Court File No.: CR-21-106-00AP Date: 2023-10-24

Ontario Superior Court of Justice

Between: His Majesty The King – and – Kawenniiosta Jock and Nicholas Kolbasook, Appellants

Counsel: Jason Pilon, for the Crown/Respondent Gary Chayko, for the Appellants

Heard: September 14, 2023

Reasons for judgment on summary conviction appeal on sentence

Holowka J.:

Overview

[1] The Appellants are both First Nation persons. Neither of them had a criminal record prior to the events that bring them before the court.

[2] After a multi-day trial, they were found guilty of obstructing police, contrary to section 129 of the Criminal Code, R.S.C. 1985, c. C-46.

[3] The Appellants obstructed police by interfering with, and attempting to prevent, the execution of a search warrant at an unlicensed cannabis store operating on a reserve on February 19, 2019. The Appellants were found guilty and sentenced on October 26, 2021.

[4] The Appellants’ trial commenced with four accused people: the Appellants (Ms. Jock and Mr. Kolbasook), Mr. Jocko, and Mr. Jacobs.

[5] Mr. Jocko and Mr. Jacobs both plead guilty after three days of trial. While both had prior criminal records, each received a suspended sentence and a period of probation.

[6] The trial for the self-represented Appellants then continued over several more days. Upon being found guilty, the matter proceeded immediately to sentence.

[7] The Crown made sentencing submissions and sought a suspended sentence with a period of probation not exceeding 12 months, coupled with a fine between $2,000 to $2,500, or a period of community service in lieu for both Appellants.

[8] While the Appellants provided the sentencing court with their background information, they made no submissions regarding the sentence to be imposed.

[9] The sentencing judge imposed sentences that exceeded those requested by the Crown. A 90-day conditional sentence order followed by two years’ probation was imposed.

[10] The Appellants both appeal their respective sentences. They raise numerous grounds of appeal. Foremost, they argue that the sentencing judge did not provide cogent reasons why she exceeded the Crown’s submission on sentence, nor did she provide the prosecutor an opportunity to make further supplementary submissions in support of the Crown position before doing so.

[11] The Appellants also argue that the sentencing judge, in exceeding the position sought by the Crown, erred by not giving appropriate weight to the principle of parity and the principles of law regarding the sentencing of Indigenous and first offenders.

[12] Lastly, the Appellants argue that the sentencing judge over-emphasized the principles of denunciation and deterrence, and failed to recognize the potential deterrent effect of a suspended sentence.

[13] For the reasons that follow, I agree that the sentencing judge erred in imposing a conditional sentence.

Background

Facts before the sentencing judge

[14] This matter commenced as a trial of four accused persons: the Appellants, (Ms. Jock and Mr. Kolbasook), Mr. Jocko, and Mr. Jacobs.

[15] All four individuals interfered with the execution of a search warrant by the police at an unlicensed cannabis store located on a First Nations reserve. They sought to prevent the removal of the cannabis store’s supply.

[16] Mr. Jocko and Mr. Jacobs plead guilty to obstructing police after three days of trial. Both were represented by legal counsel. They both had criminal records. Mr. Jocko received a 15-month suspended sentence with probation. Mr. Jacobs, who possessed a lengthier criminal record, received an 18-month suspended sentence with probation.

[17] There is no suggestion that any of the four were involved in any acts of violence. While they interfered with the use of the police vehicle, it is not alleged that the Appellants damaged property.

[18] All four were involved in similar conduct. While the Appellants hung onto the crash bar of the police vehicle, Mr. Jacobs obstructed the police by temporarily using his own car to block a police vehicle's egress. Mr. Jacob, on two separate occasions, directed his wife to not move a vehicle blocking the exit path of the police. A distinction between the parties is that the Appellants appear to have hung onto the crash bar for a longer period than Mr. Jocko and Mr. Jacobs were involved in their respective conduct.

Proceedings at sentencing

[19] Upon finding the Appellants guilty, the judge turned to sentencing and sought the Crown’s sentencing position.

[20] The Crown submitted that the following considerations were relevant in imposing a just and appropriate sentence:

• Neither Appellant had a criminal record;
• There were obvious Gladue considerations in light of the indigeneity of the Appellants;
• Section 718.2 (e) of the Criminal Code, which articulates the principle of restraint;
• The sentences imposed upon Mr. Jacobs and Mr. Jocko, in other words, the principle of parity; and
• The lack of any physical violence committed by the Appellants which the Crown prosecutor described as “passive resistance.”

