ONTARIO COURT OF JUSTICE
DATE: 2024-02-12 COURT FILE No.: 22-40005570 Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Jimmy JAINGA
Before: Justice C. Faria
Heard on: May 16, August 3, September 29, December 13, 2023 Oral Reasons for Sentence: February 7, 2024 Written Reasons: February 12, 2024
Counsel: Arian Khader for Paul M. Alexander............................................. counsel for the Crown Hannah Deasy for Margaret Barnes............. counsel for the accused Jimmy JAINGA
Faria J.:
I. Overview
[1] On May 16, 2023, Jimmy Jainga pled to uttering threats, the use of an imitation firearm during the commission of an indictable offence, and assault with a weapon, contrary to ss. 264.1(1) (1a), 85(2) (a), and 267 (a) of the Criminal Code for offences committed in December 2022 and a Pre-Sentence Report (PSR) was ordered.
[2] On August 3, 2023, submissions on sentence commenced but Mr. Jainga applied to adjourn the hearing to obtain lock down records from the detention facility. The request was granted.
[3] On September 29, 2023, Mr. Jainga again applied to adjourn the sentencing hearing to avail himself of alcohol counseling at the jail. The adjournment was granted. Submissions were heard on December 13, 2023.
[4] The time has finally come to sentence Mr. Jainga.
II. Facts
[5] On December 15, 2022, at about 10:30 p.m., Mr. Jainga and his common-law partner C.R. of 3 years were in their home in Toronto with his partner’s two daughters, K.R. and A.R. who, at the time, were 14 and 19 years old respectively.
[6] Mr. Jainga was intoxicated and angry with his partner C.R. because she was paying her daughters’ cell phone bills. A.R. overheard the heated verbal argument while she was in her room. She heard Mr. Jainga scream at her mother, "I will kill everyone in the house today, I've done it before, and I will do it again" Mr. Jainga has a previous conviction for manslaughter.
[7] A.R. was afraid and ran out of the house to hide in her car. She called her younger sister K.R. who then locked herself in the bathroom. K.R. was frightened and crying on the phone with A.R. She then called 911.
[8] Meanwhile, C.R. asked Mr. Jainga to leave the house. He grabbed her, threw her against the wall and pulled out a black firearm. He pointed it at C.R., then placed the barrel of the gun on her neck. K.R. heard her mother yelling and opened the washroom door.
[9] K.R. saw Mr. Jainga with the gun to her mother’s neck and begged him to stop. Mr. Jainga then pointed the gun at K.R. who believed it to be real. She closed the washroom door, told her sister on the phone that Mr. Jainga was pointing a gun at both her and their mother, and was threatening to kill everyone as he is doing this.
[10] Police arrived on scene and caught on their body-worn camera Mr. Jainga with a black handgun in his hand, pointing at C.R.’s neck. He was immediately arrested. The firearm was found to be a replica (pallet gun) with no magazine inside.
[11] Subsequently, after a pat-down search, Mr. Jainga went to the cell area at the police station and a folding knife fell out of his waist band. The knife blade was about 2.5 inches. When was put into a telephone booth to speak to counsel, he urinated in the booth and made it unavailable to others. All three complainants provided statements and disclosed an earlier threat made about a month before.
III. Circumstances of Jimmy Jainga
[12] Mr. Jainga was 40 at the time of the offences and is now almost 42 years old.
[13] Pursuant to his PSR [1], Mr. Jainga is the eldest of 3 and was raised in a hard-working, loving, and supportive family in an area in Toronto with a great deal of police presence that he described as “pretty rough”. In 2005, when he was 21 years old, he was sentenced to 8 years in a penitentiary for manslaughter. His co-accused was his cousin. After serving 7 years he was released, violated his parole by committing the offence of Impaired Driving, and was recommitted. He was released in 2012.
[14] Mr. Jainga has a pre-teen son who lives in Markham, and he is on amicable terms with the mother of that child. He also has two young daughters with an ex-wife. He pays support for all 3 children.
[15] Mr. Jainga reports he is engaged to marry the victim of these offences. They have been together since December 2018.
