Court File and Parties
Court File No.: Kenora - 1511-998-13-132193 and 1511-998-13-131915 Date: 2014-05-08 Ontario Court of Justice
Between: Her Majesty the Queen — And — Herman Junior Black
Before: Justice D.A. Harris
Heard: January 29 and 31, 2014 and March 27, 2014
Reasons for Sentence delivered on: May 8, 2014
Counsel:
- J. McKay, counsel for the Crown
- D. Gallagher, counsel for Herman Junior Black
Reasons for Sentence
HARRIS J.:
Overview
[1] Following a trial, I convicted Mr. Black of assault with a weapon.
[2] He then pled guilty to another assault and to breaching an undertaking entered into before an officer in charge.
[3] Crown counsel elected to proceed summarily with respect to all of these charges.
[4] Mr. Black is before me today to be sentenced.
[5] Crown counsel argued that I should impose a global sentence of imprisonment for two years less credit for pre-sentence custody.
[6] Counsel for Mr. Black argued that the period of imprisonment should be 18 months.
[7] Both counsel agreed that imprisonment should be followed by probation and that a DNA order and a firearms prohibition were in order here.
[8] My task here then is to determine the appropriate length of the prison sentence to be served by Mr. Black.
The Law
[9] In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
[10] The fundamental purpose of sentencing is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.[1]
[11] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.[2]
[12] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.[3]
[13] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:
The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.[4]
[14] He went on to state that:
The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence -- especially the fault component -- and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.[5]
[15] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.[6]
[16] On this point, Doherty J.A. concluded by stating that:
Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.[7]
[17] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.
[18] I must specifically consider the impact of section 718.2(e) of the Criminal Code which provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."
[19] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.[8]
[20] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the longstanding principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.[9] As a general matter restorative justice involves some form of restitution and reintegration into the community.
[21] In this case, I must also pay particular attention to Mr. Black's circumstances as an aboriginal offender.
[22] The Supreme Court of Canada made it clear in Gladue that sentencing is an individual process, and that in each case the consideration must continue to be what is a fit sentence for this accused for this offence in the community.
[23] The effect of section 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.
[24] It is not a mitigating factor on sentencing simply to be an aboriginal offender, nor does simply being an aboriginal offender provide anyone with immunity from being imprisoned.
[25] Rather, section 718.2(e) was enacted as a remedial provision in recognition of the fact that aboriginal people are seriously overrepresented in the prison population across Canada, and in recognition of the reasons for why this overrepresentation occurs. So, while section 718.2(e) requires a sentencing judge to consider reasonable alternatives to imprisonment for all offenders, special consideration must be given to the circumstances of aboriginal offenders.
[26] The subsection also requires that a sentencing judge consider a shorter period of imprisonment, in appropriate cases, for an aboriginal offender.
[27] These issues were revisited by the Supreme Court of Canada more recently in R. v. Ipeelee, where the Supreme Court reaffirmed that section 718.2(e) of the Criminal Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.[10]
[28] Section 718.2(e) does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for aboriginal offenders.
[29] It directs sentencing judges to pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique and different from those of non-aboriginal offenders. When sentencing an aboriginal offender, a judge must consider the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.
[30] Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people generally, but additional case-specific information will have to come from counsel and from the Pre-Sentence Report.
[31] Courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for aboriginal peoples.
[32] These matters, on their own, do not necessarily justify a different sentence for aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.
[33] The Supreme Court reiterated that Gladue had stated quite clearly that section 718.2(e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal.[11]
[34] I am also mindful of the fact that more than 15 years after the Supreme Court of Canada released Gladue, the proportion of aboriginal offenders incarcerated in Canadian prisons and reformatories has increased. Clearly, that is not going to change if we simply pay lip service to the principles of Gladue and then look for reasons not to apply them.
[35] I note as well the statement of the Ontario Court of Appeal in R. v. Kakekagamick that "the law in Ontario requires that the Gladue analysis be performed in all cases involving an Aboriginal offender, regardless of the seriousness of the offence".[12]
[36] The maximum sentence for assault with a weapon is imprisonment for 18 months when the Crown proceeds summarily. The maximum sentence for each of the common assault and breach of undertaking offences is imprisonment for six months when the Crown proceeds summarily.
[37] Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here and at Mr. Black's background.
The Offences
[38] On July 4, 2013, Mr. Black and a number of other men assaulted Rudy Aaron Pascal and beat him with a stick.
