R. v. Findlay, 2011 ONCJ 28

COURT FILE No.: Toronto Region, Metro North Court DATE: 2011·01·05 Citation: R. v. Findlay , 2011 ONCJ 28 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JOHN FINDLAY Before Justice Leslie Pringle Heard on April 23, 2010; July 30, 2010; August 19, 2010; September 22, 2010; November 18, 2010; December 20, 2010 Reasons for Judgment released on January 5, 2011 Mr. T. Morgan and Ms. C. Boyd………………………………………… for the Crown Mr. J. Erickson ……………………………………………………………. for the accused PRINGLE J.: 1.

Overview [ 1 ] On April 23, 2010, John Findlay pleaded guilty to a charge of breaking and entering a dwelling house. The offence took place on July 31, 2009, at a time when Mr. Findlay had been drinking. During the offence, he entered the home of an elderly woman, smashed the door with a crowbar and selected items of liquor, art work and a floor safe. He had a dolly cart to help him. The victim was not home at the time, but neighbours called the police. Mr. Findlay was found by police in the master bedroom, under the bed, with a wood chisel in his possession. [ 2 ] There was $600 damage to the front door.

Beyond the physical damage, however, the victim continued to feel unsafe and violated in her own home. [ 3 ] This matter has been before me many times since the plea was entered in April 2010, and both parties have filed materials at various times over the past six months. Mr. Findlay has a very long criminal record and the Crown submission is for a penitentiary sentence in the range of 4 years. Mr. Findlay is of aboriginal heritage. Recently, he has made significant efforts to rehabilitate himself and has made some progress.

The defence submits that I should impose a conditional sentence. [ 4 ] On December 20, 2010 Mr. Findlay appeared again, this time having successfully completed residential treatment for alcohol abuse and also anger management counselling with Aboriginal Legal Services of Toronto. At the time, all parties were anxious to complete the sentencing hearing and have me impose a final sentence. I imposed a conditional sentence of two years less a day and three years of probation, and promised more detailed reasons shortly. These are my reasons.

2. Position of the parties [ 5 ] The Crown position of 4 years in the penitentiary relies heavily on Mr. Findlay’s dismal history of involvement with the criminal justice system, and is summarized in the Crown factum as follows: The offender, Mr. Findlay, is before the court being sentenced for his 10 th break and enter offence. At 48 years old, he has amassed a criminal record with well over 45 entries beginning in 1980, 4 days proximate to his 18 th birthday. In reviewing his record, it is clear that an entirely consistent pattern of criminality emerges – there are no “gaps” in his record.

The pattern of behaviour spans a spectrum from drink/drive offences, to breaching court orders, to offences of violence. The offender’s last sentence was for robbery in which he received a 5 year sentence. During that sentence, he violated his parole on at least two separate occasions. 52 days after his warrant expired and the offender was released from the penitentiary, he committed the offence at bar.

Extremely fortunate to have been released on recognizance, he was charged with three new offences as a result of an incident where it is alleged he assaulted Ronald Kennedy, fracturing his knee cap, thereby causing bodily harm. [ 6 ] The Crown also draws on reports from Mr. Findlay’s past, where he has been deemed to be “high risk” to re-offend, and has responded poorly to probation. The Crown points out that in the past, Mr.

Findlay has been given opportunities to address his alcohol and anger management issues without success. [ 7 ] The Crown likens the offence at bar to a “home invasion” offence and submits that a conditional sentence would be manifestly unfit. [ 8 ] The defence takes issue with the admissibility of three reports relied upon by the Crown, submitting that they refer to private psychiatric interviews that can only be admitted after an O’Connor application. [ 9 ] In any event since the time of those reports, Mr. Erickson points out that Mr.

Findlay has made some real progress in his life, in particular since the time of these charges in the summer of 2009. After his release, Mr. Findlay was able to re-unite with his wife, resume his role as a father to his children aged 14 and 10, and to maintain employment as an assistant building superintendant in the building where he and his family lived. During that time, several tenants spoke well of him and the work that he was doing. For a year, Mr. Findlay remained sober and productive. [ 10 ] Mr. Findlay incurred new charges in July 2010.

