ONTARIO COURT OF JUSTICE DATE: 2023 09 13 COURT FILE No.: Windsor 19-17422

BETWEEN:

HIS MAJESTY THE KING

— AND —

JAMES LACHINE

Before: Justice S. G. Pratt

Sentencing submissions heard on: 6 July 2023 Reasons for Judgment released on: 13 September 2023

Counsel: Andrew Telford-Keogh..................................................................... Counsel for the Crown Linda McCurdy.......................................................................... Counsel for the Defendant

REASONS FOR SENTENCE

Pratt J.:

[1] On 2 December 2022 I found James Lachine, hereinafter the Offender, guilty of aggravated assault and forcible confinement for his role in assaulting the victim, Bruce Green. Submissions were made by counsel and I received documentary and viva voce evidence on sentencing. These are my reasons for sentence.

Facts

[2] My factual findings in this case were set out in my reasons for conviction. At paragraph 70 of my trial reasons, I made the following findings of fact:

(1) The Defendant attended 468 Crawford the night of 30 November 2019;

(2) During the time of the Defendant’s presence at the residence, the Victim was assaulted;

(3) The injuries suffered by the Victim amount to wounding under the Criminal Code;

(4) When the Defendant left the residence after the assault, he had the Victim’s blood on his pants and finger;

(5) When police entered the residence, they found the Victim with his feet bound by a zip tie and red tuck tape near or partially underneath him;

(6) When the Defendant was arrested he was wearing a mask that had been repaired with the same kind of tape that was seen near the Victim;

(7) On arrest, the Defendant was in possession of a backpack that contained a zip tie similar to the one police found cinched around the Victim’s legs;

(8) At the police station, the Defendant told PC Meloche “I hope that guy dies”; and

(9) Also at the police station, the Defendant told PC Sasso “the guy should have died”. He also gave a brief account of being struck in the head and “going after” the person responsible.

[3] As I stated in my reasons, the Offender was at least a party to the offences. I am unable to say if he was the sole or primary aggressor. His participation, however, and therefore his guilt, was the only reasonable inference available to be drawn from the evidence.

Positions of the Parties

[4] The Crown seeks a sentence of four to six years jail, minus credit for presentence custody. The Offender has 465 days of actual presentence custody referable to these offences. Enhanced at a rate of 1.5:1, that would equate to 698 days or approximately 23 months. The Crown’s range, therefore, is a further two years and one month to a further four years and one month.

[5] Counsel for the Offender seeks credit for his presentence custody as well as approximately one year spent on strict bail. Taken together, counsel argues the appropriate sentence is time served.

Pre-Sentence Report/Gladue Information

[6] I have received a Pre-Sentence Report (PSR) authored by Hassan Adan. It describes a tumultuous upbringing and very limited familial relationships. It also discloses extremely troubling criminal conduct in the United States, where the Offender served over three years in jail for illegal possession of a handgun, explosive materials, and 800 rounds of ammunition.

[7] Despite addiction to cocaine, crack cocaine, and crystal methamphetamine that the Offender says “ruined his life”, he is not open to any sort of counselling or treatment. His addiction began in his twenties. He is now 48. He feels that his sobriety in the last 1-2 years means he has defeated the addiction he’s had for decades and does not need any help.

[8] Aside from the support of his partner Lechet Holland and his claim of being clean and sober for the last 1-2 years (which, if true, is an excellent accomplishment for which he should be congratulated), it is difficult to point to much in the PSR that is positive. The Offender has a lengthy criminal history in Canada and the United States. He has essentially no contact with any family members. He is unwilling to attend any counselling for addictions that have plagued most of his adult life. His response to community supervision in the past has been poor. He disclosed no plans for the future. He also did not appear to appreciate the impact of these offences on the Victim.

[9] I also ordered the preparation of a Gladue report as counsel became aware of the Offender claiming Indigenous heritage. That order led to a letter from Amanda General, Senior Manager of the Gladue Writer Program of Aboriginal Legal Services.

[10] Ms. General wrote that they were unable to complete a Gladue report for the Offender. She detailed the tireless work performed by Melanie Garant, the local Windsor report writer. The Offender told Ms. Garant that he’d been told by his mother’s parents that his father was Mohawk. He also told her that he’d been adopted by the Lachine family before the age of five. I note that when describing his family history to Mr. Adan, the PSR author, the Offender made no mention of being adopted or of having Indigenous heritage. In the PSR, under “Aboriginal Status”, it simply says “Prefer not to answer”. These are curious omissions of important information.

[11] Ms. Garant, after many online searches, managed to track down the Offender’s birth mother, Ilene Walker (née Young). Ms. Walker disputed the claim that the Offender’s father was Mohawk and that he’d been told as much by her parents. She said his biological father was “Canadian and English”.

