R. v. Middleton, 2019 ONCJ 280

CITATION: R. v. Middleton , 2019 ONCJ 280 DATE: 2019-04-30 Toronto ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — LENNIE MIDDLETON Before Justice Mara Greene Reasons for judgement released April 30, 2019 A. Craig............................................................................................................. for the Respondent J. Gibson................................................................................................................ for the Applicant [ 1 ] The Crown has brought an application to have Mr.

Middleton sentenced to an indeterminate sentence for the offence of breaching his Long Term Sentence Order (LTSO). Mr. Middleton opposed this application. Instead, Mr. Middleton asks for a sentence in the one year range (effectively a time served sentence). Circumstances of the Offence and Procedural History [ 2 ] On February 19, 2014, Mr. Middleton was declared a dangerous offender and was sentenced to a ten year LTSO. Mr. Middleton breached this LTSO on more than one occasion and in 2018 found himself back in custody serving a sentence. On January 26, 2018, Mr.

Middleton was released from the Joyceville Penitentiary and ordered to remain at the Keele Correctional Centre or a similar facility as directed by Correctional Services Canada. Four days later, Mr. Middleton left the facility and did not return. A nationwide warrant was issued for his arrest. [ 3 ] On March 8, 2018, Mr. Middleton was located at 66 Walpole Avenue in Toronto. The police obtained a warrant to arrest Mr. Middleton inside the unit. At 12:40, the ETF and the canine unit attended at 66 Walpole Avenue to execute the warrant and arrest Mr. Middleton. Upon their arrival, the police called out and a Mr.

McDougal exited the unit. Mr. McDougal appeared to be impaired by drugs and advised the officer that Mr. Middleton was hiding in the attic. [ 4 ] The police called out to Mr. Middleton but he did not respond. The police, knowing that Mr. Middleton was hiding in the attic, deployed pepper spray into the attic in an attempt to have Mr. Middleton come out of the attic. This was unsuccessful. [ 5 ] At 2:10 p.m., the officers entered the attic and located Mr. Middleton hiding in the insulation. Mr. Middleton immediately became combative with the police. Mr.

Middleton was dragged down to the living room as he continued to be combative with the police. He then yelled “I so high” and “I’m so fucking high”. Mr. Middleton was then taken to hospital as he was convulsing, twitching and his speech was unintelligible. [ 6 ] Once at the hospital, a screening test for drugs was conducted. Mr. Middleton tested positive for cocaine.

I was advised by counsel that this screening test is not determinative and has a high false positive rate. [ 7 ] Despite the lack of certainty associated with the screening test, when I consider all the evidence presented at the sentencing hearing I am satisfied beyond a reasonable doubt that Mr. Middleton had cocaine in his system on the day of his arrest. Mr. Middleton admitted to the police that he was high, was acting erratically, was convulsing and his speech was unintelligible.

There was no suggestion or evidence that there was a medical reason or some other reason for this behaviour other than the ingestion of a narcotic. In my view, the admission by Mr. Middleton coupled with his behaviour and the results of the screening test leads me to conclude that Mr.

Middleton had in fact used crack cocaine on the day of his arrest. [ 8 ] Mr. Middleton has been in custody since his arrest. In late 2018, Mr. Middleton entered a plea of guilty to this offence. The Crown made an application pursuant to

section 753.01(1) of the Criminal Code for a psychiatric assessment. Mr. Middleton consented to the application. Once this assessment was completed, the Crown advised the court and Mr. Middleton of her intention to apply for an indeterminate sentence pursuant to

section 753.01(4) of the Criminal Code . Circumstances of the Offender [ 9 ] Mr. Middleton is presently a 47 year old man with a difficult and traumatic childhood. Justice Ray, in her decision dated October 2, 2014 summed up Mr. Middleton’s childhood as follows: Mr Middleton, society failed you when you were a child, and I do not know you but I have read a lot of material about you and I can see you that you have really, really suffered and experienced terrible adversity in your life. In making these comments, Justice Ray was referring to the fact that Mr.

