COURT FILE NO.: 8310/20 DATE: 2022-05-25

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN David Kirk/Stuart Woods, Counsel for the Crown

• and -

JAMES BOLAN, JARRETT JOCKO, GILBERT RYAN WILSON, SARAH MERGAERT Jessica Belisle, Counsel for James Bolan Kenneth G. Walker, Counsel for Jarrett Jocko Defendants C. Bruce Willson, Counsel for Gilbert Ryan Wilson (Sarah Mergaert not appearing)

HEARD: March 30, 2022

GAREAU J.

REASONS ON SENTENCE

[1] On March 30, 2021, James Bolan entered pleas of guilty to counts 2 and 4 in the Indictment dated October 19, 2020. Jarrett Jocko entered pleas of guilty to counts 12 and 14 in the same Indictment, and Gilbert Ryan Wilson entered pleas of guilty to counts 7 and 9 in the Indictment.

[2] The matter of sentencing was put over from time to time due to difficulties arising from COVID-19 and to allow for the preparation of Gladue reports and pre-sentence reports.

[3] The court received submissions from counsel with respect to sentencing on March 30, 2022, with the court’s decision to be delivered on May 25, 2022.

THE CHARGES AND THE FACTS

[4] Mr. Bolan entered pleas of guilty to counts 2 and 4 in the Indictment, which reads as follows:

James Lawrence Charles Bolan stands further charged that he, on or about the 16th day of May 2019, at the City of Sault Ste. Marie, in the said Region, did in committing an assault on Donald Leslie Wayne Laroue endanger his life thereby committing aggravated assault contrary to section 268 of the Criminal Code of Canada;

James Lawrence Charles Bolan stands further charged that he, on or about the 16th day of May 2019, at the City of Sault Ste. Marie, in the said Region, without lawful excuse, did enter a dwelling house at 196 James St., Apt. 2, Sault Ste. Marie, ON, with intent to commit an indictable offence therein contrary to section 349(1) of the Criminal Code of Canada.

[5] Mr. Jocko entered pleas of guilty to counts 12 and 14 in the Indictment, which reads as follows:

Jarrett Jocko stands further charged that he, on or about the 16th day of May 2019, at the City of Sault Ste. Marie, in the said Region, did in committing an assault on Donald Leslie Wayne Laroue endanger his life thereby committing aggravated assault contrary to section 268 of the Criminal Code of Canada;

Jarrett Jocko stands further charged that he, on or about the 16th day of May 2019, at the City of Sault Ste. Marie, in the said Region, without lawful excuse, did enter a dwelling house at 196 James St., Apt. 2, Sault Ste. Marie, ON, with intent to commit an indictable offence therein contrary to section 349(1) of the Criminal Code of Canada.

[6] Mr. Wilson entered pleas of guilty to counts 7 and 9 in the Indictment, which reads as follows:

Gilbert Ryan Wilson stands further charged that he, on or about the 16th day of May 2019, at the City of Sault Ste. Marie, in the said Region, did in committing an assault on Donald Leslie Wayne Laroue endanger his life thereby committing aggravated assault contrary to section 268 of the Criminal Code of Canada;

Gilbert Ryan Wilson stands further charged that he, on or about the 16th day of May 2019, at the City of Sault Ste. Marie, in the said Region, without lawful excuse, did enter a dwelling house at 196 James St., Apt. 2, Sault Ste. Marie, ON, with intent to commit an indictable offence therein contrary to section 349(1) of the Criminal Code of Canada.

[7] The facts of this case are horrendous. The victim, Donald Laroue, was beaten severely by the offenders and essentially left for dead. Mr. Laroue sustained serious and life lasting injuries as a result of the harm inflicted upon him by the offenders.

[8] Entered as Exhibit SS-1 is a book prepared by the Crown which contains photographs of the victim while in hospital, various photographs of the offenders while they were at the scene of the crime, various witness statements and a disc from the surveillance cameras both outside and inside the building where the assault on Mr. Laroue took place. Included in that exhibit at Tab 1 is a synopsis of the facts read in by the Crown which provide the background and support the pleas of guilt entered into by the offenders.