At that time, he spent time in pre-trial custody, lost his job, and risked any progress he had made. However, his family stood by him and his father-in-law (a major in the Salvation Army) agreed to act as his surety. Mr. Findlay was released on strict conditions in August 2010, and has done very well since then. A bail review by the Crown was dismissed some time this fall. 3. Mr. Findlay’s aboriginal heritage [ 11 ] Mr. Findlay traces his aboriginal heritage through his mother, who is Ojibway. His father was of Scottish descent, and is now deceased. Mr.

Findlay was in the custody of his father from the time he was less than a year old, and did not meet his mother until he was around 20. Life with his father was difficult as his father was abusive, and Mr. Findlay spent some time in foster care, and later in a group home. [ 12 ] Mr. Findlay began drinking around the age of 12, and began to get involved in crime about the age of 13 or 14. He was frequently kicked out of school and finished only Grade 9. He ran away from home a number of times, spent time in a group home and at a training school.

At the age of 18, he received a sentence of 9 months in jail for a break and enter offence, which turned out to be the start of a long adult career of crime and punishment. Reports reveal that his offences were accompanied by a long standing alcohol addiction, and at times, a cocaine addiction. Mr. Findlay has also experienced ongoing problems with anger management. [ 13 ] Mr. Findlay told the Gladue caseworker:

I suspect my mom must’ve been drinking when she was carrying me ‘cuz when I first started drinking, and I know you might not believe me, but it was almost as if it’s what I’d been missing all that time. It was like it tasted familiar. I could drink and I wouldn’t get sick; not like my friends. [ 14 ] Little mention is made of Mr. Findlay’s aboriginal heritage in prior sentence materials or correctional reports. The Gladue report prepared for me suggested there was little contact with his mother, aside from one brief reunion in 1982 that “did not go too well”. [ 15 ] However, recently Mr.

Findlay’s father-in-law (who is also his surety), reported, “I truly believe that the programs that have been offered to John through Pattie and the Aboriginal Services are the best thing for John at this time and I really pray that John be able to continue in these programs and take advantage of all the services they are willing to offer him”. 4. The psychiatric reports [ 16 ] On December 20 th , Mr. Erickson objected to three reports previously filed by the Crown that referred to psychiatric reports or interviews carried out while Mr. Findlay was previously incarcerated.

He submitted that there was a privacy interest in these materials that required the Crown to bring an O’Connor application to determine if they should have been produced. [ 17 ] Unfortunately I find I must give short shrift to this argument in light of the way it came about. While on the one hand expressing a desire to deal with sentence immediately, on the other hand Mr. Erickson submitted I should deal with this last minute legal argument without notice to the Crown or the court, in relation to materials that were filed weeks ago.

I am not prepared to deal with the argument in that way. [ 18 ] This issue is not one that is settled in law, and my own very brief review of recent case law suggests different approaches from our Superior Court: see for example R. v. Middeljans, [2009] O.J. No. 5028 (S.C.J.) where Gordon J. held that an O’Connor application was not necessary for psychiatric materials relating to the accused obtained by way of a production order from a penitentiary; and R. v. Mumford, [2009] O.J.

No. 2599 (S.C.J.) where Marrocco J. followed the O’Connor procedure on a Crown application to obtain the accused’s psychiatric records from a mental health facility. [ 19 ] In this case, I have been given no information regarding how Mr. Findlay’s reports were obtained, or from where. Due to late notice (on the morning of sentence), the new Crown on the file had no opportunity to provide this information, nor to research the law or to make informed submissions. [ 20 ] I understand this is not the first time this matter has been raised in relation to Mr. Findlay, since a similar argument was made by Mr.

Erickson at a bail review at the Superior Court some weeks ago before Justice Croll. I am advised that she dismissed the defence argument and relied on the Crown’s materials, but I have not been provided with her reasons. If the defence wished to raise the issue again and to ask me to rule differently, a copy of Justice Croll’s decision should have been obtained. [ 21 ] In light of the way this argument came about, I don’t feel it is appropriate to deal with it in the absence of a proper foundation.

