R. v. Noj, 2022 ONCJ 614

CITATION: R. v. Noj, 2022 ONCJ 614

DATE: November 28, 2022

Information No. 22-03520-00

ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING

v.

TIMOTHY NOJ

P R O C E E D I N G S

BEFORE THE HONOURABLE JUSTICE G.M. HORNBLOWER

on November 28, 2022, at SARNIA, Ontario

APPEARANCES:

D. Nicol Counsel for the Provincial Crown

N. Rooke Counsel for Timothy Noj

HORNBLOWER, J. (Orally):

Timothy Noj and Luis Hernandez were acquaintances, perhaps even friends. On January 9th 2021, they were involved in an altercation. In the course of that altercation, Luis Hernandez' throat was cut, and he died as a result of the wound inflicted on him. A post-mortem examination revealed that the knife wound transited Mr. Hernandez's epiglottis and nicked his jugular vein, and the report concluded that Mr. Hernandez died from an incised wound to the neck.

The altercation between Timothy Noj and Luis Hernandez was over a drug debt. Luis Hernandez was of the belief that Timothy Noj had stolen drugs from him. Both Mr. Noj and Mr. Hernandez had consumed illegal drugs while together that evening. Luis Hernandez was found to have a quantity of fentanyl and methamphetamine in his body at the time of his death, and Mr. Noj had overdosed on fentanyl in the moments leading up to their altercation.

Suffice it to say, this was not the way Luis Hernandez' life was intended to unfold or expected to end. Luis Hernandez came to Canada approximately 10 years ago and one can easily imagine that immigrating to Canada was seen as a way of providing a better life with more opportunities, enabling him to fulfill his dream of becoming an entrepreneur. Luis Hernandez had graduated from high school and went to college. For a period of time, he operated a small computer business but whatever his future prospects for a better life in Canada were, they became derailed by an all too common problem, substance abuse. While in college, Mr. Hernandez was introduced to drugs.

The causes of a substance abuse problem can often be difficult to discern. Whatever the cause, substance abuse put Mr. Hernandez' life on a different and ultimately tragic path. Timothy Noj’s life also held great promise, at least from outward appearances, starting at age 2 when he was adopted by Walter and Kristina Noj. Adopted into a loving, caring and nurturing family, the adoption faced seemingly insurmountable obstacles from the outset, obstacles that became more apparent over time. There were behavioral issues stemming from mental health issues, A.D.H.D., A.D.D. and F.A.S.D., compounded no doubt by the sense of loss Timothy Noj felt by being given up by his biological mother, as well as the loss of his culture and heritage. His parents encouraged his efforts at understanding his Indigenous heritage, but sadly, no amount of love or understanding on their part could prevent him from heading down the path he ultimately headed down, namely substance abuse. Starting with alcohol, it progressed to drugs. By 16, substance abuse had taken a firm hold on his life, a hold far stronger than the bonds of affection from his parents. The hopes they had for a promising future for their son were seemingly permanently derailed by drug abuse.

Two men with promising futures, futures mainly lost due to substance abuse problems, which put the two on a collision course that resulted in the death of Luis Hernandez.

Timothy Noj was charged with murder as a result of the death of Mr. Hernandez. At the conclusion of a preliminary hearing, he was committed to stand trial on the offence of manslaughter and entered a guilty plea to that offence.

SENTENCING IN MANSLAUGHTER CASES

Murder and manslaughter share one thing in common - the unlawful death of another person. They differ, however, in that murder requires proof of an intent to cause death, while manslaughter requires no such proof. A person who has no intent to kill and yet causes the death of another in the course of committing an unlawful act, commits manslaughter. R. v. Creighton, (1993) 1993 CanLII 61 (SCC), 83 C.C.C. (3^rd)346.

In R. v. Turcotte, 2000 CanLII 14721 (ON CA), 48 O.R. (3^rd)97 at paragraph 19, the Court of Appeal spoke to the highly variable nature of sentences imposed for manslaughter as follows:

While many, if not most sentences for manslaughter are in the penitentiary range, maximum reformatory sentences are not unknown and are clearly within the acceptable range.

Conditional sentences of that duration and, indeed, of shorter duration, have been passed against persons found guilty of manslaughter, both in this province and elsewhere.