Middleton was placed in care at the age of 9 and has, throughout his childhood, suffered both physical and sexual abuse and never had a stable and consistent home life. [ 10 ] As a result of his childhood, Mr. Middleton started using drugs at the age 11 or 12 and has spent the vast majority of his adult life in custody for committing a host of violent offences. Mr. Middleton’s involvement with the criminal justice system started when he was a young person and his record includes numerous acts of violence, noncompliance with court orders and drug related offences. Mr.

Middleton has also amassed a number of misconducts while in custody. It was this history that led the Crown to seek a dangerous offender designation in 2014. [ 11 ] In preparation for the dangerous offender hearing in 2014, Mr. Middleton was assessed by Dr. Pallandi and Dr. Gojer. Both psychiatrists agreed that Mr. Middleton met the test for a psychopath as per the PCLR with a score in the range of 29-31. Both psychiatrists concluded that Mr. Middleton suffered from antisocial personality disorder and poly-substance disorder.

Moreover, both psychiatrists concluded that using the actuarial tools and their clinical judgment that Mr. Middleton posed a high risk to re-offend. [ 12 ] Dr. Pallandi originally concluded that Mr. Middleton’s risk could not be managed in the community due to his inability to abide by court orders in the past and his lack of engagement with treatment. After reviewing Dr. Gojer’s report, however, Dr. Pallandi ultimately agreed that Mr.

Middleton’s risk could be managed in the community as long as he followed a number of terms including, but not limited to, staying in a community correctional facility, attending treatment for violence and drug abuse, abstaining from drugs, taking urinalysis tests and staying away from certain people. [ 13 ] Mr. Middleton was declared a dangerous offender. Given his two years spent in pre-trial custody, Justice Kelly did not impose further custody but did impose a 10 year LTSO. Mr.

Middleton is now five years into his LTSO and he has spent the vast majority of this time in custody either awaiting trial or serving sentences. Mr. Middleton has twice been found guilty of breaching his LTSO. He was also convicted of being unlawfully at large while serving his LTSO. On one occasion, he breached his LTSO within 24 hours of his release from custody. On another occasion, he went AWOL approximately one week after his release from custody. He committed the offence that is presently before the court only days after his release from custody on this second breach. [ 14 ] Dr.

Pallandi provided the court with an updated report on January 31, 2019. He also testified at Mr. Middleton’s sentencing hearing. According to Dr. Pallandi, Mr. Middleton’s risk per se has not changed. It is also Dr. Pallandi’s opinion that Mr. Middleton’s risk can still be managed in the community if the things outlined in Dr. Gojer’s report were implemented and followed. Dr. Pallandi stated that during every interview he has had with Mr. Middleton, he appears to be motivated to change but this motivation does not appear to carry through in the community. While Mr.

Middleton has breached his LTSO a number of times, Dr. Pallandi’s clinical opinion has not changed in part because the breaches were not “catastrophic” in that no one was harmed and no additional substantive offences have been committed. Relevant Legal Principles [ 15 ] As previously stated, the Crown seeks an indeterminate sentence for Mr. Middleton which is a permissible sentence when a dangerous offender is found to have breached an LTSO. There appears to be very little law on the approach the court should take when assessing whether or not to impose an indeterminate sentence for a breach of an LTSO.

A useful starting place then is to look at the relevant provisions of the Criminal Code . [ 16 ] The relevant provisions are as follows: 753.01(4) After the report is filed, the prosecutor may apply for a sentence of detention in a penitentiary for an indeterminate period, or for an order that the offender be subject to a new period of long-term supervision in addition to any other sentence that may be imposed for the offence. 753.01(5) If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted – with or without a new period of long-term supervision – will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [ 17 ] In considering the approach the court should take in applying the above provisions, I make two observations.

