R. v. Johnston, 2022 ONCJ 442

ONTARIO COURT OF JUSTICE CITATION: R. v. Johnston , 2022 ONCJ 442 DATE: 2022 07 04 COURT FILE No.: Belleville 210778 B E T W E E N : HER MAJESTY THE QUEEN — AND — Heath Johnston Before Justice E. Deluzio Heard on December 6, 2021, May 30, 2022, June 9, 2022 Reasons for Judgment released on July 4, 2022 K. Hunter ............................................................................................... counsel for the Crown Y.

Obouhov ....................................................... counsel for the accused Heath Johnston Deluzio J.: [ 1 ] On December 6, 2021, Heath Johnston pleaded guilty to one count of Trafficking in Cocaine and one count of Trafficking in Crystal Methamphetamine, contrary to section 5(2) of the CDSA and one count of Possession of Proceeds of Crime contrary to

section 354 of the Criminal Code . [ 2 ] Mr. Johnston was arrested following a CDSA investigation and the execution of CDSA search warrants on April 8, 2021. Just prior to the execution of warrants at three separate residences, Mr. Johnston was arrested in a vehicle he was operating. Both Mr. Johnston and his passenger, a co-accused, were arrested for Trafficking. In the car being driven by Mr. Johnston, police found approximately one kilogram of cocaine and one kilogram of crystal meth and $9,950.00 in cash. [ 3 ] Mr. Johnston is 31 years old and Indigenous.

His mother is Sheshegwaning First Nation from Manitoulin Island. Mr. Johnston’s maternal grandmother, and her siblings are residential school survivors. Mr. Johnston’s grandmother participates in Indigenous practices such as smudging. Mr. Johnston reports that his learning of his Indigenous culture has been through his grandmother and a maternal aunt and uncle.

[ 4 ] A Pre-Sentence Report and a Gladue Report were prepared for the sentencing hearing. [ 5 ] Mr. Johnston reported to the author of the Pre-Sentence Report that prior to these charges he was living a stable, happy and drug free life with his partner Jessica Wydeman and her three children in Oshawa. He has always worked seasonally in construction but had obtained full time work installing sprinkler systems and fire alarm panels in residential homes. Mr. Johnston described the four years before these charges as the most stable period in his life. Unfortunately, Mr.

Johnston was laid off in August 2020 due to the pandemic lockdowns. He didn’t qualify for the CERB government benefits or EI benefits and the loss of his job and income caused him severe emotional and financial stress. Mr. Johnson reports that he started using drugs again which ultimately led to his separation from Ms. Wydeman. He moved to Belleville where he was began selling drugs initially to pay for his own addiction and a place to live. His drug use and drug selling escalated quickly, to selling significant quantities of cocaine and crystal meth. [ 6 ] At page 18 of the Gladue Report, Mr.

Johnston describes the impact of losing his job during the pandemic: When you go from working for four or five years straight to not being able to go and land a job at all, not being able to go to work due to everything else that’s going on in the world. Like it wasn’t a personal choice. I mean, yeah, everything else was a personal choice, but not being able to work physically, not being able to get up and go and do what I was doing to keep myself busy. Like that definitely impacted everything… [ 7 ] The author of the pre-sentence report writes that Mr.

Johnston: Has had a strong history of being employed and needs one more credit to complete his high school education. The break in his career was not chosen and instead was a result of the COVD 19 pandemic frequent lockdowns in the province of Ontario that left him in a position where the absence of an income became quickly overwhelming and instead of seeking other forms of employment, the subject returned to using cocaine and then became involved in trafficking street drugs.

He has a large amount of remorse for having this lapse in judgment but has remained focused on taking steps to improve his future. [ 8 ] Jessica Wydeman was interviewed for the Gladue Report and confirmed that Mr. Johnston “got back into drugs” when he lost his job and their relationship suffered as a result. During the sentencing hearing, Mr. Johnston told the court that he and Ms. Wydeman are in a relationship now and she is supportive of him. Mr. Johnston’s brother, Jamie, confirmed to the court that in his role as surety he has facilitated Mr. Johnston’s contact with Ms.

