) Ms. J. Ritchot, ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. N. Boucher, - v. -, 2011 MBPC 48

Citation: 2011 MBPC 48 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. J. Ritchot, ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. N. Boucher, - and - ) for the Accused ) JOHN LOU MASON, ) ) Sentence delivered Accused. ) March 21, 2011 _____ SANDHU, P.J. (Orally) This is the sentencing of Mr. Mason on an offence, a break, enter and theft from a commercial establishment in Winnipeg, which occurred on February 29th, 2008. At the time Mr. Mason was 20 years of age. He is now 23. At the time he had no prior criminal record or, to my knowledge, criminal involvement. The Crown proceeded on this offence by indictment.

Eventually, a guilty plea was entered on a date that I am not certain of, but was obviously sometime late in 2010. A pre-sentence report with a Gladue component was ordered, which took some time to complete, and was completed, as indicated by Exhibit S1, on January 4th of 2011. At the last sitting of this matter I heard full submissions from counsel, and received certain exhibits, and then I adjourned the matter to today's date for sentencing. Throughout the period of time I must say I was under the impression, up until today's date, that Mr.

Mason, in fact, came before the court with absolutely no criminal record. I am now told, today, that in fact, as counsel just indicated, on ... What was the date again of the sentencing, counsel, on August -- MS. RITCHOT: Of this last sentencing? THE COURT: Yes, December ... MS. RITCHOT: The sentencing on the assault cause bodily harm, Your Honour -- THE COURT: Yes. MS. RITCHOT: -- was December 16th, 2010. THE COURT: All right. December 16. MS. RITCHOT: That's in St. Theresa Point.

THE COURT: December 16, 2010, on a conviction for assault cause bodily harm, for which he received a two-year suspended sentence with supervised probation. The offence date is said to be May 6, 2009, and therefore the date of the offence would have been some year after the offence for which I am now sentencing Mr. Mason. Mr. Mason is a full status treaty member of the St. Theresa Point First Nation, which is a remote fly-in community in northeastern Manitoba.

The submissions of counsel and the comments of the probation officer that I have received paints a picture of a highly remorseful and intelligent married family man with three children, a part-time substitute teacher, a past professional meat cutter, and also a community volunteer, a man who is struggling with his current place, I think, in the world, but in the meantime had been a valued member of his community, who is, in my opinion, and as assessed by the probation officer, a low to medium risk to re-offend.

His relationship is described as generally loving and caring, and he resides in a location where jobs are scarce, though he has found a way to gain employment, even if temporary, apparently for most of his life. He has a grade 11 education and is currently enrolled in the adult education program in St. Theresa Point High School to complete his general equivalency diploma. Mr. Mason admits to past gang association in his teens, and everything that such an association involves. This is evidenced in the comments of the pre-sentence report. The accused, Mr.

Mason was obviously very candid with his probation officer in that regard. Despite his past associations, he says he was able to leave the gang without consequence or a criminal record. His gang was not that organized or permanent. He says that he was in a different frame of mind at the time, and with great difficulty he was able to leave that life of being an aboriginal gang member and found a life based on a more family-orientated mindset.

He is considered, according to the probation officer, a medium risk to re-offend, due to certain risk factors, including use of alcohol at the time of the offence, negative peer associations, education and employment. Although Mr. Mason has no direct or familial link to the residential school system, he lives in a community infused by the effect of that system, as indicated again in the pre-sentence report.

He is only generally aware of this deficit in the community, a deficit that is being attempted to be cured by others in his community and by his involvement in what I have been told is a community aboriginal awareness workshop and a number of the sessions, I believe 11 in total, that he has been and will be attending, and I will discuss that shortly. I have considered the following in making my decision today.

I of course carefully considered the submissions of counsel, the pre- sentence report and the attached Gladue report, the recommendations of the probation officer and Exhibit S2, entitled, Seminar Series STPNFN Health Authority, from St. Theresa Point. The seminar or workshop series that Mr. Mason has been attending and is to attend has already started and is an 11-week program, focusing on local aboriginal history and the creation of the community plan to move forward. It is sponsored by the local health authority.

It appears to be in furtherance of one of the recommendations of the Aboriginal Justice Initiative and report, that is to have communities get in touch with their past in order to move forward through an educational process. It appears that that process, long overdue, is now at least, in St. Theresa Point, coming to some sort of fruition. I have also considered the comments of the accused as he appeared before me last in court and his verbal expressions of remorse to the court. In terms of the offence, the circumstance are somewhat unusual.