[12] As a result, Ms. Garant was unable to compile a Gladue report as she could not confirm the Offender’s Indigenous heritage or how that heritage may have affected his life and circumstances. In her letter explaining the situation, Ms. General stated that while they could not confirm Indigenous ancestry, that did not mean the Offender was not Indigenous. There simply was no information found that substantiated that claim. It also did not mean that Gladue issues were not relevant to the case.

[13] I am grateful to Aboriginal Legal Services for the work done in this case and for their fairness and objectivity.

[14] I am not tasked with determining if the Offender has Indigenous heritage. I cannot answer that question. Even assuming for the moment that he does, I must still consider if that heritage has any bearing on his moral blameworthiness for these offences. Respectfully, it is hard to see how it could. Going by what the Offender told Ms. Garant, he was adopted into the Lachine family before he turned five. He never knew his birth father’s name. He was unable to speak to his experiences as an Indigenous person with Ms. Garant. Even if the Offender does have some Indigenous heritage, I fail to see how it could have had any impact on his current circumstances.

[15] Mere assertion of Indigenous heritage does not entitle a person to special consideration on sentencing. This would be the very same “race-based discount” warned against in R. v. Ipeelee, 2012 SCC 13. Such a discount would cheapen the damaging and pervasive intergenerational impact that colonialism has had on Canada’s Indigenous peoples. For a person’s indigeneity to have an impact on sentencing, it must have some connection to his or her past or present circumstances. In the Offender’s case, I see no such connection.

Principles of Sentencing

[16] Section 718 of the Criminal Code sets out the sentencing principles that must guide judges. It states:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

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

[17] To reiterate the opening phrase of the section, “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society”. That purpose must guide any judge in determining a fit sentence on the case before him or her.

[18] In a case of aggravated assault and forcible confinement, the principles of denunciation and deterrence must be given significant weight. Rehabilitation cannot be ignored, but when a very serious and violent assault is committed against one victim by multiple assailants, courts must denounce that conduct in the strongest possible terms. The Offender and the public must also be deterred from acting this way.

[19] Additionally, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentences should also be similar to those imposed for similar offences committed in similar circumstances.

[20] A significant impact on the victim of an offence is another factor courts must consider. That is somewhat difficult in this case given the lack of input from the Victim. At trial, he seemed to be tailoring his testimony to assist the Offender. This would suggest that whatever impact the incident may have had has since faded. Nonetheless the objective evidence of serious injury leads me to conclude that the incident had a significant impact on the Victim. A broken nose, a dislocated and fractured hip, and wounds on his face all show clearly the toll this assault, to which the Offender was at least a party, took on the Victim.

Caselaw

[21] The Crown filed several cases in support of its position. The difficulty with sentencing caselaw is that the sentencing process is almost entirely subjective. While there are ranges for various offences set out by appellate courts, where a particular offender fits within that range (or if they belong above or below that range) is left to the sentencing court. Caselaw can be helpful, but it shouldn’t take the place of individualized analysis.

[22] R. v. Tourville, 2011 ONSC 1677 is a very useful case, not because of the sentence imposed, but because of the review of existing sentencing law carried out by Justice Code. His Honour grouped aggravated assault cases into low-range, mid-range, and high-range, according to the sentences they usually received. At the low end were exceptional cases like R. v. Peters, 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) which saw an Indigenous first-offender injure the victim with a broken beer bottle in a barroom dispute. That offender had a very difficult upbringing that led to alcoholism and drug abuse. At the time of sentencing she had made meaningful progress in her rehabilitation. That offender received a suspended sentence and probation.

[23] Cases His Honour found to be in the mid-range of aggravated assaults tended to result in high reformatory sentences. The examples given in Tourville were of two first-offenders and one repeat offender. Sentences were between 18 months and two years less a day. Each involved significant injuries, with two involving life-threatening injuries. It’s worth noting that in two of the cited cases, the Court of Appeal for Ontario described the sentences as “lenient” and being at “the lower end” of the appropriate range.

[24] High-range cases attracted sentences from four to six years jail. As Justice Code said at paragraph 30:

These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence.

[25] In the later case of R. v. Seerattan, 2019 ONSC 4109, His Honour extended the range for this last category of offence to four to eight years at paragraph 36.

[26] In R. v. Louangrath, 2014 ONSC 4464, a 23-year old offender was part of a group who assaulted the victim. Thinking the victim had damaged his car, he and his cohorts removed the victim and his friend from a bar and took them to an alley. His friends held the victim upright while Louangrath punched him in the face repeatedly, causing his head to strike the wall behind him over and over. The beating broke the victim’s jaw and caused a permanent brain injury. The Court imposed a 3 ½ year sentence of imprisonment.

