Court File and Parties

Court File No.: 112134 Date: February 15, 2012 Ontario Court of Justice

Between: Her Majesty the Queen — and — Robert John Neshinapaise

Before: The Honourable Mr. Justice D. DiGiuseppe

Heard on: August 25, October 18, October 24, November 10, 2011, January 9, 2012

Reasons for Sentence released on: February 15, 2012

Counsel:

• Gordon Fillmore, for the Crown
• S. Joy Marr, for Robert John Neshinapaise

Reasons for Sentence

DIGIUSEPPE J.:

A. Overview

[1] Robert Neshinapaise was convicted after a trial of aggravated assault and 3 counts of breach of probation arising out of an incident from February 13, 2011. Mr. Neshinapaise also plead guilty to a charge of common assault and 2 counts of breach of probation arising out of an incident from May 11, 2011.

[2] The matter was adjourned for the preparation of a pre-sentence report and sentencing submissions. The pre-sentence report was prepared and filed with the court. Evidence was heard and submissions were made at the sentencing hearing conducted on January 9, 2012. The matter was adjourned to today's date for the imposition of sentence.

B. Circumstances of the Offences

1. Aggravated Assault and Breach of Probation: February 13, 2011

[3] The facts of the aggravated assault are set out in detail in my reasons for judgment delivered on November 10, 2011. I will, however, give a brief overview.

[4] On February 13, 2011, Mr. Neshinapaise, along with others, was at a residence located at 39 Limbrick Place in the City of Thunder Bay. He had been drinking heavily. Sometime after 9:00 p.m., the victim, Jonathon Meekis, came to that residence with Jamal Loon, who had been there with the accused earlier in the evening. Jonathon Loon, Jamal's cousin was also present. Mr. Neshinapaise and Mr. Meekis did not know each other.

[5] Mr. Neshinapaise and Jonathon Loon attacked Mr. Meekis for no apparent reason. They struck him repeatedly and left him in the basement of the residence, unconscious and lying in a pool of blood. Police were called and Mr. Meekis was taken to hospital. Mr. Neshinapaise and Jonathon Loon were located on a couch in the residence, heavily intoxicated. Mr. Neshinapaise's face, hands and chest were covered in blood.

[6] Mr. Meekis sustained a severe traumatic brain injury. There was considerable swelling around his eyes, cheeks, nose and lips. He suffered facial fractures. A CT scan showed bleeding on the surface of the brain, as well as bruising associated with brain swelling. Mr. Meekis also suffered lacerations to his left hand, including a laceration of the extensor tendon of the left ring finger. He remained in Intensive Care and was eventually transferred to the Brain Injury Unit of St. Joseph's Hospital. A neurological assessment concluded that Mr. Meekis experienced some cognitive difficulties, including a mild to moderate decline in his ability to process information and learn; all as a result of the injuries sustained. At trial, Mr. Meekis testified that he has lost some feeling in his right hand and foot and now has difficulty doing math.

2. Assault and Breach of Probation: May 11, 2011

[7] Mr. Neshinapaise was arrested and detained on the aggravated assault charge. While in custody at the Thunder Bay District Jail, Mr. Neshinapaise was captured on video assaulting Conrad Moonias, another inmate. Mr. Moonias suffered severe bruising to the left side of his face and abrasions to his head. Another inmate, Jeff Achneepineskum also participated in the assault.

C. Circumstances of the Offender

[8] Mr. Neshinapaise is 21 years old. He is an aboriginal man and a member of Webequie First Nation. A pre-sentence report, with a Gladue component, was prepared and filed with the court. This report sets out Mr. Neshinapaise's personal history, as well as that of his family and his community. Defence counsel, prior to submissions, indicated that she had some concerns with respect to the lack of information in the report. The court was prepared to grant an adjournment to obtain further information. Counsel declined, and insisted that the matter proceed, in accordance with Mr. Neshinapaise's instructions. She was prepared to present further information, provided by Mr. Neshinapaise's mother, in her submissions.

