Ontario Court of Justice
Date: July 23, 2019
Court File No.: Guelph #19/554
Between:
Her Majesty the Queen
— AND —
Jacob Montero
Before: Justice M. K. Wendl
Heard on: February 22nd and July 18th
Reasons for Judgment released on: July 23rd, 2019
Counsel
Marilyn Dolby — counsel for the Crown
Ranney Hintsa — counsel for the defendant Jacob Montero
Judgment
Wendl J.:
[1] Guilty Plea and Offense
[1] Jacob Montero pled guilty to aggravated assault on February 22, 2019. On November 12, 2018 he stabbed his former girlfriend, Nia Dennis – the mother of their child – with a three inch blade, numerous times. The injuries do not appear to be life threatening; however, Ms. Dennis did receive stitches.
[2] The matter was adjourned for a Gladue report and, subsequently, a psychiatric report. This sentencing involves a complex balancing of psychiatric factors, Gladue factors, a youthful offender, and a serious violent offence in the context of a former domestic relationship.
Facts
[3] Jacob Montero and Nia Dennis were in a relationship. They broke up in September 2018. They have one child together. Jacob's criminal record indicates one prior assault. The victim of that assault was also Nia Dennis.
[4] After their breakup, Mr. Montero became upset. He would show up unannounced at the complainant's residence, in her garage and in her workplace. Some of the conversations were welcome; others were argumentative and angry.
[5] On November 12, 2018 Jacob Montero followed a vehicle into the secure underground parking where the complainant resided. He waited for her. When she arrived home he came up to her and asked if they could speak. She said no. He stabbed her in the stomach, causing a small cut to her left abdomen.
[6] Orlando Montero, their son, now out of the vehicle, ran towards his mother. While she had the child in her arms Jacob Montero continued to lunge at her with the knife. This caused a small cut near the upper right part of Ms. Dennis' chest. The complainant then grabbed a hold of Mr. Montero's arm and suffered another small cut to her thumb area.
[7] At some point, the knife was wrestled away and 911 was called.
Background
[8] Jacob was born on November 22, 1998. Jacob is upper Mohawk, his aboriginal ancestry stems from his mother's side. He is a registered member of the Six Nations of the Grand River territory. Jacob's father, Raul, was born in Cuba and, now, resides in the United States.
[9] Jacob's aunts, Amelia and Avila, (mother's half-sisters) were murdered before Jacob's mother, Sandra, was born. They were murdered by Sandra's half-brother, Wayne Drinkwater. Amelia and Avila were Wayne's step-sisters. Sandra's parents (Amelia and Avila's mother and Wayne's father), could not endure the strain of the murders and split up. Wayne (Sandra's paternal half-brother) was diagnosed with Schizophrenia.
[10] Sandra also advised that her father dealt with mental health issues. She was not sure what they were.
[11] As a result of the murders, Sandra's mother reconnected with her first husband Truman Jamieson (Amelia and Avila's father). Sandra indicates that her stepfather, Truman Jamieson, attended residential schooling. She believes he was sexually molested there, and that he abused his own children. Sandra viewed Truman as her father figure. She indicates that she was sexually abused by him.
[12] As noted in the Gladue report, "the intergenerational trauma caused by church run Indian residential schools continues to haunt aboriginal communities."
[13] As an infant Mr. Montero was exposed to domestic violence. His mother decided to leave his father as a result. However, she indicates that Jacob does not have a recollection of it. Jacob indicates he never saw his father being physically abusive.
[14] Jacob's brother, Raul Jr., said that their father did struggle with mental health issues. He is prone to panic attacks, fits of anger and outbursts. His father was also suicidal. Raul Jr. related this story about his father: one day, his father sped up the car and stated "I'm gonna kill us all". Raul Jr., goes on to note that "when my dad was around, something crazy would be happening." At one point Jacob's father took a knife, gave it to Raul Jr., and told him to stab him.
[15] In addition to that, Raul Jr. also indicates that he has mental health problems of his own. Jacob Montero notes that he was subjected to physical aggression by his brother.
[16] Jacob Montero experienced racism throughout his life. After grade 11, he began living a transient lifestyle between Guelph and London. Jacob's mother said that both he and the complainant experienced difficulty with housing during their relationship. Jacob was intermittently homeless after grade 11.
