ONTARIO COURT OF JUSTICE

DATE: 2025 06 24
COURT FILE: Toronto #24 50001102-00

BETWEEN:
HIS MAJESTY THE KING
— AND —
TRACEY VANHARTSKAMP

SENTENCING JUDGMENT

Before Justice Brock Jones
Heard on April 9 and June 12, 2025
Written Reasons Provided on June 24, 2025

P. Kelly .................................................................................................. counsel for the Crown
M. Murphy ............................................................................. counsel for Ms. VanHartsKamp

Jones J.:

Introduction

[1] On November 20, 2024, Abdalla Manahil was pushing her toddler in a stroller on a subway train approaching Kennedy Station, where she encountered Tracey VanHartsKamp. The two women had never met before. For reasons that remain unclear, Ms. VanHartsKamp became agitated and assaulted Ms. Manahil while threatening her and her young child. The offences were captured on surveillance video and witnessed by other passengers.

[2] On April 9, 2025, in Gladue court, Ms. VanHartsKamp entered guilty pleas to one count of assault under section 265 of the Criminal Code, and one count of uttering death threats under section 264.1(1)(a) of the Criminal Code.

[3] This is another example of needless violence committed against an innocent person on public transit. In this case, as in many others, the actions of the accused were accompanied by hateful and cruel language meant to intimidate the victim. Yet this is also a case that highlights how Canada’s assimilationist policies devastated an individual, her family, and her community, causing lasting intergenerational trauma.

[4] This is my decision on the appropriate sentence for Ms. VanHartsKamp.

Agreed Facts

[5] On November 20, 2024, at approximately 10 a.m., Ms. Manahil was travelling with her toddler in a stroller on a subway train, heading towards Kennedy Station. Ms. VanHartsKamp approached Ms. Manahil and struck her on the right shoulder. She told her she wanted her cellphone and attempted to take it out of her hand.

[6] Ms. Manahil stood up and pushed the stroller along the train to put some distance between herself and the accused. Ms. VanHartsKamp followed her and raised her hand near Ms. Manahil’s child as if to indicate she might strike her. Ms. VanHartsKamp then stated, “If I see you on this train a second time, I’m going to kill you. I have a knife.” A witness observed this confrontation and informed the police that she also heard the accused state, “Go back to your country”, and “You people come here, have your babies, then send them back.”

[7] Ms. VanHartsKamp believed that Ms. Manahil may have been taking a photo of her with her phone. She told Ms. Manahil that “If you take a picture of me, I will kill you.”

Background of the Offender

[8] A lengthy Gladue report was provided to the court prior to the sentencing hearing, which had been completed over 20 years prior. It was supplemented by a letter authored by Ms. A. Assinewe, a Gladue case worker from Aboriginal Legal Services of Toronto. The letter updated the contents of the original Gladue report with detailed information about recent developments in Ms. VanHartsKamp’s life. For this judgment, I have summarized their contents.

[9] Ms. VanHartsKamp is 49 years old. She supports herself through ODSP but struggles to afford basic necessities. She uses a food bank whenever possible. After her arrest, she was detained in custody. On May 28, 2025, Justice Dunphy of the Superior Court of Justice released her on bail subject to the terms of a release order. She is currently living with her younger sister, Priscilla, in Oshawa. In the future, she hopes to move back to an apartment she previously had in Toronto.

[10] Ms. VanHartsKamp is a member of the Attawapiskat First Nation and one of thirteen siblings. Her parents were survivors of residential schools. She was apprehended by child welfare authorities almost immediately after her birth and taken from her Indigenous family as part of the 60s Scoop. At the age of six, she was adopted by Rosemary VanHartsKamp and Tony VanHartsKamp and relocated from her home community to Brockville, Ontario. Her foster parents made efforts to involve her and her brothers in cultural activities, treating them with the best intentions. However, she remained largely disconnected from her Indigenous identity. She did not know her ancestral language and had no ties to Attawapiskat until much later in her life. This led to a sense of cultural loss and confusion regarding her identity. The significance of Indigenous Canadians regaining that sense of culture is discussed in the Royal Commission on Aboriginal Peoples (1996).

