R. v. Henry, 2016 ONCJ 146

CITATION: R. v. Henry, 2016 ONCJ 146 ONTARIO COURT OF Justice Central West Region Her Majesty the Queen -and- Jerry Dell Henry Proceedings conducted, 08 December 2015 at Brantford, Ontario Decision and Reasons issued March 15, 2016 Appearances: Wade, E. for the Province of Ontario Dover, S. for the Defendant Statutes Considered or Cited: Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, as amended (“CAIA”) Highway Traffic Act, R.S.O. 1990, c. H.8, as amended (“HTA”) Provincial Offences Act, R.S.O. 1990, c. P.33, as amended (“POA”) Cases Considered or Cited: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 R. v.

Ipeelee, 2012 SCC 13 Decision of the Court 1. I find that the appropriate penalty is a fine of $1200 in relation to the offence of drive suspended and $750 for the insuranceviolation. The reasons and rationale in support of this determination are set out below. Having regard to Mr. Henry’s circumstances, Iwill endorse the information allowing him twelve months to begin payments towards these obligations and I am confident Ms. Doverwill explain to him the process for requesting additional time beyond that initial period. Background and Representations 2.

The matter before me for sentencing follows a plea of guilty to counts of “drive suspended” contrary to s.53 of the HTA and“owner operate no insurance”, contrary to s.2(1) of the CAIA. Mr. Henry was also charged with offences of “use plate not authorized”contrary to s. 12(1)(

d) of the HTA, “careless driving” contrary to s.130 of the HTA, as well as two additional counts of “drivesuspended”. After the statutory plea inquiry, basic allegations being provided to the court and conceded by the defence, and anacknowledgement that there was no lawful reason for the improper conduct nor any defence to the charges, convictions were entered. 3. The Crown seeks the statutory minimum fines for each offence, being two thousand dollars for the drive suspended (therebeing a prior conviction for this count) and five thousand dollars for the insurance violation.

4 . The defence argues that the Court should impose a suspended sentence or, at the most, minimal fines, having regard to the circumstances of the defendant and the principles set out in R. v. Gladue and R. v. Ipeelee . In the alternative, and in response to inquiries by the Court, Ms. Dover advocated that the Court impose a period of probation in addition to the suspended sentence. She argued that this would afford the hope that a probation officer restore him to a path of obtaining extensions of time to pay any outstanding fines and eventually allow him to be a licenced driver.

In addition, she advocated that the probation officer would stand in the place of the aboriginal community, to address the Court’s concern that the principles in Gladue to provide assistance in establishing a penalty that is meaningful to the offender. 5 . The Crown made no representation with respect to the applicability of the Gladue principles in this case. Issues and Analysis 6 . In R. v. Ipeelee , the Supreme Court of Canada established parameters for sentencing as follows: When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors that may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report.

Courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his or her right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders.

Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his or her duties under s.718.2(e). 7 . It is key to understanding this case to appreciate the full circumstances that bring the defendant to court. He was driving while his licence was suspended; he owned the motor vehicle he was driving but had no insurance on the motor vehicle. Further, Mr. Henry has never had a driver’s licence.

At some time in 1992 he was convicted of impaired operation of a motor vehicle. He had not been previously licensed to drive a motor vehicle. He was issued driver’s licence number to record the automatic “licence” suspension, by operation of the HTA . Hence, suspension number one. He then failed to pay a fine or fines he incurred and attracted suspension number two. He was then ordered to take a remedial driving programme (in 2011) and failed to do so: suspension number three. At present, he has amassed something in the order of $2500 in outstanding fines and surcharges.

He has an income of just over six hundred dollars a month and struggles to maintain shelter and basic necessities. 8 . Ms. Dover advocates that any penalty must be shaped to encourage his rehabilitation, which, as she defines it, would address the question “how can this court drive home the possibility that he can have a valid driver’s licence in a way that meets those broader penological objectives?” 9 . In coming to this submission, Ms.