This principle was reaffirmed by the Court of Appeal in R. v. Simcoe 2002 CanLII 5352 (ON CA), [2002] O.J.884. At paragraph 24, Justice Feldman gave further guidance to sentencing judges as follows:

The taking of a life is always a terrible tragedy and a most serious offence no matter the circumstances. It is therefore difficult to consider how a prison sentence of a term of years can be viewed as disproportionate to the offence. Rather, Courts have viewed the offence of manslaughter in the context in which it occurred....

In R. v. Tabbara [2009] O.J. No. 4397, Justice Blishen of the Superior Court said this at paragraph 5:

Given that manslaughter can occur in such a wide variety of circumstances, the penalties must be flexible. The objectives and principles of sentencing... may call for a very substantial period of incarceration from 15 to 20 years at the one extreme and, at the other end, where there are strong mitigating factors or the act was close to being an accident, a conditional sentence or even a suspended sentence may be imposed.

At paragraph 6, Justice Blishen added the following:

The extremely difficult task of a judge in sentencing is made even more difficult, given the wide range of possible sentences. Very close attention must be paid to the particular facts and circumstances surrounding both the offence and the offender.

With those considerations in mind, the sentencing principles most applicable to this matter are denunciation, deterrence, rehabilitation and promoting a sense of responsibility in the offender for the harm done and the loss caused.

THE FACTS

Against that backdrop, I turn to consider the events of January 9th, 2021. The events of that day need to be clearly understood in the determination of an appropriate sentence. For that reason, they must be reiterated. In doing so, no attempt is being made to shift any responsibility for the offence from Timothy Noj to Luis Hernandez, nor is the recitation of facts done in an effort to paint a picture of Luis Hernandez other than as his mother described him as a kind and caring individual. His violent outburst on January 9th was, I believe, brought on by the use and abuse of illegal substances that day. It does not seem to reflect someone who is otherwise disposed to violence.

On January 9th, 2021, Timothy Noj and Luis Hernandez were together at the residence of Skye Lawrence. All were consuming fentanyl, with the result that Noj overdosed and had to be revived by the administration of three doses of Narcan. Both Hernandez and Lawrence assisted in reviving Noj. As it relates to the commission of the offence, the Agreed Statement of Facts provides as follows:

Once revived, Hernandez began to accuse Noj of stealing his drugs. Hernandez became increasingly upset with Noj and began striking with a baton while demanding that Noj pay him back. Noj blocked some of these strikes with his arm, but Hernandez struck Noj in the head with a baton at least two times, causing significant gashes to the top of Noj's head and knocking him unconscious once again.

At some point, Noj regained consciousness and a phone call was placed to Noj's stepfather, Walter Noj, requesting that he send money via e-mail to assist with covering the outstanding debt. While on the call, Hernandez continued to yell and make threats toward Noj and Lawrence, seeking payment for the drugs he believed were stolen from him. Hernandez made an attempt to call another person to beat Lawrence up to force her to pay the debt. When that was not successful, Hernandez stated something to the effect ‘I'll do it myself' before approaching Lawrence in the main bedroom. Hernandez continued to hold the baton in his hand throughout.

At that point, Noj returned to the bedroom and jumped on Hernandez. Both parties fell on a shoe rack in the bedroom, destroying it. Noj grabbed a knife from the ground and swung it towards Hernandez, slicing his throat and causing a severe injury to his neck. Hernandez managed to stand up, at which time Lawrence noted a large amount of blood coming from his neck. She immediately began to render assistance to him. Noj left the area of Lawrence's bedroom briefly, but returned moments later before going to the basement to hide. At 5:32 p.m. Lawrence called 911 requesting medical assistance. She sat Hernandez down in a chair in the hallway at the top of the stairs on the second floor and applied a towel to his neck to attempt to stop the bleeding. At this point, Hernandez dropped the baton.

After the arrival of police, both Noj and Hernandez were transported to the hospital, where Mr. Hernandez was pronounced deceased. Noj was treated for his injuries, receiving a number of staples to his head before being discharged from the hospital.

THE VICTIM IMPACT STATEMENT

A Victim Impact Statement has been filed in this proceeding. These statements are an integral part of the sentencing process. In providing information about her son, Aydive Hernandez is telling the Court, the community and the offender the nature and extent of the loss to the community and the family from his death.