[9] The salient facts as set out at Tab 1, Exhibit SS-1, are as follows:

The Victim

On May 16, 2019, at approximately 10 a.m., officers of the Sault Ste. Marie Police Service attended at 196 James Street in response to an injured-person call. Police located Donald Laroue (the “Victim’) in Apartment #2 and found him with serious injuries to his head and body.

The Donnie Laroue was non-communicative and non-responsive. He was transported to the Sault Area Hospital in critical condition, where he was intubated and ventilated. He was later transferred to Sudbury for treatment. Donnie Laroue suffered a traumatic brain injury as a result of the assault. As of June 6, 2019, some three weeks after the assault, he was still unable to speak. The complainant has no recollection of the incident that caused his injuries.

Video surveillance

Police obtained video surveillance of the apartment complex at 196 James Street on the date of the alleged assault. (The apartments are located above Al’s Corner Pub.) The footage was given to police by a resident. It was recorded by six cameras located throughout the apartment complex, and includes views of the south and north entrances to the building, as well as the interior hallway directly outside of Apartment #2, where the alleged assault took place. The footage provides a clear, uninterrupted view of the lead up to and aftermath of the assault, but does not capture the assault itself.

The video surveillance captures the following. The complainant arrived at the apartment complex and entered Apartment #2 at approximately 7:25 a.m. He was accompanied by Jasmyn Mercier and Marc Major, neither of whom witnessed the assault.

Each of the co-accused was present at the apartment complex at this time: Gilbert Ryan Wilson entered the building via the north entrance at 1:56 a.m.; Sarah Mergaert entered via the south entrance at 5:10 a.m.; James Bolan entered via the north entrance at 6:04 a.m.; and Jarrett Jocko entered via the north entrance at 6:57 a.m.

At approximately 7:47 a.m., Gilbert Ryan Wilson, James Bolan, Jarrett Jocko, and a fourth person, later identified as Amanda Neyland (now deceased), approached Apartment #2 from the far end of an interior hallway. Each person was armed: Wilson was carrying a baseball bat, Bolan was carrying a crowbar or tire iron, and Jocko and Neyland were carrying metal rods. Gilbert Ryan Wilson and James Bolan were wearing white coveralls or “bunny suits”, while Jarrett Jocko was in street clothes. Wilson, Bolan, and Jocko were easily identified by police officers who reviewed the video surveillance footage.

These four individuals entered Apartment #2 at approximately 7:48 a.m. The assault occurred at this time. They exited the unit approximately one minute later with their weapons. Gilbert Ryan Wilson, James Bolan, and Jarrett Jocko exited the apartment complex via the south entrance at 7:51 a.m.; Wilson and Bolan appeared to be holding the white coveralls in their hands.

Statements

Jarrett Jocko gave an inculpatory statement in which he described the assault on the complainant but did not identify any other perpetrator. He said that he struck the complainant with a metal poker twice – in the back shoulder and back leg, respectively. He did not deliver the first blow and confirmed that someone struck the complainant in the head.

Three persons were in Apartment #2 when the alleged assault took place: Stacey Crowe (who lived in apartment #2), Cassie Bjornaa, and Cheristy Syrette. Cassie Bjornaa provided a statement in which she acknowledged her presence and confirmed that an assault took place, but did not identify any of the perpetrators.

In his statement, Jarrett Jocko stated that he participated in the attack for “revenge” and that the complainant “has bullied a lot of people, a lot of people are sick him [sic]”. He stated that the complainant had beaten someone up at his house two weeks prior.

Jasmyn Mercier provided a video statement in which she stated that she had attended at Apartment #2 with the complainant in order to sell clothes and buy drugs. She said that one of the co-accused, Ryan Wilson, was in apartment #2 prior to the assault, and that the complainant was insulting him. Wilson then left the apartment and the complainant asked her to go check on him. When Mercier left Apartment #2, she saw three persons wearing white suits coming up the hallway. One of the persons wearing a white suit was Wilson; he told her not to worry and to go into another room. Mercier did not witness the assault. She peeked into the apartment after the assault took place and could hear the complainant moaning.

