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| John L. Hill |
Jayson Pothier, refusing assistance from defence counsel, entered guilty pleas on Oct. 20, 2023, to three charges: break and enter, robbery and disguise with intent to commit a robbery. The facts were acknowledged: on July 21, 2023, Pothier broke into a bakery and damaged over $14,400 worth of equipment, including baking equipment and electronic equipment. He consumed some of the fruit puree and then passed out in the location where he was found, arrested and admitted to being high on fentanyl.
On July 26, 2023, he attended the Canadian Imperial Bank of Commerce in Toronto with a bandana covering his face demanding cash and threatening he had a gun. He was apprehended a short time later and held in custody to await trial. At the time, he was still serving a conditional sentence for a robbery and other charges. At that earlier sentence, Justice Chamberlain noted the lengthy stay in remand (287 days enhanced to 430 days) and imposed a conditional sentence for six months. The judge noted at the time that Pothier had been given a supportive housing bed to address treatment for addictions and trauma (R. v. Pothier 2022 ONCJ 86). The judge considered an updated Gladue report to impose a penalty for the latest offences.
Pothier had a juvenile record with similar offences. Youth entries started in 1993, with the first adult conviction in 1995. His involvement with the criminal justice system was consistent and steady as a youthful offender resulting in lower to mid-reformatory range with many of the sentences being “consecutive to sentences being served.” Justice Chamberlain remarked, “You were lining them up like dominoes, one after the other.”
A reader of the judgment would expect that Justice Chamberlain was preparing to impose a hefty sentence. Yet the judge stopped short and reminded himself that Pothier was a product of our criminal and correctional systems.
He had become institutionalized, having spent the better part of his life in correctional institutions. He could work well in structured environments, but it would be important to develop his own skills and structures and not become dependent on those imposed upon him. Deep down, the judge recognized Pothier as a man with deep love and admiration for others but was scarred due to addiction and traumatic experiences.
But the importance of the judgment is the judge’s recognition of the failure of the community at large.
Justice Chamberlain, himself of Indigenous ancestry, listed the faults he knows so well: “It is a catalogue of the ongoing injustices so many in our community face, and who are affected by the colonial past we all share: the residential school survivors, and the lost children in those schools, the damaged communities and families who lost their children and their culture because of outdated racist ideas that as a people, our beliefs and our practices were not to be respected, must less tolerated or allowed, the murdered and missing women and girls in our communities whose numbers continue to rise and the indignities they suffer, even after death, at the hands of the criminal justice system and government inaction.”
Later in the judgment, the trial judge said, “This does not mean that jail is never an option. There are times when there is a need to protect the community or send a clear statement to the offender or the community that certain behaviours attract consequences and that the possibility of jail can and does exist in the most serious cases. However, where we lack the imagination to do things differently, we rely on what is familiar and gives the community comfort, in punishment that relies solely on denunciation and deterrence.”
Ottawa criminal lawyer Michael Spratt was quoted in a Toronto Star article reporting on the Pothier decision as saying, “The case is emblematic of how we view the criminal justice system as a way of addressing social problems it was never meant or equipped to handle: mental health issues, substance use disorders and poverty.”
Queen’s University Law professor Lisa Kerr was quoted in the same article: “We only seem to blame the individuals — our most needy and troubled members of society — rather than the professional and well-funded institutions tasked with rehabilitating them.”
The sentence meted out was a penitentiary sentence of three years, with a strong recommendation that Pothier attend an Indigenous healing lodge as soon as feasible.
The decision is significant in that it may well start a conversation on the best ways to prevent future crime and deal with those who have been victims of a system that preordains a life of crime.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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