As mentioned earlier, Luis Hernandez is described as a caring person who had a dream of becoming an entrepreneur. His death is a loss to the community for whatever contribution he would have made to the community in pursuit of that dream; it has now been lost. The impact on the family is profound. Mrs. Hernandez has lost a child she brought to this country in search of a better life. She suffers from depression and profound sadness. She speaks to the impact on her surviving son Wilder, for whom the death of his brother has been overwhelming. Mrs. Hernandez bears the burden of the impact on him as well. For both of them, their lives will never be the same.

Among the principles of sentencing is the promotion of a sense of responsibility in offenders and an acknowledgement of the harm done to victims or the community. This victim impact statement, as concise as it is, clearly brings home to this offender, Timothy Noj, the extent of the loss and the harm done.

SENTENCING PRINCIPLES

In addition to the principles of sentencing set forth in Section 718 of the Criminal Code, Section 718.2 sets out a number of additional sentencing principles that a court must take into account in imposing a sentence, including that contained in subsection (e), which provides as follows:

All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

This provision in section 718.2(e) reflects Parliament's concern about the over representation of Indigenous people in the criminal justice system and, in particular, in custodial facilities. The stated aim of that section was to reduce the number of Indigenous persons serving custodial sentences.

In R. V. Gladue, 1999 CanLII 679 (SCC), [1999], 1 S.C.R. 688, the Supreme Court of Canada considered how that obligation was to be carried out by the courts. It has been nearly 25 years since the Supreme Court provided its guidance in the application of s. 718.2(e), but there has been no appreciable impact on the incarceration rate for Indigenous offenders. In fact, it has increased since that time. As for why this is, it may be that the principles enunciated from Gladue are more clearly stated in the ways in which the application of 718.2(e) will not result in a different sentence rather than in the ways that it will.

Consider the following principles from Gladue, and the cases that have interpreted it:

• Aboriginal offenders are not entitled to an automatic reduction of sentence; (R. v. Gladue);
• While in some circumstances the length of the sentence for an Aboriginal offender may be less, in other cases it may be the same as any other offender; (R. v. Gladue);
• While Gladue applies to serious violent offences; (R. v. Wells), generally the more violent and serious the offence; the more likely it is that as a practical reality that the terms of imprisonment for Aboriginals and non-Aboriginals will be close to each other or the same; (R. v. Gladue); and finally,
• It is not a "get out of jail free card" (R. v. Kakekegamick).

With respect to this latter proposition, it was Justice Laforme who made it clear that those who referred to Gladue as a "get out of jail free card", are wrong. The significant word in that phrase, I believe, is “free”. If the intent of section 718.2(e) is to reduce the over-incarceration of Indigenous offenders, then this section must be the means whereby, in appropriate circumstances, custodial sentences of shorter duration or even non-custodial sentences can be imposed. But since the result is not "free", it must mean that it can be earned. It would be earned in circumstances where the prospects of rehabilitation are strong, where the path to healing is viable and where the commitment to that path is both strong and demonstrated. Given the presence of those circumstances and taking into account the circumstances surrounding the commission of the offence, the length of the period of incarceration can be reduced if not eliminated. The efforts by Indigenous offenders to rehabilitate themselves, and the demonstrated commitment to healing must count for something in the overall assessment of a fit sentence. Efforts at rehabilitation by an offender cannot simply be dismissed by a court as being too little and too late if section 718.2(e) is to have any effect. The effects of colonialism, the residential school system and the impact of involvement in child welfare proceedings create significant obstacles for Indigenous persons in addressing rehabilitation. Whatever steps at rehabilitation are taken, they must be acknowledged and taken into account in assessing a fit sentence, for those steps are part of the circumstance of the offender. If this is what Gladue is, then the proper application of the principles set forth in that decision do not equate to a get out of jail free card, nor are they a race-based discount on sentence. Rather, those principles are the means by which a different sentencing result can occur.

An understanding of the circumstances of an Aboriginal offender is a critical component of the sentencing process. That understanding is gained through three different means. The first is through a Gladue report, a report which tells the story of the offender, his or her family and his or her community. Such a report will frequently outline recommendations aimed at the healing, restoration or rehabilitation of the offender. The second means is through any additional information provided to the Court on sentencing, from the crown, defence counsel, native court workers, the Probation office, the offender and members of the offender's family and community. The third means by which an understanding of the circumstances is obtained is outlined in paragraph 60 of Ipeelee as follows:

To be clear, 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 offenders.

