Court File and Parties
Date: August 18, 2023 Information No.: 4810-998-21-15001783-00 Ontario Court of Justice
His Majesty the King
v.
Moka Dawkins
Reasons for Sentence
Before the Honourable Justice B. Brown on August 18, 2023, at TORONTO, Ontario
Appearances: B. Willitts, Counsel for the Crown K. Anor, Counsel for Moka Dawkins
Friday, August 18, 2023
Reasons for Sentence
So with respect to Ms. Dawkins' matter today, I wanted to put something on the record given that there was communication among counsel and the court after the last date that submissions were made, and I want to state as follows. It is important before commencing this sentence for the court to put on the record exchanges of communication with counsel, all copied to defence counsel and Crown counsel, following the date on which submissions on sentence were made in court. In that regard, the court sent an email from a judicial assistant to Ms. Penman, defence counsel, copied to the Crown, Ms. Willitts. In that email it states, quote:
[As read] Justice Brown has asked me to send an email to counsel on her behalf arising from her review of the defence sentencing materials for Ms. Dawkins' case. Some of the defence cases seem to have been selected based upon the offender having an Aboriginal or Indigenous background. Is Ms. Penman submitting that Ms. Dawkins has an Aboriginal background, because Her Honour cannot recall being advised that is the case. Thank you.
In an email response, the judicial assistant was advised that Ms. Penman was to be reached at another email. An email was sent to that address and then court was advised by Ms. Penman that another counsel, Ms. Kristianne, K-R-I-S-T-I-A-N-N-E, Anor, A-N-O-R, of the firm would be representing Ms. Dawkins today on sentence. The court then sent to that counsel through the judicial assistant an inquiry to Ms. Anor to ask the same question to the new defence counsel.
Counsel Ms. Anor then responded and indicated to the court through an email response that the defence is not seeking that Ms. Dawkins be sentenced as an Aboriginal offender. Ms. Anor clarified that she was "not making that submission that she ought to be sentenced as an Indigenous person." As a result of this submission from defence counsel, the court is not considering any factor on sentence that might relate to an offender with an Aboriginal or Indigenous background. Is there anything further from counsel?
MS. ANOR: No. thank you, Your Honour.
THE COURT: All right.
MS. WILLITTS: No. Nothing further, Your Honour.
THE COURT: All right. At this point the court commences its reasons.
Ms. Moka May Dawkins stands charged with a series of offences arising from March 26th, 2021. Those charges include assault with a weapon (water bottle) on John Munick, assault to PC Matthew Vidal with intent to resist or prevent the lawful arrest or detention of herself, and similar assaults to PC Uros Mirkovic, PC Daniel Constantini and PC Patrick Rourke. She also stands charged with fail to comply with a probation order made on November 6th, 2018, with respect to a term that she keep the peace and be of good behaviour. She is also charged with mischief under $5,000 in relation to damage caused to the light of a motor vehicle on the same date and same location.
The Crown proceeded summarily. The court ultimately, after the trial, found Ms. Dawkins guilty in very lengthy reasons for judgment on the charges of assault with a weapon on John Munick, assault with intent to resist arrest counts related to PC Matthew Vidal, Uros Mirkovic and Patrick Rourke. The court found her not guilty of the assault with intent to resist arrest as it related to PC Daniel Constantini. The court also found her guilty of mischief in relation to the damage to the parked vehicle and guilty of the breach of her probation order in relation to not keeping the peace and being of good behaviour. The case is now before the court for the imposition of sentence.
At the outset of the trial, the court was advised that Ms. Moka Dawkins identifies as a female and uses the pronouns she/her. She has been referred to as a transgender female by her counsel. She had a name change after she was charged with the subject offences and before the trial commenced. At the outset of the trial, her name on the information was changed from Curtis Gordon Dawkins to Moka May Dawkins consistent with her name change. She is also a racialized woman.
The Facts
(a) Circumstances of the Offence
As noted above, Ms. Dawkins has been found guilty after a trial off the following offences:
- Assault with a weapon on John Munick contrary to section 267(a) of the Criminal Code;
- Mischief under $5,000 contrary to section 430(4) of the Criminal Code;
- Three counts of assault with intent to resist or prevent the lawful arrest or detention of herself in relation to three different police officers contrary to section 270(1)(b) of the Criminal Code; and
- Failure to comply with probation in relation to a term to keep the peace and be of good behaviour contrary to section 733.1(1) of the Criminal Code.
Given the extremely extensive reasons for judgment that were given earlier in this case, the court will not repeat the reasons on the many issues raised in the trial. The court will, however, restate its findings of fact which are important for the consideration of sentence.
On March 26th, 2021, Ms. Dawkins went shopping on Roncesvalles Avenue in the City of Toronto. She went into a clothing store, Helga's, to look at an item. Ms. Dawkins testified that Helga used the N-word when speaking with her and said that she was too big and fat for clothing in the store. Ms. Dawkins indicated that Helga accused her of stealing. Shortly after that exchange, Helga left the store. Following that, Ms. Dawkins walked out of the store.
Ms. Dawkins is a woman who is tall and large in stature. The victim, Mr. Munick, described her as being six feet, five inches tall. Mr. Munick is notably shorter, and he is much older than Ms. Dawkins; he is 66 years of age.
The court finds that after Ms. Dawkins left Helga's store, there was a discussion outside on the sidewalk. Mr. Munick crossed the street from where he was doing his laundry after seeing Helga, a woman four feet, eight inches in height looking frightened, come out of her store, followed by Ms. Dawkins who was over six feet tall. At the time, Ms. Dawkins had a wild look in her eyes. Mr. Munick said to Ms. Dawkins, can't you see this little old woman, she has dementia, she is four feet, eight inches and 80 pounds. Ms. Dawkins said she did not realize what was wrong with her, but that Helga had used the N-word in referring to her. Ms. Dawkins said it was not okay. Mr. Munick told Ms. Dawkins to let it go as she is clearly ill and old, and he probably told Ms. Dawkins to get on her way and for Helga to get on her way and just forget what had happened.
Ms. Steinberg was present at that time. Mr. Munick did not refer to Ms. Dawkins using any transphobic slurs. Ms. Dawkins put up her hand into Mr. Munick's face and Mr. Munick swatted away her hand. Following that, Ms. Dawkins started an attack on Mr. Munick where she proceeded by advancing towards him with the metal water bottle in her hand, she swung at him with her hand three times, hitting him in the arm. She then swung at him with the water bottle three times. On two of those occasions, she hit Mr. Munick in the head with the water bottle, one time on the nose, which caused a cut and bleeding on top of his nose.
This was a one-sided event where Mr. Munick noted that Ms. Dawkins was much bigger than him, her arm length and reach was longer than his arm and reach. Mr. Munick did not do anything in reference to Ms. Dawkins until after he was struck with the water bottle. At that point, he touched his head in reaction to the blow. He tried to strike back at Ms. Dawkins at that point but missed. There was no contact with Ms. Dawkins.