Marc Major provided a video statement in which he stated that he attended Stacey Crowe’s room (Apartment #2) to sell clothing. There was a guy named “Wilson” in the apartment. The complainant was making fun of Wilson, and then Wilson left to buy drugs for the complainant. The complainant asked Major to go look for Wilson. When he left the apartment, Major saw four persons whom he understood were preparing to attack the complainant. Mercier did not identify these persons and did not witness the assault.

The complainant does not remember the assault. He stated that he knows James Bolan, Gilbert Ryan Wilson, and Amanda Neyland, but did not know why they wanted to attack him.

At 10:08 hours, Cst. Speck was dispatched to 196 James Street. Initial information was that a male had been beaten, there was some confusion that it was a 50 year old male and then information came in as a possible victim of Stacey Crowe. Speck knew this to be the apartment of Stacey Crowe and apartment 2. Ambulance had also been notified.

Dispatch had spoken to Rosemary Pheasant and then a male had taken the phone over, refused to cooperate and give a name. He was giving details to EMS.

At 10:12 hours, Speck arrived and went upstairs at 196 James Street. I could not hear any commotion in the hallway, Speck saw a female go into a room known to me as Sarah Mergaert’s, also a male known to me named Ray Laphonen and a female were in the kitchen area, they immediately left with a bicycle out the back stairway. Speck asked if anybody was hurt and they advised nope. Speck went towards apartment 2, Speck knew this to be the apartment of Stacey Crowe and initial information was the apartment across from the kitchen. Speck knocked on the door to apartment 2 when Speck listened and could hear groaning almost a growling sound coming from inside the door. Speck pushed the door open and Speck saw a male on the floor, his head was towards the door, feet facing east towards his couch. Speck noticed a small shelving unit that was on his head. There was blood on the back of his head and his face turned away, the male was lying on his stomach. His left arm was under his body, his right leg was under his left and his foot was turned at an awkward angle, Speck believed this angle to be indicative of it being broken.

At 10:15 hours, Cst. Lillington arrived, police looked at the male after clearing the small room. Tentatively identifying him as Donald Laroue. When Laroue was rolled over it became more evident who he was even though his face was swollen profusely. Laroue was unable to communicate, he groaned. I moved the coffee table out of the way in order to allow more access to him. When EMS attended we rolled the male over, assisted in stabilizing his lower right leg, cut the boot and sock off, blood was soaked through the knee area. At this point, it appeared his lower right leg was dislocated and/or broken, it was at an odd angle. When attempting to turn the bottom of the leg back Laroue made no motion, no commotion, no stimulus to pain. It appeared to be hanging on by just the skin around the edge of it.

At 10:37 hours, Laroue was removed and Speck attended to Room 1 at the Sault Area Hospital. At this point, ER physicians and all hospital staff were working to stabilize Laroue, he weas unconscious had never woken became combative at once. Doctors stated this is indicative of having a brain injury. I noticed black under the right lid, the right leg appeared to be disclosed at the knee, a compound fracture of the left leg, the left tricep had a striated pattern bruise on it, maybe a shoe or boot impression. X-rays were conducted and Laroue went off to a CT Scan.

At 14:10 hours, D/Cst. Pauli and Cst. Campbell did a door knock on Gray Latvanen’s. There is no number on Gray Latvanen’s door but it’s directly across from Stacey Crowe’s apartment where the incident took place. Gray is known to myself, we advised him that we were there investigating a serious assault and asked if we could come in. Gray invited us in, we asked if he had cameras in the building and he said yes. We asked if the cameras record and he said yes, he asked us if we wanted to see it and I already had it queued up and we replied yes. Gray took us into his bedroom where there’s a large TV monitor with all the cameras on it. The video showed the date of the 13th of June, 2019. Gray advised that the date was wrong but that was todays date on the cameras. He had the time queued at 7:30 am. Gray played the video in fast mode and there was heavy traffic in the hallway, at 7:47 on the video time, I observed three persons in white coveralls and one person in a multi coloured shirt walked towards Crowe’s apartment door where the incident took place. One male had an aluminum bat, two of the individuals had crow bars and one was a native male with a fire poker in his hand, they walked down the hall to Crowe’s apartment where the door appeared unlocked, they all went into the apartment. I then observed a female walk down the hallway with blond hair, look in the apartment where the incident was taking place and then closed the door, she then walked away. A short time later, the people who entered the apartment exited with their weapons and appear to walk down the hall somewhere into the area of the last three apartments. Gray Latvanen advised to just take the whole thing and he didn’t want it, at that time he unplugged his whole DVR and handed it over with the power cord to D/Cst. Pauli. He looked at me and advised that the password is jack be nimble. He said he does not want it in his apartment, D/Cst. Pauli immediately took it out to the CID vehicle, Gray yelled to just bring it back when we were done. At that point, we called a second police unit for scene security on the apartment.