[21] Crown counsel submitted to the sentencing judge that a suspended sentence for both Appellants would be appropriate. The Crown also sought a period of probation not exceeding 12 months, coupled with a fine in the range of $2,000 to 2,500, or a period of community service in lieu depending upon the financial/personal circumstances of the Appellant.

[22] The Crown observed that Mr. Jacobs, who had been engaged in similar conduct, had received an 18-month period of probation while he possessed a far more significant criminal history. Similarly, Mr. Jocko had received a suspended sentence with 15-months probation. Both had entered pleas of guilty after three days of trial.

[23] The Crown emphasized that the sentences of the Appellants could not be increased because their matter ended with a guilty verdict after trial. The fact that the Appellants had not plead guilty but chose to run a trial can only be considered the absence of a mitigating factor as opposed to an aggravating one.

[24] The Crown submitted that there were sanctions other than imprisonment that were reasonable in the circumstances and consistent with harm done to the victims and the community. He concluded by citing section 718.2 (e) of the Criminal Code and the principle of restraint and its applicability to the Indigenous Appellants before the sentencing judge.

[25] Following the Crown’s submissions, the sentencing judge asked the Appellant Ms. Jock whether she wished to proceed to sentence or whether she desired the preparation of a Gladue Report or Pre-sentence report. After the purpose of the two reports was explained, the Appellants both expressed that they were capable of providing the court details of their personal circumstances.

[26] At the end of this exchange, when it appeared that sentencing could be completed that same day, the Appellant Mr. Kolbasook expressed concern for himself and the other Appellant. He stated “I think – uh – the – I mean the main question is that like we both have children, right. So I have to know like if there’s no jail time, then – uh – I’d be fine with proceeding. But if there is jail time, then I would have to get my affairs in order.”

[27] In response, the sentencing judge answered:

I am considering the imposition of a conditional jail sentence despite the Crown’s position. A conditional jail sentence is a jail sentence that I permit you to serve in the community. So you don’t go into a custodial facility unless there’s a breach.

NICHOLAS KOLBASOOK: Okay.

THE COURT: But that is as far as the matter would go.

[28] The Appellants were self-represented. Their submissions provided information regarding their background and personal circumstances. Neither Appellant made submissions regarding the appropriate sentence to be imposed. The sentencing judge did not ask Crown counsel for further submissions regarding the imposition of a sentence in excess of the one sought by the prosecution.

The sentencing judge’s reasons: Appellant Ms. Jock

[29] The sentencing judge noted the following information regarding Appellant Ms. Jock's personal circumstances:

a. She was 38 years old; b. She was a single mother of five children who range from three to seventeen years of age; c. She was very involved in her community and culture; d. She participated in cultural restoration in her community; e. She did community service work every day; f. She worked with women involved with domestic and sexual violence and is often called in cases of crises; g. She participated in ceremonial practices and volunteered at the Community Garden; h. She brought food to elders and helped others; i. She was gainfully employed through her own clothing business; j. She was a victim of sexual abuse as a child; and k. She viewed the incident as something that assisted her in helping her heal and get involved with healing others. Because of this she had taken over her grandmother's healing lodge and felt that she has been able to work towards her own healing as a result of the triggers which were activated on the date of this incident.

[30] The sentencing judge made note of the following mitigating factors:

a. She did not have a criminal history; b. She had not breached her conditions of release; c. There had been no physicality with the officers in this situation; and d. She had not struck any of the officers or damaged any property.

[31] In terms of aggravating circumstances, the sentencing judge noted the following:

a. There were many officers obstructed that evening, approximately twenty officers and several police cruisers; b. The delay had been for a significant period of time; c. The Appellant’s behaviour had been persistent; d. There had been an urgent situation calling for police attendance at the detachment on the Quebec side of the reserve and the officers were blocked for a half hour in their efforts to return the seized property to the detachment and then address the other urgent situation; and e. The Appellant Ms. Jock had been the individual who held the police officers up for the longest period.

[32] The sentencing judge acknowledged that co-accused Mr. Jocko and Mr. Jacobs had plead guilty after several days of trial. She also noted that they possessed criminal histories and that they had each received a suspended sentence.

