Court Information
Ontario Court of Justice
Date: 2019-05-08
Court File No.: Toronto 4817 998 18-75004698
Between:
Her Majesty the Queen
— and —
Yaw James
Before: Justice Howard Borenstein
Plea of Guilty: March 27, 2019
Submissions on Sentence: May 2, 2019
Reasons for Sentence Released: May 8, 2019
Counsel
Ms. Vivian Gallegos — Counsel for the Crown
Mr. Michael Hayworth — Counsel for the Accused Yaw James
Decision
BORENSTEIN, J.:
Background and Offences
[1] Yaw James pled guilty on March 27th of this year to one breach of a recognizance and one breach of probation. These breaches are especially serious. The breaches relate to Court Orders that the accused stay away from Monique Fortin whom he has viciously assaulted, repeatedly. All the facts were admitted on this plea.
[2] By way of brief background, on January 19, 2018, James was convicted of assaulting Monique Fortin and assaulting her with a weapon. The two assaults occurred on two separate occasions.
[3] The assault consisted of him punching Ms. Fortin in the face causing a bruise. When the police attended, she would not provide a statement.
[4] On the assault with a weapon, he smashed a glass right into her face. She again refused to provide a statement.
[5] In January 2018, after 70 days of pre-sentence custody, he was sentenced to 50 further days in jail and a year probation with a condition that he have no contact with Ms. Fortin and was ordered to stay 50 metres away from her with some exceptions that do not apply.
First Breach
[6] Now, on February 24, 2018, which is about six weeks after that order was made, police received a call. The callers heard neighbours fighting in the next apartment. On the audio of the call, one hears a woman say, "you split my lip, you psycho". The police attended. Ms. Fortin was there with a split lip. The accused was hiding in the closet. She refused to give a statement to the police. That is the breach he admitted. It was a very strong case obviously.
[7] Now, despite his record, he received bail with a condition that he stay away from Ms. Fortin.
Second Breach
[8] On September 21, 2018, neighbours heard arguing between two and five in the morning. They heard a woman screaming for the police, saying: get off my neck. The neighbour called the police. Police attended and both were in the apartment in breach of the recognizance and probation. She again refused to provide a statement to the police.
[9] After 19 days in custody, he got bail again. So he has the equivalent of 30 days in custody.
Mitigating Factors
[10] Since his release from custody in October, some seven months ago, he has been working and staying out of trouble.
[11] By way of background, he had a tough beginning of his life to be sure. His mother died when he was only 11 years old, and he grew up in foster care. He is 29 years old. To his credit, six years ago, he received a certificate in relation to cooking from George Brown College. He has been working since his release.
[12] I was told his nose was broken on arrest and SIU investigated. I heard no more about that and make nothing of it, as I do not know the circumstances.
Criminal Record
[13] He has a criminal record which is worrying. I have already mentioned the two assaults on Ms. Fortin.
[14] He also has five separate breaches of his bail.
Victim Impact Statement
[15] The complainant filed a victim impact statement saying she is not fearful of the accused and wants to see him. I give no weight to that victim impact statement for obvious reasons. She has been assaulted by the accused repeatedly; neighbours heard her screaming, and she refuses to give a statement to the police.
Rehabilitation Efforts
[16] Since his release, he has had 11 sessions of counselling, while on bail, which is positive.
Sentencing Submissions
[17] What is the correct sentence for these two breaches?
[18] The Crown seeks only 30 more days in custody plus probation.
[19] The defence submits that time served is appropriate given his pleas and his background, and the fact that he is doing well.
[20] No case law was presented.
Sentencing Analysis
Aggravating Factors
[21] The aggravating features in this case are many.
[22] He has committed many breaches of Court Orders. He has assaulted Ms. Fortin repeatedly, which was the reason for the Court Orders. I am not sentencing him for assaulting her, but the context of these breaches makes clear what was going on. If I were sentencing him for assaulting her, he would be looking at a sentence measured in a year or more, not months. This is a woman who clearly is in need of protection from him, and he violates these Orders with ease.
Mitigating Factors
[23] As for mitigation, there are three factors. The guilty plea, but I see this as a very strong case. Nonetheless, it is a mitigating factor. There is also the fact that he is doing well since his release – he has been to counselling, he has been working, which is a stabilizing factor, and he has not committed any further offences. Third, while not a mitigating factor per se, I recognize the hardships he has suffered at an early age. Finally, I recognize he was on a tight bail.
Sentencing Principles
[24] The sentencing principles to emphasize in this case are specific deterrence and denunciation. Those are needed to protect her and others. But I do not ignore the positive potential of his rehabilitation.
Conclusion
[25] Balancing these, I believe a significant conditional sentence of imprisonment is appropriate in this case. It reflects the gravity and the need for deterrence and denunciation, but gives some weight to the accused's rehabilitation in light of the fact that he has been doing well. It is also supported by the fact that he has been out on bail without incident.
Sentence
[26] I sentence Mr. James to a six-month conditional sentence, followed by two years' probation, as well as a s.109 Order for 10 years, and a DNA Order.
Terms of Conditional Sentence
[27] The terms of the conditional sentence are, as follows:
Keep the peace and be of good behaviour;
Report immediately to your Conditional Sentence Supervisor (CSP) and thereafter, as required;
Advise your CSP of any change of name, address or occupation;
For the first three months, you will be confined to your home seven days a week unless you are going directly to and from work, court, counselling or community service. You will also be allowed out five hours once a week for personal errands.
For the next three months, you will be subject to a 9 pm to 6 am curfew with the same exceptions;
You are not to possess any weapons;
You are to have no contact whatsoever, directly or indirectly, with Ms. Monique Fortin;
Take and actively participate in any counselling as directed by your CSO supervisor and sign all necessary releases;
For the two years following your conditional sentence, you will be placed on probation.
Terms of Probation Order
[28] The terms of your probation order are, as follows:
Keep the peace and be of good behaviour;
Advise of any change of name, address or occupation;
No contact directly or indirectly with Ms. Monique Fortin;
You are to possess no weapons as defined by the Criminal Code;
You are to take counselling as directed by your probation officer and sign releases.
Released: May 8, 2019
Signed: Justice Borenstein