Firstly, the language used in

section 753.01(5) on its face, appears to create a presumption of an indeterminate sentence which can be rebutted by evidence that the public can be protected without the imposition of an indeterminate sentence. This was in fact the approach taken by Justice Ball in R. v. Wright, [2018] B.C.J. No. 287 (B.C.S.C.) . Justice Ball, in commenting on this provision stated at paragraph 41, Upon review of the positions of Crown counsel and defence counsel and the arguments which have been advanced, it is my decision that

the submission of Crown counsel correctly reflects a principled reading of the provisions of s.753.01 of the Code. Mr. Wright is adesignated dangerous offender who now has been convicted of another serious personal injury offence. Subject to a prospectiveassessment of dangerousness, the sentence specified by Parliament is an indeterminate sentence unless the accused can demonstratecertain criteria. Namely, Mr.

Wright must be able to satisfy the Court by evidence adduced during the hearing of the application thatthere is a reasonable expectation that a sentence for the offence for which the offender has been convicted will adequately protect thepublic against the commission by the offender of murder or a serious personal injury offence. [18] The second relevant observation is that the language of

section 753.01(5) mirrors the language in section 753(4.1) of theCriminal Code. This similarity in language suggests that the approach I should take in determining whether or not an indeterminatesentence ought to be imposed for a breach of a Long Term Supervision Orders is the same as when the court is considering whether toimpose an indeterminate sentence after a finding that an offender is a dangerous offender. In fact, in R. v. Wong, [2016] O.J. No. 3803(S.C.J.), Justice McWatt effectively held that the same test applies.

She stated at paragraph 96, Even if the above preconditions were met, the same test pursuant to s.753(4.1) applies before a judge can impose an indeterminatesentence. [19] In addition to the similarity in language, there is another compelling reason why the same test ought to apply. This is because thestage of the proceedings is effectively the same under 753.01(5) and 753(4.1). In both cases, the offender has already been designated adangerous offender and the only question remaining is whether an indeterminate sentence ought to be imposed in order to propertyprotect the public.

In light of these similarities, it is my view there is no legal or policy reason to interpret

section 753.01(5) differentlyfrom 753(4.1) of the Code. Therefore, despite the language in the section, as was stated in R. v. Boutilier, 2017 SCC 64 , [2017]S.C.J. No. 64, there is no presumption of an indeterminate sentence that the offender must rebut. [20] In light of this, the appropriate approach in this case is to first determine if a conventional sentence will adequately protect thepublic against the commission of murder or a serious personal injury offence.

If such a sentence will not adequately protect the public,the court must determine if an additional long term supervision order will adequately protect the public. Only if the answer to these twoquestions is no should the court impose an indeterminate sentence (R. v. Boutilier, supra, at paragraph 70). Should an Indeterminate sentence be imposed? [21] There are a number of factors the court must consider in assessing whether an indeterminate sentence is the appropriatesentence. Relevant factors in this case include the fact that Mr. Middleton has a very lengthy criminal record for violence.

Mr.Middleton suffers from a significant drug addiction and has proven to be a danger to the public when he uses drugs. At the originaldangerous offender hearing, two psychiatrists concluded that Mr. Middleton was dangerous but both agreed that if Mr. Middletonengaged in identified programs, abstained from the use of drugs, resided in a structured environment and was properly monitored, his riskto public safety could be managed. Mr. Middleton has consistently chosen to ignore all aspects of the long term supervision order whichwere put in place to assist Mr.

Middleton with his rehabilitation and to protect the public. This is not the first time that Mr. Middleton hasfailed to reside at the Keele Correctional Centre. In going AWOL from the Keele Correctional Centre, Mr. Middleton effectivelyviolates almost all the terms of the LTSO. Mr. Middleton was not residing where he was supposed to reside, was not engaging in thetreatment necessary to address his violence and drug dependency and was not being properly monitored. It is in this context that Crowncounsel argued that Mr.

