R. v. Karp-Johnson, 2017 ONCJ 314

CITATION: R. v. Karp-Johnson, 2017 ONCJ 314 DATE: April 13, 2017 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. PAUL KARP-JOHNSON ************* S E N T E N C I N G BEFORE THE HONOURABLE MR. JUSTICE W. HORKINS AT TORONTO, ONTARIO, ON APRIL 13, 2017 ********** APPEARANCES : L. MacNaughton Counsel for the Crown J. Greenwood Counsel for the accused ********** ONTARIO COURT OF JUSTICE

T A B L E O F C O N T E N T S Exam In- Cr- Re- WITNESSES Chief Exam Exam ********** E X H I B I T S EXHIBIT NUMBER PUT IN ON PAGE ********** S E N T E N C I N G HORKINS, J. : (Orally) Mr. Karp-Johnson pled guilty before me to charges of breaking and entering into a dwelling, and failing to comply with his Probation

Order. I think it is noteworthy that this matter first came before me as part of the judicial pre-trial process, part of the case management in-take process in this court, and at that first meeting with me, counsel for the accused, Ms. Greenwood, made it abundantly clear that Mr. Karp- Johnson wanted to resolve this matter by way of a plea. She also suggested that because of his Aboriginal heritage, and his personal history, including his fairly recent connection with Aboriginal Legal Services of Toronto, that a sentencing circle could be a valuable and appropriate part of the sentencing process.

Crown counsel, Ms. MacNaughton, was receptive to this proposal, and so was I. The idea of employing sentencing circles has become something of an exploration by our court in the last few years. Originally, there was great resistance to it as a departure from the traditional process. With the increased number of restorative justice programs, it has become something of interest, and there is still a very wide divergence of opinion as to whether it is appropriate, and if appropriate, how the process should unfold.

Generally speaking, the present process arises out of somewhat of a conflict between the traditional sentencing approach focusing on personal responsibility of an offender and the sometimes conflicting view of collective or community responsibility for the circumstances that lead certain members of the community to engage in criminal conduct. So what happened in this case was, subsequent to that initial meeting, the accused came before me, in custody, was arraigned on the charges in the usual fashion and pled guilty.

The process was, in effect, paused at that point after I heard the facts and conducted a plea comprehension inquiry. I accepted the guilty plea, and then a sentencing circle was conducted. The facts of the case, I think, can be summarized, for today's purposes, with some brevity. It was November the 12 th of last year that Mr. Karp-Johnson and his co-accused went knocking on doors in the O'Connor and Coxwell area of Toronto. They were presenting themselves as distributing information on some institutions or charities with an Aboriginal aspect to them.

What they were actually doing was scoping out houses which were ripe, or had potential for being broken into, and their intent was to do that and to steal property to raise money for drugs. Ultimately, they broke into this victim's home, stole a quantity of jewellery, watches, other property of significant value to the homeowner, significant both in monetary and sentimental terms. The victim homeowner, I understand, is a single woman of mature years who had been away for the day, and when she came home she discovered that her home had been, not only burglarized, but ransacked. The power had been shut off.

The back door had been pried open, and the place was in considerable disarray, so much so that it was difficult at first to determine even what had been stolen. The observation of neighbours of two perpetrators acting suspiciously in the area would have been part of the Crown's case. There was some surveillance video. There was a distinctive glove print that clearly linked this accused to the break and enter. The accused was arrested, and detained in custody. As I said, Mr. Karp-Johnson, at an early stage, determined that he wanted to resolve the matters by way of a guilty plea.

The sentencing circle then took place after the formal arraignment and plea. I think it is worth describing for the record that all concerned in this matter gathered around a large counsel table placed in the center of the well of the court. I came down from the judicial dais and sat robed at one end of the table. With the concurrence of court security, I had Mr. Karp-Johnson out of the prisoner's box to sit at the opposite end of the table with his counsel. Also, at the table were Mr. Karp-Johnson's parents, Bill Johnson, and his mother Ellen Karp, Ms. Pettigrew, who had authored the recent Gladue Report on Mr.

Karp-Johnson, together with Bronson (ph) Bob, an Aboriginal after-care worker, Crown counsel, and Jonathan Rudin. Mr. Rudin is the program director for Aboriginal Legal Services in Toronto. He has been a consultant to the courts here for some time with respect to initiatives dealing with Aboriginal offenders, the operation of our Gladue court, and the support services that go along with that. So at my request, Mr. Rudin led the sentencing circle in the sense that he gave instructions as to the passing of a ceremonial talking stick around the circle.

Each participant was given the opportunity to hold the talking stick and contribute to the discussion. Each pass around the circle was to address a specific aspect of the circumstances of the offence and the offender. The first topic was a discussion of the offence. I already had the facts read in, and agreed to. Crown counsel, at this point, contributed victim impact information from the victim. The victim in this case was invited to participate, and chose not to, understandably, and so the information of the impact of this on the victim was put into discussion by Crown counsel.