Moments later, Mr. Munick fell on the ground. Ms. Dawkins proceeded to kick Mr. Munick in the area of his ribs as he laid on the ground. Another bystander pulled Ms. Dawkins off of Mr. Munick and ended the attack. Moments later, Mr. Munick was able to get away and go upstairs to an apartment. Ms. Steinberg stood in front of the door to the apartment where Mr. Munick had gone. The police were called. Ms. Dawkins approached Ms. Steinberg and wanted to approach the area where Mr. Munick was at the time.
After all of the events were over, Mr. Munick did not even want to give a statement to the police. He was recorded on a body-worn camera being questioned by an officer who wanted information from him. Mr. Munick said he was tired; he wanted to get something to eat. He explained in court that he was upset as he had just been injured. That was the time, the court finds, that in that state, in the absence of Ms. Dawkins, he referred to her once using the word "it." He thought she might have been high because she had a lot of power. He stated that she had just given him, "an ass kicking."
Mr. Munick sustained a cut to his face on his nose arising from having been struck by Ms. Dawkins with the metal water bottle used to hit him in the head. He gave evidence which the court accepts as to his physical discomfort in the weeks that followed the assault. Those facts are set out below in the reasons.
Ms. Steinberg saw, in the course of Ms. Dawkins swinging with the water bottle numerous times at Mr. Munick, that on one occasion when she missed hitting Mr. Munick, the water bottle came down and hit a parked car, which light was broken by the action.
The first police car on the scene in relation to the call arrived at 6:30 p.m. driven by PC Matthew Vidal, and it also contained his partner, PC Uros Mirkovic, in the front passenger seat. Upon arrival, PC Vidal saw Ms. Dawkins and asked her to speak to PC Mirkovic. PC Vidal then spoke to witnesses on scene, including Ms. Steinberg and the male who described the assault with Ms. Dawkins striking the complainant with the water bottle and striking him on the lip. At that point, PC Vidal had grounds to arrest Ms. Dawkins.
Meanwhile, PC Mirkovic had asked Ms. Dawkins to identify herself. She only gave her first name. She may have related something regarding prior events. Ms. Dawkins, at that time, still had in her hand the metal water bottle she had used to strike Mr. Munick, and officers were concerned about that situation. PC Vidal decided to arrest her with PC Mirkovic. They placed Ms. Dawkins under arrest and asked her to put her things down and put her hands behind her back as they tried to put handcuffs on her.
PC Vidal got the handcuff on her right wrist. They were unable to put the handcuff on her left wrist. Ms. Dawkins clearly intentionally defied their commands to put her left wrist behind her back. She kept her left arm where the officer could not grab it. She started a process of resisting arrest using her large body to resist the officers. When they could not get the second handcuff on her, officers decided to take her down to the ground to get more control of her.
This started a process where Ms. Dawkins moved her body and tried to flip her body around to get in different positions to thwart the officer's efforts to place the second handcuff on her. They told her numerous times to stop resisting them. Ms. Dawkins continued to resist. She continued to defy efforts to get her left arm and wrist to place the cuff on her. She changed her body position, lifting her leg up and around. She was clearly a very strong person.
She used her legs to kick PC Mirkovic. This is separate and apart from his evidence that she kicked him in the genitals. She was able to get his arm in what was almost an arm lock. She reached out to PC Mirkovic, and the camera on the front of his uniform, which is the body-worn camera, came off the uniform. She grabbed some police keys that were on the ground. She later grabbed the body-worn police camera that was on the ground. The officer told her to, "stop grabbing shit." She said she had the right to protect herself against police violence. They told her to stop and calm down. Ms. Dawkins said, "Are you stupid? That is how you know you are white."
As they tried to hold her down on the ground, she was still moving. The officers still did not have control of her. It was a very fluid and dynamic situation as officers continued unsuccessfully to try to gain control of her. They did not use any force options, nor did they strike her. However, they called for assistance.
PC Constantini arrived at approximately 6:30 p.m. as the third officer on scene. Ms. Dawkins was again told she was under arrest, to put her hand behind her body, and she did not comply. She was then placed on her stomach for a very brief moment while she said she could not breathe. The officer said, if she put her arm behind her back, she would get up. The handcuff was then placed on her left wrist. Within five seconds, she was turned on her side.
The first two officers were out of breath in dealing with Ms. Dawkins. Moments later, they told her to calm down to catch her breath. She said "bitch" to the officers. PC Mirkovic put the camera, which was the body-worn camera, back on his uniform. PC Rourke then arrived to assist and saw what he thought was the officers doing all right. He then went over to speak to witnesses.
Ms. Dawkins asked the officers what they were arresting her for. As the officer said she was being arrested for assault and assault with a weapon, Ms. Dawkins interrupted the officer yelling over his words asking, "on who?" PC Mirkovic told her to shut up as she had continued to yell. He also put his hand on her face to push her face away. Her face was not on the cement. She continued to yell that she had the receipts. It seemed throughout Ms. Dawkins seemed to think she was being accused of theft even though the officers told her it was assault.
The officers lifted her to an upright position. PC Mirkovic told her to move as they were trying to move her to the police vehicle. She did not move; she stood there arguing. PC Mirkovic gave her a little push to move her forward towards the police vehicle as they proceeded, with PC Vidal on her left and PC Mirkovic on her right, towards the police vehicle, which was located between parked vehicles on the street. This caused Ms. Dawkins to lose her footing and she almost tripped around the police vehicle. She did not fall.
This immediately preceded Ms. Dawkins saying something about I should, "butt" or "bust" your head, after which she intentionally leaned over and head-butted PC Vidal, hitting his face, nose, and teeth area. PC Vidal thought his teeth were broken. He was startled by the blow, and this caused him to lose control of Ms. Dawkins. He let go of her as he fell stumbling backwards. Immediately after, Ms. Dawkins rushed towards PC Mirkovic who thought she was about to head-butt him. They were not able to control Ms. Dawkins in the standing position.
PC Rourke then came over from speaking with the witnesses to assist, and he replaced PC Vidal in the role of holding Ms. Dawkins. She was out of control. After having also previously been uncooperative and resistant, she was twisting and turning. To regain control of her, they took her down to the ground. Although PC Constantini was struck in the shin, it is not clear how that injury was caused. The court did not find that Ms. Dawkins struck him intentionally in the shin.
On the ground at 6:32 p.m., officers asked Ms. Dawkins if she was done kicking and head-butting people. She sarcastically responded, "Sure. Yeah. I'm done." An officer, Rourke, said he did not believe her. Officers tried to keep her in position on the ground, but not on her stomach. The officer changed positions. They were trying to control her, to calm her down, but to secure her. They were waiting for the leg restraints to put on her since she had been resisting and kicking.
During that time, PC Rourke adjusted the position of his hands to get leverage to lift her arm so she was in the relief position of being on her side and not on her stomach. Ms. Dawkins screamed. The officer responded, "Oh, stop." PC Rourke did nothing to cause her pain. Any discomfort she felt was from the wearing of handcuffs and the position she was in throughout the incident. Ms. Dawkins had been unable to testify as to what had caused her pain when she gave her evidence.