[11] Before being adopted by her foster parents, she experienced both physical and sexual abuse in a group home. This trauma has continued to affect her, manifesting itself in depression and anxiety. At 14, she ran away from her foster home and started using substances to cope with her trauma. She acknowledges that her criminal activity is partially linked to her drinking and drug use. She is currently on methadone as part of a treatment plan.

[12] Furthermore, as a child, she was diagnosed with Fetal Alcohol Spectrum Disorder (“FASD”). FASD is a lifelong disability. It affects, among other features of daily living, learning, memory, communication skills and emotional regulation.

[13] Seven of her siblings have passed away. All the deaths, except for one, were due to addiction-related causes. Two of her sisters continue to struggle with substance addiction and live in northern Ontario. Her sister Kimberley was murdered last year while she was pregnant. That case remains unsolved. It has had a traumatic impact on Ms. VanHartsKamp and her family.

[14] Ms. VanHartsKamp has been the subject of terrible violence herself as well. She was the victim of a near-fatal stabbing on June 21, 2002, by her then partner, Robert Linklater. He was convicted of aggravated assault for this attack. Years later, he was convicted of murder against another woman: see R. v. Linklater, 2009 ONCA 172.

[15] In 2023, she was the victim of a car accident that left her with serious injuries requiring ongoing rehabilitative programming. She continues to suffer from vertigo and memory loss. She is receiving treatment from physical therapists at Sunnybrook Hospital and is also connected to the Daughters of the Earth program at the Thunder Woman Healing Lodge Society. This program is designed for Indigenous women who have encountered the criminal justice system and aims to support participants in their healing journey through culturally appropriate teaching.

[16] The Crown presented Ms. VanHartsKamp’s prior criminal record, which begins in 1996. It includes 14 entries for crimes of violence. However, there is a considerable gap in the record between 2016 and 2023. On August 11, 2023, Ms. VanHartsKamp was convicted of two counts of assault, one count of uttering threats, and one count of failing to comply with a release order. She received a suspended sentence with two years of probation. Those are the only convictions other than the index offences in the last 10 years.

[17] Ms. VanHartsKamp expressed remorse for her actions during the sentencing hearing. She explained that she is working to overcome her problems with addiction but struggles day to day. She hopes to reconnect with her family and take the necessary steps forward for her rehabilitation. Her younger sister Priscilla is a source of love and support. She recognizes that she needs help and is committed to doing what is necessary to stop offending.

Victim Impact Statement

[18] Ms. Manahil declined to provide any input for the sentencing hearing, expressing a desire to move past the incident.

[19] A witness to the events, Ms. Olive Ellis, provided a victim impact statement. She wrote that she was “deeply shaken by what transpired.” As a Black immigrant, she felt “an overwhelming fear that I too could become a victim simply because of my identity. The aggressor’s actions were entirely unprovoked, and it was painfully evident that her words and behaviour stemmed from a place of hate and discrimination.”

[20] Ms. Ellis further explained that her sense of safety while commuting has “drastically changed,” and she no longer feels protected on the TTC. As a result, she tries to avoid using the TTC as much as possible. The fear of facing a similar attack “weighs heavily” on her mind.

[21] The Canadian Victims Bill of Rights Act, S.C., 2015, c. 13, s.2 defines a victim as “an individual who has suffered physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of an offence.” I am satisfied that Ms. Ellis was a victim of these offences as well, even if she was not directly targeted by Ms. VanHartsKamp’s actions.

Positions of the Parties

[22] On behalf of the Crown, Mr. Kelly seeks a one-year jail sentence followed by a period of probation. He submits that the explicit racial component of these crimes constitutes a significant aggravating factor. There is simply no place in Canadian society for such conduct. The victim was a racialized person, completely defenceless, and concerned for the safety of her child.

[23] In the Crown’s view, the accused’s conduct demands that the court stress the sentencing principles of both general and specific deterrence. Mr. Kelly noted that Ms. Manahil’s young child had to witness her mother being the victim of an unprovoked attack. This was not only harmful to the child but also intensified Ms. Manahil’s vulnerability. Even if she had wished to respond to Ms. VanHartsKamp by defending herself, doing so would have put her child’s safety at risk. The victim, as Mr. Kelly put it, was “completely exposed.”