[9] Mr. Neshinapaise is one of five children. His parents have been involved in a relationship for close to forty years. Alcohol was a problem for Mr. Neshinapaise's father and there were instances of domestic violence. Mr. Neshinapaise's father has been sober for 20 years and operates a sweat lodge in the community. Mr. Neshinapaise's siblings, all older than he, were exposed to the alcohol and physical abuse in their home. Mr. Neshinapaise however, was not exposed to the negative lifestyle experienced by his brothers.

[10] Counsel did provide further information regarding Mr. Neshinapaise's early years. When he was approximately five years old, he was abducted by three men in his community. He was located several hours later, bound and taped except for a small opening around his mouth. It could not be determined if he was sexually abused. No one was ever charged in the matter and it was never spoken of again. His mother believes that her son was traumatized by the incident.

[11] Notwithstanding a relatively positive and stable home environment, Mr. Neshinapaise has nonetheless struggled in the community. He has a history of substance abuse and violence. His criminal record includes convictions for assault, uttering threats, assault with a weapon, assault causing bodily harm, robbery and aggravated assault. His violence has also been directed towards domestic partners. Mr. Neshinapaise has three children with three partners, ranging from age 19 months to three years. The children reside with their mothers.

[12] Mr. Neshinapaise has participated in anger management and substance abuse counselling while incarcerated. His current offences speak to the limited success of that counselling. Mr. Neshinapaise, however, remains committed to attending further programming to assist in his rehabilitative efforts. To that end, he has sought the assistance of Denise Paulin, the Native Inmate Liaison Officer at the Thunder Bay District Jail. Ms. Paulin is also the Co-ordinator of the Turning Full Circle Program at the Thunder Bay Correctional Centre, a program that is designed to assist aboriginal offenders. Ms. Paulin testified at the sentencing hearing, and confirmed Mr. Neshinapaise's desire to connect with his culture and traditional ways as a method of dealing with those factors that contribute to his offending behaviour.

[13] Mr. Neshinapaise expressed his remorse in court during the sentencing hearing through a written note filed as an exhibit. That note, at least on its face, reveals that Mr. Neshinapaise may have some insight into his conduct, and what he needs to do to address it. He states as follows:

"I am shocked at what has happened to the victims in my case and their sufferings. I feel sorry for the victims, because they didn't deserve any of this… I need to straighten my life, and my addictions, to avoid potentially hurting others. I am embarrassed, hurt and ashamed for what has happened."

[14] The pre-sentence report concludes that Mr. Neshinapaise is at high risk to reoffend. He continues to struggle with substance abuse. He remains violent whether in the community or while incarcerated.

D. Position of the Crown and Defence

[15] The Crown seeks a penitentiary sentence of 3 to 5 years less pre-sentence custody on the charges of aggravated assault and breach of probation, and 2 months in jail consecutive on the charges of assault and breach of probation. The Crown also seeks a DNA order and a lifetime firearms prohibition pursuant to section 109 of the Criminal Code.

[16] The Crown points out the serious nature of the offences, and urges the court to consider denunciation and deterrence as primary sentencing objectives. The Crown also notes that Mr. Neshinapaise was bound by three separate probation orders at the time of the aggravated assault, and was in custody when he committed the assault against Mr. Moonias. These ought to be noted as aggravating factors.

[17] Defence counsel asks that I take into account Mr. Neshinapaise's relative youth and his aboriginal status, and impose a jail sentence of 18 months, less presentence custody. Defence counsel submits that this reformatory sentence, coupled with probation, will address denunciation, deterrence and rehabilitation. The defence does not oppose the ancillary orders sought.

E. Reasons

1. Purpose & Principles of Sentencing

[18] The purpose and principles of sentencing are set out in section 718 of the Criminal Code:

"The fundamental purpose of sentencing is 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 following objectives:

(a) to denounce 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 for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community."

[19] Section 718.1 of the Criminal Code requires that sentences imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Criminal Code requires the court to consider any aggravating and mitigating circumstances, paying particular attention to the circumstances of aboriginal offenders.