Leg restraints were put on her ankles so that there was almost no space between her ankles. Then officers had to get her from the position on the ground over to the police vehicle. That proved to be a very challenging situation. They first tried to move her over and placed her in the vehicle headfirst, a very unsuccessful manoeuvre. At one point, she buckled her knees, and she was on her knees before going into the vehicle. They had to take her out of the vehicle, and on the second attempt, suggested and helped her get in a seated position facing out from the vehicle.
Unfortunately, this allowed Ms. Dawkins to try to head-butt PC Rourke, but he responded quickly by moving, and he did not get hit by Ms. Dawkins. Moments later, Ms. Dawkins tried to head butt PC Mirkovic as she was seated, and he was also able to get out of the way in time. Shortly after, as PC Rourke tried to manoeuvre her further into the vehicle, she kicked PC Rourke in the chest with both of her legs in an intentional manoeuvre. It was not accidental. He then pushed on her feet to push her further in the vehicle. Eventually, they got Ms. Dawkins into the police vehicle with the leg restraints under the door of the vehicle to secure her in place.
PC Mirkovic was kicked in the genitals by Ms. Dawkins at some point in the struggle with her. Although he could not say exactly when it happened, there is no doubt that she was kicking at him at the time of the initial arrest and after that. The court finds that she intentionally kicked him in the genitals with a force that caused notable discomfort to him for some time.
The court found that Ms. Dawkins sustained the injuries noted in evidence, including as shown in the photographs of Ms. Dawkins in the course of her actions in resisting the arrest.
The court also found that the police officers suffered the injuries noted in the evidence. PC Vidal suffered the injuries noted in evidence from the head-butting, that Ms. Dawkins kicked PC Mirkovic in the genitals and kicked PC Rourke in the chest. The court also found that she attempted to head-butt PC Rourke and PC Mirkovic as well.
(b) Circumstances of the Offender
Typically, in a case such as this, the court would have ordered a pre-sentence report. However, defence counsel did not wish to have a pre-sentence report for Ms. Dawkins, offering that the defence would provide various exhibit material to set out her personal circumstances. As well, the defence made submissions on her behalf as to her circumstances as an offender.
The court has been provided with an affidavit of Ms. Dawkins, which was created and put before the court five years ago in relation to a manslaughter conviction that was imposed on her. This affidavit was relied upon by Justice Clark of the Superior Court of Justice in sentencing Ms. Dawkins on the manslaughter following the jury verdict of guilt. Justice Clark gave enhanced pre-sentence custody credit beyond 1.5 days per day to credit of two days per day spent in pre-sentence custody. That affidavit was highly relevant to the issue of credit in that case, but as well the correctional system prior to 2018.
The court also notes that the unfortunate nature of this custody for Ms. Dawkins arose at the Toronto South Detention Centre, a men's correctional institution. At the time of her arrest, as she had not completed the process of transition and for reasons of her own choosing, Ms. Dawkins had chosen to be in a men's correctional centre for her detention on the homicide charge. She was provided the option of being in a women's correctional centre, but she chose against it.
The court notes that Ms. Dawkins has not informed the court currently as to whether, if she is sentenced to a period of incarceration, she would make a request to serve that sentence at a men's correctional facility. It is the court's understanding, based upon recent years of dealing with prisoners at the Toronto South Detention Centre and Vanier Centre, that a person such as Ms. Dawkins would typically be sent to the women's facility, for example, at Vanier.
The court raised this with defence counsel, and defence counsel has not put any material before the court to suggest otherwise. The court would also note that counsel could subpoena a representative of the correctional facility should counsel wish to put information before the court, yet has chosen not to do so.
The court would also note that the defence seeks to rely upon this affidavit currently to suggest that if Ms. Dawkins is incarcerated, that by and large the conditions would remain the same. The court questioned defence counsel as to the relevance of such information as it is not even known as to whether Ms. Dawkins would request to be incarcerated in a facility for female offenders or male offenders.
While one could predict she would choose the facility for female offenders given her current identification and the fact that she now identifies as a female, appears to be a female and has a female name, the information sought to be filed by the defence relates to time spent in an institution for male offenders. There is no material before the court relevant to serving sentence in a facility for female offenders.
Ms. Dawkins was born on May 2nd, 1990, and is therefore 33 years of age. The defence has confirmed its position that Ms. Dawkins should not be considered as having an Aboriginal or Indigenous background in the consideration of sentence in this case. Ms. Dawkins was born in Montreal and grew up in that city. She moved to Toronto in her adult years. Ms. Dawkins had a difficult childhood. Her parents separated when she was young. Her father disowned her after he learned she was homosexual.
Ms. Dawkins has a criminal record which is not an aggravating factor, but it does bear upon the principles of specific deterrence and amenability to rehabilitation. While the criminal record entries began in 2011 when she was 21 years of age, many of the 2011 to 2014 convictions imposed were in Montreal for failure to comply with the release or probation order, and those were nine of the charges. She was also during that period of time found guilty of three offences of theft under.
The first offence of violence for Ms. Dawkins was in 2013 for assault for which she was given a suspended sentence and one year probation. The second offence of violence is the notable finding of guilt that was entered in 2018 for manslaughter. She had been charged with second degree murder and the jury found her guilty of manslaughter. Lengthy reasons for sentence imposed by Justice Clark have been put before the court by the Crown shedding light on that offence. The court has reviewed those reasons.
For that offence of manslaughter, after serving real presentence custody days of approximately 39 months, she was given 2 for 1 credit of 78 months as enhanced pre-sentence custody credit. The sentence imposed following that credit was an additional 18 months' incarceration to be followed by two years' probation and a section 109 weapons prohibition order was imposed.
Following that sentence, Ms. Dawkins was released on May 6th, 2019. Following that release, Ms. Dawkins was found guilty and sentenced on two charges of uttering threats and mischief under, for which there was recognition of eight days pre-sentence custody, and the suspended sentence with 12 months' probation was imposed together with the section 110 weapons prohibition order for five years.
While there is a gap in her criminal record from 2014 to 2018, it is important to bear in mind that Ms. Dawkins was in custody from 2015 to 2018, detained on the charge of second-degree murder.
The court has read very carefully all of the letters of support and materials filed by the defence as exhibits for consideration of sentence. In that regard, the court would note the following letters are before the court for consideration of sentence:
- February 21st, 2023, from Leon Laidlaw who has set out his knowledge in relation to trans people's experiences and issues in the criminal legal system. He has stated his knowledge of her as a person, the work she has done and her experiences. He also went on to state his knowledge of conditions in correctional institutions. This letter went into areas of advocacy rather than fact and was in the nature of submissions on sentence. Ms. Dawkins has her own lawyer who has advocated for her effectively in this case. The writer of this letter also does not seem to appreciate the findings of fact made by the court in its judgment in terms of some kind of justification for her acting violently. The court will not engage in a point-by-point response to these statements in the letter, nor will it rely on the portion of the letter that is clearly advocacy by this person.