Middleton has proven, by his own actions, that his risk to the public cannot be managed. [22] Despite this clear and consistent evidence of non-compliance, counsel for Mr. Middleton argued that an indeterminate sentencewould not be appropriate. Counsel’s first argument was that such a sentence would be disproportionate to the gravity of the offence. Respectfully, I disagree with this argument. While I agree that in the vast majority of cases, an indeterminate sentence would bedisproportionate to a breach of an LTSO when no other criminal activity has been involved. In the case at bar, however, Mr.

Middletonhas consistently breached the core of his LTSO. Mr. Middleton did not just leave the Keele Correctional Centre. He also did not takeprogramming, did not report where he was to report and did in fact consume an illegal drug. This breach, when properly viewed in thecontext of Mr. Middleton’s past conduct and the psychiatric material, is a very serious breach and an indeterminate sentence, if otherwisenecessary to protect the public, would not be disproportionate to the gravity of the offence. [23] Counsel for Mr.

Middleton further argued that an indeterminate sentence would not be appropriate in the case at bar becausethere is evidence that Mr. Middleton’s risk can be managed in the community. To that end, she identified the following factors:

a) Dr. Pallandi’s opinion remains that Mr. Middleton’s risk can be managed in the community;

b) Mr. Middleton is getting older, and therefore is burning out on violent offending thereby further reducing his risk;

c) Mr. Middleton’s past failures can be linked to the inability of the system to organize treatment for Mr. Middleton in a timelyfashion; and,

d) Mr. Middleton is showing new and improved insight into his offending conduct and need for treatment. I will address each of these arguments. [24] In relation to the expert evidence on whether Mr. Middleton’s risk to the public can be managed in the community, I havealready reviewed above the evidence on this point. As I understand Dr. Pallandi’s evidence, Mr. Middleton’s risk to the public can onlybe managed if Mr. Middleton resides at a community correctional facility, takes the necessary programs, abstains from using drugs andis properly monitored. If Mr.

Middleton refuses to comply with the above conditions, then his risk cannot be managed. I appreciate thatMr. Middleton has not committed any new substantive offences, however, he has had very limited opportunity to do so given the briefperiods of time that he was actually in the community before he was arrested on this breach. Given the limited time that he has actuallybeen in the community the absence of new substantive charges does not lead me to conclude that his risk of violent re-offending isreduced. Moreover, Dr. Pallandi did not suggest that because Mr.

Middleton did not commit a new substantive offence his risk of re-offending was reduced and the above conditions were not necessary. At its highest, Dr. Pallandi agreed that if Mr. Middleton was drug

free for an extended period of time this would reduce his risk. Sadly for Mr. Middleton, the evidence is to the contrary. There was clear evidence that Mr. Middleton was using cocaine or crack cocaine on the day of his arrest. [ 25 ] Counsel also argued that because of Mr. Middleton’s age, he is at the point where it is expected that his violent activities will subside. While Dr. Pallandi agreed with the general concept of a decline in violence for those over 50, he clarified that there is no set pattern or guarantee that this will happen or at what age it will happen. In other words, the mere fact that Mr.

Middleton is aging does not by itself reduce his risk to an acceptable level. [ 26 ] When I look at all the expert reports filed with the court as well as Dr. Pallandi’s viva voci evidence, it is clear to me that whether or not Mr. Middleton’s risk can be managed in the community depends solely on whether or not I am satisfied that Mr. Middleton will follow the terms of his LTSO. [ 27 ] This leads into defence counsel’s two other points which are that Mr. Middleton has changed and that part of the reason for his failure was inadequate resources in the community.

In relation to this latter point, I appreciate that when Mr. Middleton was first released in 2014, Corrections Canada was given no real notice and they had to scramble to get Mr. Middleton assessed. Due to delays in getting Mr. Middleton assessed, there were delays in placing him in programs. Mr. Middleton became frustrated and eventually used marijuana. He was arrested and sentenced for this. When he returned to the community, however, Mr. Middleton did not give Corrections Canada any time at all to organize programs for him. Mr. Middleton went AWOL within 24 hours of his release.