[24] He characterized Ms. VanHartsKamp as a violent individual with a nearly unbroken criminal record. She has long surpassed the phase where the courts prioritize rehabilitation as a sentencing principle.

[25] Ms. Murphy submits that the appropriate sentence is to acknowledge her client’s pre-sentence custody, followed by a suspended sentence with probation. Her client is continuing to recover from addiction as well as the trauma she has faced and still faces in her life. The road to recovery is rarely straightforward, and Ms. VanHartsKamp has made significant progress in recent years despite these offences.

[26] Ms. VanHartsKamp, according to Ms. Murphy, embodies all the concerns associated with our Indigenous peoples that are well documented in the jurisprudence. She has potential for long-term recovery through programs specifically designed to assist Indigenous women. If she were incarcerated, she would lose access to both the spiritual and physical recovery programs that she currently accesses regularly.

[27] Ms. Murphy candidly acknowledged that reconciling the racialized nature of Ms. VanHartsKamp’s offences with her own history of being mistreated was challenging. Her client understands what it feels like to be a victim of discrimination and prejudice. Her family was shattered by the racially driven policies of the Canadian government.

[28] Ms. Murphy offered a partial explanation, but not an excuse, for her client’s behaviour. She asked me to consider that this incident came right on the heels of the murder of Ms. VanHartsKamp’s sister. Her client was in a very bad place mentally and emotionally at the time. She also subjectively believed that Ms. Manahil was filming her right before she committed her offences, which may have further upset her.

Sentencing Law – General Principles

[29] Proportionality is the central principle of sentencing. A sentence must be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender”: see Criminal Code section 718.1; R. v. Suter, 2018 SCC 34, para. 4. There is no doubt that Ms. VanHartsKamp’s moral culpability for these offences is significant. She assaulted and threatened a defenceless woman and her child without any justification. An innocent bystander witnessed her actions and was also deeply affected. Ms. VanHartsKamp’s use of hateful language enhances the objective gravity of these crimes, which, even without that factor, was already substantial.

[30] I agree with Mr. Kelly that crimes of this nature require the court to emphasize general and specific deterrence, as well as denunciation. Section 718.04 of the Criminal Code states that a sentencing court shall give primary consideration to the objectives of denunciation and deterrence for an offence that “involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female.” Ms. Manahil was new to the country, simply minding her own business, while using public transit with her young child in a stroller. She was extremely vulnerable, and this was an unprovoked assault.

[31] Furthermore, section 718.01 of the Criminal Code states that “[w]hen a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” Ms. Manahil’s child was also a victim of these offences.

Aggravating Factors

[32] Section 718.2(a)(i) of the Criminal Code states that it is an aggravating factor if an offence was motivated by “bias, prejudice, or hate” based on specific immutable characteristics. These characteristics include race, national or ethnic origin, colour, religion, and sex. For this section to apply, the Crown must prove beyond a reasonable doubt that the offence was motivated by one of the listed factors. Ms. Murphy did not dispute that the Crown had met its burden in this case.

[33] In R. v. Woodward, 2011 BCCA 251, the British Columbia Court of Appeal emphasized the significance of this section, noting that when a court is convinced it applies, it constitutes a major aggravating factor. In R. v. Bissonnette, 2022 SCC 23, para. 144, the Supreme Court of Canada determined that an offence motivated by bias, prejudice, or hate is not merely a crime against an individual victim; it is also a crime against their community and, indeed, all of Canada.

[34] As I informed the parties during the sentencing hearing, I recently decided a case with similar facts to this one: see R. v. Grant, 2025 ONCJ 231. I provided them an opportunity to make submissions regarding this area of the law based on how I decided Grant. I will not repeat in this decision what I wrote in Grant, but I adopt my reasoning and analysis of the applicable law from that earlier reported decision, in addition to what I have included here.

[35] Section 718.2(a)(ii.1) of the Criminal Code states that it is an aggravating factor if the offender abused a person under the age of 18 years. Ms. Murphy suggested that the child may have been too young to fully comprehend what she experienced. I do not find this argument persuasive. In Barendregt v. Grebliunas, 2022 SCC 22, para. 143, the Supreme Court of Canada stated that even exposing children to family violence can have long-term detrimental impacts on their development and places them at risk of emotional and behavioural problems throughout their lives. I see no reason not to apply analogous reasoning to an unprovoked, random, hate-based attack on a child and her mother by a stranger. Time will tell what impact this incident had on Ms. Manahil’s child’s emotional health and development. While it is impossible to determine the depth of that impact at this time, that does not mean I should ignore the entirely foreseeable consequences of committing these offences in the presence of a young child when determining an appropriate sentence.