Dover invites me to consider his respect for and engagement with his aboriginal heritage and his craft as a carver; he is dedicated to Longhouse traditions and a participant in the medicine society. She advises me he is connected to his broader community in assisting Elders. Mr. Henry’s family history includes being in the residential school system. 10 . Ms. Dover further invites me to consider the community circumstances which she describes as including “the commonality … for people not to have driver’s license, not to register their cars and not to have insurance”. 11 . Ms.

Dover argues that the Court must avoid the hard-headed insistence that they [ed. Note: Aboriginal defendants] move into the mentality of the Canadian justice process despite the tens of, perhaps hundreds of years of ineffectiveness in creating sentences that speak the Aboriginal community more generally or the Aboriginal offender before the court.” And, at another point, Ms. Dover reflects on the relationship between the Aboriginal community and the mainstream court system and suggests that Justice Iacobucci identifies a “fundamental gap in the notions of justice.

That gaps is then re-iterated, for example, in Justice Iacobucci in his report about the justice system that underscores that, as expressed by Ms.

Dover “Aboriginal people do not trust us; they do not trust the justice process, that there is this massive two different worlds between what Aboriginal people experience versus the justice system…“ Accordingly, Ms Dover invites the court to shape a penalty where Jerry Henry feels that it is permissible for him and meaningful for him, despite the commonality on the Reserve, for people not to register their vehicles, get insurance and follow through with these regulatory requirements? 12 . Finally, Ms.

Dover relies on an assertion that, in the context of an Aboriginal community that is dis-inclined to obtain driver’s licences, properly register their ownership of their vehicles or secure and maintain proof of insurance, that, when the occasions drivers get caught, charged and convicted, they have no community supports to assist them in understanding the court process, and in particular, the opportunity to make Motions for Extension of Time to Pay.

As a result, such offenders, when convicted, essentially descend into an unfathomable morass and then simply elect to avoid the system in its entirety, thereby exposing themselves to an unenviable cycle of failing to pay fines, continuing to drive outside the regulatory framework and mounting unaffordable fines. 13 . To better prepare to assess these submissions, I reviewed once again the decision in R. v. Gladue .

14 . From that review, I drew a number of relevant points: a. The present case does not involve any request for incarceration b. I must be mindful of the need to align the aboriginal concepts of sentencing and the needs of the aboriginal people and communities c. I should endeavour to employ sentencing that “will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime” d. I should attempt to craft a sentence that advances healing and restoration of the offender and the community e.

I cannot expect to resolve all of the challenges faced by the community through reliance on innovative sentencing principles f. I can be confident that traditional sentencing concepts of specific and general deterrence apply. 15 . In this particular case, the Crown does not seek to obtain a custodial disposition. Indeed, no custodial disposition is available for the insurance offence. 16 . Although it was not put in issue, I am satisfied that the principles in R. v. Gladue apply to matters such as these pursuant to the Provincial Offences Act .

That said, the over-riding focus of the Gladue principles focusses on the over-incarceration of aboriginal offenders. This case does not involve a request for custody and as such, the primary focus of the Gladue principles is not triggered. Notwithstanding, Ms. Dover argues that I must consider the context and circumstances that bring this offender to Court. 17 . In that regard, I am aware that the “drive suspended” conviction does allow for both monetary and custodial dispositions and as such, at least the possibility of custody is open for the Court to consider, the position of the Crown notwithstanding.

However, I agree that custody is not appropriate or required in this case, regardless the status of the offender as a member of the First Nations community. 18 . In that regard, it is clear that Mr. Henry has suffered from the effects of alcohol abuse (as manifested, as a minimum, by the conviction for impaired operation). He has a family history that includes being subjected to the residential school system. 19 . As indicated, Ms.

Dover submits that I take note of the number of members of the aboriginal community who come to court to face charges related to licensing, registration and insurance of motor vehicles, in support of the proposition that Mr. Henry’s reduced commitment to complying with the related laws is understandable.

Further, I ought accept that members of that community are likewise doubly beset because of their lack of access to the court locations (there being no public transportation to courts and costs of taxis being prohibitive), making it impractical if not impossible to exercise options of requesting extensions of time to pay.