[33] The Crown’s request for a suspended sentence and probation was noted by the sentencing judge but she declined to impose such a sentence stating that the requested sentence:

would be an inappropriate sentence as it fails to recognize the need to denounce the unlawful conduct and to deter [Ms. Jock] and other like minded people from participating in this type of activity in the future. In order to protect society and continue along with crime prevention initiatives to the maintenance of a just peaceful and safe society it is my view that a jail sentence is the only and least restrictive sentence that is appropriate in all of the circumstances.

[34] The sentencing judge imposed a 90-day conditional sentence order followed by 24-months’ probation upon the Appellant Ms. Jock.

The sentencing judge’s reasons: Appellant Mr. Kolbasook

[35] The sentencing judge noted the following information regarding Appellant Mr. Kolbasook’s personal circumstances:

a. He was 27 years of age; b. He had four children, all of whom were under seven years old; c. He resided with his spouse and children; d. He was involved in community activities; e. He was an Indigenous man; f. He was employed setting up wi-fi networks; and g. He resided on Island Road in Akwesasne, Ontario.

[36] The following mitigating factors were noted:

a. He had no criminal history; b. He had no breaches that are alleged to have been committed after these charges were laid; and c. There was no physicality on his part, but it took four officers to get him removed from the push bar in front of the police cruiser.

[37] The sentencing judge noted the same aggravating factors for the Appellant Mr. Kolbasook that she had found present for Appellant Mr. Jock with one distinction. The sentencing judge noted that Appellant Mr. Kolbasook had not held up the police for as long as the Appellant Ms. Jock. She stated that “[Kolbasook] was part of the disruption and part of the obstruction of the police officers but he did not continue or persist in his behaviour as long as Ms. Jock because he was successfully removed from the push bar.”

[38] The sentencing judge imposed the same sentence upon Appellant Mr. Kolbasook as Appellant Ms. Jock.

The Parties’ Positions on Appeal

[39] The Appellants appeal their respective sentences. The primary issue argued by the Appellants is that the sentencing judge exceeded the Crown’s articulated position without inviting the Crown an opportunity to re-address the court on the issue of sentence or without providing cogent reasons why she did so.

[40] The Appellants also argue that the sentencing judge, in exceeding the Crown sentencing position, misapplied the principles of parity, restraint, and the sentencing of Indigenous offenders to the facts of the present case. They also argue that the sentencing judge over-emphasized denunciation and deterrence.

[41] While the Respondent does not concede this appeal on behalf of the Crown, oral argument by Crown counsel closely parallels and expands upon the themes raised by the Appellant. The Respondent submits that the sentencing position articulated by the Crown at trial was a fit and appropriate one.

[42] The Appellants and the Respondent agree that should the sentence appeal be granted, in the circumstances of this case, this court should impose a suspended sentence accompanied by 12-months probation. They propose the following conditions: keep the peace and be of good behaviour; appear before court when required to do so; advise probation of any change of name, address, or employment; and report to probation within seven days of the sentence appeal being granted.

Analysis

Deference: When must an appellate court intervene?

[43] While sentencing determinations are owed considerable deference on appeal, appellate intervention is justified where the sentence imposed is demonstrably unfit or there is an error in principle that had a material impact on the sentence imposed.

[44] The question of when an appellate court must intervene was succinctly addressed in R. v. W.V., 2023 ONCA 655, at paras. 25-27:

Sentencing determinations are owed considerable deference on appeal. Appellate intervention is justified only where (i) the sentence imposed is demonstrably unfit; or (ii) there is an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor, and it appears from the trial judge’s decision that such an error had an impact on the sentence…

It should also be noted that an appellate court may not intervene in a sentencing decision simply because it would have weighed the relevant factors differently. The choice of the sentencing range, or of a category within a range, falls within the trial judge’s discretion and cannot, in itself, constitute a reversible error.

If a sentence is demonstrably unfit or if a sentencing judge made an error in principle that had an impact on the sentence, the appellate court must perform its own sentencing analysis to determine a fit sentence... However, in sentencing afresh, the appellate court will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent they are not affected by the error in principle. [Citations omitted.]

Exceeding the Crown Position

[45] Both the Appellant and Respondent submit that the sentencing judge erred in exceeding the Crown’s position in imposing a conditional sentence upon the Appellants.

[46] It is without doubt that the sentencing judge was considering a conditional sentence and that this exceeded the Crown’s position. The Crown was not provided an opportunity to make further submissions on the appropriateness of their sentencing position.