On February 9th, 2008, between 2:00 and 5:00 a.m., the accused attended to 1866 Ellice Avenue, in Manitoba, Union Video, after a night of heavy consumption of alcohol. He apparently broke into the business by breaking a window, a small window described as three feet by two feet, with approximately $250 in damage. While inside, he selected various adult items, to a total value of a hundred and twenty-five dollars, which was recovered. The accused then left via the rear southwest door. There is said to be 20 DVDs and half an artificial human torso, valued at $700, outstanding. After Mr.

Mason had engaged in this crime and had left the scene he was located in the area at 4:59 a.m. by the police, apparently still carrying some of the items in plain view and, as well, upon his arrest, he was in a bloodied condition, apparently having cut himself on the glass entering the video store. I am told by counsel that just immediately prior to his attendance at the store he was at a local establishment called the Airport Inn, had met some friends there and had heavily consumed alcohol, the equivalent, as I'm told, of some 18 drinks during a certain period of time that is unknown to me.

What is known to me clearly is he was highly intoxicated, to the point of inebriation, and to the point where he says, and I believe him, and he says, and through counsel, he has no recollection of what he did. He, as I already indicated, had suffered injury, which was a laceration to his left foot. He was treated and medically cleared by doctors. The matter now comes before me for sentencing some three years later. So that is the background of the accused, generally speaking, and the background of the offence.

The pre-sentence report is, of course, difficult to summarize in terms of its contents and its import, but in the summation paragraph the probation officer does recommend that as there are a number of community resources available in St. Theresa Point, that he is a medium risk to re-offend, and this was his first offence, that he was a suitable candidate for a community-based disposition.

I might add that the joint recommendation that was presented to the court on the last appearance was rejected by the court, and I also want to state for the record that the court's comments in that regard, at our last sitting on February 25th, 2011, as contained in the transcript, from pages 19, line 17, through pages 21, line 17 should also form part of my reasons for decision. The court has therefore moved on from consideration of the joint recommendation, which, as the court has been told today, has been essentially accepted by counsel, that the joint recommendation was not appropriate.

The joint recommendation was for a period of incarceration to be served in the community, and as I indicated on the last occasion, I did not feel that jail was appropriate, and therefore, with jail not being appropriate, a conditional sentence was not available. What should the sentence then be for Mr. Mason, as we appear today? In the matter of Mr. Mason, normal sentencing pattern, in a standard court proceeding, would be to sentence him to a suspended sentenced with supervised probation.

That is a conclusion that I reached after hearing from counsel, and reviewing the authorities and listening to what had been said, why the recommendation was one of jail to be served in the community and why counsel had arrived at that. If Mr.

Mason was not aboriginal, the normal sentencing pattern would be one, in my opinion, of a suspended sentence, but I need to move on from that and to consider whether or not Gladue principles should affect the sentence even further, because I have come to that conclusion of a suspended sentence without regard to Gladue principles, and with regard only to the circumstances of this offender, the circumstances of this case, and the nominal and normal applications of the principles and purposes of sentencing, but applying all of

that, in my opinion, jail is not an option, and the rejection of the joint submission for 12 months jail to be served in the community, as I have already indicated, is not available. If Gladue is to have any meaning, then its application should not result in a normal sentencing pattern, using standard court procedure.

Unfortunately, the Gladue process outcomes in Manitoba are rendered generally weak and ineffective due to a lack of resourcing to put the Gladue principles into action in a manner that inspires confidence, both by the court and the public, Gladue principles, which favour, in the case of aboriginal offenders, sentences that will permit the court to confidently send an offender back into the community, confident in the knowledge that community resources would be, if not immediately, shortly and generously made available to the accused, under supervision, which would be adequate supervision, and in the case of conditional sentences, restrictive, and that the accused would receive the remedial measures very often necessary to reduce risk and promote rehabilitation within the community essentially on demand and by order of the court.

Without that confidence, the application of Gladue principles is little utilized by the courts in Manitoba and is little respected by the public. The root problem of such a lack of confidence in the Gladue principles and its application is the matter of resources. Gladue cannot and should not be seen as an attempt to recompense for past general wrongs. It can and should not be seen as a break given to the offender or as a past general societal redress for which an individual is now specifically and individually rewarded.