[17] Jacob Montero believes that he was secretly drugged with steroids for the period of two and half years. However, Jacob's brother is not sure if that is true. Raul Jr indicates that Jacob's stories have a tinge of paranoia to them. Raul Jr. states in regard to his brother that "his view of reality isn't 100 percent there." Further in the report Raul Jr., goes on to indicate that his brother displayed paranoid thinking early in adolescence.
[18] Jacob, at the birth of his son, described experiencing depressed thinking. He felt a lot of pressure relating to dealing with "adult thinking".
[19] In 2018, Jacob was homeless again. He reports experiencing severe mood swings while homeless. He reports attempting suicide 30 times. He was hospitalized in October 2018 after Nia was concerned about his mental health. The Gladue report explains that aboriginal people experience suicide at a significantly higher rate than the general population. Community disruption and cultural loss are a significant factor in suicide among aboriginals. There is also a relationship between the history of residential schooling and suicidal ideation among aboriginals. The following trans generational effect of residential schools may be contributing to higher rates of suicidal ideation among aboriginal youths today:
- Enduring psychological, social, and economic effects on Survivors;
- Models of parenting and child rearing based on institutional experiences;
- Patterns of emotional responsiveness and expression;
- Repetition of physical and sexual abuse;
- Loss of cultural knowledge, language, and tradition;
- Undermining individual and collective identity and self-esteem;
- Devaluing and essentializing Aboriginal identity;
- Individual and collective disempowerment, loss of control, and lack of efficacy;
- Disruption of family and kinship networks;
- Destruction of communities, nations, or peoples; and
- Damage to relationship with larger society.
[20] At the time of the incident before the Court, Mr. Montero indicates he was drinking heavily and not taking care of himself generally. On the day of the incident, he indicates that he was drinking all day and was depressed.
[21] As a result of the mental health concerns in the Gladue report, a report was ordered under section 22 of the Mental Health Act.
[22] Dr. Nagari, the author of the report, diagnoses him with alcohol use disorder, in early remission and antisocial, borderline and narcissistic personality disorders.
[23] Dr. Nagari also indicates in the report that Mr. Montero poses a moderate to high risk of stalking and intimate partner violence.
[24] Jacob's mother, who was interviewed for the psychiatric report, indicated that she had some concern about behavioral issues while Jacob was growing up. He was stealing from family between the ages of seven and seventeen. He started staying out late and smoking marijuana when he was twelve. His mother attempted to have him engage in community programming as well as mental health supports. He was unwilling to engage in that programming.
[25] Of significant concern to the Court is the fact that Mr. Montero attempted to elevate his symptoms while undergoing psychiatric analysis. Jacob was trying to fake a diagnosis of NCR.
[26] Dr. Nagari also indicates that Jacob shows little insight into his offending behavior. In describing the offences Jacob expressed little remorse for his actions, or empathy for Nia Dennis. The testing also indicated that Jacob is egocentric and will likely seek to satisfy his own impulses by taking advantage of others.
[27] The report concludes by stating he has a number of criminogenic risk factors: problems with intimate and non-intimate relationships, lack of stable employment, antisocial attitudes, substance abuse, poor coping skills and a lack of empathy and remorse for his behavior.
Legal Principles
[28] As stated in the introduction, this sentencing involves a complex balancing of psychiatric factors, Gladue factors, a youthful offender and a serious violent offence in the context of a former domestic relationship.
[29] Many competing interests are at play.
[30] The Court of Appeal has stated numerous times that denunciation and deterrence are the paramount principles in cases of domestic assault. The court must also be conscious that Mr. Montero's sole prior entry in his criminal record relates to an assault on this victim as well.
[32] Mr. Montero was nineteen at the time of the offence. This makes him a youthful offender. Usually with youthful offenders, the primary sentencing principles are individual deterrence and rehabilitation. However, cases of serious violence, which this is, are an exception to that rule. In cases of serious violence, the objectives of denunciation and general deterrence gain prominence.