[47] When a sentencing judge is considering exceeding the Crown’s position on sentence, they should alert the parties and give them an opportunity to make further submissions: see R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at paras. 164-167; R. v. R.B., 2017 ONCA 74, at paras. 19-20; R. v. Hagen, 2011 ONCA 749, at para. 5; R. v. Nahanee, 2022 SCC 37, 474 D.L.R. (4th) 34, at para. 4; and R. v. Blake-Samuels, 2021 ONCA 77, at para. 30.

[48] In R. v. Nahanee, the Supreme Court of Canada, at paragraph 4, made the following apposite statement:

In such cases, however, if the sentencing judge is of a mind to impose a harsher sentence, in any respect, than what the Crown has proposed, they should notify the parties and give them an opportunity to make further submissions — failing which, they run the risk of having the harsher sentence overturned on appeal for any one of the following three errors in principle:

(i) the Appellant establishes that there was information they or the Crown could have provided to the sentencing judge that would have impacted the sentence;

(ii) the sentencing judge failed to provide adequate reasons for imposing the harsher sentence, thereby foreclosing meaningful appellate review; or

(iii) the sentencing judge provided erroneous or flawed reasons for imposing the harsher sentence.

[49] The Crown submits in oral argument that had he been invited to make further submissions he would have done the following:

• Reminded the sentencing judge of the need for parity in sentencing. The four accused were effectively involved in the same conduct. There is no factual basis to distinguish between the conduct of the four offenders.
• Reinforced with the sentencing judge that the two self-represented Appellants were able to join with the Crown in submitting that a suspended sentence and a period of probation was an appropriate sentence. The self-represented Appellants had taken no position on sentence and had they joined with the Crown, a greater restriction would have been presented to the court.
• Submitted that the proposed suspended sentence would satisfy the sentencing court’s concern with respect to deterrence and denunciation, especially having regard to the circumstances of the present case: i.e., the Appellants were first-time offenders, no violence had been committed, and they were Indigenous.

[50] While I agree that these further submissions would have been compelling, I am not convinced that they would constitute “further information” as contemplated in Nahanee. The Appellants did not assert that they had any further information that could have been provided that would have impacted the sentence.

[51] The Appellants and the Respondent also argue that the sentencing judge failed to provide cogent reasons for imposing the harsher sentence and that the sentencing judge’s reasons for doing so were flawed.

[52] I will address these arguments together as there is significant overlap.

[53] In imposing the harsher sentence, the judge was conclusory in her reasons. I agree that she failed to provide adequate reasons for imposing the harsher sentence.

Parity

[54] The Appellants and the Respondent argue that the sentencing judge, in exceeding the Crown position, did not address the question of parity in a meaningful way in her reasons for sentence.

[55] I agree.

[56] Section 718.2 (b) of the Criminal Code codifies the principle of parity, stating that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

[57] The principle of parity does not require equal sentences for participants in the same offence. Rather, they must “only [be] understandable sentences when examined together”: see R. v. Issa (T.) (1992), 57 O.A.C. 253 (C.A.), at para. 9; R. v. Rawn, 2012 ONCA 487, 294 O.A.C. 261, at para. 30.

[58] Where there is disparity between offenders who participated in a “common venture”, the judge must show justification: see R. v. Sahota, 2015 ONCA 336, at para. 7.

[59] The sentencing judge referred to the suspended sentence received by the co-accused, stating “I also consider the fact that two of the individuals who were originally charged in relation to this matter and participated in several days of trial entered a guilty plea. They had criminal histories and received a suspended sentence and a period of probation.” While the judge adverts to the co-accused, there is no discussion of how the Appellants and those co-accused who plead guilty earlier in the trial differed in any meaningful way so as to justify the difference in sentence.

Deterrence and Denunciation

[60] The sentencing judge stated the following regarding denunciation and deterrence when exceeding the Crown request and imposing a conditional sentence upon the Appellants:

The Crown has requested that the court impose a suspended sentence and period of probation in all the circumstances. In my view this would be an inappropriate sentence as it fails to recognize the need to denounce the unlawful conduct and to deter this offender and other like minded people from participating in this type of activity in the future. In order to protect society and continue along with crime prevention initiatives to the maintenance of a just peaceful and safe society it is my view that a jail sentence is the only and least restrictive sentence that is appropriate in all of the circumstances.

[61] As an adjunct to the argument regarding parity, the Appellants and the Respondent argue that the sentencing judge erred in exceeding the Crown position and imposing a conditional sentence based on the need to denounce and deter others inclined to commit similar offences. They argue that the sentencing judge erred in failing to consider the possibility of a suspended sentence fulfilling the goals of deterrence and denunciation.

