R. v. Hodgson, 2013 ONSC 2948

CITATION : R. v. Hodgson, 2013 ONSC 2948 COURT FILE NO.: 7344/12 DATE: 20130527 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) D. Kirk, Counsel for the Respondent ) Respondent ) ) ) - and - ) ) ) JOHN HODGSON ) L. Marshall, Counsel for the Appellant ) Appellant ) ) ) HEARD: May 16, 2013 gareau, j. REASONS on appeal [ 1 ] This is an appeal by John Hodgson of the sentence imposed on October 19, 2012 by the Honourable Mr. Justice Andrew Buttazzoni in the Ontario Court of Justice. [ 2 ] John Hodgson was found guilty after a trial of an offence of break and enter with intent to commit an indictable offence, contrary to section 348(1) (

a) of the Criminal Code of Canada and the offence of mischief by damaging a safe and surrounding walls of Sewell’s Gas Bar, the value of which did not exceed $5,000, contrary to section 430(4) of the Criminal Code of Canada. [ 3 ] On the charge of break and enter a six-month custodial sentence was imposed and on the charge of mischief a three-month custodial sentence consecutive was imposed. Therefore, the total sentence imposed on John Hodgson was nine months. It is from this sentence that Mr. Hodgson appeals. [ 4 ] The grounds for Mr. Hodgson’s appeal are twofold.

Firstly, the appellant argues that insufficient weight was given by Buttazzoni, J. to the aboriginal heritage of Mr. Hodgson and to the purposes of restorative justice. Secondly, the appellant argues that a conditional sentence should have been imposed, which is the sentence received by one of the co-accused, Shawn Reedy. After a plea of guilty, a 12-month conditional sentence was imposed by Bignell, J. for Mr. Reedy’s involvement in the same break and enter which Mr. Hodgson was involved in. Mr. Hodgson argues that there is no reason for the disparity in sentences between himself and Mr.

Reedy and he should have had the benefit of a conditional sentence as well. [ 5 ] The appellant is of first nation heritage and is a member of the Batchewana First Nation. This required the court to pay close attention to

section 718.2 (

e) of the Criminal Code of Canada which directs the court to consider all available sanctions that are reasonable in the circumstances for an offender “with particular attention to the circumstances of original offenders”. Buttazzoni, J. had the benefit of a Gladue report prepared by Ms. Hollee Tijerina (Tab 4 of the Appeal Book). In his reasons for sentence Buttazzoni, J. states, I have taken into account what is in the pre-sentence report, what is in the Gladue report. His personal circumstances as a child; horrendous. He had a very difficult upbringing.

All of the factors that the Gladue decision talks about are identified in the Gladue report that we have here; violence, alcoholism, abusive parents, dysfunctional family unit, all of that is identified in the pre-sentence report, but primarily in the Gladue report.

These comments by Buttazzoni, J. indicate to me that he applied his mind to the Gladue factors and principles in determining what he believed to be an appropriate sentence for Mr. Hodgson. This belief is reinforced by Buttazzoni, J’s comments further in his reasons, I have come to the conclusion that a period of nine months incarceration is appropriate. It probably would have been 15 months but for the numerous Gladue factors that had been identified. [ 6 ] In my view, these comments clearly indicate that Buttazzoni, J. recognized the Gladue factors with respect to Mr.

Hodgson, considered the Gladue factors and applied his mind to the background of Mr. Hodgson with the Gladue factors in mind when determining an appropriate sentence for Mr. Hodgson. [ 7 ] The learned sentence judge determined that the overriding principles in sentencing in the case before him were denunciation and deterrence. As stated by Buttazzoni, J. in his decision, The paramount sentencing principles to me today, in my view, are denunciation and deterrence, specific and general, and quite frankly, general deterrence may be more important than specific deterrence here.

When I listen to the evidence of the victim, it is tragic that he’s actually basically thrown up his hands and has had to accept the fact that his business has been broken into so many times; it’s just something he’s come to accept. That is an unfortunate situation for a person who is operating a business to be in.

So the message has to be sent to the community that business people who are victimized in a small community, a message has to be sent that that type of conduct in the appropriate circumstances will result in a period of incarceration. [ 8 ] The consideration of the principles of denunciation and deterrence does not change because Mr. Hodgson is of aboriginal heritage. Although

section 718.2(

e) of the Criminal Code of Canada requires the court to pay “particular attention to the circumstances of aboriginal offenders” and therefore be very mindful of the traditional aboriginal concepts of justice which hold restorative justice to be a primary objection, that

section does not alter the fundamental duty of the court to impose a sentence that is fit for the offender and the offence. It is, therefore, open to the sentencing court to give primary consideration to the principles of denunciation and deterrence where the offence requires it regardless of the fact that the offender is an aboriginal person. There is ample case law authority for this, including the case of R. v.

Wells, [2002] 1 S.C.R. 207 , a decision of the Supreme Court of Canada. [ 9 ] With respect to the principle of restorative justice, on a review of the record, it is a fair assessment that the accused was not pushing the principle of restorative justice in the sentencing hearing before Buttazzoni, J. As indicated on page 9 of the Gladue report prepared by Ms. Tijerina at Tab 4 of the appeal record, I have explored the principles of restorative justice with Mr. Hodgson and he is disinterested in repairing community relationships.

Furthermore, on page 4 of the pre-sentence report at Tab 5 of the appeal record, the author of that report in referring to Mr.

