ONTARIO COURT OF JUSTICE
DATE: 2025 03 31
COURT FILE: Toronto #24-50001215; 24-50002761
BETWEEN:
HIS MAJESTY THE KING
— AND —
JUANITA CHAKASIM
SENTENCING JUDGMENT
Before Justice Brock Jones
Heard on March 28, 2025
Written Reasons Provided on March 31, 2025
Mr. K. Garrett — counsel for the Crown
Ms. S. Dubb — counsel for Ms. Chakasim
Introduction
1Every day in provincial court, accused persons plead guilty to lesser criminal offences. A startling number of those people are detained in custody, having been unable to obtain bail. They are overwhelmingly vulnerable, marginalized, and from historically disadvantaged communities. When presented with a Crown offer of “time served”, accused persons accept, plead guilty, and are placed on a probation order. The probation orders inevitably include terms that have become commonly accepted and are often imposed without consideration of their potential consequences or utility.
2On March 28, 2025, Juanita Chakasim appeared before me in Gladue court. She was detained at the Vanier Centre for Women and wished to represent herself. She accepted responsibility for two counts of assault. The parties presented a joint position, noting the time she had already served since her arrest, and recommended a three-year probation order.
3In the following reasons, I explain why I did not accept the joint submission. In my view, the amount of pre-sentence custody sought to be endorsed as part of the plea was excessive, and the duration and proposed terms of the probation order were not only unnecessary but almost certainly detrimental to Ms. Chakasim’s long-term rehabilitation. The joint position also failed to adequately reflect Ms. Chakasim’s status as an Indigenous Canadian and the extraordinary difficulties she has faced thus far in her life. Of even more significant concern, due to her lack of stable housing and mental health diagnosis, the terms of the probation order would be difficult for her to follow. This, in turn, would lead to an inevitable charge of failing to comply with that order in the future, placing her back in custody.
Guilty Pleas and Supporting Facts
4Ms. Chakasim represented herself for the guilty pleas. Ms. Dubb was able to assist her with sentencing submissions.
5On December 2, 2024, Ms. Chakasim attempted to enter 219 George Street in Toronto. This is a Toronto Community Housing Building. She was asked to leave by a security officer. A confrontation erupted between them. Ms. Chakasim punched him once in the jaw and kicked him once in the leg. He did not sustain any injuries.
6On December 30, 2024, Ms. Chakasim entered an LCBO at 777 Bay Street in Toronto. She stole a bottle of alcohol. As she was leaving the LCBO, a security officer instructed her to pay. She threw the bottle instead. Shortly thereafter, a mall security officer stopped her elsewhere in the mall. She spat on him.
7Neither of these two men were injured as a result of the December 30, 2024, incident. Ms. Chakasim pleaded guilty to both counts of assault.
8The Crown proceeded by way of summary conviction.
Background of Ms. Chakasim
9Ms. Chakasim is a 31-year-old Indigenous Canadian. For this judgment, I will reproduce only portions of what I learned about her life history, out of respect for her privacy and dignity and that of her family.
10She has been experiencing homelessness and has been residing in shelters. She has a daughter, 12, who lives with another relative. She supports herself through ODSP payments, although she has not received those payments for a lengthy period. She is unable to work. She hopes to regain access to her ODSP payments in the near future.
11She was diagnosed at a young age with Fetal Alcohol Spectrum Disorder (FASD). At some point in her life (she could not remember precisely when), she experienced a head injury that has left her with further cognitive impairment. She has difficulty reading, standing, and concentrating.
12Over the years, she has struggled with addictions to drugs and alcohol. She has fought hard to remain sober in the recent past, but this is an ongoing challenge.
13She has been working with a social worker recently to obtain housing, remain sober, and hopefully regain custody of her daughter. She attends All Saints Church in Toronto regularly for support and rehabilitative programming. She does that of her own volition and intends to continue upon her release from custody. She has also connected with an Aboriginal community organization.