[16] The victim reported that the couple lost a home to a fire in July 2022 and this loss caused them both trauma and depression.
[17] Mr. Jainga has a high school education and completed a welding course. He worked in this field for some time. He then worked as a driver, obtained his D-Z certification and did well in that company until his current incarceration. His supervisor, Aaron Zurkowsky-Simpson not only spoke well of Mr. Jainga, but also provided an affidavit [2] and testified on his behalf at the sentencing hearing. He confirmed Mr. Jainga has lost his job and his seniority because of these offences. However, Mr. Zurkowsky-Simpson is committed to trying to get Mr. Jainga employment in the company once he is released as Mr. Jainga is a hard-working and punctual employee who never called in sick.
[18] Mr. Jainga began drinking as a teen. When he consumes heavily, he blacks out. The victim seemed to think it was not a problem as he only drank on weekends. His work supervisor had never seen him drunk or miss work because of alcohol. However, Mr. Jainga was heavily intoxicated during these offences, and eventually recognized that alcohol is a problem. He took programming during his federal sentence and asked to adjourn this sentencing hearing so as to take counselling in the Toronto South Detention Center.
[19] The victim insisted she has no safety concerns, and that Mr. Jainga is a kind-hearted man who drank too much the night of the offences and is remorseful. She describes him as a caring and loving parent who works hard and provides for his own children as well as her own two daughters, the victims of these offences.
[20] Mr. Jainga plans to move back in with his parents, get his job back, and re-connect with his children as well as continue with alcohol counselling.
IV. Position of the Parties
[21] The Crown submitted the appropriate sentence is 2.5 to 3 years jail minus pre-sentence custody. He relied on several cases [3] to suggest the very lowest fit sentence is 2.5 years given the aggravating features of the offences, and though a Conditional Sentence is available, it is not a fit sentence in this case.
[22] The Defence submitted if the court takes Duncan [4] credit for harsh custodial conditions into consideration, an appropriate sentence is one of less than 2 years, and therefore Mr. Jainga is eligible for a Conditional Sentence with a probation order attached. She too provided several cases to support her position [5].
V. Sentencing Principles & Analysis
[23] In criminal proceedings, sentencing is meant to reflect and reinforce the basic values of our society. Accordingly, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions pursuant to s. 718 of the Criminal Code.
[24] The sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender (s.718.1).
[25] Pursuant to s.718 (a) to (f), the sanction that the court imposes should have one or more of the following objectives:
- to denounce unlawful conduct
- to deter the offender and other persons from committing offences
- to separate offenders from society, where necessary
- to assist in rehabilitating offenders
- to provide reparations for harm done to victims or to the community
- to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[26] A sentence is to be similar to other sentences imposed on similar offenders in similar circumstances (s.718.2(b)).
[27] Aggravating and mitigating factors must also be considered (s.718.2).
Aggravating
[28] Mr. Jainga has a short, but very serious criminal record. [6] In 2005, he was convicted of manslaughter for which he was sentenced to 8 years in the penitentiary. In 2010, while on parole, he was convicted of Impaired Driving, and recommitted to prison. This is concerning as the offences before the court are both of a violent nature and Mr. Jainga was severely intoxicated.
[29] The offences occurred within a domestic context, against Mr. Jainga’s intimate partner of 3 years. This is a statutorily aggravating factor pursuant to s.718.2 (a)(ii) of the Criminal Code.
[30] In addition, the offences occurred in front of children, his partner’s two daughters aged 14 and 19, thus exposing them to serious domestic violence.
[31] As noted earlier, Mr. Jainga was convicted of manslaughter in 2005, sentenced to 8 years in the penitentiary and violated parole by driving while impaired, thereby being recommitted.
[32] This history is particularly aggravating as he invoked it during the offences when he threatened his partner and her children.
[33] The impact of the offences was therefore that much more significant as the child, reasonably believed Mr. Jainga could carry out the threat of killing her mother. This trauma is evidence as the young girl sobs in stocking feet outside the police scout car in the middle of December.