[10] The court had the benefit of seeing the video referred to in the statement of facts. The video depicts events leading up to the offenders entering the room that Mr. Laroue was in but does not depict the assault itself. What the video does indicate is that these offences were planned and premeditated.

[11] At Tab 3 of Exhibit SS-1 is a discharge summary for the victim Donald Laroue which indicates the following:

COURSE IN HOSPITAL:

The patient was brought to the Sault Area Hospital on May 16, 2019, after being assaulted with a [redacted]. He had multiple injuries including the following:

1. Bilateral comminuted displaced parietal skull fractures
2. Bilateral subdural hematomas
3. Subarachnoid hemorrhage
4. Occipital and temporal contusions
5. Pneumomediastinum
6. Right tibia-fibula fracture
7. Left tibia fracture
8. Nondisplaced left 10th rib fracture

For definitive management of these injuries, the patient was urgently transferred to Sudbury via Air Ambulance. The history of the patient’s medical care in the Emergency Department on May 16, 2019, is well summarized in notes by Dr. Stone, Dr. Traficante and Dr. Fraser. Please refer to those notes for more details.

Upon arrival to Health Sciences North in Sudbury, the patient was brought to the ICU. The patient was at Health Sciences North for just over three weeks. Some of the relevant events in his care include:

1. A tracheostomy on May 22, 2019
2. Open reduction internal fixation of his bilateral tibia fractures on May 2, 2019
3. A feeding tube was inserted on June 1, 2019 (PEG)

The patient was slowly making gains and so he was repatriated to our ICU at the Sault Area Hospital on June 9, 2019. The patient continued to recover well from his injuries and was clinically stable on the unit.

He was decannulated on June 12, 2019. The next day he was transferred from the ICU to our Family Medicine Service on the ward. Around that time, the patient passed a swallowing assessment and was able to tolerate an adequate oral intake. His tube feeds were therefore discontinued and the feeding tube was removed on June 22, 2019.

The patient continues to work with Physiotherapy, Occupational Therapy, Speech Language Therapy and his deficits are gradually improving. He was assessed by one of our orthopaedic surgeons, Dr. Slagel, after his return to our hospital. The patient unfortunately needs to be non-weightbearing until the end of August. In order to facilitate his ongoing recovery from his multiple injuries, the patient was transferred to our Complex Care Unit on 2C. An application has been submitted to a traumatic brain injury program in Hamilton and that is currently pending.

It is clear from the medical information that Mr. Laroue’s injuries were serious, extensive and long-lasting.

SENTENCING PRINCIPLES

[12] With respect to the sentence to be imposed on the offenders, there is no disagreement among counsel that a custodial sentence should be imposed; however, counsel disagree on the length of the custodial sentence. The offenders have been in pre-sentence custody for some period of time. The Crown is asking that a global sentence of 8 years be imposed for each offender less any credit for pre-trial custody served. Counsel for the offenders are taking the position that the offenders are in a time served position given the length of time they have been in pre-trial custody with enhancement and taking into account the Duncan factor for lockdowns that have been imposed to due to the pandemic and have affected the liberty of the offenders. As of the date the court received sentencing submissions (March 30, 2022), the offender James Bolan has been in custody 790 days, which increases to 1,185 days with enhancement or 3.2 years. The offender Jocko has been in custody 1,050 days, which with enhancement increases to 1,575 days or 4.3 years. The offender Wilson has also been in custody for 1,050 days, which converts to 4.3 years with enhancement.