It should be seen as an attempt at individual redress, with a focus on rehabilitation where it is safe to do so, where risk is assessed and where risk is controllable and monitorable. There should be, in applying Gladue principles, redress one person at a time.

Gladue principles should be seen as a concerted effort by the judicial justice system with an engaged political system to recognize that the over-representation of aboriginals in general criminal activity, and therefore the justice system, as a whole, is, in part, a reflection of past cultural dissimilation and the resultant detachment from societal norms which was historically created in a systemic and pervasive fashion. One need go no further in the analysis than to look again at the Gladue decision from the Supreme Court of Canada, which, in my opinion, needs no further expansion or analysis.

Gladue is now 12 years old. The issues that the Supreme Court addressed in Gladue remain unabated today. As stated in Gladue in paragraph 52, a decision written by Mr. Justice Cory and Iacobucci: "The Problem of Overincarceration in Canada Canada is a world leader in many fields, particularly in the areas of progressive social policy and human rights. Unfortunately, our country is also distinguished as being a world leader in putting people in prison.

Although the United States has by far the highest rate of incarceration among industrialized democracies, at over 600 inmates per 100,000 population, Canada’s rate of approximately 130 inmates per 100,000 population places it second or third ..." In the world. At paragraph 54, after examining a number of inquiry and commission reports: "An examination of the recommendations of these reveals one constant theme: imprisonment should be avoided if possible and should be reserved for the most serious offences, particularly those involving violence.

They all recommend restraint in the use of incarceration and recognize that incarceration has failed to reduce the crime rate and should be used with caution and moderation.

Imprisonment has failed to satisfy a basic function of the Canadian judicial system which was described ..." In one report, the Report of the Canadian Committee on Corrections, in 1969, entitled: "'Toward Unity: Criminal Justice and Corrections ... as 'to protect society from crime in a manner commanding public support while avoiding needless injury to the offender'." At paragraph 56: 'It is now generally recognized that imprisonment has not been effective in rehabilitating or reforming offenders, has not been shown to be a strong deterrent, and has achieved only temporary public protection and uneven retribution, as the lengths of prison sentences handed down vary for the same type of crime.

Since imprisonment generally offers the public protection from criminal behaviour for only a limited time, the rehabilitation of the offender is of great importance. However, prisons have not generally been effective in reforming their inmates, as the high rate of recidivism among prison populations shows."

I might indicate that everything that everything that I've quoted from paragraph 56 was underlined by the Supreme Court ofCanada. In 58 in Gladue, the address the over-representation of aboriginal Canadians in penal institutions. I'm not going to read paragraph58, but I want to be clear that I have read the decision, and these are particular paragraphs that form and influence my decision today. I do wish to read into the record paragraphs 77 and 78 of Gladue, until the title, The Search for a Fit Sentence: "The comments of Lamer C.J. are particularly apt in the context of aboriginal offenders.

As explained herein, the circumstances ofaboriginal offenders are markedly different from those of other offenders, being characterized by unique systemic and backgroundfactors. Further, an aboriginal offender’s community will frequently understand the nature of a just sanction in a manner significantlydifferent from that of many non-aboriginal communities. In appropriate cases, some of the traditional sentencing objectives will becorrespondingly less relevant in determining a sentence that is reasonable in the circumstances, and the goals of restorative justice willquite properly be given greater weight.

Through its reform of the purpose of sentencing in s. 718, and through its specific directive to judges who sentence aboriginal offenders,Parliament has, more than ever before, empowered sentencing judges to craft sentences in a manner which is meaningful to aboriginalpeoples." Paragraph 78: "In describing the effect of s. 718.2(

e) in this way, we do not mean ..." That is the Supreme Court speaking. "... do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatestweight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It isunreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not,that such goals must not predominate in appropriate cases.

Clearly there are some serious offences and some offenders for which and forwhom separation, denunciation, and deterrence are fundamentally relevant. Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered." I would read in the rest of the paragraphs, but my oral decision should incorporate sections 79 to 85 of Gladue. I don't read theminto the record because imprisonment is not an option in this case, but the general principles with respect to the proper and dailyfunctioning of sentencing courts is something that I have read and considered.