- February 24th, 2023, a letter from Caroline Jones of the Elizabeth Fry in Toronto. She speaks of her knowledge of Ms. Dawkins and her work in the community.
- April 2nd, 2023, general letter of David Byrne addressed to a hiring manager or admissions officer rather than to the court. It is very important to note that this letter does not refer to Ms. Dawkins, but ostensibly to a whole group of students in a class at Centennial College. Nonetheless, the court has read and reviewed this letter.
- A February 22nd, 2023, letter from Lyndsay Watson, legal director of Pivot Legal Society, arising from their 2022 work on a webinar. Pivot does work in relation to sex workers' rights. The court is aware of the fact that Ms. Dawkins has worked as a sex worker in the past. The author speaks about Ms. Dawkins' work in the community and her reputation as a criminalized Black trans woman.
- A February 21st, 2023, letter addressed to whom it may concern from Celina Lucarelli. She is a student who is supervised and indicates that she has worked with Ms. Dawkins for the prior year in one-on-one private therapy. Her credentials are not known to the court nor set out in the letter. This sets out her knowledge of Ms. Dawkins and the topics they have discussed, and the author supports Ms. Dawkins in this letter. Interestingly, the letter states that Ms. Dawkins would not act out in violence unless forced to do so in self-defence. It is not clear as to whether the author knows about the charges before the court, the evidence or the findings of fact in this trial.
- An undated letter from Kamilah Haywood "to whom it may concern." It is not clear as to whether the writer is aware of the charges, the outcome of the trial or that it is being submitted to the court. It sets our Ms. Dawkins' reputation and some of her work.
- A letter dated February 23rd, 2023, addressed to the court from Sui Young. The writer became aware of Ms. Dawkins in relation to serving her sentence for the homicide noted on her criminal record. The writer is aware of the work of Ms. Dawkins and her background, some of which is set out. The writer states that there has never been any indication of a desire to cause or incite harm on another person. The writer does not seem to be aware of the facts in this case.
- An undated letter from Celestija Mesic and Uniqua Jusblesin in support of Ms. Dawkins.
- A March 8th, 2023, letter from Mark Golding who has been training Ms. Dawkins for the prior two years. This letter supports Ms. Dawkins, and as with various other letters noted above, requests a non-custodial sentence for Ms. Dawkins. The writer states shock at the verdict and does not appear to reflect any knowledge of the evidence or findings in this trial.
- An undated letter from Melissa Rivard, Ms. Dawkins' older sister. She is supportive of Ms. Dawkins and speaks about her personal character in a positive way together with speaking about issues in relation to her father.
- A May 11th, 2023, letter from Megan MacDonald, manager from Amadeusz, a charitable organization that supports young people who are incarcerated. It reflects the work of Ms. Dawkins in their education program. It sets out her involvement as a participant while in custody, completing her GED and high school equivalency certificate from the Ministry of Education in 2017. She has completed other courses at Centennial College and Northern College. This letter is addressed to whom it may concern, and it does not appear from the contents of the letter that the writer was aware of the charges or that the letter was being submitted to court on sentence.
- An excerpt of an application to U of T for fall 2023, which reflects the status of awaiting required documents.
- A draft affidavit of Moka Dawkins, which appears to have been anticipated to be sworn in November of 2018. It appears that this was prepared for the purpose of sentence in relation to the manslaughter sentence noted on her record. It reflects the difficulties Ms. Dawkins suffered while in jail prior to that sentence being imposed and other matters.
There is no doubt that Ms. Dawkins has had a difficult background both as a child and as a young adult arising from her racialized trans background and the experiences she has had over the years. There is also no doubt that she has advocated on behalf of racialized trans people and that she has done a lot of community work set out in the letters filed with the court. She has also done paid work with Metropolitan University in similar areas of endeavour. The court takes all of this into account with respect to her character as it paints a favourable picture of her as a person, recently.
The Crown makes the submission that some of the letters of support for Ms. Dawkins, including those of Celina Lucarelli and Leon Laidlaw, seem to reflect a lack of understanding on their part of the findings of fact in this trial and reasons for judgment. For instance, Ms. Lucarelli indicates that Ms. Dawkins would not be violent unless she was acting in self-defence. The court specifically found that Ms. Dawkins was not acting in self-defence. Mr. Laidlaw stated that she was a victim and only reacting to violent circumstances. Again, that is not consistent with the findings of fact made in this case. Accordingly, the Crown submits that the court should place less weight on what are clear letters of support for Ms. Dawkins, as the authors are not aware of the circumstances in this case.
It is to be noted that after she completed the sentence for the manslaughter and was out of custody, Ms. Dawkins has done what she could to better herself in terms of her education and community work. The court was advised that her goal is to use her education to advocate for police or policy change and to improve conditions for transgender people, both domestically and globally. She wants to work on advocacy and policy change to that end. She has a goal of getting a PhD in psychology. In the meantime, she has been on the board of directors of Pride Toronto. The court takes into account the considerable community work that Ms. Dawkins has performed over the last number of years as indicated in submissions and the letters of support filed in evidence.
Currently, Ms. Dawkins has been found guilty after a trial of assault with a weapon to John Munick, a civilian, together with three offences of assault with intent to resist or prevent the lawful arrest or detention of herself in relation to three different police officers, a charge of mischief for damage to a vehicle, and a breach of probation for failure to keep the peace and be a good behaviour. This was the probation order imposed for the homicide, the manslaughter conviction and sentence on November 6th, 2018. The offence before the court is in relation to offences committed on March 26th, 2021.
It is important to consider whether there is any remorse in this case. This is not a case where there is a mitigating effect of a guilty plea. Ms. Dawkins was entitled to a trial, and she exercised that right. She is not in any way punished to a greater extent for having a trial, Ms. Dawkins simply does not have the mitigating factor of having entered a guilty plea. The court looks, however, to see whether there is any remorse expressed otherwise in this case.
When the court provided Ms. Dawkins the opportunity to make a statement, she declined to do so stating, "Not at this moment. Thank you." There is no indication of any remorse whatsoever by Ms. Dawkins in this case.
Impact on Victim and/or Community
The Criminal Code directs the court to take into account the portions of the Victim Impact Statement that the court considers relevant to the physical or emotional harm, property damage or economic loss suffered by the victim as a result of the offence, and the impact of the offence on the victim. See the definition of victim at section 2 of the Criminal Code and also section 722(1), (4), and (8).
In this case, PC Matthew Vidal prepared and read out in court his Victim Impact Statement. There is no bar to the court receiving a Victim Impact Statement from a police officer. All people who are found to be victims of crime are entitled to put before the court a Victim Impact Statement. He indicated the following:
[As read] On March 26th, 2021, I attended the Roncesvalles area for a violent behaviour radio call. I rushed to the scene because information that I was provided stated citizens were being actively assaulted. Upon arrival, it was determined that Ms. Dawkins was the individual who had assaulted several people, and I therefore attempted to arrest her. Ms. Dawkins actively resisted being arrested, and it took several minutes to get her into handcuffs with help from other officers.
