A second discharge for the accused is denied. Despite the offender’s Aboriginal status, it would be inappropriate to grant two consecutive discharges considering the violation of the first.
The accused pled guilty to two counts of failing to comply with a probation order pursuant to s 733.1(1)(b) of the Criminal Code [“CC”]. She failed to perform 75 hours of community service within a period of 8 months (an extension granted from the original 4 months) and failed to attend her mandatory meetings with her probation officer as required by the terms of her supervised probation. In addition, she was also charged with domestic violence offences against her boyfriend.
The origin of the probation order that was breached and the granting of the previous discharge, was from breached conditions imposed in the context of various domestic violence charges against her, all involving the same boyfriend. Ultimately, all of the substantive domestic charges were withdrawn or stayed by the Crown. The accused was sentenced to a conditional discharge under s 730(1) CC on a 18-month probation order included mandatory supervision with a probation officer, with the above conditions. She now requests a second successive discharge.
The accused is now 25 years old and has no prior convictions, although she has breached her conditional discharge. She is from Nunavut but lives in the Montreal area where she works at a facility that provides Montreal-based services for Nunavik communities. A letter from the accused’s employment said nothing about the consequence of a criminal record or any other employment requirement or condition.
Granting of a discharge under s 730 CC is one of the most lenient sentences available under the CC. S 730(1) CC sets out two conditions which must be met before a discharge may be granted by a sentencing court: 1) it must be in the best interests of the accused; and 2) it must not be contrary to the public interest.
According to the Supreme Court of Canada in R v Gladue, the main purpose of s 718.2(e) CC is to help correct the problem of over-incarceration, in particular to the disproportionate incarceration of Aboriginal peoples. The court must take into account the circumstances of the offence and the offender including a consideration of the unique circumstances Aboriginal peoples face, such as systemic background factors, and the sanctions that may be appropriate because of Aboriginal heritage or connections. Gladue factors do not serve to depart from a proportionate sentence in a given case, but it is to achieve a proportionate sentence.
The Gladue principles require sentencing judges to give s 730(1) CC a generous application when sentencing Aboriginal offenders so as to attempt to break the cycle of systemic criminalization. The court concludes that s 718.2(e) CC in this matter applies, in particular the “unemployment factor” weighs heavily in the court’s assessment. The accused contends that she is now steadily employed. In light of all the s 718 CC considerations, the court must fashion a sentence that would not result in her losing her employment or other future employment opportunities.
The accused has already benefited from a discharge, although this does not automatically disqualify her from receiving a second one. When an offender has already benefited from a discharge in the past, however, a subsequent request for another discharge will generally be refused by the courts. There is a clear continuum between the offences sentenced in the previous discharge and the new offences of failure to comply with the probation order imposed. Orders of the court must be scrupulously respected unless and until they are cancelled or replaced. The accused must comply with conditions, even if the underlying charges ultimately fall apart. The accused did not take her obligations seriously or make them a priority. As for mitigating factors, the lack of a criminal record, her guilty plea and her steady employment does show some structure in her life.
It was not shown that the burden of a criminal record would affect her work or reduce her employment prospects in any way, and to suggest otherwise would be speculation. The court needs to enter a conviction against the accused to deter her from future offences and to impress upon her the importance of respecting court orders. The breached court order was imposed to help her in the first place, therefore a conviction is also necessary for her rehabilitation. The accused did not respect her probation period imposed with the first discharge and there is no significant passage of time between the offending behaviours. With respect to the public interest, the conditions breached were specific and important. The hours of community service were integral in ensuring a sense of accountability, as well as a source of social contribution that justified in part the discharge that she received. After balancing all of the factors, including the degree of moral blameworthiness, general deterrence and denunciation, rehabilitation, her guilty plea and her Aboriginal status, a short period of imprisonment is deemed appropriate.