That is the end of the quote. Gladue has been considered in any number of cases. In my opinion, as I have already indicated, little

interpretation of Gladue isrequired. I think it is well for all of us, counsel and the judges, to reread Gladue in the context of the 12 years that has passed sinceGladue has been put into place because Gladue is really -- within its four corners, contains everything we need to know and contains allthe direction that the Supreme Court of Canada gave us. It is one of the most clear cases, and most simply written cases, in terms of itswording, that the Supreme Court has ever released. The case was considered by the Ontario Court of Appeal, that is Gladue, in R. v.

Kakekagamick, (ON CA),211 C.C.C. (3d) 289, and I'm going to read from paragraph 34. My paragraph numbering may be wrong. It may be a differentparagraph, but I have it as from paragraph -- just one moment, please. Paragraph 35: "The Court affirmed that s. 718.2(

e) imposes a duty on the sentencing judge to approach the sentencing of Aboriginal offendersdifferently. That is, it is not a mitigating factor on sentencing simply to be an Aboriginal offender, as the Crown erroneously asserts inits factum. Nor is being an Aboriginal offender, as I have heard it referred to, a 'get out of jail free' card. Rather, s. 718.2(

e) was enacted as a remedial provision, in recognition of the fact that Aboriginal people are seriously over-representedin Canada’s prison population and in recognition of the reasons for why this over-representation occurs. Thus, although s. 718.2(

e) requires a sentencing judge to consider reasonable alternatives to imprisonment for all offenders, special consideration must be given to the circumstances of Aboriginal offenders. The Court in Gladue stated at para. 33: 'The words of s. 718.2 (

e) do not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender.'" Continuing on at paragraph 36 of Kakekagamick : "Therefore, while s. 718.2 (

e) requires a different methodology for assessing a fit sentence for an Aboriginal offender; it does not necessarily mandate a different result. The subsection does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender:

Section 718.2 (

e) imposes an affirmative duty on the sentencing judge to take into account the surrounding circumstances of the offender, including the nature of the offence, the victims and the community .... Where the sentencing judge narrows the choice of sentence to one involving imprisonment, the judge is obliged to consider the unique systemic or background circumstances which may have played a

part in bringing the particular Aboriginal offender before the courts . The judge must also consider the types of practicable procedures and sanctions that would be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage." At the time of this offence, Mr. Mason did not have a criminal record. Mr. Mason will receive a criminal record should the court sentence him to a suspended sentence.

In my opinion, the application of the principles of sentencing, placing those principles in the proper context, and the application of the public interest component of the two-pronged test for a conditional discharge favours, in my view, the granting of a conditional discharge. The application of the Gladue principles to this offender, in these circumstances, renders a conditional discharge the fit and proper sentence. Gladue is not just for the determination of jail, or not jail or the length of jail; it also speaks to the need to consider the triggering

section within the context of the entire sentencing regime. Just one moment. "The

interpretation of

section 718.2(

e) must be given by considering its words in context. Although this appeal ..." And this at paragraph 29 of Gladue . "Although this appeal is ultimately concerned only with the meaning of the phrase 'with particular attention to the circumstances of aboriginal offenders', that phrase takes on meaning from the other words of s. 718.2( e ), from the purpose and principles of sentencing set out in ss. 718-718.2, and from the overall scheme of

Part XXIII." Of the Criminal Code . Paragraph 30: " The respondent observed that some caution is in order in construing s. 718.2( e ), insofar as it would be inappropriate to prejudge the many other important issues which may be raised by the reforms but which are not specifically at issue here. However, it would be equally inappropriate to construe s. 718.2(

e) in a vacuum, without considering the surrounding text which gives the provision its depth of meaning. To the extent that the broader scheme of

Part XXIII informs the proper construction to be given to s. 718.2( e ), it will be necessary to draw at least some general conclusions about the new sentencing regime." To me, what this means is that

section 718.2(

e) cannot be looked at by simply looking at that one line. Looking at that one line is, I think, problematic for many courts in the past who have struggled to deal with Gladue because when you look at that line without the context of the entire principles and purpose section, it does, on its own, appear to have little meaning.

