R. v. Chandler, 2014 ONCJ 709

COURT FILE NO.: St. Catharines – 2111-998-13-S0386-00 DATE: 2014·12·23 Citation: R. v. Chandler , 2014 ONCJ 709 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — GEOFFREY CHANDLER Before Justice D.A. Harris Heard January 17, 2014, March 31, 2014, August 8, 2014, September 29, 2014 and October 21, 2014 Released December 23, 2014 S. McCartan and J. Strecansky............................................................... counsel for the Crown V.

Singh ............................................................... counsel for the Accused, Geoffrey Chandler REASONS FOR SENTENCE HARRIS J.: OVERVIEW [ 1 ] Geoffrey Chandler pled guilty to dangerous driving and to assaulting police Sergeant D. Briggs, with intent to resist arrest. [ 2 ] Crown counsel elected to proceed summarily. [ 3 ] Mr. Chandler is before me today to be sentenced. [ 4 ] Crown counsel suggested that I should sentence him to imprisonment for 90 days to be served intermittently, but she readily conceded that a non-custodial disposition would not be inappropriate.

She did oppose the granting of a conditional discharge. [ 5 ] Counsel for Mr. Chandler suggested that I impose a conditional discharge. [ 6 ] Both counsel agreed that I should prohibit Mr. Chandler from driving for a period of one year. [ 7 ] Crown counsel also requested a DNA order. [ 8 ] I find that a conditional discharge is not appropriate in this case. It is not however necessary to send Mr. Chandler to jail. The appropriate sentence is in fact a conditional sentence of imprisonment, to be served in the community. My reasons for this are as follows.

CONDITIONAL DISCHARGE [ 9 ] Section 730(1) of the Criminal Code states 730.

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead

of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). [ 10 ] For reasons that will become clear, I do not consider it to be in the best interests of Mr. Chandler to direct that he be discharged. I further find that it would be contrary to the public interest for me to do so. CONDITIONAL SENTENCE OF IMPRISONMENT [ 11 ] The conditional sentence came into being when

section 742.1 of the Criminal Code was proclaimed in 1996. [ 12 ] The Supreme Court of Canada subsequently stated in R. v. Proulx that “Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community.” [1] [ 13 ] The Supreme Court of Canada stated further that an offender who meets the criteria of

section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence. [2] [ 14 ]

Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence.

These are: 1. the offender must be convicted of an offence that is not specifically excluded under the legislation; 2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; 3. the court must impose a term of imprisonment of less than two years; 4. the safety of the community would not be endangered by the offender serving the sentence in the community; and 5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 15 ] The first four criteria are prerequisites to any conditional sentence.

These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 16 ] In the case of Mr. Chandler, the first four prerequisite criteria have been satisfied. [ 17 ] His offences are not excluded under

section 742.1 . [ 18 ] They are not punishable by a minimum term of imprisonment. [ 19 ] Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years. [ 20 ] Finally, I find that Mr. Chandler serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He had no prior criminal record. He has stayed out of trouble since being charged with the current offence.

I am satisfied that, with the appropriate safeguards in place, there is no danger that he would return to crime following the imposition of a conditional sentence. [ 21 ] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, as I said before, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code . THE FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING [ 22 ] The fundamental purpose of sentencing as expressed in

section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 23 ] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. [3] [ 24 ] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The punishment should fit the crime. There is no single fit sentence for any particular offence. [4] [ 25 ] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that: The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. For example, in drug importation cases, the nature and quantity of the drug involved will

impact on the gravity of the offence. [5] [ 26 ] He went on to state that: The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

In drug importation cases, the offender's role in the importation scheme will be an important consideration in assessing the offender's personal responsibility. [6] [ 27 ] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest : The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence.

The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [7] [ 28 ] On this point, Doherty J.A. concluded by stating that: Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction.

The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account. [8] [ 29 ] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered. [ 30 ] I must specifically consider

section 718.2(

d) which provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances”. [ 31 ] I must also consider the impact of

section 718.2(

e) which provides that “... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.” [ 32 ] The Supreme Court of Canada discussed the application of this

section in Gladue v. The Queen and said that

section 718.2 (

e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender. [9] [ 33 ] The Supreme Court also noted that

section 718 now requires a sentencing judge to consider more than the longstanding principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. [10] As a general matter restorative justice involves some form of restitution and reintegration into the community.