Wydeman and her children either by going with Mr. Johnston to visit Ms. Wydeman or having Ms. Wydeman at his home. [ 9 ] Mr. Johnston has reported to the authors of the PSR and the Gladue Report that his mother struggled with mental health issues including depression and substance abuse, and his father struggled with alcohol addiction. Mr. Johnston described himself and his younger siblings as “pretty much raising ourselves for a long period of time”. He and his siblings were apprehended and placed in a foster home for five days when he was 9 or 10 years old. [ 10 ] Mr.

Johnston’s father, Heath Ewins was interviewed for the Gladue Report and confirmed that CAS was extensively involved with the family and stated: We had Children’s Aid involved, God, I want to say probably since the time that Heath was about six or seven. Children’s Aid was always involved mainly because his mom and I were both alcoholics, drug addicts. For the most part, we were involved with drugs and alcohol through our entire lives…. [ 11 ] Mr.

Johnston reports moving frequently while growing up and told the author of the Gladue Report that during his childhood “there was never really anything stable or permanent”. Mr. Johnston also described being subject to neglect by his mother and harsh and excessive discipline by his father. Mr. Johnston struggled with schooling which he attributes to his unstable home life and frequent moves and school changes. He obtained most of his high school credits while in youth custody and is one credit short of obtaining his grade 12 diploma. [ 12 ] It is clear from the PSR and the Gladue Report that Mr.

Johnston’s personal struggles with alcohol and drug addiction played a significant role in these offences. [ 13 ] Mr. Johnston’s maternal grandmother is a residential school survivor who has struggled with alcohol addiction throughout most of her life. Mr. Johnston’s mother, who is one of Mr. Johnston’s sureties and was present in court during the sentencing hearing, has also

struggled with addictions and depression. It is clear that she still struggles acutely with mental health issues. The initial date set for thissentencing hearing had to be adjourned at Mr.

Johnston’s request because his mother had attempted suicide and was in hospital. [14] At page 11 of the Gladue Report the author discusses the impact of residential schools and their contribution tointergenerational trauma which manifests in post traumatic stress passed down through generations, alcohol abuse, fetal alcoholsyndrome and family violence. [15] The author of the Gladue report writes at page 21 of her Report that Mr.

Johnston’s involvement with child protection serviceswhile growing up, his family history with substance abuse and his own struggles with addiction are, unfortunately, consistent with theexperiences of many Indigenous people in Canada. [16]

Section 718.2(

e) of the Criminal Code, which came into force on September 3, 1996, as part of a Bill codifying the purposes andprinciples of sentencing in s.718 of the Code, provides as follows: All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victimsor to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders,specifically directs, while the restraint principle should be considered for all offenders, particular attention should be given to thecircumstances of aboriginal offenders. [17]

Section 718.2(

e) directs a court in imposing a sentence to consider all available sanction other than imprisonment that arereasonable in the circumstances for all offenders with particular attention to the circumstances of aboriginal offenders. As a generalsentencing principle, s.718.2(

e) applies to all offenders and directs that prison is to be used only where no other sanction or combinationof sanctions is appropriate to the offence and the offender. [18] The wording of s.718.2(

e) requires the court to exercise restraint and consider alternatives to the use of imprisonment, and torecognize the unique circumstances of aboriginal offenders. [19] In R v Gladue, (SCC), [1999] 1 S.C.R. 688, the Supreme Court of Canada held that s.718.2(

e) is a remedialprovision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons and to encouragesentencing judges to have recourse to a restorative approach to sentencing. [20] At paragraph 50 of the Gladue Decision, Justices Cory and Iacobucci write: The parties and interveners agree that the purpose of s.718.2(

e) is to respond to the problem of overincarceration in Canada and torespond, in particular, to the more acute problem of the disproportionate incarceration of aboriginal peoples. [21] In the Gladue decision, the Supreme Court refers to testimony by then Minister of Justice Alan Rock, before the House ofCommons, on November 17, 1994. The Minister addressed the specific role the government hoped would be played by s.718.2 (e): The reason we referred specifically there to aboriginal persons is that they are sadly overrepresented in the prison populations ofCanada….