Once Ms. Dawkins was in handcuffs, I believed she had calmed down and was no longer violent. I let my guard down as we walked to the police car, and to my surprise, Ms. Dawkins maliciously head-butted me in the area of my nose and mouth. The attack was unprovoked and unexpected. At the time, I believed that my teeth may have been broken and my eyes started to water. In the coming days, the area of my nose and mouth felt sore and I was in pain and discomfort for approximately one week after the offence.
Every day I go to work, I have the expectation that I will come home safely to my family. As a result of being assaulted on March 26th, 2021, I physically came to my family that evening, but I was emotionally absent. All I could think about all evening was the events that led up to the assault. I felt embarrassed, stressed, and anxious. Consequently, this assault impacted my relationship with my wife because of the poor mood I was in at home.
Furthermore, as a result of being assaulted by Ms. Dawkins, I found myself lying awake many nights replaying the events over and over in my head and not being able to sleep. The defendant's actions caused me to feel stressed out, which triggered my anxiety. I found my ability to carry out my daily duties at work challenged with my heightened anxiety. To this day, and for the rest of my career, being assaulted by Ms. Dawkins will impact the way I think and act while carrying out my duties at work.
A strict sentence for Ms. Dawkins has the potential to affect the way she and others may act before assaulting a police officer in the course of their duties so that those officers can go home safely and without physical or emotional injury. This sentence cannot undo the damage that has already been done, but it can keep the defendant, who has shown how inherently violent she is, from attacking other people while unprovoked.
This court would find that this offence has had a significant effect on Matthew Vidal, a person who works as a police officer in Toronto and who was not only physically injured and affected, but affected in other ways and for some considerable period of time. The court would find that this is a statutorily aggravating circumstance as it relates to sentence. See section 718.2(a)(iii.1) of the Criminal Code.
Although the other victims did not provide Victim Impact Statements, the court would note the following from the respective witnesses in their evidence at trial, which the court accepts as facts. Mr. Munick was treated by EMS on the scene and given a bandage over the cut on his face. He had a bit of a headache for a few days, and his ribs were sore from the kicking for at least two weeks. He had a hard time breathing, although they did not feel broken or cracked. It was painful, but it appeared to heal within two to three weeks.
PC Mirkovic was kicked in the genitals by Ms. Dawkins. This caused soreness to his genital area. Photographs filed in evidence showed scrapes to his left knee from the time they were on the ground struggling with Ms. Dawkins, together with an abrasion and redness to his left elbow, which of course was in the course of the struggle. The court, however, relies upon the intentional assaultive action of the kick to his genitals and resulting discomfort with respect to the offence and sentence in relation to him.
PC Rourke was kicked in the chest with both of Ms. Dawkins' legs as they tried to restrain her. He candidly admitted in his evidence that he did not suffer any injuries from this kick, he just needed to catch his breath for a second.
Legal Parameters
The court would note the Crown proceeded summarily on all of the hybrid offences before the court. The court would note that section 787(1) of the Criminal Code provides that where the Crown proceeds summarily for offences where the punishment is not prescribed otherwise, the offender is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day or to both. And as set out below, section 270.03 of the Criminal Code requires consecutive sentences for the assaults in relation to the police officers in this case.
Positions of Crown and Defence on Sentence
The Crown is requesting a total of 12 months incarceration arising from a sentence of three months jail on each assault with a weapon and assault police charges to be imposed consecutively for a total of 12 months' incarceration. The Crown seeks a sentence of 10 days incarceration concurrent in relation to the charge of mischief to the vehicle.
The Crown did not make any submission, nor did the Crown take any position with respect to sentence on the failure to comply with probation charge. There were simply no submissions made on that charge. The Crown also seeks a period of two years' probation with various terms discussed below. The Crown also seeks an order that a DNA sample be taken, and a section 110 weapons prohibition order be imposed for a period of 10 years.
The defence has submitted that the appropriate sentence in this case is a conditional sentence. The defence did not specify its position as to the length of any conditional sentence, notwithstanding the court's inquiries in that regard, nor did the defence indicate its position in relation to the other orders sought by the Crown.
Ms. Dawkins is neither a youthful offender nor a first offender. There is no indication of remorse on the part of Ms. Dawkins whatsoever. When invited to make a comment prior to the imposition of sentence, as indicated, Ms. Dawkins did not indicate any statement. This is not an aggravating factor, but rather is the absence of what might have been a mitigating factor.
It is mitigating that after she assaulted Mr. Munick, that Ms. Dawkins did not flee and remained on the scene. Ms. Dawkins' prior criminal record is not an aggravating factor, but rather a factor bearing upon the analysis of the need for specific deterrence and, as well, rehabilitation prospects.
While Ms. Dawkins was on probation for manslaughter she committed the assaults and mischief, she was also charged and found guilty to have failed to comply with that probation order by failing to keep the peace and be of good behaviour. Accordingly, she is also going to be punished for the actual offence of breach of that probation order. Accordingly, it is not an aggravating factor per se in sentencing on the other charges, but rather is a separate delict that will be the subject of a sentence to be imposed by this court.
The Criminal Code section 718.02 provides when a court imposes a sentence for an offence under section 270(1), section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. Accordingly, for the three offences of assault peace officer with intent to resist or prevent the lawful arrest or detention of herself, primary consideration is to be given to denunciation and deterrence. It is also important to note that as it relates to sentences to be imposed for the three section 270 offences, that section 270.03 of the Criminal Code provides:
A sentence imposed on a person for an offence under subsection 270(1) or 270.01(1) or section 270.02 committed against a law enforcement officer, as defined in subsection 445.01(4), shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events.
Sentencing Principles
(a) Analysis
The court bears in mind the guiding comments of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64. In that judgment, the court stated that sentencing ranges are primarily guidelines, not hard and fast rules. Even if an appellate court has established a range, it may be that a fact pattern may arise which is sufficiently dissimilar to past decisions that the range must be expanded. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. They should not be considered averages, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges who must still exercise their discretion in each case.
Accordingly, a sentencing range is not a straitjacket to the exercise of discretion of a sentencing judge. Each crime is committed in unique circumstances by an offender with a unique profile. Everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. Sentencing ranges must in all cases remain only one tool among others that are intended to aid trial judges in their work. The court specifically stated these principles at paragraph 73.
In 2010, the Supreme Court of Canada noted in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at paragraph 43 that "no one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case." Sentencing is highly individualized. See R. v. Suter, 2018 SCC 34, 2018 S.C.C. 34, Supreme Court of Canada. As the court stated in that case in paragraph 4:
A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (s. 718.1 of the Criminal Code). Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range. This is one such case.