A conditional sentence is much more effective than jail in achieving these restorative justice goals. [11] [ 34 ] I must also note that the Supreme Court of Canada expressly said in R. v. Proulx that a conditional sentence is “a punitive sanction capable of achieving the objectives of denunciation and deterrence” [12] although it is not as effective as a sentence of real imprisonment. [ 35 ] Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offences here and at Mr. Chandler’s background. THE OFFENCES [ 36 ] On January 10, 2013 Mr.

Chandler was driving his father’s pickup truck on the Queen Elizabeth Way in the Town of Lincoln. Since this vehicle had been involved in an earlier police chase, officers of the Ontario Provincial Police sought the vehicle out and then followed it as Mr. Chandler exited onto Victoria Avenue. The police officers activated the lights and sirens on their vehicles. Mr. Chandler made a U-turn and drove back onto the Queen Elizabeth Way. As he accelerated to speeds in excess of 120 km/h, other vehicles moved to get out of his way. [ 37 ] The police pursued him for some time.

When he did not stop, the police used their vehicle to push his vehicle into a guard rail. [ 38 ] Sergeant Briggs and Constable Chamberlain went to the window of the Chandler vehicle and told Mr. Chandler to get out of the truck. He said “no” and shook his head. The police officers repeated their instructions. Mr. Chandler again said “no” and shook his head. [ 39 ] When Sergeant Briggs grabbed his arm and warned him to cooperate, Mr. Chandler pulled his arm back and tried to wriggle away. Sergeant Briggs and Constable Chamberlain eventually managed to pull him out of the vehicle through the window.

They restrained him on the ground and arrested him. BACKGROUND OF MR. CHANDLER [ 40 ] I have had the benefit of a Pre-Sentence Report, a number of reference letters and a letter from Mr. Chandler himself. As

a result I am aware of the following facts. [ 41 ] He is now 25 years old. [ 42 ] He resides in a trailer on his parents’ property in Kilbride, a rural community located in north Burlington. [ 43 ] He is a vegan and a practising Rastafarian. [ 44 ] He reported that the past few years have been emotionally difficult for him. He was depressed. He felt he lost his path, and a sense of optimism and faith. He began to question his role in the world and his goals. He became disenchanted with his career path. His girlfriend broke up with him.

He travelled to Banff, Alberta with a friend and found employment as a carpenter there. The time he spent in Banff was a revelation to him. He had time to think about what he wanted to do. He came to the decision that he always wanted to live in the Caribbean and run a farm. He returned home with a renewed sense of motivation and spirituality. [ 45 ] He attended elementary school until grade two when his parents removed him from school and provided homeschooling for him. They wanted to protect him from older students who bullied him. He was homeschooled by his mother and by tutors and he improved significantly.

In grade seven he returned to school after his mother was diagnosed with chronic fatigue syndrome and fibromyalgia. He was placed in a private Christian school. There he completed high school without incident and was an honour student. [ 46 ] During the time that he was depressed and questioning his “footprint in society” he began to research Earth friendly products and ethical construction. He became a fervent believer in sustainable eco-friendly construction using salvaged and reclaimed wood. He built a workshop on his parents’ property.

He continues to occasionally work on high-end custom renovations, or renovations for friends, but his focus is on establishing his own custom furniture company. [ 47 ] He has been “turned on to” two people on the Internet. They are Russell Means, an American Lakota activist and Rick Simpson, a cannabis activist. Mr. Chandler believes cannabis use cures cancer, improves the immune system and has pharmaceutical properties to secure mood disorders and pain. He applied for a medical marihuana licence but was turned down.

He continues to produce his own marihuana and use it daily, in baked goods or juices, or with an inhalation device. He uses cannabis as part of his spiritual practices and meditation as a Rastafarian. [ 48 ] His parents are aware of his use of cannabis and believe that it helps him remain focused and cope with depression. They feel it is no worse than pharmaceutical medications. [ 49 ] Mr. Chandler considers himself a Freeman, a self-governing man and a Rasta man. He does not consider himself a member of the Freeman on the Land organization but he supports their ideas and opinions.