14Her time at Vanier was very difficult. She broke down in tears in court, describing to me the conditions of imprisonment. Briefly summarized, she has been strip searched in front of other inmates, placed in segregation, and insulted by an officer who used derogatory and insulting language. This has taken a serious toll on her mental and physical well-being.
Proposed Joint Position
15Ms. Chakasim spent 43 days in pre-trial detention at Vanier. The parties proposed I credit her for 65 days (applying Summers) and place her on probation for three years. The terms of probation would include attending counseling or programming as directed by her probation officer and reporting to probation regularly to ensure compliance.
16The joint position was informed, in part, by Ms. Chakasim’s lengthy prior criminal record. It includes previous convictions for assault and failing to comply with court orders.
“Undercutting” Joint Positions
17In R. v. Anthony-Cook, 2016 SCC 43, the Supreme Court of Canada held that joint positions presented by the Crown and defence should only be rejected when “reasonable and informed persons would view the proposed sentence as a breakdown in the proper functioning of the justice system”: see para. 34.
18However, the Court explained that the same concerns do not arise when “undercutting” a joint position as opposed to “jumping” one. At para. 52, the Supreme Court wrote that in assessing the severity of a joint position, and whether it is excessive, sentencing courts should “be mindful of the power imbalance that may exist between Crown and defence, particularly where the accused is self-represented or in custody at the time of sentencing” (my emphasis added).
19That was precisely the scenario that Ms. Chakasim found herself in. She was self-represented for her plea and was desperate to escape jail. Unsurprisingly, she accepted whatever position the Crown presented to her. As I will explain, the position was not adequately considered and accepting it would have been contrary to the public interest.
20By making these remarks, I do not mean to call into question the professionalism of Crown or defence counsel. Mr. Garrett was following instructions provided to him by another member of his office in a very busy court, which had over 250 lines to start the day. He acted commendably, professionally and compassionately throughout this proceeding. This is standard procedure for Crown counsel in these overburdened courts. Ms. Dubb, assisting Ms. Chakasim as best she could, made excellent submissions to help me understand Ms. Chakasim’s plight. If her instructions were to accept the joint position, or at least to assist Ms. Chakasim with sentencing when she received the joint position, there was nothing more she could have done.
Sentencing Principles
21A sentence must be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender”: Criminal Code section 718.1. The assessment of moral culpability considers several key factors. Ms. Chakasim is Indigenous. Section 718.2(e) of the Criminal Code states:
A court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
22In R. v. Gladue, and R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada held that this section is remedial and is intended to deal with the continuing crisis of over-representation of Indigenous offenders in the Canadian criminal justice system: Gladue at para. 33; Ipeelee at para. 59.
23In R. v. Buswa, 2023 ONCJ 146, Justice Chamberlain outlined the considerations that sentencing courts must take into account when applying these principles, as set out in paras. 10-11:
Today, this crisis is driven by alienation, poverty, substance abuse, lower educational attainment, lower rates of employment, and prejudice experienced by Indigenous people in Canada. Sentencing judges are to take judicial notice of how Canada’s colonial history and post-colonial assimilationist policies have translated into these terrible outcomes: Gladue at para. 83; Ipeelee at para. 60. These systemic and background factors do not excuse nor justify criminal conduct. Instead, they provide the necessary context for understanding and evaluating case-specific information during the sentencing exercise: Ipeelee at para. 83.
Systemic and background factors affect the incidence of crime and recidivism for all offenders. However, as the Supreme Court recognized, the circumstances of Indigenous offenders are different from other offenders because many Indigenous people are “victims of systemic and direct discrimination” and “dislocation” and are “substantially affected by poor social and economic conditions”: Gladue at para. 68.
24There is no requirement for an offender to demonstrate a causal connection between “systemic or background factors” and the offence before the court. Instead, the court must be satisfied they are “tied in some way to the particular offender and offence”: see R. v. F.H.L., 2018 ONCA 83, paras. 38-41.