[33] Jacob also suffers from mental health issues. As mentioned above, he was diagnosed with alcohol use disorder, in early remission and antisocial, borderline and narcissistic personality disorders. Mental health concerns may impact the manner in which the court prioritizes the sentencing principles. As explained by Gillese J.A. in Batisse, when "mental health problems play a central role in the commission of the offence ... deterrence and punishment assume less importance."
[34] If mental health issues are not central to the commission of the offence, they are otherwise considered as part of the personal circumstances of the offender. I agree with the proposition as stated by Hoegg J., from the Newfoundland Court of Appeal, in Branton.
In summary on this issue, Mr. Branton's medical diagnoses are part of his personal circumstances and were therefore a legitimate consideration for the sentencing judge in the same way an offender's health is often a sentencing consideration. However, they were overemphasized and afforded great weight when there was no connection established between them and the offences committed, and no recognition that Mr. Branton had been assessed and counselled in relation to his behaviours in the past and that despite same, he has continued to offend.
[35] Mr. Montero is aboriginal. His step-grandfather went to residential schooling. His family suffered significant trauma, murder, sexual abuse and alcoholism. Mr. Montero is not required to show a causal connection between systemic and background factors and the offence.
[36] In fact, the court can, and must, take judicial notice of the unique systemic background that affects aboriginals in this country.
[37] This court must take notice of 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.
[38] This places Mr. Montero in his necessary context for sentencing purposes.
[39] The Gladue sentencing principles, enshrined in Section 718.2(e) of the Criminal Code, not only impose an affirmative obligation on sentencing judges to inquire into the relevant circumstances of the offender, but also require the sentencing judge to enquire into types of sentencing procedures and sanctions which may be appropriate for the accused because of their particular Aboriginal heritage or connection.
[40] The Court of Appeal of Ontario in MacIntyre-Syrette, quoting from the Saskatchewan Court of Appeal, itemized the type of information a sentencing Judge requires:
Whether the offender is aboriginal, that is, someone who comes within the scope of s. 25 of the Charter and s. 35 of the Constitution Act, 1982;
What band or community or reserve the offender comes from and whether the offender lives on or off the reserve or in an urban or rural setting. This information should also include particulars of the treatment facilities, the existence of a justice committee, and any alternative measures or community-based programs.
Whether imprisonment would effectively deter or denounce crime in the subject community. Within this heading it would be useful for the Court to determine whether or not crime prevention can be better served by principles of restorative justice or by imprisonment.
What sentencing options exist in the community at large and in the offender's community. For example, does an alternative measures program exist in the offender's community if he lives on a reserve?
[41] It is significant to note that the Court of Appeal in MacIntyre-Syrette ordered a follow up Gladue report. In the follow up decision, although they found the sentencing judge to have erred, they did not vary the sentence. The Court did not vary the sentence because there were no meaningful alternatives to custody and the offence was sufficiently serious to warrant custody.
[42] Also, there is no set formula as to how the Gladue analysis should be applied, and the principles of denunciation and deterrence may predominate where is the offence is sufficiently serious.
However, as LaForme J.A. noted in R. v. Kakekagamick (2006), 81 O.R. (3d) 664, leave to appeal refused [2007] S.C.C.A. No. 34, at para. 42, there is no general rule that in sentencing an Aboriginal offender the court must give the most weight to the principle of restorative justice, as compared to other legitimate principles of sentencing. The relative weight to be assigned to the goals of restorative justice as against the principles of denunciation or deterrence will be connected to the severity of the offence: Wells, at para. 39. The principles of denunciation and deterrence may predominate where the offence is sufficiently serious: Kakekagamick, at para. 42.
[43] However, it is an error in law to state that Gladue principles do not apply to serious violent offences or to give them adequate weight. For example in Martin, the court found that the Gladue principles had an impact on the length of the penitentiary sentence.
It is common ground that a penitentiary sentence is required here, but consideration of the Gladue factors can also have a bearing on the effectiveness of the proposed sentence. Here there is no reason to believe that a six-year sentence would have a greater deterrent effect for the appellant specifically or for other offenders than a four-year sentence. Section 718.2(e) emphasizes the importance of restraint in resort to imprisonment.
[44] Ultimately the Gladue analysis must focus on the circumstances of the offender that may bear on the offender's moral culpability for the offence. A sentencing judge cannot let the seriousness of the offence deflect the court away from that focus.