He believes that he should not pay the government to renew his licence. He believes it is his God-given right to operate a motor vehicle. [13] [ 50 ] When arrested for the offences before the court, he had a valid driver’s licence. He was not under suspension. He decided that rather than stop, he would continue his journey. The police officer was disrupting his peace so, as a freeman of the land, he would continue on. If the police officer wanted, he could follow Mr. Chandler to his destination and discuss the situation there. He continued driving even though the police officer “had his cherries on”.

After some time the police abandoned that pursuit but then another O.P.P. officer began to follow him with “his cherries on”. Mr. Chandler decided again not to stop but rather to do the same thing as before and complete his journey. The second police officer could also follow Mr. Chandler to his driveway if the police officer wished. [ 51 ] Mr. Chandler is described in the Pre-Sentence Report as adding sarcastically “the O.P.P. in his opinion thought I was a danger to the public so he bumped me into the guard rail.” [ 52 ] Mr.

Chandler explained that initially he represented himself in court as a Freeman “because I didn’t know enough. I was convicted and my licence got suspended”. He continued to drive regardless because he needed to get to work and he also needed a vehicle to transport his tools. [ 53 ] He was stopped by police who learned he had an outstanding warrant and he was incarcerated for four days. [14] He has not driven since. [ 54 ] He reported “I’m frustrated as I came to realize that frustration and poor judgment led me to do this stupid thing. I regret it, definitely. I feel a lot of remorse. I feel bad about it.

I feel like I’ve been punished enough. That punishment has been the last two years of this whole thing weighing on me. The time, stress, everything it’s taken out of my life. It’s silly. I won’t drive again. I have grown up since that time in my life. I’m more responsible. I’m not a threat to the public”. [ 55 ] His parents stated that their son “made a bad decision. It’s his life; he’s got to live with the consequences of his decision. But this matter was blown completely out of proportion. The police assaulted him. There was no dangerous driving”.

They also expressed support for him continuing to use marihuana illegally. I find their comments troubling but only to the extent that I will be giving little weight to opinions expressed by them. [ 56 ] I also note that a number of the reference letters filed on behalf of Mr. Chandler either make no mention of the facts of the offences before me or downplay what Mr. Chandler did. Again, this leads me to assign much less weight to these letters. [ 57 ] Mr. Chandler’s driving record shows three separate convictions for driving while his licence was suspended.

These convictions all occurred in the month of March 2013. I have no information as to the penalties that were imposed. I do find it troubling that Mr. Chandler does have this history of ignoring previous court orders. [ 58 ] There is also a conviction for failing to stop for police officer but this conviction was registered subsequent to the offences which are before me and I am not taking it into account.

[ 59 ] Mr. Chandler had no prior criminal record. ANALYSIS [ 60 ] Mr. Chandler eventually pled guilty to these offences. He did so promptly once he had received legal advice from a lawyer. I take this to be an indication that he has accepted full responsibility for his offences and that he has expressed remorse. [ 61 ] He expressed similar sentiments in the Pre-Sentence Report and in his letter to me. [ 62 ] I am not, however, prepared to accept that Mr.

Chandler completely understands the significance of what he did or that he has in fact accepted full and unequivocal responsibility for those actions. [ 63 ] I find that he plays down the seriousness of the driving offence and suggests that the police over-reacted. [ 64 ] As I have stated previously on far too many occasions [15] , I do not have statistics, but I am certainly aware from the cases that have come before me of the all too common scenario where police attempt to stop a young man who is driving a vehicle, and rather than stop, the young man continues to drive on in an attempt to escape.

The driving often puts other motorists and pedestrians at risk. It usually puts the young man, and the police who are following him at risk. It also puts the police in a no-win situation of having to decide whether to allow a suspected criminal to escape, or to continue with the pursuit and all the risks inherent in that. [ 65 ] The police officer in such cases does not know whether or not the individual who is driving off is doing so simply because of the fact that he does not have a licence, or whether he is driving off because there is a dead body in the trunk of the vehicle.

If it turns out that there was a dead, or even worse, a live body in the trunk, and the police let the vehicle go, the police would be subject to justifiable vilification. If on the other hand it turns out that the reason for fleeing is simply to get away from the police and avoid being held responsible for not having a licence, and the police chase leads to someone being injured, the police officer faces the likelihood that he or she will be blamed for the accident despite the fact that any responsibility in that case would properly lie with Mr. Chandler. [ 66 ] I am concerned that Mr.