Considering that both parties urged me to come to a final determination on sentencing on December 20 th , I have proceeded on the same basis as Justice Croll, that is, that the materials were admissible before me. Accordingly, I have reviewed them and taken them into account. [ 22 ] The Crown materials demonstrate that Mr. Findlay’s history with the criminal justice system has been a dismal one. They confirm that the

summary of Mr. Findlay’s record and his past failings as set out in the Crown factum is accurate. In light of Mr. Findlay’s past performance, there is merit to the Crown submission that Mr. Findlay is indeed at risk to re-offend. [ 23 ] Notwithstanding that, in my view a conditional sentence is nonetheless a viable and reasonable option in this case.

5. Reports and progress since August 2010 [24] Since being released on very strict conditions of bail in August 2010, Mr. Findlay has been under house arrest with limitedexceptions for treatment or counselling. His family has stood by him, and he continues to live with his wife, children and parents-in-law. [25] On October 7th, Mr. Findlay completed the Aboriginal Day Withdrawal Program. He was reported to be an engaging and activemember of the group who was enthusiastic and genuinely interested in achieving the goals he set regarding substance abuse. [26] During this time, Mr.

Findlay also engaged in anger management counselling with Aboriginal Legal Services. He was describedas a strong participant with near perfect attendance, and someone who made great strides towards properly managing his anger andaddressing its root causes. [27] Mr. Findlay was admitted to the Aboriginal Inpatient Program at CAMH from October 21st to November 10, 2010. Hesuccessfully completed this program, with a report that he was a committed and engaged participant, even when it was challenging forhim. When he was overwhelmed by emotion and angry as he discussed his family of origin, Mr.

Findlay maintained appropriate use ofboundaries and found the tools to cope with his anger in a healthy way. [28] On sentencing, Mr. Findlay indicated that he learned and grew a lot at CAMH, and was looking forward to continuing with angermanagement in 2011 if he was permitted to do that. He recognized that this was just the beginning for him, and expressed interest infurther residential addiction counselling at Rainbow Lodge or through the Salvation Army’s Turning Point. 6. Case law and analysis [29] Breaking and entering a dwelling house is an extremely serious offence, punishable by life in prison.

The sanctity of the homehas long been jealously guarded by the courts, and stiff penalties for violating that sanctity are often imposed. In R. v. Carvalho, (ON CA), [2006] O.J. No. 1626, the Ontario Court of Appeal upheld a sentence of 5 years imposed upon an accused whobroke into a shed attached to a home while the female occupant was home. The accused was 32 years of age and had 45 priorconvictions, including 14 prior convictions for break and enter.

The Court acknowledged that the sentence was a stiff one, but noted thataggravating factors included that the female occupant was home, the accused’s record was lengthy and he was on parole at the time. [30] However, in R. v. Downey, [2006] O.J. No. 1289 (C.A.), the Court reduced a 21 month sentence to one of 12 months for breakand enter of a dwelling house. In that case the accused was 37 years old, had 37 prior convictions, including 14 for break and enter. Although the trial judge imposed a sentence of 21 months, the Court of Appeal held that he was wrong to do so in light of a jointsubmission for 12 months.

The sentence was reduced to one of 12 months. [31] Where an offender enters a dwelling house to commit a crime while knowing or being reckless that the occupants are home, thisform of break and enter is often termed a “home invasion”. When accompanied by the use of weapons, threats of violence or theconfinement of the occupants, such crimes may warrant sentences in the range of 5 – 8 years or higher depending on the circumstances: R. v. Wright (2006), (ON CA), 216 C.C.C. (3d) 54 (Ont. C.A.). [32] Yet, even in cases of home invasion, our Court of Appeal has sometimes seen fit to impose a conditional sentence.

In R. v. Jacko,2010 ONCA 452 , [2010] O.J. No. 2583, the accused was an aboriginal offender who participated in a violent home invasion inthe aboriginal community, punching and kicking one of the victims and pushing his head through the drywall during the commission ofthe offence. He had a prior record including violence, and numerous probation orders. However, since the time of the event, there wasevidence of a significant and remarkable change in the young man’s life, including completing school, abstaining from drugs or alcohol,entering into a stable relationship and being a good father to two children.