Nationally aboriginal persons represent about 2% of Canada’s population, but they represent 10.6% of person in prison.Obviously, there’s a problem here.

What we’re trying to do, particularly having regard to the initiatives in the aboriginal communities toachieve community justice, is to encourage courts to look at alternatives where it’s consistent with the protection of the public-alternatives to jail – and not simply resort to that easy answer in every case. [22] Thirteen years later, in 2012 the Supreme Court of Canada released a second decision, R v Ipeelee, 2012 SCC 13 ,[2012] 1 R.C.S. 433, dealing with s.718.2 (

e) and the sentencing of Aboriginal Offenders. The Ipeelee decision reviewed and consideredthe principles governing sentencing of Aboriginal offenders in the context of deciding whether these “Gladue principles” apply whensentencing an aboriginal offender who has breached a long term supervision order. [23] Referring to the Gladue decision, Justice LeBel writes at paragraph 59:

The court held, therefore, that s.718.2 (

e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-aboriginal offenders. When sentencing an aboriginal offender, a judge must consider: (

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

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

b) the types of sentencing procedures and sanctions which 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. [ 24 ] Unfortunately, by the time the Ipeelee decision was released 10 years ago, it was already clear that the Gladue decision’s

interpretation of s.718.2(

e) and direction to sentencing judges had failed to have any remedial impact on the overrepresentation of aboriginal offenders in jails, and that in fact incarceration rates had continued to climb significantly. [ 25 ] Justice LeBel writes at paragraph 63 : Over a decade has passed since this Court issued its judgement in Gladue . As the statistics indicate, s. 718.2 (

e) of the Criminal Code has not had a discernible impact on the over representation of Aboriginal people in the criminal justice system. Granted, the Gladue principles were never expected to provide a panacea. There is some indication, however, both from the academic commentary and the jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(

e) and this Court’s decision in Gladue .

The following is an attempt to resolve these misunderstandings, clarify certain ambiguities, and provide additional guidance so that courts can properly implement this sentencing provision. [ 26 ] The Supreme Court in Ipeelee stressed that s. 718.2(e): …does not create a race based discount on sentencing or ask courts to remedy the overrepresentation of aboriginal people in prisons by artificially reducing incarceration rates… but rather directs judges to “pay particular attention to the circumstances of aboriginal offenders in order to achieve a truly fit and proper sentence in any particular case. [ 27 ] The disproportionate rates of incarceration of Indigenous men and women in custody have continued to climb at an alarming rate. [ 28 ] On January 21, 2020, the Office of the Correctional Investigator reported that the proportion of Indigenous men and women in federal custody had reached a new high, surpassing 30% of the overall incarcerated population.

See: Indigenous People in Federal Custody Surpasses 30% [ 29 ] The proportion of incarcerated Indigenous women is now almost 50% of all federally-sentenced women. In his December 17, 2021 report Dr.

Zinger is quoted as saying: In the very near future, Canada will reach a sad milestone where half of all federally sentenced women in custody will be of Indigenous ancestry, despite representing less than 5% of the total population of women in Canada…surpassing the 50% threshold suggests that current efforts to reverse the Indigenization of Canada’s correctional population are not having the desired effect and that much bolder and swifter reforms are required.

See: Proportion of Indigenous Women in Federal Custody Nears 50%: [ 30 ] In both Gladue and Ipeelee, the Supreme Court of Canada focused directly on the remedial role that sentencing judges must play to address the “unbalanced ratio of imprisonment of aboriginal offenders”. At paragraph 65 of the Gladue decision the Supreme Court writes:

Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justicesystem.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may beemployed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and inpreventing future crime. [31] And at paragraph 69 of Gladue, the Supreme Court provides further direction to judges faced with the task of sentencing anaboriginal offender: The judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factorswhich may have played a

part in bringing the particular offender before the courts. In cases where such factors have played a significantrole, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve todeter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member.