In 2021, the Supreme Court of Canada in R v. Parranto, 2021 SCC 46, [2021] S.C.J. No. 46, in the majority judgment at paragraph 10 stated that proportionality is the organizing principle for the court in imposing a fair, fit and principled sentence. Proportionality is a fundamental principle. Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender and the unique circumstances of each case. Parity and individualization are important yet secondary principles. The demands of proportionality must be calibrated by reference to the sentences imposed in other cases. Individualization is central to the assessment of proportionality in that it demands consideration of the individual circumstance of each offender as set out in paragraph 12.
As often stated by appellate courts considering sentence appeals, every case has its unique features relating to the offender or the offence. The court has reviewed all of the cases referred to by the defence and the Crown in this case. The absence of mention by this court does not mean that this court has not considered a particular case. It simply reflects the court's view that the circumstances in those cases are not of assistance in considering the appropriate sentence in this case.
The principle of proportionality is also codified now in the Criminal Code, which states that the sentence imposed by the court must be proportionate to the gravity of the offence and the degree of responsibility of the offender. See section 718.1 of the Criminal Code.
The court bears in mind that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterrence, both generally and specifically for the offender, separation of the offenders from society where necessary, rehabilitation, to provide reparation for harm done to victims or to the community, and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community. See section 718 of the Criminal Code.
The court bears in mind any applicable sentencing principles as set out in section 718.2 of the Criminal Code, and as well the principles of parity, totality and judicial restraint in considering a sentence of deprivation of liberty or imprisonment as set out in section 718.2(b) through (e).
The emphasis of the court in considering those various objectives depends on the nature of the offence and the circumstances of an offender. As noted above, Ms. Dawkins did not express any remorse for committing the offences. There is no doubt this court would find that Ms. Dawkins is clearly not remorseful for assaulting Mr. Munick, nor the police officers, nor the other offences. She repeated her version in the trial over and over again that essentially, from her perspective, she was the victim in this offence. This reflects what this court would find to be a lack of insight into her actions, which might well be an impediment in her rehabilitation after today.
The fact that Ms. Dawkins entered a plea of not guilty and a trial followed is not an aggravating factor. A guilty plea saving the need for witnesses to testify at trial can be a mitigating factor. The absence of a guilty plea is neutral. As the Court of Appeal for Ontario noted in R. v. Kakekagamick, [2006] O.J. No. 3346, the "failure to accept responsibility for his actions weighs against affording him significant consideration by way of mitigation."
There is no doubt this court would find that if Ms. Dawkins is sentenced to a period of incarceration, that as a racialized transgender woman, she would find serving a term of incarceration more difficult than other offenders. The court has considered that circumstance.
The Crown strongly opposes the conditional sentence requested by the defence. The Crown makes this submission on the basis that it would endanger the safety of the public. The Crown makes the submission that based upon Proulx, that a condition present in opposing a conditional sentence is that the safety of the community would not be placed in danger. The court has to consider the risk of reoffence and the gravity of damage that could ensue if there is a reoffence.
The Crown submits that there is a high risk of offending as she was not deterred after the lengthy sentence for manslaughter and that the gravity of damage could be extremely high given the most recent behaviour of assaulting the parties in this case. While there is a lack of insight arising from a lack of remorse, this can potentially increase the risk. Proulx has made it clear that a sentence of incarceration should only be imposed if a conditional sentence is not appropriate.
The defence has relied upon a number of cases it has put before the court, over 146 pages in length, which the court has read and considered very carefully. R. v. Jolly is noted to be a trial judgment of Justice Ghosh related to trafficking in fentanyl. However, there was a guilty plea entered in that case and the court considered sentence. Both parties requested a significant penitentiary sentence for the offence and the parties raised the issues of the offender's experience as a Black man. He was the victim of a shooting and suffered from PTSD. He had a fairly minor record as compared to the record or the situation of Ms. Dawkins. The court noted that the offender's experience with anti-Black racism did not impact on the seriousness or gravity of the offence, but may impact the moral responsibility of the offender, which in that case involved the offender selling drugs as a source of money. He was sentenced to nine years in the penitentiary less pre-sentence custody credit.
The defence relied upon R. v. Wright, 2020 ONCJ 513, a sentencing decision which cited R. v. Jackson, 2018 ONSC 2527, [2018] O.J. No. 2136, which was appealed to the Court of Appeal in Ontario. At the appellate level in paragraphs 55 and 75, the court held that evidence related to anti-Black racism on an offender did not affect the seriousness of an offence. At most, it can have an impact on the moral responsibility of an offender. The court also went on to state the court should not equate Indigenous offenders and Black offenders for the purposes of section 718.2(e) of the Criminal Code. This court would also note that is consistent with R. v. Morris, [2018 O.J. No. 5108. In terms of moral responsibility, the court is to consider whether the anti-Black racism played a role in the commission of the offence, including to explain the commission of the crime.
Essentially, the defence in this case has submitted that the background of Ms. Dawkins as it related to her status as a racialized transgender woman bears upon the moral responsibility of Ms. Dawkins. The law is clear, however, that it does not affect the seriousness of the offences. The court does consider Ms. Dawkins and the circumstances of her being a racialized transgender offender as it relates to her as an offender and her moral responsibility.
In R. v. Desjardins, 2023 ONCJ 61, the court in that case noted at paragraph 20, the principles related to assaults on police officers including R. v. McArthur, which is set out below. In R. v. Belleau, 2022 ONSC 3644, the court considered sentence for an assault, assault with a weapon, mischief, and two counts of pointing a firearm in a domestic incident arising from a 17-year relationship with the victim. The offender in that case was Indigenous. The court does not find that case of any assistance to the court in this case.
In R. v. Browne, 2021 ONSC 6097, the court considers sentence for sexual assault with a weapon for a first offender. The victim suffered greatly after the offence. Sentence was imposed during the pandemic. The court does not find that case to be helpful to the case at bar.
In R. v. Nacinovich, 2020 ONSC 7604, the accused pled guilty to possession of fentanyl for the purpose of trafficking. The accused had been previously beaten up by someone with a bat and had to go on disability arising from continuing physical pain and other problems. The court did not find that case of assistance to the case at bar.
In R. v. McCabe, 2022 ONCJ 217, the court dealt with sentence for aggravated assault and breach of an undertaking arising from a domestic incident. The victim sustained very serious injuries requiring surgery and continued to experience pain and other problems and had a bump on her nose and a scar under her eye. The court does not find that case to be of assistance to the case at bar.
In R. v. Hercules, 2022 ONCJ 547, the court sentenced the offender after a trial for assault with a weapon and assault cause bodily harm arising out of an incident of intimate partner violence. The court does not find that case to be helpful to the consideration of sentence in this case.
In R. v. Dupuis, 2022 ONCJ 393, the court considers sentence in relation to assault police and assault following the entry of guilty pleas and the withdrawal of various charges. Some of the facts related to assaults on police officers during the course of arrest. Ms. Dupuis, however, is an Indigenous offender. The criminal record of Ms. Dupuis was far less serious than that of Ms. Dawkins. The Crown in that case was seeking a term of incarceration but of far less length than in the case at bar. In that case, the court noted at paragraph 42:
Police officers have one of the most difficult jobs. As first responders they never know what to expect. They must deal with intoxicated parties, angry parties, mentally ill parties. They deal with accused and with victims. They must deal with constant security concerns.