2. Sentencing of Aboriginal Offenders

[20] The Supreme Court of Canada in R. v. Gladue, [1999] S.C.J. 19 considered in detail sentencing principles, including those principles involved in sentencing aboriginal offenders. Section 718.2(e) of the Criminal Code requires a court to consider the circumstances of aboriginal offenders, and was enacted in part because of the problem of the disproportionate incarceration of aboriginal offenders. The Court in Gladue concluded that section 718.2(e) of the Criminal Code affirmed existing sentencing principles, and was remedial in nature. These principles were reaffirmed by the Supreme Court of Canada in R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207 and by the Ontario Court of Appeal in R. v. Kakekagamick, [2006] O.J. No. 3346. Indeed, in Kakekagamick, the court noted that there was an obligation on the sentencing court, Crown and defence counsel to ensure that all relevant information with respect to the offender's aboriginal status be before the court, and be taken into account in determining a fit sentence.

[21] The duty of a sentencing judge to impose a fit sentence has not changed. Rather, sentencing of aboriginal offenders requires a consideration of their unique circumstances, including systemic and background factors that may have played a part in bringing the offender before the courts. While it is important to consider the particular circumstances of aboriginal offenders and the principle of restorative justice, the sentencing objectives of denunciation and deterrence must still be given due consideration, especially for serious offences. The balance sought to be struck with respect to these sentencing objectives is described in Gladue at paragraphs 78 and 79:

"In describing the effect of s. 718.2(e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation and separation … Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant ... Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing."

[22] The pre-sentence report and counsel's submissions, particularly with respect to the offender's abduction and traumatization as a child, identify factors in Mr. Neshinapaise's background that may have contributed to his offending behaviour. Although his childhood experience and environment appear positive and stable, Mr. Neshinapaise was nonetheless exposed to abuse and negative behaviour. Noteworthy are the circumstances of his siblings, each of whom has had his struggles and come into conflict with the law. In addition, the trauma visited upon Mr. Neshinapaise when he was abducted as a child may also have been a contributing factor to his offending behaviour.

[23] Notwithstanding his parents' efforts to promote a positive and stable environment, Mr. Neshinapaise was still exposed to negative influences and quite possibly abuses, all of which are reflected in his character and contributed in part to his offending behaviour. The sentence imposed must address these factors and strive to place Mr. Neshinapaise on a path of healing. This enures not only to Mr. Neshinapaise's benefit, but to the benefit of the public who have been victimized by his criminal conduct.

3. Pre-Sentence Custody

[24] Mr. Neshinapaise has spent 12 months in pre-sentence custody. Neither counsel made specific submissions as to what credit ought to be given Mr. Neshinapaise for that pre-sentence custody.

[25] When imposing a sentence, Section 719(3) of the Criminal Code requires a court to take into account any time a person has spent in custody. The Criminal Code limits credit for that pre-sentence custody to a maximum of one day for each day spent in custody. Section 719(3.1) permits a sentencing judge, in appropriate circumstances, and provided reasons are given, to credit an offender a maximum of one and one-half days for each day spent in custody.

[26] Prior to the enactment of section 719(3.1) of the Criminal Code limiting the credit for pre-sentence custody, a guideline had emerged that credit would usually be two days credit for each day of pre-sentence custody. The rationale for enhanced credit beyond two for one was articulated by the Ontario Court of Appeal in R. v. Francis, 207 C.C.C. (3d) 536. At paragraph 14 Justice Weiler stated:

"Three considerations inform the rationale for giving enhanced credit for pre-sentence custody. They are: (1) that other than for life sentences, legislative provisions for parole eligibility and statutory release do not take into account time spent in pre-sentence custody; (2) that there are few rehabilitative, educational or retraining programs available in detention centres; and (3) that the conditions in detention facilities are often more crowded and more onerous than in correctional facilities."

[27] The Court of Appeal has consistently declined to endorse one particular formula for determining how much credit should be given for pre-sentence custody. Rather, appellate courts have consistently endorsed the need for a case-specific analysis. While these cases were decided prior to the enactment of s. 719(3.1) of the Criminal Code, the principles they enunciate are still relevant and ought to be considered and applied in determining enhanced credit for pre-sentence custody.