Sentencing Range
[45] A useful starting point for the discussion, while acknowledging that it is not a straightjacket and the court is not bound by it, would be a general range for this type of sentence.
[46] In R. v. W.A.E., [2002] O.J. No. 4834 (S.C.J.), Justice Henderson sentenced the accused to five years. The charge involved a domestic assault by repeated knife stabs to his wife's neck by the husband, age 31 with no prior record of violence. He stabbed her repeatedly with a knife that had an eight-inch blade. He inflicted blows on her head, arms, neck and back. She suffered 27 stab wounds. The children did not witness the assault. The wife had to have four hours of emergency surgery. Her injuries included liver and colon lacerations, two punctured lungs, multiple lacerations, a partially severed left little finger and a chip fracture of her skull at the front bone.
[47] In Craig, the accused received a three year sentence. Approximately two weeks after separating from a woman with whom he had lived for 23 years, the respondent approached her on the veranda of an inn where she was sitting with her daughter and a friend. Armed with a knife he had retrieved from a fishing tackle box in his truck, the respondent put his arm around her shoulder and took a firm grasp of her left arm. He bent down as if to whisper something to her and then commenced to stab her in the lower abdomen. He stabbed her at least three times and inflicted cuts to her hands before he was pulled away from her. The attack was without provocation or warning such that the victim was completely unsuspecting and defenceless. The injuries were life threating. Her injuries were severe. She required emergency surgery and blood transfusions. Her abdominal wounds have been slow to heal and she has impaired function in her hands. Her injuries have significantly impacted her ability to do her work and to participate in her recreational activity. The accused was in his 50's at the time of the incident with a very dated criminal record.
[48] In Brooks, the accused pled guilty to aggravated assault, he had a fairly significant record including twelve conviction dates for various offences. He was twenty-one at the time of the offense and his upbringing was difficult. He faced violence and abandonment as a youth. On the day of the incident the accused punched the victim, kicked her, pushed her down, stomped on her head and dragged her by the hair, pulling out some of it. The context was a domestic relationship. The complainant received a broken jaw which had to be wired shut. The accused received a three year sentence.
[49] In Byford, the accused received a sixteen month sentence for stabbing his stepfather three times in the back. The injuries were not life-threatening but lasting. Mr. Byford was eighteen years old at the time of the offence and he had no prior record. He pled guilty. He was assessed by a psychiatrist and found that the incident was uncharacteristic and isolated.
[50] Determining an accurate range for this type of offence is very difficult. In reviewing the cases Byford seems to be the low end of the range for a stabbing incident in a domestic type context and where the injuries are the lower end of the spectrum.
[51] Where significant injuries occur it seems that the starting point is three years, as exemplified by Craig or Brooks can go as high as five years as in W.A.E.
Analysis
[52] The injuries sustained by the complainant in this instance compare more to Byford than they do to Craig, Brooks or W.A.E. However, the context in which the stabbing occurred is much more aggravating than Byford. In Byford, the stabbing involved his stepfather, it did not appear to be premeditated, and there was a history of friction between the stepfather and the accused.
[53] In this instance, the acts are clearly premeditated, Mr. Montero has a previous related offence, it is a domestic incident, there is a criminal harassment aspect to the conduct and, horrifyingly, Ms. Dennis was holding their child in her arms while Mr. Montero continued to attempt to stab her.
[54] The personal circumstances are equally different. Mr. Byford's psychological report indicated Mr. Byford was unlikely to reoffend, and there is no indication of a difficult socio-economic background. On the other hand, Mr. Montero shows poor insight into his behavior and has a moderate to high likelihood of re-offence. He also lacks empathy for Miss Dennis, he struggles with mental health issues, is aboriginal and has difficult socio-economic background.
[55] In terms of that background, as the Court of Appeal recently reminded us in Altiman, this Court is required to look at the factors in Mr. Montero's background that may affect his moral culpability. It is clear from the Gladue report that Mr. Montero suffers from the systemic economic and social disadvantages. He suffers from transience, poor education, poverty and the lack of employable skills.