[62] I agree. The reasons for sentence are silent regarding this possibility.

[63] While a probation order is primarily rehabilitative in nature and a conditional sentence has both rehabilitative and punitive sentencing objectives, it cannot be said that a probation order cannot achieve deterrent and denunciative goals. In R. v. Voong, 2015 BCCA 285, 325 C.C.C. (3d) 267, at para. 25, the British Columbia Court of Appeal noted that a suspended sentence can achieve both deterrence and denunciation, depending on the optional conditions imposed in the probation order. These conditions are made pursuant to s. 732.1(3) of the Criminal Code, subsection (h) of which provides “such other reasonable conditions as the court considers desirable”.

[64] The court in Voong, at paragraphs 39 and 43, also noted that a breach of a probation order can result in a revocation and sentencing on the original offence. The court referred to this as the “Sword of Damocles” hanging over the offender’s head. The court added, “[p]ut another way, a condition need not be punitive in nature in order to achieve deterrence or denunciation.”

[65] I conclude that the sentencing judge erred in failing to address the possibility of the denunciatory and deterrent effect of a suspended sentence in this case. The sentencing judge exceeded the Crown position and concluded that a jail sentence was the only and least restrictive sentence that was appropriate in all of the circumstances but did not address why that was her conclusion nor why a suspended sentence could not meet those ends as it did with the co-accused Mr. Jocko and Mr. Jacobs.

Sentencing of First Offenders

[66] The Appellants and the Respondent also argue that the sentencing judge erred in exceeding the Crown position and providing insufficient weight to the principle of restraint in relation to first-time offenders. They argue that the sentencing judge’s reasons for sentence do not address this important principle.

[67] I agree. The sentencing judge stated in her reasons that “a jail sentence is the only and least restrictive sentence that is appropriate in all of the circumstances” but does not address in a meaningful way the impact of the Appellants being first time offenders.

[68] In R. v. Priest, 30 O.R. (3d) 538, at pp. 544-545, the Ontario Court of Appeal stated the following:

The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge's reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment.

[69] At p. 545 of Priest, the court added the following:

Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

[70] The sentencing reasons provide no analysis of this factor in circumstances where the Crown position was exceeded.

Sentencing of Indigenous Offenders

[71] The Appellants and the Respondent also cite the principles related to the sentencing of Indigenous individuals in support of their argument that the sentencing judge failed to provide adequate reasons for imposing the harsher sentence or provided erroneous or flawed reasons for doing so.

[72] The main purpose of section 718.2 (e) of the Criminal Code is to respond to the problem of the disproportionate incarceration of Indigenous peoples in Canada. Sentencing judges “should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique, and different from those of non-aboriginal offenders”: see R. v. Gladue, [1999] 1 S.C.R. 688, at para. 37.

[73] A sentencing judge should consider reasonable alternatives to imprisonment for all offenders, but “special consideration must be given to the circumstances of aboriginal offenders”: see R. v. Kakekagamick (2006), 81 O.R. (3d) 664, at para. 35.

[74] It is an error in principle for a sentencing judge to refer to Gladue factors without considering the impact of those factors on moral blameworthiness: see R. v. Bird, 2021 ABCA 243, at para. 20; R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 50.

[75] The reasons for sentence do not explicitly reflect an application of the Gladue principles in relation to the moral blameworthiness of the Appellants and how a harsher sentence than that sought by the Crown was required despite those principles.

Conclusion

[76] For all the reasons set out above, the appeal is granted.

[77] As noted earlier in these reasons, the Appellants and the Respondent jointly submit that should the sentence appeal be granted, in the circumstances of this case, this court should impose a fit sentence.

[78] I note that the Appellants served approximately a month of their conditional sentence, which included a house arrest component prior to a stay pending appeal being granted. This is a factor that I take into consideration in imposing sentence.

[79] A suspended sentence accompanied by a one-year period of probation is imposed as a fit sentence in these circumstances in relation to both the Appellants. The probation order shall have the following terms: keep the peace and be of good behaviour; appear before court when required to do so; and advise probation of any change of name, address, or employment.

[80] The Appellants, Kawenniiosta Jock and Nicholas Kolbasook, shall report to probation within seven days of the sentence appeal being granted.

Justice Brian Holowka Released: October 24, 2023