In many instances,more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual andsocial healing cannot occur through other means. [32] The Crown submits that the sentencing principles of denunciation and deterrence are paramount when sentencing an offenderwho traffics significant quantities of cocaine and crystal meth for financial gain.

The Crown has prepared a sentencing chart in support ofher position and relies mainly on the OCA decision of R v Bryan, 2011 ONCA 273, to illustrate that the sentencing range for theseoffences is penitentiary sentence in the 5 to 8 year range. [33] The Crown provided the court with numerous cases including decision of the Ontario Court of Appeal and sentencing chart. Ihave reviewed all of the cases and considered the application of sentencing principles in those cases as well as the circumstances of theoffences, offenders and sentences imposed.

It is clear from a review of these cases that penitentiary sentences in the 5 to 8 year range arecommon for these offences and that denunciation and deterrence are the primary sentencing principles applied by the courts.

I notehowever, that only one of the cases provided by the Crown deals with an Indigenous offender. [34] I will briefly review some of the cases provided by the Crown: [35] In R v Bajada, [2003] O.A.C. 226, the Ontario Court of Appeal reduced an 8 year sentence to 6 years for an accused who was51 years old, had already served penitentiary length sentences and had a significant record including 3 prior drug trafficking convictionsand an extortion conviction. [36] In R v Boughner, (ON CA), [2002] O.J.

No 2181, the Ontario Court of Appeal dismissed a conviction andsentence appeal for an accused who received a 6 year sentence for trafficking cocaine and possession of a restricted handgun. His priorcriminal record included four prior convictions for trafficking for which he received a four year penitentiary sentence, and a priorweapons conviction. [37] In R v Brown, 2021 ONCA 35, the Ontario Court of Appeal reaffirmed the sentencing range of 5 to 8 years identified by theOntario Court of Appeal in the Bryan case, supra.

In Brown, the 2 co-accused who were sentenced to four years 7 months and 6 years 5months, argued that the sentencing judge had failed to adequately reflect all of the mitigating factors when he imposed sentence. Both Band J pleaded guilty to trafficking in cocaine at the kilo level, but both were arrested in possession of much higher quantities of cash thanMr. Johnston. B was found with over $100,000 in cash and J was found with $75,000 in cash when arrested. [38] In R v Savory, 2019 ONSC 1164, the accused was found in possession of $300,000 worth of cocaine (again, a much higheramount of cash than Mr.

Johnston) and was convicted after trial of possession of cocaine for the purpose of trafficking. He received a 6year sentence. [39] In R v Maone, 2020 ONCA 461, the Ontario Court of Appeal upheld a 7 year sentence for an accused who sold large quantitiesof cocaine totalling 3.5 kg to an undercover officer on several occasions and pleaded guilty.

The OCA noted that the accused wasinvolved in multiple drug trafficking transactions over an extended period of time, beyond street level trafficking as an active participantin the cocaine trafficking enterprise, “making important decisions and sharing directly in the profits”. There is no evidence of traffickingbeyond street level for Mr. Johnston.

[ 40 ] In R v McIntyre , 2016 ONCA 843 , the Ontario Court of Appeal reduced an 8 year sentence to 5 years for a 44 year old Aboriginal accused with no prior record who was convicted of trafficking one kilogram of cocaine after trial. The Ontario Court of Appeal considered a Gladue Report as “fresh evidence” since no reference had been made to the accused’s Aboriginal status at the sentencing hearing.

In its decision the Court of Appeal refers to a co-accused, Dawson, who was convicted after trial and sentenced to 3 years imprisonment and notes that a Gladue report was prepared for Dawson, relied on by counsel and filed with the sentencing judge. The Court also notes that with respect to Dawson the Crown had sought a sentence of six to eight years and that Defense counsel, sought a conditional sentence coupled with a period of probation. [ 41 ] In R v Ash , [2015] O.J. No 3920 , the accused was 34 years old with no record.