[56] In terms of his family background, his mother was raised, in part, by a stepfather who attended residential schooling and suffered abuse. He inflicted that abuse on Mr. Montero's mother. It is clear that Mr. Montero's family has also suffered tragedy. Mr. Montero is not required to demonstrate a causal link between these background factors, the intergenerational trauma, and the offences in front of the court.
[57] Also, the Court must take judicial notice of the broader systemic and background factors that affect aboriginals today.
[58] It is clear that these factors, in the case of Jacob Montero, have affected his ability to cope with stressful situations, such as a breakup and parenthood, stable housing and finances and his education level. Quite simply, Mr. Montero is a marginalized individual.
[59] In relation to Mr. Montero's mental health issues, the psychological report does not link them as the central cause for him committing the offence. They are, however, part of his personal circumstances which the court takes into account for sentencing purposes.
[60] In sentencing Mr. Montero, the Court is also obligated to look at meaningful alternatives to custody.
[61] The Gladue report recommends an addiction and healing Centre located in Manitoulin Island. The report notes that the treatment center has a waitlist.
[62] The report advised that Mr. Montero would benefit from a mental health assessment. They provide information about a 24/7 drop in site. In case Mr. Montero needs a residence, they provide information for an emergency shelter located on Highway 6 in Guelph, Steppingstone. For employment and education purposes the report states he can attend the Anishnabeg Outreach. The report also advises him to reach out to the Indigenous Learning Circle, Guelph and connect with the indigenous healing and wellness program which offers traditional healing to Guelph residents.
[63] Were a custodial sentence deemed to be appropriate, the Gladue writer advises that Jacob should attend the facility where aboriginal programming and support exist which would allow him to reconnect with the aboriginal cultural identity.
[64] The Court cannot see how the alternatives proposed in the Gladue report can be considered an alternative to custody. The alternatives proposed require some will on the behalf of Mr. Montero. The court has serious concerns that Mr. Montero has the capacity to avail himself of resources in the community given the conclusion of the psychological report.
[65] The psychiatric report prepared for sentencing indicates "based on his history, and in the absence of supports or intervention, Mr. Montero is unlikely to engage in structured and meaningful activities, such as educational or vocational pursuits. He is also unlikely to have the support of a pro-social network, given that he has few friends and plans to discontinue contact with his mother after release."
[66] Custody is warranted in this case. This was a serious violent offence, a stabbing, it was in the context of a domestic relationship, the complainant was holding her child in her arms while Mr. Montero continued to attack her, he has a prior record for an assault on her, he shows little insight into his behavior, he is at moderate to high risk of reoffending and has little empathy for the complainant and during the psychological report he exaggerated his symptoms in hope of getting an NCR diagnosis. In addition to that none of the non-custodial sentencing alternatives which were identified in the Gladue report would be proportionate to the offence or sufficiently structured for Mr. Montero.
[67] I note that the premeditative aspect of this incident significantly increases Mr. Montero's moral responsibility for the offence. This was thought out, not reflexive. This was not a spur of the moment action.
[68] Mr. Montero took a knife, snuck into a locked garage and waited. This required thought, planning and determination to carry it through. A plan Mr. Montero was determined to carry through even with Nia Dennis holding their child in her arms. A plan that Mr. Montero could have abandoned many times before Ms. Dennis got into the garage.
[69] It is only luck that Ms. Dennis was not more severely injured or that the child was not injured.
[70] At the same time, Mr. Montero's background clearly has affected his ability to deal with the day to day stresses and living.
[71] The Crown's range on sentence is two to three years. The defense position is one of time served of 254 days enhanced to 381 days, or, roughly, twelve and a half months.
[72] Given the Gladue principles, and since a custodial sentence is necessary, it is the view of this court that eighteen months would meet the principles of denunciation and deterrence while considering the principle of restraint and imposing the least amount of time necessary as in Martin.
[73] In addition to that, primarily for the purposes of rehabilitation, Mr. Montero will be put on three years of probation.
[74] A higher sentence, at this point, could be crushing and hinder Mr. Montero's chances at rehabilitation.
Conclusion
[75] The Court imposes a sentence of eighteen months with three years of probation. Mr. Montero has served 254 days of presentence custody enhanced to 381 days, as a result, Mr. Montero has 159 days remaining.
Released: July 23, 2019
Signed: Justice M. K. Wendl