[39] All of these people resided in the First Nation Territory of Pikangikum.
[40] Mr. Pascal was sniffing gasoline that night with a group of his friends.
[41] Mr. Black and his friends were also sniffing gas separately from Mr. Pascal's group.
[42] At some point the two groups came together.
[43] Mr. Black and others in his group assaulted Mr. Pascal, knocking him to the ground and hitting him with sticks.
[44] Mr. Pascal suffered a cut above his left eye, a cut on the back of his head and three fractured ribs. The cut over his eye required five stitches.
[45] He was taken to the nursing station in Pikangikum that night and then flown to Sioux Lookout for treatment. He remained there for close to two weeks. During his evidence he said he was fully recovered.
[46] On August 15, 2013, Mr. Black was walking with Stephen Angelo Strang when they got into a fight. Mr. Black pushed Mr. Strang several times, knocking him to the ground. Mr. Black then kicked Mr. Strang in the head and kneed him in the head.
[47] Mr. Black was arrested four hours later. He was intoxicated by alcohol. He was on release at the time subject to the conditions of an undertaking entered into before an officer in charge. One condition prohibited him from drinking alcohol.
Background of Mr. Black
[48] I have had the benefit of two Pre-Sentence Reports. One of these had been prepared previously. The second one was prepared specifically for this case. These Reports provided me with the following information.
[49] Mr. Black is 21 years old.
[50] He was born and raised in Pikangikum First Nation. He continues to reside there when he is not in custody.
[51] The Pikangikum First Nation is an Ojibway community located about 120 kilometres northwest of Red Lake in northwestern Ontario. It has approximately 2300 residents.
[52] Access to Pikangikum is limited to expensive year round commercial and charter air service from Red Lake or Sioux Lookout. When seasonal conditions permit, a winter "ice road" is constructed into the community to provide ground access and delivery of essential goods and services.
[53] Geographic isolation has translated into depreciated opportunity for access to standard health care, steady employment and functioning public services, leading to a higher than average poverty rate among most residents of the community over multiple generations. Housing conditions are generally poor with broken windows and graffiti being prevalent around the community. Sanitary running water and sewage for homes are improving slowly however, many homes do not have access to these services and many are compromised by deficient or unreliable home heating and electricity during winter months. It is not uncommon to have several families living in one home or sharing any available space for shelter.
[54] Alcohol and solvent abuse is so prevalent that a gas patrol unit was developed to assist police and community agencies in managing the problem.
[55] As resources are limited and in high demand, community members are often not provided with or have long waits for support services necessary to sustain personal well-being, pro-social family development and consistent mental health care. As a result, the community is wrought with high unemployment (greater than 70 per cent), prolific health, social and crime-related crises, frequent medical emergencies, prevalent alcohol/drug/solvent abuse incidents, depreciated recreational opportunity and an elevated rate of suicide, especially among the youth.
[56] Pikangikum is among the most populated communities among First Nations in the Sioux Lookout District with 89 per cent of its population being 40 years or younger and a growth rate at over three per cent annually, the highest per capita in the Sioux Lookout zone.
[57] The Pikangikum population has the highest rate of indigenous language retention in northern Ontario, with the official languages being Ojibway and English.
[58] In 2000, a sister of Mr. Black's committed suicide at the age of 13.
[59] Mr. Black's father was a hardworking and well respected member of the community. However an alcohol dependency worsened and in October 2008, he took his own life. Mr. Black was in treatment at the time in Big Trout Lake. He came home for the funeral and then returned to treatment.
[60] In 2010, another sister committed suicide at the age of 15. She was being physically abused by a male peer in the community.
[61] In 2012, an older brother was murdered. Mr. Black was in the Northland Residence in Kenora at the time. He returned to Pikangikum for the funeral and remained there.
[62] Mr. Black has never attended for counselling for any of these events.
[63] Like Mr. Black, many of his siblings have struggled with alcohol and solvent abuse which have brought them before the court.
[64] Mr. Black completed grade seven in school. He has since achieved two high school credits while in custody.
[65] He has never been gainfully employed.
[66] He was introduced to solvent abuse by a cousin when he was 13 years old. He first tried alcohol when he was 14. He used both regularly. He has engaged in producing homebrew in his residence since he was 15.
[67] He has described thoughts of killing himself when drinking. He attempted to kill himself two years ago but was stopped by his ex-girlfriend and his sister.