He pleaded guilty to four counts of possession for the purpose of trafficking and one count of possession of proceeds of crime. He was found in possession of 365 grams of meth, 210 grams of cocaine 244 grams of MDMA. He was described as a mid level drug trafficker and the drugs in his possession were valued at between $36000 and $140,000.

He received a global sentence of 5 years less PTC and credit for house arrest bail. [ 42 ] In R v Thiessen, 2017 ONSC 3925 , the accused who was 38 years old and had no prior record, was convicted after trial of possession for the purpose of trafficking in cocaine and crystal meth. His home was used as a stash house for a high level drug trafficking scheme. He was found in possession of cocaine and meth totalling over 6 kilos and having a potential street value of between $700,000 and $800,000.

He received a sentence of 4 ½ years. [ 43 ] The Crown seeks a sentence of 6 years which she says takes into account the mitigating factors in this case including Mr. Johnston’s guilty plea and the Gladue factors present in this case. [ 44 ] Defense counsel submits that a sentence in the 3 ½ year range is appropriate in this case and relies on the mitigating factors that are present here, including Mr.

Johnston’s guilty plea, his relatively young age at 31, his history of steady employment and pro-social lifestyle for almost 5 years before losing his job due to the pandemic lockdowns; his mostly unrelated criminal record ending in 2016; his compliance with very strict bail conditions; his history of drug and alcohol addiction, and his status as an Indigenous offender. [ 45 ] The aggravating factors in this case are clear. Mr. Johnson has admitted to trafficking in both cocaine and crystal meth at the kilo level. His motivation was to support his own drug habit, and for financial gain.

Trafficking in drugs such as cocaine and crystal meth is a crime that harms the community by increasing rates of addiction among drug users and leading to property and other crimes against other members of the public. [ 46 ] Mr. Johnston has a criminal record but no prior drug trafficking convictions. In 2010, Mr. Johnston was convicted of Careless Storage of a Firearm x 3; Fail to Comply x 2 and Possession of a

Schedule II substance. He received a sentence of 75 days in addition to 54 days PTC and probation. In 2014, Mr. Johnston was convicted of Assault Cause Bodily Harm and Fail to Comply and received a 90- day intermittent sentence plus probation. And in 2016, Mr. Johnston was convicted of Assault and was sentenced to a 15-day intermittent sentence and probation. [ 47 ] Mr.

Johnston has already taken steps towards his rehabilitation and according to the author of the Pre-Sentence Report, he is a good candidate for community supervision. [ 48 ] During his time on house arrest bail, he has stopped using drugs and he has strengthened and improved his relationships with his family and his former spouse.

He told the author of the Gladue Report that he has spent his time on house arrest “ mending relationships and friendship and reconnecting with family and he identified maintaining his strong support system of friends and family ” as the most important thing he can do to ensure he doesn’t relapse in the future. [ 49 ] Mr. Johnston has expressed an interest in learning more about his Indigenous background and he has already demonstrated by maintaining a connection with the Gladue aftercare worker that he is interested in accessing culturally sensitive programming and supports.

He has goals for his future and is anxious to reunite with his spouse and to become employed again. [ 50 ] Ms. Pogue writes at page 8 of the Pre-Sentence Report: The subject has had a strong history of being employed and needs one more credit to complete his high school education. The break in his career was not chosen and instead was a result of the COVID-19 pandemic frequent lockdowns in the province of Ontario that left

him in a position where the absence of an income became quickly overwhelming and instead of seeking other forms of employment the subject returned to using cocaine and then became involved in trafficking street drugs. He has a large amount of remorse for having this lapse in judgement but has remained focused on taking steps to improve his future. The subject’s plan is to return to living with Jessica Wydeman as soon as he is permitted to and this is in the Kawartha Lakes area - West of Lindsay, ON.