The judge also noted that the Supreme Court of Canada has noted that the role of the police officer is essential to any organized society since it ensures order and security. See Quebec v. Montreal Service of Police, 2008 SCC at paragraph 13. The court in Dupuis also considered the offender as an Indigenous person. The court did not find that case to be helpful.
In another case of Justice McLeod submitted by the defence, R. v. Sealy, 2021 ONCJ 494, the court considered sentence following the entry of guilty pleas to assault with a weapon, theft under and two counts of assault. The facts in that case were quite unlike the facts in the case at bar. The offender suffered from a substance dependency, mental health issues, and was under the care of a psychiatrist. The court does not understand why that case was put before this court.
The Crown has also submitted a lengthy case book. The first case, however, was a sentencing case in relation to Ms. Dawkins for the manslaughter offence. Following that, the Crown submitted a case book of 11 cases running 154 pages in length. The court requested that the cases be highlighted or side barred. After the court reviewed most of the cases, very little was ever noted to be highlighted or side barred, and the court does not rely on most of those cases for this case. The exceptions are the cases noted below.
As noted in case law, any offence of violence must be taken seriously by the courts, but Parliament has recognized the need to treat assaults on law enforcement officers as particularly heinous. In R. v. Forrest, [1986] O.J. No. 330 (C.A.), the court noted:
Police officers, in the performance of their duties, are the representatives of the whole community and an attack upon them is an attack upon the structure of a civilized society. Further, police officers, in the performance of their duties, are often in a position of special vulnerability and are entitled to such protection as the law can give.
In R. v. Sturge, [2001] O.J. No. 3923, Sept. 21, 2001, Ontario Court of Appeal, the court referred to the need for general deterrence and denunciation to be given paramount consideration in cases where police officers are required to put themselves at risk, as in this case, to make an arrest. The officers in certain circumstances, to quote the Court of Appeal, "must be assured that those who physically resist arrest will be dealt with sternly by the courts." In that case, the court imposed a consecutive sentence.
Then in 2004, Justice Doherty, speaking for the Court of Appeal for Ontario in R. v. McArthur, [2004] O.J. No. 721, said at paragraph 49:
As indicated above, the maintenance of a just, peaceful and safe society is the fundamental purpose of sentencing. Police officers play a unique and crucial role in promoting and preserving a just, peaceful and safe society. We rely on the police to put themselves in harm's way to protect the community from the criminal element. At the same time, we rely on the police to act with restraint in the execution of their duties and to avoid the use of any force, much less deadly force, unless clearly necessary. Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society's dependence on the police, and society's determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function. See R. v. Forrest, (1986), 15 O.A.C. 104 at 107 (C.A.).
In 2006, in R. v. Kaye, [2006] O.J. No. 549 (S.J.), the court noted the key principles for sentence as it results to police and assault police at paragraphs 11, 30, and 31. Quoting from paragraph 11:
As indicated above, the maintenance of a just, peaceful, and safe society is the fundamental purpose of sentencing. Police officers play a unique and crucial role in promoting and preserving a just, peaceful and safe society. We rely on the police to put themselves in harm's way to protect the community from the criminal element. At the same time, we rely on the police to act with restraint in the execution of their duties and to avoid the use of any force, much less deadly force, unless clearly necessary. Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society's dependence on the police, and society's determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function. See R. v. Forrest, (1986), 15 O.A.C. 104 at 107 (C.A.).
That is the passage that was also quoted above. Then, in paragraph 31 of R. v. Kaye, the court stated:
The Court of Appeal's comments in that case, when read with the comments of the Court of Appeal in the McArthur case, to which I referred earlier, suggests a dual purpose in imposing custodial terms in case of assault with intent to resist arrest. Firstly, a custodial sentence would, more likely than a conditional sentence, bring home to would-be like-minded offenders that the courts will protect police officers who make themselves vulnerable to attack by attempting to apprehend wrongdoers. Secondly, society must ensure that there does not develop, as between the police and criminal elements, an easy resort to violence, on the theory that violence will go unpunished if serious violence such as occurred in the present case, goes unpunished, that is to say, without general and specific deterrence engaged, and without adequate denunciation.
Fairly recently in 2021, the Court of Appeal for Ontario cited with approval paragraph 49 in R. v. McArthur stated above. See R. v. Rajkovic, 2021 ONCA 11, at paragraph 15.
As noted above, Parliament has sent a strong message to the courts in sentencing that sentencing in relation to assault police offences should be treated seriously. In 2009, Parliament passed section 718.02 of the Criminal Code, which sets out the primary consideration of objectives of denunciation and deterrence for assault peace officer. Following that amendment, in 2015, Parliament, in passing 270.03 of the Criminal Code, sent a further strong message to the courts in requiring that offences committed against law enforcement officers should be served consecutively when they arise out of the same event or a series of events.
The defence has submitted that a conditional sentence would be appropriate for this offender and this offence. Turning to section 742.1 of the Criminal Code, the court must first determine whether a conditional sentence of imprisonment would be available. The Crown proceeded summarily in this case; the offence is not punishable by a minimum term of imprisonment. The section outlines statutory criteria. Counsel have agreed that the appropriate range of sentence is less than two years.
One important consideration for a conditional sentence is whether the offender has a prior criminal record for breaching court orders, and if so, whether the safety of the community would be endangered by Ms. Dawkins serving her sentence in the community. In this case, Ms. Dawkins has approximately 18 convictions for failure to comply with probation order and two convictions for failure to comply with appearance notice or summons. A total of 20 breaches on her record does not bode well for consideration of imposing a conditional sentence with court ordered terms that the court would expect her to comply with in this case. However, the court does acknowledge that Ms. Dawkins has not been charged with breaching her current bail on the subject charges.
An important question for the court to consider is whether a conditional sentence would satisfy the fundamental purpose, principles and objectives of sentencing as set out in section 718 to 718.2 of the Criminal Code for this offence and this offender. The case law is clear that the paramount principles primary sentencing objectives in a case of this nature are denunciation and deterrence. Courts have been clear that in some cases a conditional sentence may satisfy the principles of denunciation and deterrence. See R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paragraphs 102 and 107; Regina v. Wismayer, (1997), 33 O.R. (3d) 225 (C.A.).
As noted by Justice Doherty in R. v. Killam, [1999] O.J. No. 4289 (C.A.), a conditional sentence does not, generally speaking, have the same denunciatory effect as a period of imprisonment, incarceration remains the most formidable, denunciatory weapon in the sentencing arsenal.
In Proulx at paragraph 96, the Supreme Court specifically considered the principle and objective of judicial restraint pursuant to section 718.2(d) of the Criminal Code, that is to say that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. However, the court stated that this principle is, of course, not solely determinative, but involves a more comprehensive consideration. As stated in that paragraph: a determination of when less restrictive sanctions are "appropriate" and alternatives to incarceration "reasonable" in the circumstances requires a consideration of the other principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.