It must never be the case that in applying Gladue, courts simply rely on the fact it is not a race-based discount, a get out of jail free card or even though it applies to serious offences; that the more violent and serious the offence, the less likely sentences between Aboriginal and non-Aboriginal offenders will be the same. The inevitable result of ending the Gladue analysis there is that incarceration is imposed and is done so without really taking into account the circumstances of the Aboriginal offender with the result that section 718.2(e) is rendered meaningless. That of course is completely at odds with what the section is intended to achieve. Of note is what the Supreme Court of Canada said in Gladue at paragraph 65:

It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders.

The starting point for determining a fit sentence for an Aboriginal offender is always gaining an understanding of the circumstances of that Aboriginal offender. As stated at paragraph 72 in lpeelee:

The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a part in bringing that particular Aboriginal offender before the courts; and (2) 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.

Those systemic and background factors may impact the moral culpability of the offender. Why is that important? Sentences must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. As outlined in lpeelee at paragraphs 37 and 38, “proportionality ... ensures that the sentence reflects the gravity of the offence", and ... “promotes justice for victims and ensures public confidence in the justice system". Proportionality also "...ensures that a sentence does not exceed what is appropriate given the moral blameworthiness of the offender".

Systemic factors, those things judges must take judicial notice of in dealing with an Aboriginal offender, and background factors gleaned from the Gladue report and other sources, have a bearing on the moral culpability of the offender.

At paragraph 73 of Ipeelee, the following is said:

Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive developments. While this rarely - if ever - attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one aimed at punishment per se.

Once the circumstances of the Aboriginal offender are understood, only then can the Court give consideration to the type of sanctions that are appropriate in light of the circumstances of the offence.

This process was followed by Justice Laforme, in Kakekegamick. Following the rationale outlined in R. v. Wells 2000 SCC 10, [2000] 1 S.C.R. 207, Justice Laforme said this at paragraph 36:

Therefore, while section 718.2(e) requires a different methodology for assessing a fit sentence for an Aboriginal offender, it does not necessarily mandate a different result. The subsection does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender.

In upholding the sentence imposed on Kakekegemick by the trial judge who had conducted a sentencing hearing with little consideration given to the Gladue factors, the Court of Appeal obtained a report in the nature of a pre-sentence report that addressed Gladue factors. With that, Justice Laforme, as required by section 718.2(e), followed the different methodology for assessing a fit sentence for an Aboriginal offender with the result that the original sentence imposed following the non-Gladue methodology done by the trial judge, was upheld.

One may wonder about the benefit of the different methodology if the end result is invariably the same. The answer has to be that the end result will not invariably be the same. In Kakekegamick's case, the end result was the same for a variety of reasons as outlined in that decision. It was not simply the serious nature of the offence that precluded a different sentence. Rather, it was the combination of the seriousness of the circumstances of the commission of the offence as well as the serious concerns surrounding the offender's own circumstances.

With that understanding, I turn to a consideration of the circumstances of the offence and the circumstances of the offender.

CIRCUMSTANCES OF THE OFFENCE

Since these circumstances must be relied on in assessing sentence, the circumstances must be clearly set out. In doing so, it is not done in an effort to shift blame or responsibility from the offender to the victim. Nonetheless, the circumstances are critical in assessing a fit sentence. From the agreed statement of facts, the following circumstances are significant.

An otherwise quiet evening turned violent when Mr. Hernandez accused Mr. Noj of stealing his drugs. Mr. Hernandez became violent towards Mr. Noj, striking him repeatedly with a weapon, namely a baton, causing significant gashes to the top of Mr. Noj's head and knocking him unconscious. To this point, there does not seem to have been any retaliation by Mr. Noj to the assault on him. Whatever steps he took were simply in an effort to protect himself from the blows.

Once Mr. Noj regained consciousness, Mr. Hernandez continued threatening him with the result that Mr. Noj called his father seeking money from him in order to satisfy the debt that Mr. Hernandez claimed he owed. Mr. Hernandez was threatening both Ms. Lawrence and Mr. Noj at this point. Mr. Hernandez threatened harm to Lawrence, and approached her with the baton. Seeing this, Mr. Noj fought back, jumping onto Mr. Hernandez. The two of them struggled and fell to the ground. There was a knife laying on the floor that Mr. Noj then grabbed and swung at Mr. Hernandez, inflicting a fatal wound. There is no indication that Mr. Noj had brought the knife into the room or had any intent to use it until he saw it lying on the ground in the midst of his struggle with Mr. Hernandez.