[13] In addition to the time they have spent in pre-trial custody, the offenders have been subjected to periods of lockdown at the Algoma Treatment and Remand Facility where they have been housed. The court heard from Darlene Leblanc, who is the acting superintendent at the ATRC. Produced and entered as Exhibits SS-9, SS-10 and SS-11 were lockdown reports for Mr. Wilson, Mr. Bolan and Mr. Jocko for the period from December 2021 to March 20, 2022. Ms. Leblanc explained the difference between partial and full lockdowns, the former affecting individual’s units and the latter affecting all of the institution. The aforementioned exhibits indicated that Mr. Wilson experienced 926 hours of lockdown, Mr. Bolan 622.5 hours of lockdown, and Mr. Jocko 1,020.5 hours of lockdown. In her evidence, Ms. Leblanc indicated that there were four separate COVID-19 outbreaks at the ARTC which resulted in lockdowns and had an effect on the programs that were available to inmates at the institution. Ms. Leblanc agreed with the suggestion that the lockdown periods have become more frequent with the pandemic and that it has had an effect on the inmates’ freedom within the institution.

[14] The jurisprudence has evolved since R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 to permit the court to consider lockdown conditions as mitigation rather than a pre-sentence credit in the overall assessment of the sentence to be imposed. As stated in paragraph 6 by the Ontario Court of Appeal in R. v. Duncan,

We agree with counsel that in appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of presentence incarceration and the impact of those conditions on the accused.

[15] As noted in R. v. Marshall, 2021 ONCA 344 in paragraph 52,

The Duncan credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[16] In R. v. Bristol, 2021 ONCA 599, the Ontario Court of appeal restated the principle set out in Marshall that the Duncan credit is not a deduction but rather a factor to consider in the sentencing. As stated by the court, “It is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence.”

[17] In addition to the jurisprudence, the court is guided by the statutory principles of the Criminal Code of Canada to assist it in determining a fit and just sentence for the offenders Bolan, Jocko and Wilson. Section 718 of the Criminal Code of Canada sets out a list of principles and objectives that the court must consider when determining an appropriate sentence to be imposed. Section 718 reads as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) To deter the offender and other persons from committing offences;

(c) To separate offenders from society, where necessary;

(d) To assist in rehabilitating offenders;

(e) To provide reparations of harm done to victims or to the community; and

(f) To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.

[18] As indicated in section 718.1 of the Criminal Code, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[19] The fundamental duty of the court is to impose a sentence that is just and fit for the offender and for the offence. As this court has observed on numerous occasions, the sentencing of an offender is not a science but rather an art. By its very nature, it is an individualized process to find the appropriate sentence for the offence to reflect the moral culpability of the offender.

[20] Given the fact that the offences for which Bolan, Jocko and Wilson pleaded guilty to involved extreme violence which had a significant impact on the health and wellbeing of the victim, denunciation and deterrence are the primary objectives for the court to consider in sentencing the offenders.

ANALYSIS/DISCUSSION

(a) The Offender, James Bolan

[21] James Bolan was born September 1, 1989. He is presently 32 years of age. Mr. Bolan has an extensive criminal record (Exhibit SS-8). His record began in 2006 as a young offender and is replete with offences from that date to 2018. A review of his criminal record indicates convictions for non-violent behaviour including break and enter, failures to obey court orders, theft, and various firearm offences. Mr. Bolan’s record does not include acts of violence or acts similar to the aggravated assault for which he is being sentenced by this court.

[22] Mr. Bolan is a person of First Nation heritage. The court has the benefit of a Gladue report (Exhibit SS-3). As indicated on page 2 of the Gladue report, Mr. Bolan is a Status Indian and member of Constance Lake First Nation. His aboriginal ancestry comes from his maternal side of his family. The Gladue report indicates that Mr. Bolan has significant ties to his First Nation community. The report indicates that he was five years of age when his parents separated and that his father had a drug addiction problem. Mr. Bolan’s mother attended at the Constance Lake Indian Day School operated by the Anglican Church and that James Sr. indicated that the “atrocities that went on there was no different from the residential school”. The child welfare authorities were involved with him at a young age, and he was introduced to alcohol and drugs at the young age of 11. The offender reports that “there was lots of fighting and neglect. My mom was an alcoholic, my dad was a drug addict, but they are both clean and sober now”. Mr. Bolan struggles with depression and addiction, and on two occasions in the past, has sought out residential treatment programs. As the Gladue report indicates, Mr. Bolan has family support, and in particular, his father is prepared to assist him and to get him back on his feet.