So this is but one of the principles and objectives to consider. The court must have regard to both the seriousness of the offence and the offender's degree of responsibility as also set out above. The Chief Justice in Proulx went on to state at paragraph 106:
...There may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct.
As stated by the Court of Appeal for Ontario in R. v. McGregor, [2008] O.J. 4939 (C.A.):
...The nature of the offence or the circumstances of the offender may require a term of incarceration to adequately express society's condemnation of the conduct at issue or to achieve the required deterrent effect.
The Crown has put before the court the reasons for sentence by Justice Clark for the equivalent of an eight-year sentence for manslaughter imposed on Ms. Dawkins in 2018. The Crown submits that there are similarities in her behaviour in the facts before this court as compared to those in the manslaughter. For example, the court submits that Ms. Dawkins pursued Mr. Munick, whom the court would note was a much older and smaller man, after she had any fear for her safety from him and that she continued to pursue Mr. Munick after he retreated. She also continued to hit him when he went down on the ground after he had backed up and walked away.
The Crown submits that this behaviour is somewhat parallel in the manslaughter offence, as she intentionally stabbed the victim multiple times, and after he retreated to his bedroom and barricaded his door, she continued to pursue him by smashing the door and prying it open for the sole purpose of extracting revenge on the victim. She then continued to stab the victim in his bedroom after she gained access to his room.
The Crown relies on R. v Taylor, [2004] O.J. No. 3439, paragraph 39. The court does not punish Ms. Dawkins, however, for past offences such as the manslaughter. It, however, potentially renders a stiffer sentence as fit in the circumstance to rebut good character, and it also bears upon the principle of specific deterrence and amenability to rehabilitation and the likelihood of recidivism. It is to be noted that the court is not punishing Ms. Dawkins for her behaviour in committing the manslaughter. She has already served her sentence for that offence.
Imposition of Sentence
The court considers all the circumstances of the offender, including her record, her work in the community, her transgender racialized context, and all the circumstances noted in the reasons, including moral responsibility. The court also considers all of the aspects of the offences as noted herein in this analysis. The court is mindful of the need to impose a proportionate sentence.
For Ms. Dawkins in this case, the court finds that a conditional sentence would not satisfy the fundamental purpose, principles and objectives of sentencing. The court finds that given the serious record of violent convictions for Ms. Dawkins and the nature of the offences, that a conditional sentence would not adequately express society's condemnation of the conduct in this case, nor achieve the required deterrent effect. That alone, this court would find, would give rise to a finding by this court that a conditional sentence would not be a proportionate sentence.
As well, even beyond that finding, the court has a serious concern about whether she would comply with the terms of the conditional sentence in the community given the record and notwithstanding that she did not breach her bail in relation to these subject charges.
As stated, a period of incarceration is required in this case. The court has considered all the sentencing principles noted above, including judicial restraint as it relates to potential incarceration and totality given the number of offences arising from the incident.
The court imposes the following sentence. In relation to assault with the weapon, John Munick, three months' incarceration. Assault police, Matthew Vidal, four months' incarceration, consecutive. Assault police, Mirkovic, three months' incarceration, consecutive. Assault police, Rourke, two months' incarceration, consecutive. Mischief to the car, 10 days' incarceration, concurrent. Breach of probation, 15 days' incarceration, consecutive. This results in a total sentence of 12 months and 15 days' incarceration.
This will be followed by a period of two years' probation with the following terms: to report within three working days after the release from custody and thereafter as directed; to have no direct or indirect contact with John Munick, Matthew Vidal, Uros Mirkovic and Patrick Rourke; not to possess any weapons, which is the usual wording of that term in the probation order; not to possess any knives outside of your residence.
The offender is also to attend for counselling for anger management as directed by the probation officer and sign releases for the probation officer to monitor attendance at those appointments.
There will also be ancillary orders imposed. Pursuant to section 110 of the Criminal Code where a person is convicted or discharged of an offence other than an offence referred to in any of paragraphs 109(1)(a) to (c.1), in the commission of which violence against a person was used, threatened, or attempted, the court shall, in addition to any other punishment that may be imposed for that offence, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance and all such things, and where the court decides that it is so desirable, the court shall order.
In this case, the court is mindful of its findings in relation to the assaults on John Munick, which involved a weapon, albeit a water bottle that she used as a weapon, and as well the police officers. As it related to Mr. Munick, Ms. Dawkins was very quick to use violence in her dealings with Mr. Munick and in using a metal water bottle as a weapon.
The court notes that Ms. Dawkins was previously subject to a section 109 weapons prohibition order in relation to the manslaughter sentence. She has also had imposed a section 110 weapons prohibition order for five years in 2019, which is still in effect. It is, however, desirable in the interests of safety or any in the community where Ms. Dawkins might lose her temper, to impose a section 110 weapons prohibition order in this case. The court makes the section 110 weapons order for a 10-year period given all the circumstances.
DNA Sample
Because the offence of assault with a weapon is a primary designated offence, section 267 of the Criminal Code, section 487.051(1) and (2), and the court also considers 487.04.
Pursuant to 487.04 and the other sections, the court shall make the order for this offence, which is a primary designated offence subject to 487.05(1) and (2), which provides the court is not required to make the order if it is satisfied that the person has established the impact of such an order would have on the privacy and security of person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice to be achieved through the early detection, arrest, and conviction of offenders. The court finds that there is no evidence that this order would be grossly disproportionate to the public interest as set out in the provision.
The offences of assault police are secondary designated offences for the purpose of a potential order to take a DNA sample. The court considers whether it is in the best interests of the administration of justice to make this order, bearing in mind and considering Ms. Dawkins' criminal record, the nature of the offence, the circumstances surrounding its commission and the impact the order would have on her privacy and security of the person, and shall give reasons for its decision. The court has also considered the relevant case law including judgments from the Supreme Court of Canada and including R. v. Hendry, [2001] O.J. No. 5084 (C.A.) and R. v. C.(R.), 2005 SCC 61, [2005] SCJ No. 62 (SCC).
The court finds given the criminal record of Ms. Dawkins, the nature of the offences in this case, and the circumstances surrounding the commission of the offences of assault police and the impact it would have on her privacy and security of the person, including the fact that the court is already making the order for the primary designated defence as noted above, that it is appropriate for the DNA sample to be taken as well for the secondary designated offences in this case.
The court also makes a recommendation to the penal authorities that Ms. Dawkins be given anger management counselling if it is available in the correctional institution while she is serving her sentence of incarceration.
With respect to the victim fine surcharge, although no submissions were made by either party, the court would note that Ms. Dawkins has been employed, but she will not be employed after the sentence has been imposed. As noted above and considered by this court, she has done a lot of work in the community both paid and unpaid. The court declines to impose the victim fine surcharge in relation to the counts in this case.