[28] In this case, it is abundantly clear from the pre-sentence report and the evidence and submissions at the sentencing hearing, that Mr. Neshinapaise requires rehabilitative counselling. While some steps have been taken during Mr. Neshinapaise's pre-sentence detention, particularly the involvement of Ms. Paulin, the District Jail offers very limited rehabilitative programs. When I take this factor into account, together with Mr. Neshinapaise's youth, his stated commitment to address the issues that contribute to his violent behaviour and the loss of earned remission, I am satisfied that he ought to receive enhanced credit for his pre-sentence custody. I will grant Mr. Neshinapaise 18 months credit for 12 months of pre-sentence custody.

4. Analysis

[29] There are a number of mitigating factors in this case. Mr. Neshinapaise's youth, his plea of guilty with respect to the assault charge and his expressions of remorse are all factors which stand in his favour. Mr. Neshinapaise's upbringing must also be taken into account, at least to provide some context within which to view his offending behaviour.

[30] On the other hand, the circumstances of this offence cry out for a significant jail term. Mr. Neshinapaise administered an unprovoked, senseless and vicious beating on Mr. Meekis, a beating that has had significant physical and emotional repercussions. The beating left Mr. Meekis unconscious and in a pool of his own blood. Mr. Neshinapaise made no effort to assist or seek medical attention for him. It is mere chance that Mr. Neshinapaise's conduct did not result in more tragic consequences.

[31] Sentencing is an individualized process. A judge must take into account all of the broad sentencing objectives and principles set out in the Criminal Code. With these in mind, an appropriate sentence must be fashioned taking into account the circumstances of the offence and the offender. This process requires a balancing of competing sentencing objectives. In cases of serious crimes involving significant personal violence, the sentencing objectives of denunciation and deterrence have overarching significance. Rehabilitation, while important to the offender and to the public, takes a less prominent role. The balance to be achieved in arriving at a fit sentence must address these competing sentencing objectives in a meaningful way.

[32] In the circumstances of this case, I am satisfied that a significant jail sentence is appropriate, although slightly below the range suggested by the Crown. In my view, a jail sentence of 32 months less pre-sentence custody will adequately address the sentencing objectives of denunciation and deterrence. The sentence imposed should provide an opportunity for Mr. Neshinapaise to address those factors that have contributed to his offending behaviour, providing the structure and support necessary to focus him on his rehabilitation.

E. Disposition

[33] With respect to the charge of aggravated assault, I will credit Mr. Neshinapaise 18 months for 12 months of pre-sentence custody, and sentence him to a term of imprisonment of 12 months. With respect to the offences of breach of probation arising from that same date, 12 months imprisonment on each charge concurrent and concurrent to each other.

[34] With respect to the charge of common assault, Mr. Neshinapaise will be sentenced to a term of imprisonment of 2 months consecutive. With respect to the offences of breach of probation arising from that same date, 2 months imprisonment concurrent on each charge, and concurrent to each other.

[35] Following the term of imprisonment, Mr. Neshinapaise will be placed on probation on each charge for a period of 18 months. The terms of the probation order will be as follows:

1. Keep the peace and be of good behaviour;

2. Report to a probation officer within 5 working days after your release from custody and thereafter as required by your probation officer;

3. You will have no contact, direct or indirect with Jonathan Meekis and Conrad Moonias;

4. Attend and actively participate in such rehabilitation programs for substance abuse, anger management and such other counselling as may be recommended by your probation officer.

[36] The following ancillary orders will issue:

1. Aggravated assault is a primary designated offence. Assault is a secondary designated offence. Mr. Neshinapaise will be required to provide such samples of bodily substance as are reasonably necessary for the purposes of forensic DNA analysis.

2. Pursuant to section 109 of the Criminal Code, Mr. Neshinapaise will be prohibited from possessing any firearms, ammunition or explosive substances for life.

Released: February 15, 2012

Signed: "Justice D. DiGiuseppe"