R. v. Whitehead, 2013 ONCJ 504

Court File #: 13-5875 August 2, 2013 at London, ON Citation: R. v. Whitehead , 2013 ONCJ 504 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN -AND- SCOTT WHITEHEAD REASONS FOR SENTENCE B. White for Crown B. Basiga for Mr. Whitehead GEORGE J.: [ 1 ] On October 29, 2012 Scott Whitehead was ordered into a recognizance pursuant to

section 810.2 of the Criminal Code of Canada . This order emanates from the Saskatchewan Provincial Court and is to expire on October 29, 2013. On the record before me, it is clear such an order was appropriate as it was likely Mr. Whitehead was going to commit a serious personal injury offence. His record comprises the better part of 3 full pages. On fourteen prior occasions he has been convicted of violent offences. An aggravated assault conviction in 2007 attracted a four year penitentiary sentence and he has twice been convicted of robbery.

The list is too long to reproduce here but of significance is the fact he has on three prior occasions breached a high risk offender recognizance. [ 2 ] The recognizance in question contains many terms. Mr. Whitehead acknowledges a failure to notify and seek the approval of the police before changing his address. In addition, he has pleaded guilty to uttering a threat to burn the real and personal property of an individual contrary to

section 264.1 of the Criminal Code . [ 3 ] The facts giving rise to these two offences are as follows. Mr. Whitehead was approved to live with his mother at an apartment

complex on King Edward Drive in the City of London. At some point he was asked by his mother to leave her home. He did so and did not advise the police nor seek approval for a new residence. At a later time Mr. Whitehead returned to the apartment complex and attempted to enter his mother's unit, I believe in an attempt to retrieve some of his belongings. In demanding entry, Mr. Whitehead banged on the door. After receiving no response, he attended at the unit of Stanley Smith, his mother’s partner and a resident of that same complex. Present inside this unit was Mr. Smith, Mr.

Whitehead's mother, and his six year old brother. Upon being informed he was not permitted inside, Mr. Whitehead yelled that he wanted his stuff and that he was going to “burn the place down”. Vulgarities and insults followed. [ 4 ] Mr. Whitehead was arrested on February 3, 2013. He has remained in custody since and has now accumulated 180 days of pre- sentence custody. He was ordered detained after a show-cause hearing with the presiding Justice of the Peace making an endorsement pursuant to section 515(9.1) of the Criminal Code .

Enhanced credit is therefore not available. [ 5 ] The Crown stresses the seriousness of the breach, arguing that it’s aggravated by its combination with

an act of violence. It submitted a case brief which suggests, for breaches like this, an appropriate sentence range of somewhere between 12 and 15 months jail. The point is made that high risk offender breaches are by its nature serious and should always attract significant consequences. After taking into account all things to be considered to Mr. Whitehead's credit, and after applying the sentencing principles relevant to aboriginal offenders, the Crown advocates for a 9 to 12 month jail sentence minus the pre-sentence custody. It seeks a 3 year probation order; a

section 110 weapons prohibition and a DNA order. [ 6 ] The defence seeks a time-served disposition arguing that the six months already served is more than sufficient. They support the imposition of a probation order and do not oppose the ancillary orders sought. [ 7 ] Several exhibits have been filed. In addition to the criminal record, I received a letter from Mr. Whitehead's mother Theresa Goulais and a Crown Transcript/Document Brief.

This brief contains the recognizance; transcripts of proceedings from sentencing matters during a period beginning in 2006 and ending in 2007; as well as various reports from Corrections Canada and the National Parole Board. [ 8 ] 25 year old Mr. Whitehead is an aboriginal person; a member of the Nipissing First Nation. His background and current circumstances are detailed in a Gladue Report prepared by the local Native Friendship Center. It describes a most difficult background rife with trauma and hardships.

He was exposed to alcohol and violence and spent considerable periods in the care of child protection agencies. At the age of six Mr. Whitehead's father was murdered which has left an indelible mark on him and his family. While in care, Mr. Whitehead moved frequently between group homes and foster homes. He was a victim of abuse while at one of the foster homes and exhibited difficult behaviours while in any group home setting. After his initial encounter with the criminal justice system as a youth, his life, according to the report began to "spiral out of control".

Sadly, this has continued through his teen and early adult years. Mr. Whitehead's pattern suggests a continued reliance on alcohol and substances, which inevitably leads to offending conduct. Minimization and denial of any addiction issues typically follows. [ 9 ] His alcohol consumption is a serious problem which needs to be addressed. Quite apart from his addictions, there are significant anger issues which need to be managed. His lack of education and tragic past has most certainly fostered low self-esteem and a low tolerance for others.