[23] In addition to the Gladue report, the court received a pre-sentence report with respect to James Bolan (Exhibit SS-2). This report details Mr. Bolan’s extensive criminal record. The report also indicates that Mr. Bolan was exposed to substance abuse and domestic violence as a child, although Mr. Bolan does not attribute an impact on him, describing his parents as “supportive and caring”. The report indicates that Mr. Bolan was exposed to drug use at an early age and that he associated with older people entrenched in the drug street culture, which is reflected in his drug use lifestyle resulting in his criminal record. The pre-sentence report also comments on Mr. Bolan’s Metis background and comments that “even though there may be little or no direct family experience with the residential school system, systemic effects within the community also influence behaviour and dysfunction within families across generations”. As noted in paragraph 13 of the pre-sentence report, “As the offender becomes further entrenched in the drug-subculture and those criminally minded peers, his offending pattern of breaches of court orders to serious assaults, indicating an increased risk to harm the community and community members”. The report goes on to indicate that, “At this time the offender’s risk of recidivism and harm to the community remains high given his history of non-compliance with community dispositions”.

[24] The pre-sentence report also speaks of Mr. Bolan’s remorse and his wish that he had not participated in the assault. This remorse was also expressed by Mr. Bolan in open court before his sentence was imposed when he indicated that, “I am ashamed by what I have done and I am sorry that the victim has suffered”. Mr. Bolan expressed a desire to move on with his life and a recognition that he must remain sober in order to successfully do so. I am satisfied that Mr. Bolan is remorseful and that his expression of remorse is genuine.

[25] This expression of remorse by James Bolan is a mitigating factor which the court must take into account in assessing an appropriate sentence. Also is Mr. Bolan’s plea of guilty a mitigating factor to be taken into account by the court. It acknowledges a responsibility for what he has done by the offender. The Duncan factors, including the period of time that Mr. Bolan spent in lockdown while in pre-sentence incarceration and the likely effect that this had on him, are also factors that I have considered in mitigation.

[26] Balanced against these mitigation factors are aggravating factors. The attack on the victim Laroue was planned and premeditated. It was clearly thought out and planned for. The attack was one of extreme violence in which Donald Laroue was seriously injured. The act was also an expression of vigilante justice on the part of Mr. Bolan and also on the part of Mr. Jocko and Mr. Wilson. It was apparent that the victim was not well liked and took advantage of vulnerable people that had drug addictions. Mr. Laroue was a drug enforcer who undoubtedly preyed upon people. All of this may be true, but it did not provide an excuse for Mr. Bolan or his compatriots to extract vigilante justice or to take the law into their own hands. Mr. Laroue’s frailties are not to be considered in mitigation, but the vigilante nature of the acts committed by Mr. Bolan and the other offenders in committing this crime is an aggravating factor to be considered by the court. The rule of law must be respected by all members of society and all members of society receive the benefit of the rule of law. Individuals cannot take the law into their own hands to mete out the justice and punishment that they deem appropriate. A safe society cannot function in this way and the vigilante nature of this offence must be denounced in the clearest of terms by this court.

(b) The Offender, Jarrett Jocko

[27] Mr. Jocko was born on April 29, 1985, making him 37 years of age. Mr. Jocko’s criminal record was entered as Exhibit SS-5. This report commences in 2000 as a youth and continues with offences on a regular, almost on a yearly basis until the last offence in 2013. Unlike the record of Mr. Bolan, Mr. Jocko’s record reflects acts of violence for assault, uttering threats, forcible confinement, assault with a weapon, and his final conviction in 2013 for sexual assault.

[28] Mr. Jocko is a person of First Nation heritage. The court has received and reviewed a Gladue report for Mr. Jocko, entered as Exhibit SS-4. Mr. Jocko identifies as being Ojibway from Batchewana First Nation. His parents are Indigenous persons. Mr. Jocko’s grandmother, Marguerite Sayers, attended the Spanish Residential School, which has been referred to in the Truth and Reconciliation Commissions Work as being among the worst of the offending schools engaged in “cultural genocide”.