[68] He has attended several treatment facilities. He responded favourably there but returned quickly to substance abuse within weeks of returning home.
[69] The result of all of this has been that of the last 22 months, Mr. Black has only been out of custody for a two-month period, that being from June 11, 2013 to August 15, 2013.
[70] Following his release from jail in June 2013, he resumed drinking homebrew and sniffing gasoline.
[71] Apparently the sniffing of gasoline by groups of young people in Pikangikum leads to "turf" conflicts resulting in physical altercations involving weapons.
[72] That appears to be the case here.
[73] Mr. Black and others described him and Mr. Pascal as "buddies".
[74] Mr. Strang on the other hand was a stranger to Mr. Black.
[75] The only common factor was that Mr. Black was intoxicated on both occasions and he has a history of becoming violent when he is intoxicated.
[76] His record includes offences committed both as an adult and as a youth. The youth record includes two findings of guilt for common assault, two for assault with a weapon, one for assault causing bodily harm and six for breaches of various court orders. As an adult he has been convicted once for robbery and four times for breaching court orders.
[77] He apparently does well when in custody. It is unfortunate however that he has remained in detention centres while incarcerated as an adult, and has not been able to access any of the meaningful rehabilitative counselling or programming that would have been available in a correctional centre.
[78] Mr. Black intends to return to Pikangikum upon his release. His sister has confirmed that she will provide him with shelter.
Analysis
[79] There is not a great deal that can be said in favour of Mr. Black.
[80] When out of custody he has established a pattern of behaviour that causes me great concern for the safety of anyone residing in his community.
[81] That pattern starts with him abusing alcohol and solvents on a regular basis. When under the influence of these substances, Mr. Black lashes out violently against anyone who happens to be near him.
[82] In this case, the results of that violent lashing out were very serious. Mr. Pascal suffered significant injuries.
[83] There has been no suggestion that anything has happened since he was incarcerated for these most recent offences that reduces the likelihood that Mr. Black will return to this pattern of violent behaviour. To the contrary, he has again spent a significant part of his sentence in a detention facility rather than in a place where he might have access to meaningful counselling.
[84] Finally, Mr. Black's record shows a pattern not only of violence but also of a disregard for court orders.
[85] In light of the seriousness of Mr. Black's offences, I must impose a sentence that will deter both Mr. Black and other like-minded individuals from committing such offences. I have to make it clear that anyone who commits such offences can expect to go to jail for a significant period of time.
[86] On the other hand he is still a young man and I cannot give up all hope of him being rehabilitated.
[87] I have given effect to section 718.2(e) of the Criminal Code. In this case that has resulted in me imposing a shorter custodial sentence than that which would otherwise be appropriate.
[88] I am not going to again enumerate the various Gladue factors present. They are too numerous and too obvious for me to do that.
[89] I do note that Mr. Black is not the only aboriginal person involved in this case. Both of his victims were also members of the Pikangikum First Nation. Any future victims would also likely be members of the Pikangikum First Nation.
[90] After considering all of the above I find that the appropriate sentence for the assault with a weapon charge is imprisonment for 15 months. The appropriate sentence for the assault on Mr. Strang is imprisonment for three months. The appropriate sentence for breaching his undertaking is one month. That adds up to a total of 19 months.
Credit for Pre-Sentence Custody
[91] Mr. Black has already been in custody for 267 days or almost nine months.
[92] His counsel did not ask for enhanced credit for this pre-sentence custody. I note however that his submissions were made prior to the recent decision of the Supreme Court of Canada in R. v. Summers[13] and I will accordingly address the issue of enhanced credit in light of that decision.
[93] Summers makes it clear that I may take lost remission into account in determining whether to give enhanced credit for pre-sentence custody in most cases.