[34] After consenting to the Crown filing the body-worn camera video of one of the young victims speaking to the police, counsel then submitted the exhibit was prejudicial and hearsay. The Crown did not file it for the truth of its contents, but rather for the demeanour and state of mind of the child.
[35] Given the circumstances of the child’s reporting, and the offences admitted to by Mr. Jainga which included the presence, participation, victimization, and fear instilled in the child, this video only added a visual to the facts admitted and nothing more. The impact of the offences on the children did not need the video for it to be an aggravating feature in this case.
[36] In addition to the nature of the offences which contain the use of an imitation firearm put to the victim’s head, Mr. Jainga had a concealed knife that came to light after a pat-down search at the police station. The replica firearm looked very dangerous [7], as did the knife [8] he was concealing. Mr. Jainga was on a lifelong weapons prohibition when he was in possession of both weapons. Why he was in possession of either item, much less both, is very disturbing.
Mitigating
[37] Mr. Jainga has plead guilty which demonstrates remorse and accountability. This is the case even in the face of the strength of the Crown’s case which contained video of Mr. Jainga with the replica firearm to the victim’s neck when police arrived.
[38] The guilty plea importantly obviates the victim and the teenage children from having to testify and be cross-examined on what they saw and what they heard.
[39] The plea also saved trial court time in a busy jurisdiction dealing with pandemic backlog and delay.
[40] There is a 10-year gap between when Mr. Jainga finished serving his sentence and when he committed these offences. During this time, Mr. Jainga obtained an education, took courses, got a driving certification, obtained, and maintained a good steady job.
[41] Overall, Mr. Jainga’s PSR was a positive one.
[42] He also has significant family and community support. His parents will provide him place to stay. His cousin, his younger sister, two friends and his ex-wife all wrote letters of support. [9] Each person describes him as committed to his family, industrious and generous with his time and affection. Each one refers to his integral role in the lives of his children, the support he has given them and his very positive rehabilitative potential.
[43] Particularly informative is the letter from his ex-wife and the mother of two of his children. She writes they co-parent well; he is a positive influence on the children, she has seen him grow, and they are friends. The dissolution of a relationship often exposes a person’s more challenging characteristics. That Mr. Jainga has a good relationship with his ex-wife is a commendable demonstration of his positive personality traits. As already referred to, he also has a positive relationship with his intimate partner, the victim of these offences.
[44] The combination of a support network that recognizes Mr. Jainga’s problem with alcohol and his own recognition of this problem bodes well for his potential rehabilitation.
[45] Counsel filed a Lockdown Summary [10] for a period of just over 8 months. Over the course of 255 days, there were 48 days where there was a 2-hour lockdown, 5 days with a full lockdown, and 62 days of lockdowns without a description of their length. All lockdowns were noted because of “Staff Shortages”. Mr. Jainga was locked down at some point during the day 45% of the time because the jail does not have enough staff.
[46] As harsh as he explained this experience to be, Mr. Jainga did choose to adjourn his sentencing in September 2023 to December 2023 to partake in the alcohol programming at the jail. Unfortunately, no evidence of his participation in this programing was provided to the court.
[47] I balance the harshness of the conditions with his decision to be in those conditions to get counselling and demonstrate a commitment to rehabilitation when I consider its impact of the appropriate sentence. I am mindful to consider this factor as a mitigating one pursuant to R. v. Marshall, 2021 ONCA 344 [11] in the determination of a fit sentence rather than quantifying it and deducting it.
[48] Sentencing is a complex balancing of many factors that must be considered to create a fit sentence appropriate to the specific offender and the offence he/she/they committed. Individualization is essential. R. v. Lacasse, 2015 SCC 64 [12] The principals of proportionality, denunciation, deterrence, parity, and rehabilitation must all be considered in this case as they pertain to Mr. Jainga.
[49] Although defence counsel is correct that a Conditional Sentence is available, and such a sentence can have a deterrence and denunciatory effect R. v. Proulx, 2000 SCC 5 [13] appropriate for many offences and for many offenders, that is not the case here.