Chandler does not fully understand this. [ 67 ] In light of that fact, I am not satisfied that a conditional discharge would be in Mr. Chandler’s best interest. I do not believe that a conditional discharge would bring the necessary message home to him. [ 68 ] I am even more certain that a conditional discharge would be contrary to the public interest.

A discharge would send the wrong message entirely to like-minded individuals who might find themselves in circumstances where they have to decide whether to obey or ignore police instructions to stop their motor vehicle. [ 69 ] Imposing a jail sentence would certainly deliver the correct message.

It would make it clear that we, as a society, will not tolerate people choosing to ignore police instructions and driving on in a manner that puts other members of the community at risk. [ 70 ] I agree with Crown counsel that imprisonment for 90 days would be appropriate. [ 71 ] I am satisfied, however, that I can accomplish the same objective without sending Mr. Chandler to jail. I am satisfied that I can accomplish this by imposing a conditional sentence of imprisonment, to be served in the community. [ 72 ] I can structure this in a fashion that will serve as a deterrent to both Mr. Chandler and to others.

It will also include a community service component, so as to require Mr. Chandler to give something back to the entire community. [ 73 ] My only reservation in doing this is that such a sentence will only be effective if Mr. Chandler accepts that he is required to comply with all of the orders that I am about to make. [ 74 ] I will accept at face value his declaration that he understands that he cannot drive a motor vehicle without a valid licence. I accept this while recognizing that he clearly does not accept that he is bound by all of our laws.

He continues to use, and to grow, marihuana despite his being denied a medical marihuana licence. [ 75 ] He will have to change his ways then if he is to avoid breaching the conditions that I am about to impose on him. If he does not do this, then he will have to live with the legal consequences that follow. SENTENCE [ 76 ] With respect to both charges, I sentence Mr. Chandler to concurrent conditional sentences of imprisonment for 90 days, to be served in the community. [ 77 ] They will be followed by probation for two years. [ 78 ] The terms of the conditional sentences will require that Mr.

Chandler: 1. keep the peace and be of good behaviour; 2. appear before the court when required to do so by the court; 3. report in person to a supervisor within two working days and thereafter report when required by the supervisor and in the manner directed by the supervisor; 4. notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;

5. remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the supervisor; 6. cooperate with his supervisor.

He must sign any releases necessary to permit the supervisor to monitor his compliance and he must provide proof of compliance with any condition of this order to his supervisor on request; 7. live at 2213 Kilbride Street, Burlington, Ontario or a place approved by the supervisor and not change that address without obtaining the consent of the supervisor in advance; 8. for the entire length of this Order, remain in his residence or on the property of his residence at all times daily between the hours of 7:00 p.m. and 5:00 a.m. except a. for any medical emergencies involving him; b. travelling directly to and from and while at work or school; 9. not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act ) except with a lawful prescription in his name or those available over the counter; 10. not drive or be in the driver’s seat of a motor vehicle. [ 79 ] The terms of the probation will require that Mr.

Chandler: 1. keep the peace and be of good behaviour; 2. appear before the court when required to do so by the court; 3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation; 4. report in person to a probation officer within two working days and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision; 5. cooperate with his probation officer.

He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request; 6. live at 2213 Kilbride Street, Burlington, Ontario or a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance; 7. not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act ) except with a lawful prescription in his name or those available over the counter; 8. perform 100 hours of community service work.

This work is to start within 30 days of the commencement of the probation order and shall be completed at a rate of not less than six hours per month and he shall complete the work as directed to the satisfaction of the probation officer.

He must complete all of his community service hours within 18 months; 9. make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the probation officer or attend school or an educational or training program approved of by his probation officer and provide proof as required by his probation officer; 10. not drive or be in the driver’s seat of a motor vehicle without a valid driver’s licence. [ 80 ] In addition, with respect to the dangerous driving offence, he is prohibited from operating a motor vehicle on any street, road, highway or other place anywhere in Canada for a period of one year. [ 81 ] The assault with intent to resist arrest offence is a secondary designated offence and I am satisfied that it is appropriate for me to make an order authorizing the taking, from Mr.

Chandler, of any number of samples of one or more bodily substances, including blood, that is reasonably required for the purpose of forensic DNA analysis. [ 82 ] Mr. Chandler will have 90 days to pay the victim fine surcharges. Released: December 23, 2014 Signed: “Justice D.A. Harris” _________________________ Justice D.A. Harris