25Section 718.2(e) of the Criminal Code encompasses the values of restorative justice. In Gladue, the Supreme Court explained that the “concept and principles of a restorative approach will necessarily have to be developed over time in the jurisprudence, as different issues and different conceptions of sentencing are addressed in their appropriate context”: see para. 71. A sentencing court should consider the needs of the victims, the community, and the offender.
26The Ontario Court of Appeal explained in R. v. King, 2022 ONCA 665, that judges, when exercising their discretionary power, must be aware of the realities of the Indigenous peoples who appear before them. The Court wrote the following at para. 170:
…By this, we mean the historical and present-day treatment of Indigenous people that continues to perpetuate patterns of discrimination and has resulted in “lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples”: Ipeelee, at para. 60. Failing to recognize these realities can lead to further discrimination against Indigenous people and undermine efforts to apply the law impartially and equitably.
27Furthermore, the Supreme Court of Canada has directed trial judges to consider the potential impact of a proposed sentence on the individual before them. Regarding Indigenous Canadians, in R. v. Hilbach, 2023 SCC 3, the Supreme Court noted that “the effects of a sentencing measure may be particularly severe when circumstances affecting Indigenous offenders are considered”: see para. 45.
FASD, Proportionality, and Moral Culpability
28Ms. Chakasim’s moral culpability for these offences is significantly mitigated by her circumstances, especially her diagnosis of FASD.
29The Canada FASD Research Network developed a standard definition of FASD in 20191:
Fetal Alcohol Spectrum Disorder (FASD) is a diagnostic term used to describe impacts on the brain and body of individuals prenatally exposed to alcohol. FASD is a lifelong disability. Individuals with FASD will experience some degree of challenges in their daily living and need support with motor skills, physical health, learning, memory, attention, communication, emotional regulation, and social skills to reach their full potential. Each individual with FASD is unique and has areas of both strengths and challenges.
30No formal medical evidence was provided at the sentencing hearing about Ms. Chakasim’s particular diagnosis of FASD. In a busy case management and plea court, it is often unrealistic to expect this, and she did not know if any such report existed. Obtaining such a new report would have required a lengthy adjournment, at the very least, necessitating Ms. Chakasim's repeated appearances in court.2 Further engagement with the criminal justice system through multiple court appearances is often taken for granted as an inevitable feature of monitoring a case’s progress. Yet there are real costs associated with prolonging a case, even for an ostensible beneficial purpose. That includes, at a minimum, the enhanced stigma she would have to bear in a justice system that already alienates our Indigenous peoples.
31As the Crown was offering a time-served position, I instead took judicial notice of notorious and incontrovertible facts about FASD. I recognize that I must approach the application of this information with caution in the absence of expert testimony. However, to ignore this highly mitigating factor would perpetuate a grave injustice and almost certainly result in a sentence that fails to properly assess Ms. Chakasim’s moral culpability for her offences.
32The relevance of FASD to assessing an offender’s moral culpability is well-documented in prior court decisions. In R. v. J.P., 2020 SKCA 52, the Saskatchewan Court of Appeal held that a “combination of Gladue factors and FASD will often serve to reduce an offender’s moral culpability in the context of a consideration of the proportionality principle”: see para. 65. In R. v. Dayfoot, 2007 ONCJ 332, Justice Shamai commented on the significant reduction in moral responsibility that accompanies offences of this nature committed by persons with FASD. Her Honour wrote, and I agree, that “to punish behaviour which results from a clinically recognized disability runs contrary to the principles of criminal law”: see para. 23.
33The vast majority of FASD subjects are prone to attention deficits and impulsivity.3 I find that Ms. Chakasim’s assaults were directly linked to her diagnosis of FASD. They were impulsive and reactive decisions that demonstrate the challenges she faces in regulating her behavior. She expressed remorse for her actions by pleading guilty. She did not mean to harm anyone. This mitigating factor must be given great weight.