There is a resource in the Peterborough area, Nogojiwanong Friendship Centre where he can get involved with culturally sensitive and appropriate services and programs…. In this writer’s opinion the subject is suitable to be supervised in the community, given his motivation to achieve goals in his education, career and personal life. [ 51 ] In her report, Ms.

Pogue identifies several community programs offered through the Nogojiwanong Friendship Centre including one on one counselling and consultation regarding treatment options and culturally based services and support groups, holistic healing through medicine wheel teachings on physical, mental, emotional and spiritual health, and participation in cultural activities such as drumming circles, ceremonies and feasts. [ 52 ] The Gladue writer has also identified several community based programs available to Indigenous persons, including the Tyendinaga Justice Circle Gladue Aftercare Worker program. Mr.

Johnston has been working with a Gladue Aftercare worker since the Gladue Report was completed. [ 53 ] The Gladue Aftercare worker, Jamie Abreau writes that “Heath is interested in receiving services in relation to his culture and interested in counselling services that can be referred to him. Heath appreciates the support the program provides. He has been open and receptive.” [ 54 ] Since co-operating with the preparation of the Gladue Report, Mr.

Johnston says he has spent time trying to obtain more information from his maternal grandmother and his aunt about his indigenous background. [ 55 ] During the sentencing hearing, Mr. Johnston was tearful and sincere when he expressed remorse and apologized for his actions. He acknowledged the harm he has caused the community by trafficking drugs, and he said he is ready to take responsibility and accept the court’s “punishment” for his crimes. [ 56 ] Mr. Johnston was accompanied by his brother Jamie and his mother, who have both been his sureties for the past 15 months during his house arrest.

Both his mother and his brother confirmed that Mr. Johnston has fully complied with his release conditions and they have seen no evidence of any substance abuse by Mr. Johnston. [ 57 ] Mr. Johnston told the court that he has become closer to his family members over the past year and sees his family as a strong source of support.

He described to the court how the process of cooperating with the Gladue Report and investigating his Indigenous history has resulted in him forming stronger connections with his maternal family including his maternal grandmother who is still alive, and his maternal aunts and uncles, who were all removed from their homes and placed in residential schools. [ 58 ] Mr.

Johnston was released from custody on April 14, 2021, following a contested bail hearing and placed on restrictive bail conditions that required him to reside with his brother Jamie and remain in his residence except when in the presence of one of his two sureties (his brother Jamie, or his mother). [ 59 ] I have taken into consideration all of the purposes and principles of sentencing set out in s.718 of the Criminal Code . I have considered all of the aggravating and mitigating factors identified by Crown and Defense counsel. I have fully considered the harms caused to our community by drug trafficking.

I have followed and applied the sentencing approach directed by the Supreme Court of Canada in Gladue and Ipeelee . I have considered the intergenerational trauma experienced by Mr. Johnston and his family and the unique Indigenous systemic and background factors that played a significant role in bringing Mr. Johnston before the court. I have considered the types of sentencing procedures and sanctions that may be most appropriate in the particular personal circumstances of Mr.

Johnston and the particular circumstances related to the drug trafficking offences he has committed. [ 60 ] I find that a three-year sentence is a just and appropriate global sentence for Mr. Johnston. [ 61 ] Mr. Johnston has complied with a strict house arrest bail for almost 15 months with no breaches. There were no exemptions, except for a medical emergency. Mr. Johnston was entirely dependent on his surety if he wished to go out of the house. He has worked

sporadically when he has had opportunities to work as a roofer with his brother Jamie. [ 62 ] In response to a Crown submission pointing out that Mr. Johnston could have applied for an amendment to his bail conditions to leave his home for employment or to attend counselling to address his addictions, Mr. Johnston explained at the hearing that he was working to pay for his lawyer since he did not qualify for a legal aid certificate, and he simply couldn’t afford to pay the additional legal fees associated with a bail variation application. [ 63 ] I find that Mr.

Johnston’s liberty, including his ability to carry on normal relationships, be employed, complete his high school education, attend counselling and other community supports, has been severely impacted by the strict conditions of his bail release. [ 64 ] The time an accused person spends on stringent bail conditions is a relevant factor to be taken into account during sentencing. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence.