[29] Mr. Jocko’s youth was troubled in that he witnessed domestic violence, was raised in a home with “alcohol addiction” and was exposed to sexual abuse. When he was six years of age, he was diagnosed with fetal alcohol syndrome disorder and attention deficit hyperactivity disorder. Although these difficulties required medication, at the age of 15, Mr. Jocko stopped taking medication and started using marijuana, and later in his life began using cocaine.

[30] In his statement to the court, Mr. Jocko expressed remorse for his actions toward the victim Donald Laroue. Mr. Jocko indicated that he was “remorseful and very sorry for what I have done”. Mr. Jocko also expressed an interest in staying sober because, as he put it, “I have lost everything”.

[31] I am satisfied that Mr. Jocko’s expression of remorse is sincere and it is accepted by the court. This, along with his plea of guilt, indicates to this court that he recognizes what he has done and has accepted responsibility for his actions. I do not intend to repeat in detail the mitigating and aggravating factors pertaining to the offences and to Mr. Jocko. Those factors were pointed out by the court in dealing with the offender Mr. Bolan, and they are equally applicable to Mr. Jocko. The act involved premeditated and planned vigilantism and was violent in nature. I have considered these mitigating and aggravating factors in assessing a fair and just sentence for Mr. Jocko, as well as his First Nation background and circumstances as set out in the Gladue report.

[32] Counsel for Mr. Jocko argued that he should be treated differently from Mr. Bolan and Mr. Wilson since his level of participation was less. From the inculpatory statement given by Mr. Jocko it is pointed out by counsel that his participation amounted to two hits and that his involvement is minimal. I am not persuaded by this argument. Mr. Jocko was with Bolan and Wilson when they entered the room Mr. Laroue was in. They were all carrying weapons of some sort to inflict harm on Mr. Laroue. They were all in the room when Mr. Laroue was assaulted. Although Mr. Jocko may not have struck as many blows as Bolan and Wilson, he was present, participating in the assault, and was a party to it all. In my view, there is shared blameworthiness in all of the offenders and Mr. Jocko is equally to blame.

(c) The Offender, Gilbert Wilson

[33] Gilbert Wilson was born on July 18, 1989, making him 32 years of age. Mr. Wilson’s criminal record begins in 2005 as a young offender and ends in 2013 (Exhibit SS-7). There are convictions for break and enter, possession of a prohibited weapon, and numerous offences for failing to comply with orders imposed by the court. Mr. Wilson does not have a criminal history for acts of violence.

[34] The Gladue factors and considerations are not applicable to Mr. Wilson. The court does have the benefit of a pre-sentence report (Exhibit SS-6). Mr. Wilson’s parents separated when he was young. Mr. Wilson lived in a home where his father drank excessively and where there was domestic violence. As the pre-sentence report indicates, “The offender felt that he never got to be a youth. He said there was ongoing conflict in the family home with verbal and physical abuse by his stepfather and getting hit with wooden spoons by his mother. He described incidents that left him unable to sit or attend school because he had black eyes”.

[35] The report indicates that the offender has struggled with addiction issues. He has disclosed that he was 14 years of age when he started smoking cannabis. By age 15 he was drinking, and his drug use extended to more problematic narcotics such as cocaine and oxycontin. Mr. Wilson has completed treatment programs to try to overcome his substance abuse. Mr. Wilson has been on a methadone maintenance program while in custody. As noted on page 9 of the pre-sentence report, “Ms. Wight, Health Care Manager at ATRC, reviewed the offender’s health care record and confirmed that he meets with the attending physician on a weekly basis to review his methadone treatment. He is on a very low dose of methadone and has been decreasing his dose slowly over a period”.

[36] Mr. Wilson is noted in the pre-sentence report as being “sincere and forthcoming in his disclosure and his desire to maintain sobriety, lead a pro-social lifestyle” and wanting more for himself and his children. Also indicated in the pre-sentence report is the fact that Mr. Wilson accepted responsibility for his actions and that “he expressed remorse and guilt and said he regrets every day what he did to the victim”. This expression of remorse was also made by Mr. Wilson when he addressed the court. He apologized to the victim and his family. He recognized his decision as being a “bad thing to happen” and indicated that although he made a bad decision, he was not a bad person. Mr. Wilson expressed a desire to “move forward” and indicated that he wanted to reconnect with his daughter who he has not seen in three years. I accept Mr. Wilson’s expression of remorse as sincere and genuine and accept his plea of guilty as an indication that he accepts responsibility for his actions.