Pre-Sentence Custody and Probation
34The parties jointly recommended that Ms. Chakasim’s time in pre-sentence custody be noted as part of the sentence. This is something commonly done when a plea of this nature is accepted. Yet, I do not consider it appropriate for this case.
35Ms. Chakasim’s experience in pre-trial detention was harrowing. She was visibly shaken in court when describing her mistreatment. She was very concerned that she might have to spend even more time in jail. While in custody, she lost contact with some of her community support services and would need to rebuild those connections upon her release. She did not know what was happening with her daughter but hoped to reconnect with her family as soon as possible upon her release to find out.
36One wonders why she was placed in pre-sentence custody for such a long period at all. She should never have been held for more time than what was required for an initial bail appearance. The progression of her bail situation and whether the Crown contested her release were not the subjects of submissions, and I make no further comment in this regard. I do note that this appears to be yet another example of how time spent in pre-trial detention has come at a considerable cost to an accused person’s physical and mental health, stability and connections to community support networks, for little to no societal benefit whatsoever.
37Simply because an offender has spent time in jail does not mean that her criminal record should reflect that stark reality. Ms. Chakasim should never have been in custody. To reflect the 43 days spent at Vanier on her record would grossly misrepresent what is an appropriate sentence for these crimes, which I have concluded is a short probation order. It is an error of principle for a sentencing court to endorse “time-served” when that represents a sentence that would never have been imposed by the court in the first place if the accused had pleaded guilty while out of custody: see R. v. Singh, 2023 ONSC 4949, para. 91.
38In Ms. Chakasim’s case, endorsing this standard practice would be manifestly unjust and would perpetuate the very legacy of colonialism that Gladue courts are meant to remedy. Prof. David Milward of the University of Victoria noted in The Sentencing of Aboriginal Accused with FASD: A Search for Different Pathways, UBC Law Review, Vol. 47, Iss. 3, Art. 6 (2014), that inmates with FASD are particularly vulnerable to being caught up in the criminal justice system in general and to being exploited in prison in particular: see p. 1046. He concluded there are clear “linkages to be drawn between the effects of colonialism on Aboriginal peoples, FASD amongst Aboriginal peoples, and Aboriginal over-incarceration”.
39An appropriate sentence should emphasize rehabilitation and restorative justice principles. Specific deterrence plays little, if any, role for an offender with FASD. I, therefore, declined to note any of the pre-sentence custody on her record.
40The parties further jointly proposed a three-year probation order to run concurrently on both counts. The terms of that probation order included that Ms. Chakasim take counselling or programming as directed by her probation officer and sign any necessary consents or releases to ensure she was compliant. She was also expected to report regularly to probation.
41I understand why this was recommended. It, too, is a standard practice in our plea courts. Yet, I find it is also problematic and unjustified for Ms. Chakasim. In some cases, the imposition of these terms may be necessary to promote public safety and promote the long-term rehabilitation of an offender. But not always. Special care must be given before imposing these terms for vulnerable individuals.
42I am concerned that Ms. Chakasim would have great difficulty complying with a three-year probation order. If she misses an appointment to report or fails to attend a program meeting, she could be charged with breaching the probation order. She would then be placed back in custody, likely unable to make bail, and disconnected from her support network. The tragic cycle of arrest, incarceration, and traumatization will inevitably repeat itself.
43Ms. Chakasim faces numerous challenges in her life. She is attempting to focus on her personal growth and improvement. She is already engaged with community-based resources, including her church and Indigenous programming. I see no value in subjecting her to additional state-mandated supervision. Her commitment to her rehabilitation is sincere. But she is, of course, also human and only capable of bearing so much.