In the circumstances, the Court imposed a conditionalsentence of two years less a day. [33] In this case, I would not characterize Mr. Findlay’s offence as a “home invasion” in the sense recognized by the case law. Whilethe offence was indeed an invasion of privacy and one which resulted in violence to the sanctity of the victim’s home, the victim wasaway staying with relatives at the time. Therefore, whether by luck or by design, there was no occupant at home and no personal

violence was carried out during the offence. Mr. Findlay had no weapon such as a gun or a knife. Taking into account cases such as Downey and Jacko , I don’t think a conditional sentence is out of the range of permissible sentences for Mr. Findlay’s offence. [ 34 ] Moreover, in looking at the appropriate range, Mr. Findlay’s aboriginal heritage cannot be ignored. As Justice Watt put it in Jacko : Aboriginal status does not guarantee a conditional sentence. It is, nonetheless, an important factor for the sentencing judge to consider in determining whether to impose a conditional sentence. [ 35 ] Here, Mr.

Findlay may not have undergone the “epiphany” that was described in the Jacko case. Yet, he has made significant and purposeful strides in a direction that he has apparently not pursued with any diligence in the past. On December 20 th , these efforts were acknowledged by the Crown to be “concerted and successful”. [ 36 ] Mr. Findlay’s past history is bleak and of course there is a risk that he won’t succeed in breaking his past cycle of failure. However, he spent a year from July 2009 to July 2010 that was productive and alcohol free, before incurring new charges.

Since August 2010, he has shown that he is committed to dealing with his alcohol and anger issues. More than that, for the first time in his life, he has actually demonstrated an ability to successfully complete both addiction and anger management counselling. He has a wife and family who are supportive of him, and programs in place to assist him. As Justice Watt stated in Jacko : In cases such as these, we must do more than simply acknowledge restorative justice sentencing objectives and note approvingly the rehabilitative efforts of those convicted.

They must have some tangible impact on the length, nature and venue of the sentence imposed. [ 37 ] On a conditional sentence, Mr. Findlay will be supervised by a conditional sentence supervisor on strict terms and conditions. In his situation, he will also continue under the close supervision of his father-in-law and surety until his outstanding charges are dealt with in June of 2011. In these circumstances and with his past history, Mr.

Findlay understands that if he commits further offences while on release and/or serving his conditional sentence, the consequences will be an almost certain return to jail. [ 38 ] At the time of sentencing on December 20 th , I stated that with strict conditions and with continuing supports in place for treatment, I did not believe that the safety of the community would be endangered by having Mr. Findlay serve his sentence in the community. Indeed, in the long run, it is my view that society and the community will be safer if Mr. Findlay continues with the progress he has made. Frankly, to throw Mr.

Findlay back in jail now would likely guarantee that all that has been gained will be lost. [ 39 ] Accordingly, for the reasons I have now explained, on December 20, 2010 I imposed a conditional sentence of two years less a day followed by three years of probation. I made an order for DNA and waived the victim fine surcharge. The terms and conditions were that through-out the conditional sentence Mr.

Findlay must: • Reside with his father-in-law William Bowers, or at an address approved by his conditional sentence supervisor • Continue to attend at Aboriginal Legal Services anger management and provide proof to his conditional sentence supervisor • Continue to work with Aboriginal Legal Services and with the approval of his conditional sentence supervisor to address alcohol issues through a combination of further residential treatment or after care, which after care must be at a minimum of one time per week • Not to consume any alcohol or drugs • Not to attend at the address of the victim, 501 Rathburn Rd [ 40 ] In addition, for the first 16 months of the conditional sentence, Mr.

Findlay will be under house arrest with exceptions only: • To obey a condition of the conditional sentence such as alcohol or anger management counselling

• While on bail for his outstanding charges, in the company of Mr.

Bowers his surety • When not on bail, for the purpose of volunteer or paid employment as approved by his conditional sentence supervisor • For a medical emergency for himself or an immediate family member • For any reason permitted in advance by his conditional sentence supervisor in writing, including attendance at a sweat lodge as arranged by Aboriginal Legal Services and if approved by his conditional sentence supervisor • To comply with any condition of his bail or for the purpose of attending court • For the purpose of personal errands on Saturday between noon and 3 pm • For religious observance on Sundays between 10 am and 1 pm at the Salvation Army Church [ 41 ] For the next 8 months, Mr.

Findlay will obey a curfew of 9 pm to 6 am, with limited exceptions. Thereafter he will be on probation for 3 years. Released: January 5, 2011 Signed: “Justice Leslie Pringle”