Moreover, when released in January, 2018, Mr. Middleton had been serving a sentence of some seven months, this was more than enough time for programming to be set up, but Mr. Middleton just left before it could be arranged. I therefore reject the notion that delays in arranging programing were and are the main source of the problem. [ 28 ] In relation to Mr. Middleton’s assertion that he has new insight and is now ready to focus on treatment, I treat this assertion with great skepticism. Firstly, I note that this is not the first time Mr. Middleton has made these claims. There is a distinct similarity between Mr.

Middleton’s claims of insight to Ms. Humphrey, Mr. Middleton’s girlfriend, and his claims of insight made to his brother, niece and sister back in 2014. Ms. Humphrey testified that over the past number of months Mr. Middleton spoke of being tired, is getting older and needing to make a change. As was noted in Dr. Pallandi’s 2014 report, Mr. Middleton’s brother advised that Mr. Middleton said the same things to him while he was in custody awaiting his dangerous offender hearing. [ 29 ] Mr. Middleton, when in custody, consistently expresses a desire to engage in treatment. Dr.

Pallandi testified that on each occasion that he has met with Mr. Middleton, he seemed sincere about wanting treatment but this motivation was intermittent. Mr. Middleton’s interest in treatment seems to wane shortly after his release from custody. In light of this pattern, Mr. Middleton’s stated interest in treatment, even if sincere, does little to satisfy me that Mr. Middleton will comply with the terms of his LTSO. [ 30 ] While I take Mr. Middleton’s expressed interest in treatment with a grain of salt, there is an evidentiary basis to find that this time Mr.

Middleton will in fact follow through with treatment. To that end, I first note that Dr. Pallandi does not suggest that Mr. Middleton’s motivation for treatment is feigned. Instead Dr. Pallandi indicated that Mr. Middleton’s motivation seemed sincere. Dr. Pallandi explained in his report the difficulties with maintaining motivation and the difficulties in treating someone like Mr. Middleton. Dr. Pallandi wrote at page 5, Whether the step of indeterminate incarceration remains the only remedy at this point from a clinical perspective, is doubtful.

The managements of a combination of characterological deficits, and a substance use disorder are long-term and multifaceted, characterized by expected struggles, relapses and remissions that are to be addressed by professionals with the assistance of community support. I am of the opinion that still remains a reasonable prospect. [ 31 ] There is one final piece of evidence that from my perspective is the most compelling piece of evidence in Mr. Middleton’s favour. As previously stated, in the past, Mr.

Middleton has expressed a desire to attend programing but has not done any actual programming and has done very little to help himself. This time, Mr. Middleton has done a few things that are of significance. First of all, Mr. Middleton completed two short programs since his arrest. One for recognizing healthy relationships on August 30, 2018 and one for stress management on September 21, 2018. Secondly, Mr. Middleton has reached out to the Aboriginal Healing Program. Ms. Humphrey testified that Mr. Middleton has spoken to Little Brown Bear, who runs this program, and that Mr.

Middleton has been accepted into this program. I have been advised that Mr. Middleton can attend this program immediately upon his release from custody. Thirdly, according to a letter dated April 4, 2019, Mr. Middleton has been working with a Native Inmate Liaison Officer at the jail and has been in this program since 2018. The program involves counselling and engagement with Indigenous culture. Courtney O’Connor wrote that Mr. Middleton has been a positive inmate, has a positive attitude and is “exceptionally helpful” to other inmates. It appears that at the present time, unlike the past, where Mr.

Middleton has expressed motivation but done very little, Mr. Middleton appears to be actively taking steps to change his path. [ 32 ] In light of Dr. Pallandi’s clinical opinion that Mr. Middleton’s risk can still be managed in the community and the evidence that Mr. Middleton has taken actual steps to engage in treatment, I am satisfied that Mr. Middleton is not just motivated today to change, but that his motivation to change will continue in the community and lead to his compliance with his LTSO. I therefore find that Mr.