The meaning that is to be accorded is what Gladue has told us should be accorded, and that is to do what is possible to reduce the over-representation of aboriginals in the justice system, but also to give recognition to how they come into that justice system and to give some benefit to aboriginal offenders as they may exit the justice system. The Gladue principles, for instance, have been applied in the context of bail hearings. If one were to look only at the one line in

section 718.2(e), one would think that

section would be applied only to sentencings and not to other principles, but Gladue principles, I think, are more expansive than that, and the courts have found that to be the case. For instance, in R. v. Robinson , from the Ontario Court of Appeal, which is 2009, Ontario Court of Appeal Decisions, 205, it is reported as decision number N37178, from September 19th, 2008. A judicial interim release judge ... That is from the headnote. ... can reasonably find that sincere and well-informed sureties for judicial interim release would not have the capacity to control the conduct of the accused.

Control of the accused is important in this type of case ... Which was murder. ... and is not an error to say the accused has not proven he can be controlled. The principles of Gladue can be applied to judicial interim release, but there needs to be evidence of release plans, enforcement, control procedures because of his or her particular aboriginal heritage or connections, what would be appropriate in the circumstance of the offence and the offender and what would satisfy the primary, secondary and tertiary grounds.

Similarly, there should be a consideration of the effect of the aboriginal background on the offence itself. Here, the applicant was a lawyer and had counsel, and between them they offered no Gladue information relevant to release. In order to give meaning to Gladue principles the court has to consider those principles in all judicial circumstances, including, of course, in primarily sentencing cases. To give it meaning the sentence needs to be different than a normal sentence, otherwise, what is the point of having Gladue principles or applying them?

It would thus not, in my opinion, be contrary to the public interest in granting this aboriginal offender the opportunity not to have a criminal record, and then in doing so, meaning is given to Gladue principles, and as I have already indicated, granting such a discharge, in my view, would not be contrary to the public interest and it would not be contrary to Mr. Mason's interests. The sentence of the court therefore will be as follows: There will be a conditional sentence for a period of 18 months. The sentence will be by way of supervised probation order.

There will be the statutory conditions to keep the peace, and be of good behaviour and to report to the court as may be directed. He is to pay restitution in the amount of $950, payable to Union Video, within 12 months, through the clerk of the courts. He is to attend, participate and complete any counselling as directed by his probation officer, including to attend, participate and complete addictions treatment and assessment if so-directed.

As a separate clause, you are to provide an addictions assessment report by a professional within three months or as may be extended by your probation officer, for no more than six months. You are to attend, participate and complete the STPNF community heritage and planning workshops from January 19th, 2011 to May 25th, 2011. You are not to attend the Airport Motor Inn or ... THE CLERK: Union Video, Your Honour, on Ellice Avenue? THE COURT: Yes, Union Video, 1866 Ellice Avenue, Winnipeg. That is, you are not to attend the premises.

In recognition of re-contribution to the community, you are to complete 50 hours of community work under the supervision and direction of your probation officer within the first six months. In addition, as it is by way of indictment, and again as reparation to the community, you are to pay the victim surcharge of $100, which is payable within six months. It is a hybrid offence, proceeded by indictment, so DNA is mandatory? MS. RITCHOT: It's my understanding ...

THE COURT: Just one moment. MS. RITCHOT: Unfortunately, I, I've forgotten my Code section. I apologize, Your Honour. THE COURT: It is a hybrid, depending upon Crown election, and the Crown has elected by indictment, so I think that makes it mandatory. So there will be a DNA order. You are to provide a sample of your blood suitable for analysis to be placed on the national DNA databank within 30 days. I do not see the necessity, it is a secondary, it is optional, a weapons prohibition. I decline a weapons prohibition. All right. I think that is all. MS. RITCHOT: Thank you.

THE CLERK: On the reporting, he is to report -- THE COURT: Oh. Yes, he is to report to a probation officer within five working days, and thereafter as directed. Yes, I neglected to do that. Just one moment. Anything else, Madam Clerk? MR. BOUCHER: Just if I might clarify, Your Honour? I think that Your Honour, at the -- on the onset, in giving the sentence, had said a conditional sentence. I think he was referring to a conditional discharge. THE COURT: Did I say sentence? All right. Can we change it on the transcript -- THE CLERK: Yes. I was just going to actually -- THE COURT: -- to discharge?

THE CLERK: Yeah, it was a conditional discharge, yes. THE COURT: That was clearly the intention, yes, I'm sorry. THE CLERK: Yes. MR. BOUCHER: And, and for the period of time that the probation was again? How -- THE COURT: Eighteen months. MR. BOUCHER: Eighteen months. Thank you, Your Honour. Nothing further. _____