House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence and has been identified as a form of punishment in the conditional sentence context. Time spent under stringent house arrest bail conditions must be taken into account as a relevant mitigating circumstance: see: R v Downes,

(2006) OCA 208. [ 65 ] In R v Downes , supra, the Ontario Court of Appeal gave Mr. Downes 5 months credit for 18 months of bail with Justice Rosenberg commenting that there was little evidence regarding how the bail conditions actually impacted the accused. In this case Mr. Johnston has been confined to an apartment where he has slept on a couch, and has been unable to pursue employment, education or counselling. He has had limited and only supervised contact with his partner and stepchildren. Taking into consideration what this court regards as restrictive and punitive bail conditions, Mr.

Johnston will receive pretrial credit of 12 months “bail or Downes credit” for the 15 months he has been on strict house arrest. [ 66 ] He shall also be credited with 7 days of actual pretrial custody enhanced at 1.5 to 1 to 10 days. [ 67 ]

Section 742.1 of the Criminal Code provides that: If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 and 718.2. [ 68 ] It is the Crown’s position that a conditional sentence would be contrary to the sentencing objectives of denunciation and deterrence which are the primary purposes of sentencing applicable in this case. [ 69 ] In R v Sharma , 2020 ONCA 478 , Justices Gillese and Feldman writing for the court, pointed out that in Gladue , the Supreme Court drew a direct connection between s. 718.2 (

e) and 742.1 , observing that: The general principle expressed in s.718.2 (

e) must be construed and applied “in light of the desire, reflected in the creation of the conditional sentence, to reduce the use of incarceration…The court acknowledged that overincarceration was part of the larger issue of overrepresentation of Aboriginal people within the criminal justice system, and the role that systemic discrimination played in causing and contributing to the circumstances that allowed that problem to develop.

However, while the remedial sentencing provisions are aimed at addressing the larger issue indirectly through restorative justice in the context of sentencing, their direct focus is on reducing the number of Aboriginal offenders sentenced to jail. [ 70 ] Justice Nakatsura writes in R v J.S., [2021] ONSC 2263: The Supreme Court of Canada in Gladue decided a new way of analysis was needed in sentencing Indigenous offenders. The circumstances of Indigenous persons are unique. Thus, a judge must consider the unique systemic and background factors which have played a

part in bringing the particular Indigenous offender before the court. A judge must also consider the types of sentencing

procedures and sanctions that are most appropriate because of their Indigenous heritage or connections. A judge 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 achievement, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of imprisonment. This provides the context to consider the case-specific information about the offender.

The judge must impose a proportionate sentence for the Indigenous offender that takes into account all these factors, remaining steadfastly mindful of the remedial purpose of s.718.2 (e), the substantive inequality faced by Indigenous persons, and the value of a restorative approach or alternatives to incarceration when it is justified. This analysis does not mean an automatic discount based upon race. Denunciation and deterrence, and separation remain important sentencing principles for Indigenous persons and communities. Especially for serious and violent offences.

Fit sentences for Indigenous and non-Indigenous offenders will often be the same. The Gladue analysis mandates a different methodology when sentencing an Indigenous offender but does not mandate a lesser sentence. [ 71 ] There are strong Gladue factors to be considered in this case. Mr. Johnston’s grandmother is a residential school survivor. His mother has struggled and continues to struggle with addiction and mental health issues. Mr. Johnston experienced a childhood marked by neglect, violence, addiction and the trauma of being apprehended at school by child welfare authorities and placed with strangers.

In this case it is important and necessary that the court take judicial notice of the devastating intergenerational effects of the collective experiences of Indigenous peoples in determining a fit sentence. Mr. Johnston’s Indigenous heritage is a significant part of the context underlying and directly linked to his offence. At paragraph 231 of R v R.S., supra, Justice Nakatsura writes: Indigenous overrepresentation in jail has not gotten better. Only much worse. A criminal court judge cannot fix all that has led to this problem of the disproportional imprisonment of Indigenous peoples.