[36] At a minimum, Ms. VanHartsKamp’s offences inflicted significant psychological harm on Ms. Manahil and anyone else who witnessed them, including Ms. Ellis. This harm was unquestionably severe, and this constitutes another aggravating factor: see Criminal Code section 718.2(a)(iii.1).

[37] Finally, many courts have held over the years that committing a crime of violence on public transit is an aggravating factor: see R. v. Elie, 2015 ONSC 300, para. 20; R. v. Deeb, 2013 ONSC 7870, para. 27; R. v. Brown, paras. 46-47. In R. v. Cheong, para. 22, Justice Watt (as he then was) held that one’s sense of personal security may never recover from being the victim of a violent crime in this setting. Ms. Ellis’ victim impact statement provides direct evidence of this tragic reality in this case.

Gladue Principles and Mitigating Factors

[38] Ms. VanHartsKamp pleaded guilty, sparing Ms. Manahil and the other witnesses from having to testify, which warrants consideration. The offences were captured on video (albeit lacking an accompanying audio track), and there were also independent witnesses to the events. Thus, the case against Ms. VanHartsKamp was very strong. This is therefore a mitigating factor of moderate weight.

[39] Ms. VanHartsKamp is an Indigenous Canadian. Section 718.2(e) of the Criminal Code encompasses the values of restorative justice. In R. v. Gladue, para. 71, the Supreme Court explained that the “concept and principles of a restorative approach will necessarily have to be developed over time in the jurisprudence, as different issues and different conceptions of sentencing are addressed in their appropriate context.”

[40] As previously noted, an offender’s degree of moral culpability is central to the proportionality analysis required in any sentencing decision. The “constrained circumstances of Aboriginal offenders may diminish their moral culpability,” as explained by the Supreme Court in R. v. Ipeelee, 2012 SCC 13, para. 73. A sentencing court must therefore consider the individual circumstances and life history of an Indigenous offender when assessing their moral culpability: see R. v. Rabbit, 2023 ABCA 170, paras. 53-56; R. v. Davis, 2025 BCCA 113, paras. 29-35.

[41] Ms. VanHartsKamp has lived a life marked by intergenerational trauma, addiction, and almost unfathomable tragedy. She has lost siblings to addiction and to violent crimes. She has endured terrible abuse herself, including a violent domestic assault that nearly took her life. Her family members and community have fallen victim to both the residential school system and the child welfare system.

[42] The intergenerational harm caused by both the residential school system and the historical overuse of the child welfare system is well documented in our jurisprudence: see, for example, Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5. For generations, Indigenous families and communities were torn apart by these government policies. For Ms. VanHartsKamp, the harm she experienced tragically included being a victim of childhood physical and sexual abuse due to her placement in the foster system. In R. v. McKnight, 2024 BCCA 394, para. 25, the British Columbia Court of Appeal held that “evidence of a contributory link between the appellant’s childhood sexual victimization and later offending” can attenuate an offender’s moral culpability. I have no difficulty concluding that Ms. VanHartsKamp’s experience with physical and sexual abuse, stemming from her removal from her Indigenous community and placement in the child welfare system, led her down a path of alcohol and substance abuse that explains much of her offending behaviour to this day.

[43] It is also vital to appreciate Ms. VanHartsKamp’s diagnosis of FASD as a mitigating factor. In R. v. J.P., 2020 SKCA 52, para. 65, the Saskatchewan Court of Appeal held that a “combination of Gladue factors and FASD will often serve to reduce an offender’s moral culpability in the context of a consideration of the proportionality principle.” I find that Ms. VanHartsKamp’s challenges with emotional regulation and processing feelings of frustration were integral to the commission of these offences, which are some of the hallmarks of FASD.

