at their respective positions.

[42] As I indicated earlier, the offender has committed a crime which, because the Crown has proceeded by indictment, carries with it aminimum sentence of imprisonment of twelve months. It, as well as the other offence the offender committed has a maximum sentenceof 10 years.

Aggravating Factors [43] The aggravating factors are as follows: • The volume of images in this case; • Many of the images involve very young children; • The type of sexual acts shown in the still images as well as the videos; • The offender’s involvement went far beyond mere curiosity and continued over an extended period; • The offender not only possessed child pornography he distributed it; • The offender also committed the offence of child luring while distributing child pornography.

From the privacy of his owncomputer, he intended to cultivate a relationship with a fifteen year old girl and he intended to teach her about sexual acts with the hopeof one day being able to do those sexual acts with her. To facilitate that intention he distributed child pornography to the person hebelieved to be a 15 year old girl. He also sent adult pornography to facilitate his intention.

Mitigating Factors [44] The following are the mitigating factors: • The offender is a first-time offender with no prior criminal record; • He entered what could be described as an early guilty plea; • The offender has not sought to either minimize or rationalize his behaviour; • The offender has expressed genuine remorse; • The offender genuinely wants treatment and he is considered both a suitable and reasonable candidate for rehabilitation throughavailable intervention strategies; • The offender has the support of some key family members and members of his Native community; • The offender has suffered consequences within his family for his actions.

Several siblings are not speaking to him. Two of hischildren are not speaking to him presently. Members within his Native community have distanced themselves from him; • The offender was on bail for an extended period of time on strict conditions and there have been no breaches; • The otherwise good character of the offender as verified by his sister in the pre-sentence report and by his mother through a letter. [45] Defence counsel suggests it is a mitigating factor that there was no “victim” of the child luring, but rather an undercover officer.

Ido not treat that as a mitigating factor in this case. [46] As mentioned earlier, Crown counsel provided a case brief containing nineteen cases which dealt with similar offences. Some ofthe cases predate the somewhat recent amendments to the Criminal Code providing for minimum sentences. Some involve onlypossession of child pornography and not a charge of distributing it. Others involve only the charge of internet luring. The variousoffenders have collections of differing size and content as well as other distinguishable facts. Of course the personal details of eachoffender differ too.

Nonetheless, I found the cases all to be instructional and very helpful for the general principles they state. [47] In the Ontario Court of Appeal case of R. v. Jarvis, (ON CA), [2006] O.J. No. 3241 the court does suggest that“the range of sentence for child luring generally lies between twelve months and two years and that circumstances such as possession ofchild pornography…will require a sentence at the upper end of the range”: see para. 31. Based on that authority some might suggest theCrown’s position is lenient. Conclusion

[48] I have carefully reviewed the case authorities provided, submissions of counsel and exhibits with a view to giving the accusedevery consideration, including his Aboriginal status. I have carefully given consideration to the Gladue principles, as further clarified inIpeelee, supra. The commitment to Gladue principles does not foreclose application of the principles of general deterrence anddenunciation in connection with the type of offences before the court today.

The principle of proportionality requires a sentence thatreflects the gravity of the offence and the moral culpability of the offender, just as it requires a sentence reflecting the systemic andcontextual factors contributing to the criminality. The sentence imposed must reflect the court's abhorrence for the offence and society'sdenunciation of crimes of sexual violence. [49] The images in Mr. Doxtator’s collection are most disturbing. There are many photographs of naked young females who are posingin what might be considered sexually provocative positions, if the models were adults. They are not adults.

They are children. Theimages do not stop there. They include acts of vaginal intercourse, vaginal penetration with foreign objects, anal intercourse, and oralsex. [50] Balancing the facts of the offence against Mr. Doxtator’s background, circumstances, moral blameworthiness, aggravating andmitigating factors I have concluded that the fit and proper sentence in the circumstances of these offences and this offender should be 15months.

Other Considerations [51] In my ruling on whether or not a full Gladue report should be prepared I expressed I was somewhat troubled by the lack ofavailability for a full Gladue report here in Windsor. I mentioned perhaps a way to address my concerns was at the time of sentencing. Having reviewed the authorities provided, particularly R. v. Knockwood, 2012 ONSC 2238 (Ont. S.C.), I have concluded the case beforeme is not a case to apply a similar remedy as that applied there. The situation in Knockwood is not the situation found in this case. Itwould be inappropriate for me to do as was done in that case.

Probation [52] Crown counsel suggested I impose similar terms of probation as found in one of the authorities he provided to the court, R. v. Duff,2010 ONCJ 493 , [2010] O.J. No. 4613 (O.C.J.). [53] I do not think it necessary to impose such intrusive conditions in this particular case. The offender has been on strict bail conditionsfor over a year which prohibited him from being on a computer or a cell phone. There have not been any breaches. By the time hecompletes his prison term it will be more than two years since he will have had access to such devices.

Given his expression of genuineremorse, the awareness he now has of the consequences he faces should he be involved in similar activities as in this matter, I will besurprised to see him back before the court. I am satisfied the length of the probation with the conditions I am about to impose, along withthe ancillary orders are not only sufficient to facilitate his rehabilitation but are also sufficient to protect society. [54] Upon his release from custody the offender will be subject to an order of probation for a period of three years.

In addition to thestatutory conditions applicable to any probation order, the following optional conditions will be imposed: • He will report to his probation officer forthwith and thereafter as directed; • He will attend for such assessment and take such further treatment and counselling, including sex offender counselling, as directedby his probation officer and follow any treatment recommendations that may be made by his treating therapist(

s) or counsellor(s); • He will sign whatever consents or releases that may be required by his probation officer to monitor and verify compliance withsaid assessment, treatment or counselling, and provide written proof of completion of said assessment, treatment or counselling to hisprobation officer; • No contact with anyone under the age of 16, unless that child is accompanied by their parent or guardian;

• Attend and actively participate in any rehabilitative or healing program within his Native community as directed by his probation officer, and provide proof of participation and completion as directed by your Probation Officer; • He will not possess any pornographic imagery or pornographic material in any form or medium whatsoever; • Not to be employed or volunteer where placed in a position of trust of children. Ancillary Orders [55] There will be an order pursuant to s.161 Cr.C . for ten years prohibiting Mr. Doxtator from:

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; or

c) using a computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16 years. [56] There will be an order for the production of a DNA sample pursuant to s. 487.051 Cr.C . [57] A n order is made pursuant to s. 490.012(1) Cr.C . that Mr. Doxtator comply with the Sex Offender Information Registration Act for life.

The lifetime requirement is required pursuant to s. 490.013(2.1) Cr.C . [58] I make an order pursuant to s. 164.2(1) Cr.C . directing that the property seized by the police which was used in the commission of the offences before the court be forfeited to Her Majesty and disposed of as the Attorney General directs. Recommendations [58] The court heard evidence during the sentence hearing that there are several reformatories within the province that have programs specifically geared toward Aboriginal offenders.

I was prepared to recommend he serve his sentence in such a place but defence counsel asked that I not do so. The reason given for this was that many of the reformatories that offer Aboriginal specific counselling would be far from where the offender’s mother and sister reside. That would make it difficult for them to visit the offender due to the mother’s age and the sister’s current health difficulties. I have been asked to make no recommendation or if I feel it prudent to do so, to perhaps recommend the Ontario Correctional Institute.

Defence counsel is comfortable that I leave the decision up to the classification officer at the Windsor jail. I will do just that. Dated this 5 th day March, 2013. ______________________________

Justice Lloyd Dean Ontario Court of Justice Windsor, Ontario