The topic of the second pass around the circle was the accused's background. We had all read the extensive Gladue Report written just a few months earlier by Ms. Pettigrew. This report paints an all too familiar picture of a culturally dislocated young Aboriginal man, perhaps only a generation removed from direct family experience in the infamous residential schools program. It is probably an unfair generalization of a very full report, but the story contained therein is all too familiar, perhaps even classic, that I have seen quite often. In his particular case, Mr.

Karp-Johnson and his sister were taken into protection by the state at a very early age, apparently his birth mother being incapable of parenting. He was separated from his biological sister, who is younger and she was adopted long before he was. He was in protective or foster care until adopted at age 10. The report describes that his adopted parents provided, what I would characterize, as an affluent and very supportive home, private schools, valuable and insightful parental advice and direction, and yet he has struggled with trying to fit into essentially their world, and has not succeeded.

He has engaged in criminal activity, drug abuse, and that has led him to where he is now, in jail, again. In the course of the sentencing circle, both of his parents added their own thoughts. Both parents are accomplished, articulate individuals. As I say, they adopted the accused at age 10, and have made continuous efforts to provide him with every opportunity for success, support, encouragement, educational opportunities. They have a deep love and respect for their son. Their support continues in the face of his behaviour and his criminal activity.

As a relatively passive participant in the circle, my impression was that, as emotional as these parental contributions were, they amounted primarily to the parents of this accused voicing their support for their son, and their son, the accused, appreciating and reciprocating those sentiments. The common theme was that this accused is a young man of great unrealized potential, and repeatedly it was commented that this might well be his last chance to straighten out.

A cynic or a pessimist might have contributed the thought in listening to this, that his last best chance might actually have been when he was sentenced for similar crimes just late last year. The third and fourth passes of the talking stick precipitated, again, similar, what I would characterize as therapeutic contributions from both the accused's parents, and his supporters. These discussions were emotional, heart-felt, and sincere. I have no hesitation in concluding that they were of tremendous therapeutic value to both the accused and his parents.

They provide the court with meaningful insight and appreciation of the depth of hope and expectation that exists, and gives the court an appreciation of the personal, societal, and systemic dynamics that have undoubtedly generated the repetitive criminal behaviour of this accused. Perhaps most relevant to this proceeding, I was very impressed with Mr. Karp-Johnson's insight into his present situation.

He has an understanding of the roots of his criminal behaviour, and the experience was educational to him, in terms of appreciating the full consequences of his behaviour, not just for himself and his family, but also for the victim. He is obviously a very bright and articulate individual, artistically talented, and capable of being an exceptional contributing member of the community. The prospects for rehabilitation are significant. It is unfortunately quite unusual and, therefore, remarkable to see the depth of support from his family that most accused simply do not have.

He has, beyond that, the institutional support of Aboriginal Legal Services, and the significant professional support of his counsel, Ms. Greenwood, in organizing a plan for him. The sentencing circle process lasted, I think, about 90 minutes. I have tried to summarize, somewhat briefly, the experience as it impacts on the sentencing considerations.

Once concluded, I returned to my position at the judicial dais, and the matter was adjourned to today's date, actually to an earlier date, and then scheduled over to today's date, and the re-scheduling was to facilitate having the plan that is put forward in place at the time of sentencing. So that leaves now the ultimate question, what is the appropriate disposition? Residential break and enters are serious crimes. There is, I think, a fairly wide scope of judicial opinion as to just how serious residential

break and enters are. I recognize, and have no hesitation in being blunt about it, that I take residential break and enters very seriously. I consider them to be more than property offences. They amount to a gross intrusion into the privacy of the victim and their home. There is a lasting impact on any victim of a residential break and enter. The only good thing to say about this crime was that the occupant was not there at the time. This offender was already on probation at the time of committing this crime.

He had, a little more than six weeks prior, appeared in our Aboriginal Offender Court to be sentenced for a variety of similar offences; theft of a motor vehicle, break and enter, breaching bail, use of a stolen credit card. He was sentenced to the equivalent of time served. He had been in custody for a number of months. He was placed on probation for three years. Clearly, that custodial experience had little or no deterrent or rehabilitative effect on him, because almost immediately he returned to and engaged in criminal activity.

The items taken by this offender and his associate included expensive pens, jewellery, a wedding ring, diamond rings, a dozen watches, including a Rolex. Some of these items were family heirlooms. Now, stealing by an addict to support a drug habit is, and breaking into someone's home to do it is, a significant level of criminality, but to then ransack someone's home gratuitously reveals an even darker level of despicable behaviour. I say all of this simply to highlight that we are dealing with an offence of significant gravity here.

When you turn to the Criminal Code , to s.718 , and following, where the purpose and principles of sentencing are set out, first on the list is to denounce unlawful conduct, to deter an offender, to separate offenders from society where that is necessary. However, the purposes of sentencing also include rehabilitating offenders, providing reparations to victims, and significantly to promote a sense of responsibility in offenders. The primary directive in sentencing is that the sentence must be proportionate to the gravity of the offence, and the degree of responsibility of the offender.

But the Code also goes on to set out the balancing principles and, in particular, that all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, but with a particular attention to the circumstances of Aboriginal offenders. It is this provision in the Code which really gave birth to the Gladue principles being articulated and adopted in our justice system. So with respect to this particular offender, in this particular case, I have to apply and balance those principles, and they conflict.