These circumstances do nothing to detract from the responsibility of Mr. Noj in causing the death of Mr. Hernandez, but they need to be understood.

CIRCUMSTANCES OF THE OFFENDER

Timothy Noj is 34 years old. He is an Aboriginal person with his Indigenous heritage from his mother, who is a registered member of the Serpent River First Nation. It is believed his maternal grandmother was a residential school survivor.

At five months of age, Mr. Noj was apprehended by the Children's Aid Society and became a Crown ward at 22 months. As was typical at that time, it does not appear any effort was made to place him with a member of his family or other placement within his First Nation community. At age two, he was adopted by Walter and Kristina Noj. At an appropriate time in his life, they made their son aware of his Indigenous heritage and encouraged his connection to it. They provided a loving, nurturing and caring home for their son, but through no fault on their part, they eventually began to experience problems with him, at one point being told by Tim's doctor that no matter how much they loved Tim; that Tim's struggles were part of his childhood. By grade three, Tim was diagnosed with A.D.H.D. and A.D.D. and was thought to be on the spectrum for F.A.S.D.

At age 11 or 12, Tim was taking his first steps on the path to addiction. By age 14, alcohol had taken control of his life. Drug use began at that time, first with marijuana and at times with cocaine. By age 20, he drank because he needed to. Otherwise, he would become ill from the effects of withdrawal. His drug use expanded to include M.M.D.A., and crack. After being prescribed Percocet in 2013, he developed an opiate addiction, an addiction he nearly died from on at least one occasion, January 9, 2021.

By that point, Mr. Noj's life had spiraled out of control. Addicted to drugs and alcohol, he had dropped out of school, divorced, could not hold a job, was estranged from his family, struggled with mental health issues and had amassed a criminal record. Many of the problems he was experiencing are among the effects of intergenerational trauma from residential schools, as well as the loss of ties to his heritage, culture, and native community through his involvement in the child welfare system.

Mr. Noj was arrested shortly after the offence was committed and remained in custody until being granted bail following his guilty plea on March 29th of this year. While in custody, Mr. Noj embarked on a path towards sobriety. While some may think the abstinence from drugs would be an absolute certainty in a custodial facility, the reality is that illicit drugs do find their way into the hands of inmates. While in custody, there are limited resources to assist an addict in achieving sobriety, compared to the extensive resources outside of remand facilities. In spite of those obstacles, his journey on the road to sobriety began while in jail.

Since being granted bail, the following things have been done by Mr. Noj of his own initiative:

• he sought out Bethany Williams, Native Inmate Liaison Officer with the Sarnia Jail shortly after his release and continues his involvement with her to the present;
• he has completed the Redpath Living Without Violence program, a program which provides community-based culturally appropriate treatment and preventative services for First Nations people over the course of 24 three-hour long sessions;
• he has completed high school, earning an Ontario secondary school diploma;
• he began meeting with representatives of the Canadian Mental Health Association in Sarnia;
• he attended the Hamilton Region Native Centre, participating in the Kizhaay Anisginaabe Niim program, and is said by the worker there to be taking very conscious steps to learn to be more nurturing, caring and a better man;
• he has connected with Demi' in Kave, the Indigenous mental health coordinator at that centre, who reports that "Timothy is willing to improve his environment and started to apply Annishinaabe teachings of the four quadrants the web of life which enabled him to balance his emotional, intellectual, physical and spiritual well-being”. Additionally, the counsellor notes her admiration for Mr. Noj for his self-awareness in seeking help on his own;
• he has attended his first pow-wow and participated in at least three sweat lodge ceremonies. Recognizing the need to be free of substances to participate in a lodge, under doctor's supervision he has discontinued the use of Sublocade to enable himself, in his words, "to participate freely in the lodge knowing that I am respecting who I am and my culture";
• he has sought out assistance from the Canadian Mental Health Association in Hamilton;
• he has become employed now on a full-time at the Amazon Distribution Centre in Hamilton;
• he has paid all of his outstanding fines under the Highway Traffic Act in order to enable him to regain his driver's license;
• he has developed a plan around future education and employment opportunities;
• he has begun to explore the Bible; and,
• he has repaired his relationship with his parents.