[27] R. v. Vickerson, 2005 ONCA 23678, [2005] O.J. No. 2798 (C.A.) saw a six-year sentence for aggravated assault and assault with a weapon upheld on appeal. One significant difference in this case was the element of premeditation present. In the present case, I am unable to find premeditation. I will discuss this later in these reasons.

[28] R. v. Brethour, 2013 ONSC 766 involved the offender sucker-punching the victim at a gas station. A two-on-one assault followed, causing significant injury to the victim. The offender had a related criminal record. The sentencing judge imposed a three-year sentence.

[29] Finally, the case of R. v. Scaglione, 2021 ONCJ 3620 dealt with a conviction for assault causing bodily harm. There, the offender knocked the victim to the ground and then punched and kicked him several times causing five broken teeth, a broken arm, a laceration to his lip and a welt on his forehead. He needed surgery on his arm. The offender pleaded guilty. He had a related record with several prior assaults, including two aggravated assault convictions. The court imposed a sentence of 810 days, which equated to approximately 27 months.

[30] While these cases are helpful, they are not dispositive. Factually, the Louangrath case seems most similar to the case at bar, but the court in that case did not have the benefit of Justice Code’s decision in Seerattan.

Aggravating and Mitigating Factors

[31] The offence of aggravated assault necessarily involves serious violence. I cannot use the significant violence perpetrated in this case as an aggravating factor as doing so would effectively double-count the aspect of violence. I can, however, consider the nature of that violence.

[32] The Offender took part in a multi-assailant beating of the Victim. The Victim was bound with a zip tie of the sort found in the Offender’s backpack on arrest and had red tape near him of the sort the Offender was using to hold his mask together. He had the Victim’s blood on his finger and pants. This was an extremely violent group attack that led to significant injuries. Later, in custody, the Offender chose not to remain silent. Instead, he said he hoped the Victim died. Aggravated assault and forcible confinement are already violent offences; these factors make a bad situation even worse.

[33] The Offender also has a lengthy criminal record for offences of dishonesty, breaches of court orders, and violence. He served a long prison sentence in the United States for serious criminal conduct involving weapons that the PSR says was in a domestic context.

[34] One element I do not find to be an aggravating factor is the issue of premeditation. Aggravating factors, when in dispute, must be proved by the Crown beyond a reasonable doubt. In the present case, I cannot find to that standard that the attack on the Victim was premeditated. The most I can say is it may have been. Or, he may have simply joined in on an assault using the items he had at hand. That is not sufficient for proof beyond a reasonable doubt.

[35] In mitigation, the Offender has the support of his partner Ms. Holland. He has also apparently gained control over his drug addiction. Both of those factors will surely loom large in the Offender’s ability to stay out of trouble in the future.

[36] Counsel has also pointed out that the Offender spent approximately a year on restrictive bail conditions. Pursuant to R. v. Downes, 2006 ONCA 3957, [2006] O.J. No. 555 (C.A.), she argues for credit for this period. On that point, Justice Rosenberg noted the following at paragraphs 33 and 36:

[33] Accordingly, I conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest.

[36] Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case.

[37] The Crown has conceded that the Offender’s bail conditions were restrictive. He was under house arrest with only a few specific exceptions. I agree that his time spent under the limitations of his release mitigates the sentence I should impose.

Result

[38] I have given this sentence significant consideration. These are very serious offences committed in the context of a multiple-assailant beating, resulting in serious injuries. The Offender also has a lengthy criminal record. Denunciation and deterrence must take priority.

[39] The Offender will be sentenced as follows:

(1) A total sentence of forty-two months custody. He will be credited with 465 actual days of presentence custody, enhanced at a rate of 1.5:1. This equates to 698 days, or approximately 23 months. He therefore will have a further 19 months custody to serve.

(2) He will be placed on probation for three years. In addition to the statutory conditions, the terms are:

(a) Report in person to a probation officer within three working days of your 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 your supervision;

(b) Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request;

(c) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with Bruce Green;

(d) Do not be within 25m of any place where you know Bruce Green to live, work, go to school, frequent or any place you know him to be except for required court attendances;

(e) Do not possess any weapons as defined by the Criminal Code; and

(f) 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.

(3) There will also be a DNA order on the count of Aggravated Assault.

(4) Finally, there will be a s. 109 weapons prohibition for life, also on the count of Aggravated Assault.

[40] Given the custodial sentence, I will waive the Victim Surcharges applicable to each count.

Released: 13 September 2023 Signed: Justice S. G. Pratt