I have the submissions of counsel, not just today, but throughout this multi-stepped process. I have considerable commentary from the sentencing circle, which is part of the record in this proceeding. I have a very complete and extensive Gladue Report, a report that was prepared for Justice Rutherford, in September of last year. As I have already indicated, it is clear that this relatively young man has had an upbringing which early on was tragically typical of the upbringing of many of the Aboriginal Offenders that come through this court.

I understand that his Aboriginal ancestry is traced through his mother, who is Ojibwe, and as I have already indicated, the inference is that she was incapable of parenting the accused. She was young. She was both hearing and speech impaired, and an alcoholic. It is a common situation. The dislocation of his early life was aggravated by a number of factors, not the least of which was being separated from his younger sister.

The Gladue Report is very valuable in that it specifically links his disrupted and disadvantaged early years with the historical context of the acknowledged systemic discrimination experienced by many Aboriginal members of the community. There is no doubt in this particular case that there is a real connection between those societal issues and the anti-social conduct of this particular offender. The Gladue report also assists me in documenting the tremendous efforts made by his adoptive parents, as well as the various institutions more recently.

Despite the tremendous efforts that they have made, he has suffered marginalization and isolation that has definitely interfered with his own efforts to move forward and to obtain meaningful education and employment. I sensed in all that I heard at the sentencing circle, that until his more recent involvement with Aboriginal Legal Services he had, himself, very little appreciation of Aboriginal history and culture. To adopt the expression that he used himself, he just felt over and over again that he did not "fit in," in the different life experiences that were being presented to him.

Again, this is all too typical of many of the Aboriginal offenders that come before this court, and again, as I have said, all too typically, it leads to turning to alcohol, drugs, and criminal activity.

Mr. Karp-Johnsons' involvement with drugs has definitely a direct linkage to this offence, in that it is an expensive habit, and stealing from others is how you support that sort of habit. Having said that, it is abundantly clear in this case that Mr. Karp-Johnson is an individual with tremendous, but presently wasted, potential. He is intelligent, articulate, insightful, and the court has to be optimistic, but guardedly optimistic, concerning his prospects for future rehabilitation. The purpose and principles of sentence require that a clear message be conveyed both to Mr. Karp-Johnson, and to the community.

The message is that criminal behaviour has consequences and, quite bluntly and unapologetically, one of those consequences is punishment. It is always hoped that along with punishment or just desserts, or however you want to articulate it, it is always hoped that a sentence can also facilitate rehabilitation, and a heightened sense of personal responsibility. Having said that, in this particular case, I have had great assistance from experienced counsel, both from the Crown and from the defence, in balancing the appropriate factors and considerations.

The positions of counsel describe a range of sentence from 8 to 12 months imprisonment, less credit for pre-trial custody, and a very solid plan of rehabilitative programming is put forward. At the outset of my involvement in this case, I would have thought that that range of sentence was low, quite frankly. That is partly because of the view that I take of the gravity of residential break and enters. Now, having been educated as to the circumstances of this offence and this offender, I have no hesitation in agreeing with counsels' proposed range of sentence.

Because of all of those factors, and of course not the least of which are the Gladue principles being in play, and the extraordinary matrix of supports that are available, I am persuaded that the, let's call it the punitive aspect of the sentence, has been satisfied by the amount of time that this accused has already spent in custody. At this point we should be focusing on facilitating the rehabilitative prospects, which are obviously unrealized, but potentially very real. So although I think it is somewhat low, in terms of "just desserts," I think the position that is advocated for by Ms.

Greenwood, on behalf of her client, is the appropriate path to take at this point. It will facilitate the plan that she has put together for this accused. To assist the Clerk, there will be the DNA Order. It is a primary designated offence. There will be a s.109 Order for the period of 10 years. There will be a Probation Order for 2 years, which is basically the terms as set out by Crown counsel.

Now, essentially what I have done with the pre-trial custody credit is considered it at the 1.5 multiplier, but I have also taken into account the circumstances of the pre-trial detention, and the conditions, quite frankly, in the local Remand Centers, and all in all considered his pre-trial custody experience to be the equivalent of having already served an 8 month sentence. MS. GREENWOOD: Thank you, Your Honour. THE COURT: The Clerk will have to record it as the 146 days, credited at 1.5, and the difference between that number and the credit I am giving him is attributable to those other considerations.

Now, I am inclined to, normally, I would make this a 1 day sentence, followed by probation. Do you want me to make it a suspended sentence and Probation so that he is released from the courthouse? MS. GREENWOOD: Yes, please, Your Honour.

Paul Karp-Johnson Ontario Court of Justice 444 Yonge Street, 2nd Floor, Toronto 4817 509 20170413 095425 THE COURT: Okay, I am content to do that then. I think it is clear on the record that this is essentially the equivalent of an 8 month sentence, followed by probation. So it will be a suspended sentence, and Probation on those terms. ************ FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Arlene Gorewicz, certify that this document is a true and accurate transcript of the recording of; Regina v. in the held at taken from Recording which has been certified in Form 1. May 11, 2017 ARLENE GOREWICZ