The sense I have is there is a feeling of inferiority that leads to him becoming easily frustrated, particularly if he feels he is being even slightly disrespected. This is typically accompanied by a wild overreaction, usually in the form of violence. The anger issues have not been addressed which creates a real and substantial public safety issue. [ 10 ] In arriving at a jail sentence for an aboriginal offender a very different path must be taken. Sentencing judges are tasked with being, if they can, remedial in imposing sentence.

That is, if a reasonable alternative to custody exists, it must be seriously considered paying particular attention to their circumstances. This is, in part, a way of reducing the number of aboriginal people in Canada's prisons, which is wildly disproportionate to population figures, as we know them.

The Supreme Court of Canada has accepted the notion that insofar as aboriginal offenders are concerned, their history and the conditions they collectively endure has created a sense of hopelessness and despair which leads to a disproportionate number of them relying on alcohol and substances, a toxic combination which inevitably leads to criminal behaviours. This is not an excuse or justification rather an explanation, which may impact moral culpability.

In terms of the sentencing process, it is a proportionality issue as, in addition to the many other principles of sentence, an offender must be sentenced in accordance with their degree of responsibility. Therefore, as a matter of not only common sense, but in accord with the Supreme Court's direction in R. v. Gladue , when jail is an unavoidable conclusion its length must be carefully considered. [ 11 ] In Mr. Whitehead's particular circumstances, hope is not lost respecting rehabilitation.

He, no doubt, poses a risk to public safety but a fit sentence should be determined based on the crime before the court, assessed in conjunction with the offender's background and prior record. Public protection is a relevant factor and, notwithstanding the fact one is aboriginal, if an offender needs to be separated from society for a period of time than they should be. However, a fit sentence should not be extended solely as a protective measure.

[ 12 ] Defence counsel, in expanding upon the recommendations contained in the report, advocates that there is a viable plan which makes a non-custodial disposition palatable. The plan is essentially this - that he establish contact with the local Native Friendship Center and engage its support groups, individual counsellors and after care workers. Also, that he establish a relationship with the centre's healing and wellness program which would facilitate his involvement in traditional teachings and ceremonies which, at least the hope is, would provide some balance in his life.

Nothing else has worked to this point. The report also notes the option of Mr. Whitehead attending the KiiKeeWanNiiKaan Southwest Regional Healing Lodge, specifically its residential men's healing program. Individual therapists are available as well to assist Mr. Whitehead with what are clearly childhood trauma issues. [ 13 ] In detailing this plan further, the defence advises that there is a stable residence available to him upon release. Even though he cannot return to his mother's residence, his partner plans on resuming her relationship with Mr.

Whitehead and has indicated he is welcome in her home. [ 14 ] Having weighed the evidence, and after considering the applicable principles of sentencing, in particular those relevant to aboriginal offenders, I believe a period of incarceration in the seven to eight month range is appropriate. Taking into account pre- sentence custody, I impose a further 45 days jail. I will permit its service on an intermittent basis such that Mr. Whitehead will be held in custody until this coming Sunday evening, August 4th at 6pm when he'll be released.

He'll surrender himself at the jail again on Saturday August 10th at 9a.m. at which time he'll be held in custody over night until Sunday August 11th at 6pm. He'll continue to serve this sentence in a similar fashion on consecutive weekends until the sentence is served in full. For clarity the endorsement should indicate the entire period of pre-sentence custody plus the 45 days for the breach offence. We will note only 3 months of the pre- sentence custody in addition to the 45 days for the threat offence. It is a concurrent 45 day jail sentence. [ 15 ] I make a three year probation order which commences today.

The statutory terms apply of course. Mr. Whitehead will report to probation. He will do that first before the end of business hours on Monday August 5th, 2013 and thereafter as required. He will not associate or communicate either directly or indirectly with his mother Theresa Goulais or Stanley Smith, except with their written revocable consent, said consent first to be filed with probation. He will not attend at 117 King Edward Avenue, London, Ontario or any other known place of residence, education or occupation of Mrs. Goulais or Stanley Smith except with their written revocable consent. Mr.

Whitehead will be prohibited from possessing an incendiary device or anything that could be used to start a fire. The most important term will require him to undertake any assessment and take such counselling that’s recommended by probation, in particular for anger management, substance abuse, alcohol abuse, grief counselling and mental health issues. Instead of naming each of the proposed therapists and counsellors mentioned in the report, I will indicate simply that any recommended counselling be First Nation based and culturally specific. Mr.

Whitehead will sign whatever consents or authorizations that are necessary in order that his progress in treatment and counselling can be monitored by probation. While serving the intermittent jail sentence, he will be required to report to the jail on time and in a sober condition. [ 16 ] I decline to make an order under

section 110, as it would needlessly generate paperwork. Two lifetime

section 109 orders are in effect. I decline to make a DNA order, as it’s my understanding his sample is already in the database. These are secondary designated offences. Released: August 2, 2013 “Justice Jonathon C. George”