I think it appropriate to say this. I have been on the bench since 1999. I have heard more promises made towards rehabilitation than actually kept, and I have seen more people fail in their efforts at rehabilitation than I have seen succeed. I have rarely if ever seen a person so committed to their rehabilitation who has undertaken and achieved so many positive results through the participation in so many initiatives. I have listed 14 initiatives Mr. Noj has undertaken successfully of his own initiative in a period of eight months. The steps he has taken and his commitment to continuing on this healing journey are all part of the circumstances of this offender and need to be taken into account.

In 2010, the Ontario Court of Appeal released its decision in R. v. Jacko, 2010 ONCA 452, 2010 O.N.C.A. 452, which dealt with a sentencing appeal where the sentencing judge had imposed a four-year penitentiary sentence for a home invasion offence. The accused had pled guilty to robbery while armed with an offensive weapon, break and enter and commit assault, and disguise with intent. The offender was a youthful Indigenous person with a prior youth record, but no adult offences. In allowing the appeal from sentence, the Court imposed a conditional sentence, which was available at the time for that offence. Justice Watt, for the Court, made a number of observations about the principles of sentencing, particularly as they relate to an Indigenous offender. Justice Watt then made these comments, starting at paragraph 85:

But denunciation and deterrence are not the only sentencing objectives at work here.

Restorative justice sentencing objectives are of crucial importance in the circumstances. They include assistance in rehabilitation, providing reparations for harm done to the victims and the community, promoting a sense of responsibility in offenders and an acknowledgement by offenders about the harm their conduct has done to the victims and to their community.

In cases such as these, we must do more than simply acknowledge restorative justice sentencing objectives and note approvingly the rehabilitative efforts of those convicted. They must have some tangible impact on the length and nature and venue of the sentence imposed. The rehabilitative efforts here, more specifically those of Jacko, extend well beyond the promises made all too frequently between conviction and sentence, and all too infrequently executed and maintained in the days, weeks and months following imposition of a lenient sentence.

By the time the sentence was imposed, Jacko had remedied his educational deficiencies, jettisoned his antisocial lifestyle, abandoned his confederates and taken on spousal and parenting responsibilities. The passage of time since sentencing confirms the legitimacy of his efforts. College admission. Employment. Spousal and child support. Community involvement.

I would echo those comments of Justice Watt here.

DISPOSITION

The nature of the sentence to be imposed cannot reflect the value of the life lost. Wherever there is a loss of life in the commission of an offence, the principles of denunciation and deterrence weigh heavily in the determination of a fit sentence. Given the highly variable nature of sentencing in cases of manslaughter that reflect the particular circumstances surrounding the commission of the offence, the principle of rehabilitation is an equally important one. The necessity of giving weight to rehabilitation is enhanced given that Mr. Noj is an Aboriginal person and the need to consider both the circumstances of the offence and the circumstances of the offender in determining a sentence.

The proper range of sentencing in this case is between the upper to maximum reformatory period, and four years. In addition to the considerations, I have outlined elsewhere in these reasons, I also take into account that Mr. Noj has entered a plea of guilty. A preliminary hearing was held for the offence of murder in the death of Luis Hernandez. Significant triable issues existed which are reflected by the committal to stand trial on the offence of manslaughter. Quickly following that committal, Mr. Noj entered a plea of guilty. That plea acknowledges responsibility and is a sign of remorse. Mr. Noj, in speaking to the Court and the family of Luis Hernandez, has expressed his profound regret for his actions, his remorse, and has spoken to his awareness of the harm caused.

Mr. Noj was in custody for 440 days, the equivalent of 660 days, which is the equivalent of 22 months, a period just shy of the maximum reformatory sentence. He has been under significant restrictions since his release. He has fully abided by those terms. While the conditions were restrictive however, they did not affect his ability to find and maintain work, seek out counseling and to take firm steps on the road to rehabilitation. The strictness of those terms does not mitigate the sentence however, given the nature and number of exceptions to what was otherwise a period of home confinement.