[50] These offences in the context of both domestic violence and in the presence of children is extremely aggravating. It is a substantial breach of trust to inflict violence on an intimate partner, in the most private of spaces, in the home. But then to use the weapon he did, and to target a mother in front of her daughters by putting the barrel of the gun to her neck, and then, to aim it at a child attracts the need for significant denunciation.
[51] A Conditional Sentence would not reflect the gravity of these offences, and even taking into consideration the fact Mr. Jainga was intoxicated, it would not reflect his blameworthiness. Mr. Jainga’s inebriation that night made him even more unpredictable and more frightening to those he was assaulting and threatening. Such a sentence would not sufficiently reflect the principle of denunciation required in this case and would not be an appropriate sentence.
[52] I have reviewed each of the cases provided by both counsel but will not summarize them here, other than to refer to distinguishing and similar features. No case was on all fours with the one at bar, as rarely one ever is given the individuality of every offender, and the context of their offence. However, they were helpful to situate Mr. Jainga’s conduct on a continuum.
[53] In Chand, the court sentenced a 51-year-old with a disability who committed similar offences against tenants and had a manslaughter on his record to a total 30 months. In that case, it was not an IPV case nor were there any children involved.
[54] In Trotman, the court sentenced a man who committed similar offences against 3 people, two of whom were pregnant to for a total of 30 months as well. In that case, though the offender had a lengthy criminal record, he did not have a manslaughter conviction.
[55] The cases provided by the defence dealt with offenders in distinguishable circumstances, such as being younger, violence not perpetuated in the intimate violence context, there being no children involved, and the criminal records being qualitatively different. For these reasons, they were not as helpful at Chand and Trotman.
[56] Having said that, even Chand and Trotman having been decided in 2013 and 2010 did not appreciate the seriousness of IPV as we do now over a decade later.
[57] Having reviewed all the evidence filed, considered all the relevant principles and the context of this offender and these offenses, this sentence must be significant.
VI. Sentence
[58] Mr. Jainga I sentence you:
- On the count of Use of an imitation Firearm: 36 months minus pre-sentence custody. You have served 14 months which will be enhanced to 21 months. You have 15 months to serve.
- This will be concurrent on the count of Assault with a Weapon.
- On the count of Uttering Threat: 12 months concurrent to count 1.
- You will provide a sample of your DNA pursuant to s. 487.04 of the Criminal Code.
- You will again be prohibited for life from possession a weapon pursuant to s. 109 of the Criminal Code.
[59] Thank you to both counsel for your submissions.
Released: February 12, 2024 Signed: Justice Cidalia C.G. Faria
Footnotes
[1] Exhibit 7: Pre-Sentence Report, Jimmy Jainga, July 27, 2023, authored by Dahnon Young. [2] Exhibit 5: Affidavit Aaron Zurkowsky-Simpson, December 6, 2023. [3] R. v. Trotman, [2008] A.J. No. 111, R. v. Chand [2013] B.C.J. No. 175. [4] R. v. Duncan, 2016 ONCA 754 [5] R. v. Ploumis, R. v. T.A.P. [2014] ONCA 141, R. v. Brown, [2023] P.J. No. 2931, R. v. Evans, R. v. J.A.T. 2012 ONCA 177. [6] Exhibit 4: CPIC, Criminal Record, Jimmy Jainga. [7] Exhibit 3a: Photo of replica firearm seized. [8] Exhibit 3b: Photo of seized knife. [9] Exhibit 8a: Vanessa Fernandez. Exhibit 8b: Jennie Taylot. Exhibit 8c: Christian Fernandez. Exhibit 8d: Nicole Bui. Exhibit 8e: Siobhan Wippel [10] Exhibit 6: Toronto South Detention Centre Lockdown Summary, Jimmy Jainga, December 16, 2022 to August 27, 2023. [11] R. v. Marshall, 2021 ONCA 344 [12] R. v. Lacasse, 2015 SCC 64 at paras. 54, 58, 59, 128, 140, and 143. [13] R. v. Proulx, 2000 SCC 5 at para. 22.