Hodgson states, He informs that his parents were not involved in residential schools and expressed that he feels that his aboriginal background and experiences were not a contributing factor to his criminal behaviour and activities. [ 10 ] In my view, the learned sentencing judge took into account the Gladue report and the Gladue factors applicable to the appellant in determining an appropriate sentence for the appellant. [ 11 ] The appellant was charged in the same information with the same offences as a co-accused, Shawn Reedy. Mr. Reedy is the brother of the appellant.

The appellant is five years older than Shawn Reedy. After a plea of guilty, Shawn Reedy received a conditional sentence of 6 months consecutive on each of the counts of break and enter and mischief. The appellant argues that he should have received a similar conditional sentence from Buttazzoni, J. based on the parity principle. [ 12 ] The parity principle in sentencing is encoded into the Criminal Code in

section 718.2(

b) which reads as follows, A sentence shall be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 13 ] As indicated in his reasons for sentence, Buttazzoni, J. considered the parity principle and rejected the imposition of a conditional sentence for John Hodgson. At page 16 of the reasons, the learned sentencing judge states as follows, Mr. Willson on behalf of his client submits that the sentence to be imposed upon this accused should be the same as that that was imposed on Mr. Reedy, that is that he should get a conditional sentence. The

section of the Code that really must be considered by me is

section 718.2(

b) and it states: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

I understand that this is probably what forms the basis essentially of the submissions put forward by Mr. Willson, suggesting that the factthat his client was found guilty after trial, based on this principle that I’ve just enunciated, should result in a conditional sentence. With all due respect to defence counsel, the difficulty I have in acceding to that request is that the evidentiary foundation that would havebeen needed to make that submission in a fulsome fashion, in my view, was lacking.

The court in order to make such a finding, I wouldhave required further information regarding the similarity of offenders, the similarity of the circumstances of the offender; I just don'thave that. In order to be able to make that determination that is being suggested by Mr. Willson, I probably should have had thetranscript of the proceedings involving Mr. Reedy, so that I could have seen what factors were brought to Justice Bignell’s attention. Idon't know what counsel said to Justice Bignell. I don't know what factors were put before her.

Did that accused person have peculiarpersonal circumstances at play; I just don't know. Without that type of information, I come to the conclusion that it would be difficultfor me to say this offender is similar in terms of criminal record. I know Mr. Willson referred to the other gentleman’s criminal record,but I should have had a copy of that criminal record as opposed to just a general observation that the records were similar to a certainextent. So there is an evidentiary foundation here that I don't have in terms of being able to say this offender is similar to the otherindividual.

What is also significant is that the other person did plead guilty; this was a trial. A plea of guilty where the Crown may perhaps befacing an uphill battle regarding conviction, a plea of guilty in most circumstances has significant value. I needed more information inthat regard as well.

Again, without speculating, that other person may have been offered what we colloquially refer to as “a deal”,because there may have been evidentiary hurdles that the Crown would have had to cross, may not have known if they could havecrossed them, and in order to accommodate for that, offered something which reflected what might be a good deal for the accused uponaccepting responsibility. I don't know if that was at play. So all of that, in my mind, are features which are distinguishing. So the plea of guilty, in my view, could have significant impact on sentence.

That is not to say that the accused here gets penalized forgoing to trial, but a plea of guilty is a mitigating factor on sentence. It just doesn’t exist here. And before I leave this point, again, I’mnot sure if Justice Bignell knew anything about the victim impact circumstances as I’ve heard it here. So I don't know if that factor wastaken into account by her. [14] In considering a conditional sentence, Buttazzoni, J. indicates at page 20 of his reasons, A conditional sentence obviously is a period of incarceration but it is served within the community.

In my view, a conditional sentenceis not appropriate today, notwithstanding the unfortunate circumstances of the offender historically, given the nature of the offence, andhe does have a criminal record that does have an appreciable gap in it, but he still does have a fairly significant criminal record. [15] It is clear from the reasons given by Buttazzoni, J. that he did apply his mind to the sentencing principle of parity and for thereasons he articulated at length did not feel that it was appropriate to impose the same sentence on Mr. Hodgson that was imposed on Mr.Reedy by Bignell, J. As indicated in R. v.

Ipeelee, [2012] S.C.C. No. 13, the Supreme Court of Canada at paragraph 79 stated withrespect to the application of

section 718.2(

b) of the Criminal Code of Canada, In practice, similarity is a matter of degree. No two offenders will come before the courts with the same background and experiences,having committed the same crime in the exact same circumstances.

Section 718.2(

b) simply requires that any disparity betweensanctions for different offenders be justified... [16] The learned sentencing judge gave clear and thorough reasons justifying his disparity in sentences between Mr. Hodgson andMr. Reedy and I do not conclude that he committed an error in the way he dealt with the issue of parity or a refusal to impose aconditional sentence with respect to the appellant. [17] In considering the standard of review sitting as an appellate court I am mindful of the observations of the Supreme Court ofCanada in R. v. Shropshire, (SCC), [1995] S.C.J.

No. 52 at paragraph 46, ...An appellate court should not be given free rein to modify a sentencing order simply because it feels that a different order ought tohave been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of havingseen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentenceshould only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearlyunreasonable.

[ 18 ] On the record before me I am not convinced that the sentence imposed by Buttazzoni, J. was unreasonable or demonstratively unfit. The appeal cannot succeed and is dismissed. Gareau, J. Released: 2013-05-27 CITATION : R. v. Hodgson, 2013 ONSC 2948 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JOHN HODGSON REASONS ON APPEAL Gareau, J. Released: 2013-05-27