Nonetheless, sentencing judges have a role, however limited, to play in remedying injustice against Indigenous peoples in Canada. [ 72 ] I agree with the Crown that in this case denunciation and deterrence are the primary sentencing objectives and I have determined that a penitentiary sentence of 3 years is a just and appropriate sentence in this case. [ 73 ] The principles of denunciation and deterrence, both general and specific, can be addressed by a meaningful conditional sentence that involves house arrest and culturally appropriate counselling and supports. [ 74 ] I note that with the exception of the R v McIntyre decision, supra, none of the authorities relied on by the Crown to support a sentence in the 6 year range involve an Indigenous offender where the Gladue principles were applied. [ 75 ] Mr.

Johnston is receiving pre-trial custody credit of 12 months, and 10 days for time spent in actual pre-trial custody and time spent under strict bail conditions, leaving a sentence of just under 2 years left to serve. [ 76 ] A restorative approach to sentencing through the imposition of a conditional sentence is a reasonable and available sanction in this case. A conditional sentence of imprisonment would not endanger the community and takes into account the serious nature of these offences and the harm done to the community by Mr. Johnston’s drug trafficking activity. A conditional sentence also considers Mr.

Johnston’s personal circumstances as an Indigenous person and the intergenerational trauma experienced by his maternal family, that contributed to Mr. Johnston’s struggles with addiction, which is directly related to the drug trafficking offences he committed. Rehabilitation is a significant factor in this case that weighs heavily in favour of a conditional sentence. Mr. Johnston has already taken significant steps towards his rehabilitation. He has reconnected with his indigenous heritage and re-established strong supportive connections with his partner and his family.

He has a proven history of employment and had he not lost his job as a result of pandemic lockdowns, it is likely he would not be before the court now. I find that he has strong prospects to become employed and law- abiding again. [ 77 ] After credit for 12 months and 10 days bail and pretrial custody credit, Mr. Johnston will be sentenced to a conditional sentence of 2 years less 1 day, concurrent on all counts, a jail term that is served in the community, followed by 3 years on probation.

The first 18 months of the conditional sentence shall be under house arrest with limited exceptions. [ 78 ] In addition to the statutory conditions in

section 742.3(1), the following conditions shall apply: 1. Report to your conditional sentence supervisor within 2 working days and thereafter as required.

2. Co-operate with your supervisor. Sign any release necessary to permit your supervisor to monitor your compliance with the terms of this conditional sentence order and provide proof of compliance with any condition of this order to your supervisor on request. 3.

While on house arrest you are to remain in your residence at all times except for medical emergencies involving yourself or a member of your immediate family; going directly to and from or being at employment, or medical or dental appointments; going directly to or from and being at assessment, treatment or counselling approved in advance by your conditional sentence supervisor; going directly to or from and performing community service hours; with the prior written approval of your supervisor which is to be carried with you during these times; for 3 hours on one occasion per week on a date approved of by your conditional supervisor for acquiring the necessities of life; for carrying out any legal obligations regarding compliance with this order. 4.

During your home confinement, you must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition 5. Attend and participate in all assessment, counselling or rehabilitative programs as directed by your supervisor, including programming for substance abuse. 6. Work with the Tyendinaga Gladue Aftercare worker program and cooperate with any programming and services or referrals recommended by the aftercare program. 7. Perform 100 hours of community service work on a rate and

schedule directed by your supervisor but must be completed within 12 months of the start date to this order. 8. Make reasonable efforts to seek and maintain suitable employment and provide proof of same as required by your supervisor. 9. Do not possess any weapons as defined by the Criminal Code . [ 79 ] Following your conditional sentence, you will be on probation for 3 years. The terms and conditions of the probation order will be the same as the conditional sentence order except there will no longer be house arrest and no further Community service. [ 80 ] There will be a DNA order and a s. 109 Weapons Prohibition order for 10 years. Released: July 4, 2022 Signed: Justice E. Deluzio