Middleton’s risk to public safety can be managed in the community without the imposition of an indeterminate sentence. What is the Appropriate Sentence? [ 33 ] Crown counsel argued that if this court does not make an order for an indeterminate sentence, a significant penitentiary sentence ought to be imposed. Such a penalty would address both specific and general deterrence as well as rehabilitation as Mr. Middleton will be able to get significant programming in the penitentiary. Counsel for Mr. Middleton is essentially asking for time served. Mr.

Middleton has been in pre-sentence custody for 13 months and 21 days – so effectively 14 months. She argued that given his traumatic background, his remorse, his plea of guilty and his insight that a proportionate sentence would be one of time served. She further argued that his treatment needs can be met in the community. [ 34 ] It is trite law by now to say that a sentence must be proportionate to the gravity of the offence and the circumstances of the offender. In assessing proportionality, the court considers both the aggravating and mitigating factors. There are few mitigating factors

in the case at bar. I accept that Mr. Middleton has had a difficult childhood and this has impacted his choices. I further accept that Mr.Middleton is presently motivated to engage in treatment and has taken some baby steps towards his own treatment. This mitigatingfactor is tempered by the reality that Mr. Middleton is always motivated for treatment while in custody, but does not seem to be able tomaintain this motivation once in the community. The recent positive steps taken by Mr. Middleton support the conclusion that this timehe will have more success in the community. [35] Mr.

Middleton self identifies as Indigenous. It is his belief that one of his distant relatives was Mi’kmaq. Despite extensiveattempts, Mr. Middleton’s Indigenous ancestry could not be confirmed. This does not mean that Mr. Middleton does not have somedistant relatives that were in fact Indigenous. It merely means that there is no evidence before me about what impact, if any, Mr.Middleton’s Indigenous ancestry has had on Mr. Middleton. What is known, however, is that Mr.

Middleton’s great grandparents wereeconomically disadvantaged and in 1911, they were placed in the Poor Asylum in Arcadia, Yarmouth County and remained there for atleast a decade. In 1921, one of Mr. Middleton’s ancestors was placed in the “Negro Home” in Halifax. It is clear from the material filedthat Mr. Middleton’s ancestors experienced extreme poverty and racism. There can be no doubt that this has had an impact on Mr.Middleton. [36] There are a number of aggravating factors in the case at bar, many of which have already been referenced in this judgment butbear repeating here. Mr.

Middleton was already designated a dangerous offender at the time of this offence. He has a long criminalrecord for violence and non-compliance with court orders. This is the third time Mr. Middleton has breached his LTSO and his breachwas very serious as it went to the core of the Order. The LTSO serves two purposes. The first is to protect the public from high riskoffenders and the second is to rehabilitate the offender and help the offender re-integrate into society. By leaving the CorrectionalCentre and not reporting to his parole officer, Mr.

Middleton effectively ensured that neither of the two purposes of the LTSO could befulfilled. Moreover, while in breach of his order to reside at the Keele Correctional Center, Mr. Middleton consumed non-medicallyprescribed narcotics and hid from the police when they tried to arrest him. Having said that, while the breach in the case at bar isserious, I am mindful that no new substantive offences were committed. To that end, I note that in R. v.

Ipeelee, 2012 SCC 13 ,[2012] 1 S.C.R. 433 at paragraph 54, the court noted that the success of the Long Term Offender regime is “a speedy and flexiblemechanism for enforcing the orders, which does not result in lengthy re-incarceration in the absence of the commission of a new crime”. [37] With these aggravating and mitigating factors in mind, it is helpful to consider the range of sentences normally imposed forbreaches of Long Term Sentence Orders. The range seems to be between nine months and five years. Where there is a single breachwith prior compliance then sentences in the one year mark are imposed.

Where there are multiple breaches or the breach is consideredserious sentences as high as five years are imposed. [38] In R. v. Ipeelee, supra, Mr. Ipeelee had been in the community for 18 months on an LTSO when he breached a term of this LTSOby consuming alcohol. This was his first breach of this Order. Taking into account the Gladue factors, the nature of the breach and hisplea of guilty, the Supreme Court of Canada imposed a sentence of one year. In the case at bar, Mr. Middleton is facing his third breach,his breach is significantly more serious and he has no history of compliance with his order.