[44] I recognize that “Gladue principles do not apply in a mechanical fashion, nor do they require reductions in sentences for offences committed by aboriginal persons”: see R. v. Weese, 2016 ONCA 449, para. 26. In cases of violent crimes, especially those committed by recidivists, there will sometimes be little difference between the terms of imprisonment for Indigenous and non-Indigenous Canadians: see Gladue at para. 79. In that regard, the sentence proposed by the Crown was entirely reasonable given the violent and hate-filled nature of these offences, even when considering Ms. VanHartsKamp’s personal circumstances and status as an Indigenous Canadian.

[45] Yet Ms. VanHartsKamp has made progress over the last decade towards remaining on a pro-social path. The principle of restraint must be given considerable weight when sentencing an Indigenous offender who has clearly been affected by the systemic impact of colonization and the associated intergenerational trauma: see R. v. Wesley, 2025 ONCA 51, para. 91. I also accept Ms. Murphy’s submission that the offences occurred proximate to the murder of Ms. VanHartsKamp’s sister, and that her mental health and emotional state would almost certainly have been significantly impacted when she learned of this terrible event. That too, offers some mitigation for her conduct.

Conclusion

[46] Many of the sentencing principles in this case strongly support a jail sentence. The Crown's position aligns with recent authorities of this court. For example, in R. v. Gobin, 2025 ONCJ 266, Justice Townsend sentenced an offender to one year in jail for hateful conduct directed towards Jewish Canadians.

[47] However, other principles pull in the opposite direction, towards allowing Ms. VanHartsKamp to serve a sentence in the community. I find that she is motivated to address her difficulties with substance addiction and process her trauma while rebuilding connections with her surviving family members. She has taken genuine and meaningful steps in that direction, including contacting Anishnawbe Health Toronto, where she is awaiting an intake appointment for counselling. She also hopes to see a psychiatrist there. Additionally, she has the love and support of her younger sister, Priscilla, who attended the sentencing hearing and will play an active role in supporting her in the future.

[48] Ms. VanHartsKamp wants to change. I agree with Ms. Murphy that her client’s healing journey will continue to be a long and complex one, with both successes and failures along the way. But that does not mean I should assume it cannot succeed or that she is not committed to living a crime-free life.

[49] In R. v. Davis, 2025 BCCA 113, para. 37, the British Columbia Court of Appeal wrote the following about the need for courts to embrace a different approach to sentencing Indigenous Canadians:

Incarceration rates for Indigenous offenders will not be reduced significantly if sentencing judges simply reduce the term of imprisonment they would otherwise have imposed in order to account for Gladue factors. Serious consideration should always be given to the imposition of a conditional sentence in all cases where the statutory prerequisites are satisfied.

[50] If the courts are truly committed to the values that animate Gladue and its progeny, we must be willing to embrace the principles of restorative justice and think creatively when crafting sentences for our Indigenous peoples, even for offences that otherwise appear to demand a custodial disposition. Rather than impose an additional five-month jail sentence as requested by the Crown, given that Ms. VanHartsKamp has already served time in jail and been released successfully back into the community, I will impose a conditional sentence order (“CSO”) instead. I agree with Mr. Kelly that this case demands a further custodial sentence, and the quantum of sentence identified by the Crown is entirely appropriate. However, by allowing Ms. VanHartsKamp to serve that sentence in the community, she can continue to engage with the therapeutic programs that have already made a difference in her life. I also note that Ms. VanHartsKamp has successfully completed a lengthy CSO in the past. I am satisfied that the criteria of section 742.1 of the Criminal Code are met.

[51] I will note 136 real days credited for 204 days (Summers). That amounts to just over six months of time served. I impose a six-month CSO today, followed by a year of probation. The terms of the CSO and probation order will include the recommendations outlined in the Gladue report and update letter.

[52] In addition, I impose a section 110 order for 5 years and a DNA order for both offences.

[53] I will waive the victim fine surcharges given Ms. VanHartsKamp’s personal circumstances. It would cause her undue hardship to pay the fines.

Released: June 24, 2025
Signed: Justice Brock Jones

[1] “Urban Realities” in the Report of the Royal Commission on Aboriginal Peoples: Perspectives and Realities, Vol. 4. (Ottawa, Government of Canada, 1996), at 387-389 (available online: https://www.bac-lac.gc.ca/eng/discover/aboriginal-heritage/royal-commission-aboriginal-peoples/Pages/final-report.aspx)