[37] As indicated in the pre-sentence report, Mr. Wilson “has been making use of his time in custody to better himself by participating in programming and counselling, attending school, following a medication regiment, working on his sobriety and rebuilding relationships with family members and the mother of his youngest child”. This is to Mr. Wilson’s credit as is his plea of guilty and expression of remorse. The aggravating factors in this case are the same as that expressed by the court with respect to James Bolan and Jarrett Jocko, and it is not necessary to repeat them in detail. The actions of Mr. Wilson amount to premeditated violence fuelled by vigilantism and a desire for revenge. These are aggravating factors to be considered by the court with respect to the fit and just sentence to be imposed on Gilbert Wilson.

FIT SENTENCE TO BE IMPOSED

[38] I have considered all the factors in mitigation and aggravation and the individual backgrounds of the offenders, including the Gladue factors with respect to Mr. Bolan and Mr. Jocko. I also have considered the “Duncan” factor in the amount of lockdown time experienced by the offenders as a mitigating factor in determining the appropriate sentence to be imposed. I do not share the view that this is a situation where the time served by the offenders in pre-sentence custody is an appropriate sentence to be imposed. In my view, such a sentence is not reflective of the jurisprudence, the gravity of the violence inflicted on the victim, and gives an inordinate and inappropriate weight to the “Duncan” factors in the circumstances and facts of this case.

[39] The jurisprudence calls for a sentence range of 5 to 10 years for the offence of aggravated assault. I do not consider this case to be a “home invasion” case which calls for the upper end of the sentence range. Having said that, the facts of this case do not place the sentence on the lower end of the range. The fundamental duty of the court is to impose a sentence that is just and fit for the offender and for the offence. In determining the appropriate sentence to be imposed on James Bolan, Jarrett Jocko and Gilbert Wilson, I have taken into account all the pertinent facts and factors which I have commented upon in my reasons, including the background of each individual, the pre-sentence reports and Gladue reports, where applicable, the aggravating and mitigating factors, the guidance provided by the jurisprudence, and the principles as set out in section 718 of the Criminal Code of Canada in arriving at a sentence that I believe is fit and just. This court imposes a sentence for each offender of 7 years imprisonment on the count of aggravated assault, contrary to section 268 of the Criminal Code of Canada, and a sentence of 1 year concurrent on the offence of being unlawfully in a dwelling house with intent to commit an indictable offence, contrary to section 349(1) of the Criminal Code of Canada.

[40] With respect to the specifics of the net sentence to be served by each offender, James Bolan receives a credit for 846 days to today’s date, which is enhanced to 1,269 days using the 1.5 “Summers” credit. That leaves a net sentence to be served by Mr. Bolan of 1,286 days or 3.5 years.

[41] With respect to the offender Jarrett Jocko, he receives a credit for 1,106 days enhanced to 1,659 days in pre-sentence custody. With this credit, Mr. Jocko has 896 days or 2.4 years left as a net sentence.

[42] With respect to the offender Gilbert Wilson, he receives a credit of 1,106 days enhanced to 1,659 days for pre-sentence custody. With this credit, Mr. Wilson has 896 days or 2.4 years left as a net sentence.

[43] The Crown has requested, and I am imposing on each offender the following ancillary orders:

(a) a DNA order;

(b) a mandatory firearms prohibition for life, pursuant to section 109 of the Criminal Code of Canada. In the case of James Bolan and Jarrett Jocko, there shall be an exception that they shall be permitted to hunt for the purpose of sustenance;

(c) an order pursuant to section 743.2(1) of the Criminal Code of Canada that the offenders not have any contact with the victim Donald Laroue or Sarah Mergaert while they are serving their custodial sentence.

[44] Any victim surcharge pertaining to James Bolan, Jarrett Jocko or Gilbert Wilson is hereby waived.

Gareau J. Released: May 25, 2022

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JAMES BOLAN, JARRETT JOCKO, GILBERT RYAN WILSON, SARAH MERGAERT REASONS FOR sentence Gareau J. Released: May 25, 2022