[94] The Supreme Court stated that:
The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. Of course, a lower rate may be appropriate when detention was a result of the offender's bad conduct, or the offender is likely to obtain neither early release nor parole. When the statutory exceptions within s. 719(3.1) are engaged, credit may only be given at a rate of 1 to 1. Moreover, s. 719 is engaged only where the pre-sentence detention is a result of the offence for which the offender is being sentenced.[14]
[95] The Court stated further that:
The process need not be elaborate. The onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention. Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit. Of course, the Crown may respond by challenging such an inference. There will be particularly dangerous offenders who have committed certain serious offences for whom early release and parole are simply not available. Similarly, if the accused's conduct in jail suggests that he is unlikely to be granted early release or parole, the judge may be justified in withholding enhanced credit. Extensive evidence will rarely be necessary. A practical approach is required that does not complicate or prolong the sentencing process.[15]
[96] I assume that overcrowding is as much a problem in the Kenora Jail as it is in detention centres across southern Ontario. The Pre-Sentence Reports referred to the absence of meaningful rehabilitative counselling or programming at the jail. The Pre-Sentence Report also described the remote nature of the Pikangikum First Nation leading me to conclude it would be difficult if not impossible for Mr. Black to receive visits from friends or family while he was in custody. These are all factors that I might take into account when deciding whether to give enhanced credit for pre-sentence custody.
[97] On the other hand, the Supreme Court did recognize that:
Parliament did restrict enhanced credit, withholding it from offenders who have been denied bail primarily as a result of a previous conviction (s. 515(9.1)), those who contravened their bail conditions (ss. 524(4)(a) and 524(8)(a)), and those who committed an indictable offence while on bail (ss. 524(4)(b) and 524(8)(b)). Parliament clearly turned its attention to the circumstances under which s. 719(3.1) should not apply …[16]
[98] Mr. Black qualified for denial of bail on all three bases.
[99] After considering all of the above, I would not have given Mr. Black enhanced credit for his pre-sentence custody even if counsel had requested it.
Sentence
[100] With respect to the assault with a weapon charge, I sentence Mr. Black to time served, being 267 days of pre-sentence custody, credited as nine months, plus imprisonment for a further six months. With respect to the assault on Mr. Strang, I sentence Mr. Black to imprisonment for three months consecutive. With respect to the charge of breaching his undertaking, I sentence him to imprisonment for one month consecutive.
[101] Those periods of imprisonment will be followed by probation for three years.
[102] The terms of his probation are that he will:
Keep the peace and be of good behaviour;
Appear before the court when required to do so by the court;
Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;
Report in person to a probation officer within two working days of his release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;
Not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Rudy Aaron Pascal or Stephen Angelo Strang;
Not buy, possess or consume alcohol or other intoxicating substances including gasoline;
Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for:
- Anger management,
- Substance abuse,
- Alcohol abuse,
- Bereavement/grief issues,
- Life skills, or
- Any residential treatment program for these.
[103] I am also making an order pursuant to section 110 of the Criminal Code and for the next 10 years, Mr. Black may not own, possess or carry any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.
[104] Assault with a weapon is a primary designated offence. In the circumstances, I am making an order pursuant to section 487.051 of the Criminal Code authorizing the taking, from Mr. Black, of any number of samples of one or more bodily substances including blood that is reasonably required for the purpose of forensic DNA analysis.
[105] Mr. Black has no income. His prospects for employment in Pikangikum are bleak, at best. These offences all preceded the recent amendments to the Criminal Code and I am waiving the surcharges.
Released: May 8, 2014
Signed: "Justice D.A. Harris"
Justice D.A. Harris
Footnotes
[1] Criminal Code of Canada, section 718.
[2] R. v. Hamilton, at para. 102; R. v. Lyons, at para. 26; R. v. Morrisey, 2000 SCC 39, at para. 46.
[3] Criminal Code of Canada, section 718.1.
[4] R. v. Hamilton, supra, at para. 90.
[5] Ibid, at para. 91.
[6] R. v. Priest, at para. 26, quoted in R. v. Hamilton, supra, at para. 92. See also R. v. Ipeelee, 2012 SCC 13, at para. 37.
[7] R. v. Hamilton, supra, at para. 93.
[8] Gladue v. The Queen, at para. 36; see also R. v. Proulx, 2000 SCC 5, at para. 20.
[9] Gladue, supra, at paras. 43 and 48; see also R. v. Proulx, supra, at paras. 18 through 20.
[10] R. v. Ipeelee, 2012 SCC 13, at paras. 59 and 60.
[11] R. v. Ipeelee, supra, at para. 71.
[12] R. v. Kakekagamick, per LaForme J.A. at para. 38. See also R. v. Wells, 2000 SCC 10, at para. 50 and R. v. Ipeelee, supra, at para. 84.
[13] R. v. Summers, 2014 SCC 26.
[14] Ibid, at para. 71.
[15] Ibid, at para. 79.
[16] Ibid, at para. 39.