44The role of the probation officer is a feature of a colonial justice system. This must be considered when sentencing an Indigenous Canadian. The benefit of supervised probation, when placed in this context, should not be presumed. Shauna Kelly explains this well in her article, A Different Approach: Rethinking Probation, located in the Rule of Law Report, Volume 6, Issue 2 (June 2023):
The probation officer is an employee embedded within the colonialist system, in which systemic discrimination and racism continue to run rampant. And this is the context in which the Court must be presented with submissions to properly contextualize whether a reporting probation is needed in the unique and specific case that is being presented to them. It is recommended by the author that where there are sufficient and realized community supports with tangible plans and an articulated path to move forward, deference should be given to those restorative justice processes, and proper submissions should align with this. It is pertinent for counsel to present a case to the Court that can provide some assurance of accountability and that explains how that can be achieved without the use of a reporting term on a probation order, where appropriate.
45I agree with and endorse Ms. Kelly’s analysis. A three-year term of probation will likely keep Ms. Chakasim within the criminal justice system far longer than necessary. If Ms. Chakasim found the terms onerous and demanding, or that she was unfortunately unable to comply with all the expectations placed on her, I would have set a vulnerable person up to fail. If she ultimately gave up with attempting to comply, the order would not have achieved its rehabilitative purpose. Indeed, as Ms. Kelly explains, it would achieve “the exact opposite.”
46These are precisely the concerns that the Supreme Court of Canada identified in R. v. Zora, 2020 SCC 14, regarding onerous bail conditions. The Court wrote at para. 79, the fact is that “Indigenous people, overrepresented in the criminal justice system, are also disproportionately affected by unnecessary and unreasonable bail conditions and resulting breach charges”: see also Abby Deshman & Nicole Myers, Set up to Fail: Bail and the Revolving Door of Pre-Trial Detention (Canadian Civil Liberties Association and Education Trust, 2014). That same logic applies to probation conditions.
47Ms. Dubb articulated a plan for Ms. Chakasim in the community that I am satisfied will promote Ms. Chakasim’s rehabilitation without the need for this additional level of supervision.
Conclusion
48The Truth and Reconciliation Commission of Canada (2015) called upon federal, provincial, and territorial governments to commit to the elimination of the over-incarceration of Indigenous people in the criminal justice system. It also endorsed the United Nations Expert Mechanism on the Rights of Indigenous People's recommendation that “substantive changes are required within the criminal legal system.” Similarly, in R. v. Barton, 2019 SCC 33, Moldaver J. wrote at para. 199: “when it comes to truth and reconciliation from a criminal justice perspective, much-needed work remains to be done.”
49A restorative justice approach to Ms. Chakasim’s sentencing should focus on encouraging and trusting her reliance on the community-based organizations where she has already established meaningful connections. That is how to promote her long-term rehabilitation and reduce her engagement with the criminal justice system. Rethinking our approach to the routine imposition of lengthy probation orders is, in my view, an essential first step to embracing meaningful change with respect to how our criminal justice system treats our Indigenous peoples.
50I sentenced Ms. Chakasim to a suspended sentence with six months' probation. The probation order required that she report only once, to sign the order. She was prohibited from possessing weapons, was ordered to not have any direct contact with the victims and was also not allowed to attend the addresses where the assaults occurred. Nothing more was required.
51The victim fine surcharges were waived.
Released: March 31, 2025
Signed: Justice Brock Jones
Footnotes
- What is FASD? Canada FASD Research Network, available online: https://canfasd.ca/what-is-fasd/
- It can be difficult to find a clinic able to make such a diagnosis, and wait lists can stretch from months to years: see A Caregiver’s Guide to an FASD Diagnosis, Canada FASD Research Network (2020), available online: https://canfasd.ca/wp-content/uploads/publications/CanFASD-Caregiver-Guide-to-Diagnosis-Jan2020-interactive.pdf
- Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System, Department of Justice, Government of Canada (January 19, 2023), available online: https://www.justice.gc.ca/eng/rp-pr/jr/gladue/p3.html