Finally, she also invites me to conclude that given inability to gain remunerative employment in combination with his lack of access to courts and lack of understanding of and support for addressing outstanding fines results in an overwhelming sense of facing an insurmountable challenge in regularizing his driving status, vehicle registration and insurance obligations. 20 . That said, it is clear that Mr. Henry has a long history of driving without first obtaining a licence and indeed continuing to drive while that “licence” was suspended administratively, as a result of an alcohol related driving offence.

At the same time, he has not, apparently, been involved in motor vehicle accidents which resulted in loss as a result of property damage or injury to individuals. Although Mr. Henry was charged with the offence of careless driving, I have no information about the circumstances giving rise to that charge and cannot make any inferences regarding the impact of his driving on either himself or the community, or, therefore, how that may have been an aggravating circumstance in relation to these offences. 21 .

I am troubled by the defence assertion that members of the Six Nations community hold a view that adherence to licencing, registration and insurance obligations are not considered community values. To adopt or endorse such a view – particularly as in this case unsupported by admissible evidence (as opposed to unchallenged representations by the defence) – would be tantamount to relinquishing any notion of regulation of the operation of motor vehicles by members of this community.

This is inconsistent with the principles expressed throughout the line of cases flowing from Gladue which upholds the need for “balance to the offender, victim, and community, and in preventing future crime”, perhaps most importantly prevention of future disregard for the rules of the road and implicit need to advance public safety, and general and specific deterrence, in determining a fit sentence. 22 .

The representation that there are no community resources available to assist members of the community to navigate through the justice system as it applies to regulatory matters such as those arising under the HTA or the CAIA fails to assist me in adopting the defence position that this should explain why the offender has failed to pay the fines he has been assessed.

Experience in court suggests that this fails to distinguish this particular offender and other members of this community from other defendants and communities, where folks display lack of knowledge of the systems or processes in relation to charges, convictions or payment of fines. Accordingly, I am unwilling to allow that as an explanation for inattention to fine payment or resistance to continued driving while under suspension. 23 . I am not persuaded that precepts of “restorative justice” require me to be optimistic that the offender may be, at some future point, able to be licenced to drive.

The goal of rehabilitation can be achieved through his acceptance that he is not able to drive unless properly licensed or that he own and operate a motor vehicle only when properly insured. I note that the s.31 of the HTA expressly provides, under the heading “Driving a Privilege”, that The purpose of this

Part is to protect the public by ensuring that, (

a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely. In this case in particular, it is clear that Mr. Henry has not treated driving as a privilege; he has never even qualified to be licensed and must take a series of steps toward any eventual goal he may have in regard to driving. However, I am satisfied that the first

step is for him to stop driving while not permitted. 24 . In relation to types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender, defence suggested that I rely on the probation officer to assist the defendant in taking steps to position himself to be able to drive lawfully, by, for example, requesting and obtaining extensions of time to pay for existing fines.

However, I heard no meaningful suggestions of conditions I could impose and which a probation officer could enforce which would resolve his driving while under suspension or owning and driving an uninsured motor vehicle. 25 . Notably, this case involves driving behaviour which occurred many months prior to the guilty plea. Ms. Dover was on record as representing this offender for a period covering a number of months. Anticipating that counsel is fully versed in the procedures related to requesting extensions of time to pay, I note that the defendant has yet to bring any such applications.

No explanation was offered as to how the probation officer would be distinguished from any other cog in the system of the administration of justice (including his own advocate and legal advisor) from which the defendant is estranged or how such advice would overcome the community sentiments in relation to obtaining licensing, registration and insurance. 26 . Clearly, the minimum fines sought by the Crown will exceed a level that would be onerous to Mr. Henry, and would likewise be oppressive in the circumstances.

To that extent, I am authorized to apply the provisions of s.59(2) of the POA , which provides Although the provision that creates the penalty for an offence prescribes a minimum fine, where in the opinion of the court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence. 27 . Accordingly, and remaining mindful of the many unfortunate circumstances which are reflected in Mr.

Henry’s background as a member of the First Nations community, but relying principally on the authority granted me under s.59(2) of the POA , I am imposing the fines as set out above. Issued at Brantford, Ontario, March 14, 2016 _____________________________ His Worship Donald Dudar Justice of the Peace