Making these comparisons, Mr. Middletonought to receive a sentence greater than the sentence imposed on Mr. Ipeelee. [39] In R. v. McDonald, 2014 ONSC 4671, the court imposed a conditional sentence of 2 years less a day for Mr. McDonald’s fourthbreach of his LTSO. In imposing this sentence, the court specifically stated that Mr. McDonald was no longer a danger to the public dueto his other successes while in the community. In my view, given the evidence of Mr. Middleton’s continuing risk to the public, he iseasily distinguishable from Mr. McDonald. Similarly, in R. v.

Whalen, 2017 ONCJ 43, a nine month sentence was imposed for a breachof an LTSO by possessing cocaine. This sentence was deemed appropriate because Mr. Whalen, unlike Mr. Middleton, had otherwisebeen making significant gains while serving his LTSO and it was not part of a pattern of poor behaviour while on his LTSO. [40] The case of R. v. Matte, 2012 ONCA 504, is similar in many respects to the case at bar. Like Mr. Middleton, Mr. Matte hadresponded poorly to community supervision, he minimized his poor behaviour and had two previous breaches of his LTSO.

In that casea two year sentence was deemed appropriate where the breach was taking one pill of Dilaudid. While Mr. Matte’s general response tocommunity supervision was similar to Mr. Middleton’s response to community supervision, in my view Mr. Middleton’s breach is moreserious. [41] In other cases significantly higher penalties were imposed. In R. v. Thomas Robichaud, an unreported judgment from February19, 2019, a sentence of five years was imposed for a breach where Mr. Robichaud, like Mr. Middleton, went AWOL but did not commitany new substantive offences. In R. v. Archer, 2014 O.J.

No. 3472, the Court of Appeal imposed a four year sentence for an offenderwho went AWOL on his LTSO and in R. v. Bourdon, 2012 ONCA 256 , [2012] O.J. No. 1730 (CA), a three year sentence wasimposed for a similar breach. [42] In my view, what flows from these decisions is that where the offender has otherwise being doing well and really making effortsto engage in meaningful rehabilitation, the courts treat the breaches as a “blip” and impose a relatively short sentence.

Where, however,the offender is consistently noncompliant or where the offender’s breach is going AWOL, as in the case at bar, sentences well in excessof two years are imposed – namely in the four to five year range. [43] In the case at bar, Mr. Middleton has committed a significant breach of his order and has a pattern of non-compliance. Thesefactors, according to the case law, demand a sentence in excess of two years. In my view a sentence below two years is completelyoutside the range and there are no factors in this case that justify going that much below the range. But for Mr.

Middleton’s recentattempts at treatment, I would have considered a sentence in the range of four years. Mr. Middleton’s breach and background ofnoncompliance easily support a sentence in excess of three years. Taking into account, however, that he has re-connected positivelywith Ms. Humphrey and with his aunt, the fact that he has taken two programs while in custody and his attempts to engage with acommunity based program, I am satisfied that a sentence in the range of two and ½ to three years is appropriate. With this range inmind, I sentence Mr. Middleton to a sentence of 34 months. [44] Mr.

Middleton has served almost 14 months in pre-trial custody. This leaves 20 months remaining on his sentence. Mr.Middleton, I am hopeful that you will use this time well. The court has heard that there is an aboriginal multifaceted treatment program

in the penitentiary that takes approximately seven months to complete. I am hopeful that Corrections Canada will work quickly in developing your correction plan so you can make it into this program and complete it before the end of your sentence. I also hope, Mr. Middleton, that you will use your time in custody to complete this program which may better position you to access and engage in treatment in the community. [ 45 ] Neither Ms. Gibson nor Ms. Craig asked this court to impose a further LTSO as a result, while I am concerned that your LTSO will quickly be at end, I will not extend it. Released April 30, 2019 ________________________ Justice Mara Greene