Taking all of this into account, I believe that a sentence of 22 months’ time served, followed by a period of probation, is a fit and proper sentence. It reflects the circumstances of the offence, the offender and accounts for the various principles of sentencing and gives weight to the significant steps at rehabilitation, which in this case must have a tangible impact on the length, nature and venue of the sentence.

I acknowledge that this sentence is at the low end of the range, but I do not believe there could be any societal benefit to any additional period of incarceration in light of the significant steps at rehabilitation taken by Mr. Noj, entirely of his own initiative and over a short period of time.

Accordingly, the sentence is 22 months, time served, with one additional day deemed served. This will be followed by a period of probation in effect for three years.

The following are the terms of the probation order:

• report today and after today as directed by the probation officer;
• reside as approved by the probation officer and do not change that address without the prior written approval of the probation officer;
• do not contact or communicate in any way, by any physical, electronic or other means, or be in the company of Wilder Hernandez, Aydive Martinez-Hernandez, or Skye Lawrence, absolutely or anyone else named by the probation officer in writing;
• do not attend within the boundaries of Lambton County except with the prior written permission of the probation officer and then only while accompanied at all times by either Walter or Kristina Noj;
• abstain from the purchase, possession of drugs except with a valid prescription in your name and do not possess any drug paraphernalia;
• abstain from the purchase, possession and consumption of alcohol and remain out of all premises primarily licensed for that purpose;
• 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 including, but not limited to, relapse prevention, substance abuse, wellness issues, and mental health issues. All programming to be culturally appropriate where possible and is to include programs and services offered by the Hamilton Regional Native Centre.
• sign any release of information forms that will enable your probation officer to monitor your attendance and completion of any assessments, counseling or rehabilitative programs as dictated or otherwise directed;
• do not possess any weapons as defined in the Criminal Code; and finally,
• make efforts satisfactory to the probation officer to maintain employment or to attend an educational program.

There will be a DNA order.

An order is imposed under section 109 of the Criminal Code which is a lifetime ban on the possession of firearms, ammunition, restricted weapons, prohibited weapons and devices and the like.

And finally, a surcharge will be imposed for which 90 days is granted for payment.

TIMOTHY NOJ: Thank you, sir.

THE COURT: I do not believe there were any other ancillary orders sought, Mr. Nicol.

MR. NICOL: No, there were not, Your Honour.

THE COURT: Thank you.

MR. ROOKE: Sir, I have one question just with respect to the condition prohibiting entry to Lambton County. Were there – did the exception intend that it would be for lawful Court appearances while with his parents or to have for lawful court appearances or while with his parents?

THE COURT: The way I have set it out is that can only attend – let me read it. Do not attend within the boundaries of Lambton County except with the prior written permission of the Probation Officer and then only while accompanied at all times by Walter or Kristina Noj.

MR. ROOKE: Thank you. Thank you, that clarifies my question. Thank you.

THE COURT: Okay. With respect to D.N.A., I do not know where it would be taken. City of Sarnia Police or it can be taken here?

MR. ROOKE: The officer’s advising me it can be done today.

THE COURT: Today?

MR. ROOKE: And this – would it be done at the courthouse officer or at.

COURT OFFICER: [indecipherable]

THE COURT: Okay. That can be done today. All right.

MR. NICOL: Just one thing, Your Honour. I’ve just been asked by probation that the copy of the Gladue report could be provided to probation...

THE COURT: Yes.

MR. NICOL: ...and I’ve also been asked that Mr. Noj report to probation today so they can begin the transfer of his probation order to the Hamilton area.

THE COURT: Yes, yes. I think I said report today, but the order will be transferred to Hamilton-Wentworth I believe is...

MR. ROOKE: Thank you.

THE COURT: ...the appropriate jurisdiction. All right. Thank you counsel for your assistance throughout and for the fulsome nature of the submissions. There was a very thorough Gladue report provided. Thank you for that as well the Probation Office for a very helpful report.

......WHEREUPON THIS SENTENCING IS COMPLETE.

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Annie Sheehan, certify that this document is a true and accurate transcription of the recording of R. v. Timothy Noj in the Ontario Court of Justice held at 700 N. Christina Street, Sarnia, Ontario taken from Recording No. 1711_CrtRm303_20221128_081438__6_HORNBLM.dcr which has been certified in Form 1.

December 15, 2022 Annie Sheehan

Annie Sheehan

ACT #1085404778

Email: annie.transcripts@gmail.com