ONTARIO COURT OF JUSTICE
DATE: 2025-06-23
COURT FILE No.: Windsor 22-8110766
BETWEEN:
His Majesty the King
— AND —
Jacob Yoell
Before Justice S. G. Pratt
Heard on 5 November 2024, 7 January 2025, 17 April 2025
Reasons for Judgment released on 23 June 2025
Counsel for the Crown: Zachary Battiston
Counsel for the Defendant: Jessica Grbevski
Reasons for Judgment
Pratt J.:
[1] On 5 November 2024, the Offender Jacob Yoell pleaded guilty to robbery and aggravated assault. I ordered a Pre-Sentence Report and submissions were heard on 17 April 2025. These are my reasons for sentence.
Facts
[2] The facts of this case are, quite simply, awful. The Offender, together with others, violently attacked two random strangers in downtown Windsor. In the early morning hours of 27 August 2022, this group found their first victim, Jesse Martin. He was beaten and his jaw was broken in the attack. Less than an hour later, they found their second victim, Hezron Habimana. He too was beaten and robbed. His injuries are unknown as he left hospital before being treated.
[3] As is so often the case now, both incidents were filmed and posted to social media. It was people who saw the attacks on Snapchat who first called the Windsor Police Service to identify the perpetrators. But for them, the group would likely have gotten away with their crimes.
[4] The videos were played in court and filed as exhibits. Detailed descriptions are necessary to impart the true gravity of these offences.
The First Video
[5] This video is 56 seconds long. It shows the drive-thru area of a property I was told was a KFC outlet. It opens with a group following the victim Martin. He is clearly trying to walk away from them. The group surrounds him, and the attack begins.
[6] The Victim is quickly knocked to the ground. He is punched and kicked by the entire group. The Offender, in a red shirt, is heard saying, “Give me everything you got, nigger, what you got in your fucking pockets, nigger”. I pause to note this victim is Black. The Offender is seen going through the pants pockets of the Victim before punching him in the face two more times.
[7] The Offender then addresses the group: “Get everything off this nigger right now”.
[8] The Victim seems to try to stand, which causes the Offender to say “Stay on the fucking ground, nigger”. The other attacker, bravely covering his face with a white mask, viciously stomps the Victim in the face and kicks him in the head.
[9] At that point, after again going into the Victim’s pocket, the Offender says, “Stay the fuck down, nigger, before I kill your motherfucking ass”. He then punches and kicks the Victim in the face again. The white masked attacker does the same. The Offender then says, “Swing on me, nigger? What’s wrong with you?” followed by two more kicks to the Victim’s head. With the Victim now motionless on the ground, the Offender turns from him and says, “We out”.
The Second Video
[10] This video is 1 minute, 7 seconds long. It shows the area behind the Windsor Aquatic Centre. It opens with two males facing each other as if they were in a boxing match. One is in a red shirt and the other is in a dark hoodie. It is admitted the person in the red shirt is the Offender and the other person is the victim Habimana. They face each other briefly, with the Offender moving closer and the Victim backing up. At the 00:15 mark in the video, the Offender runs at the Victim. The Offender is joined by the person wearing a white mask over his face. The Offender strikes the Victim with his left fist, knocking him to the ground. Both attackers then set upon the fallen Victim.
[11] At the 00:22 mark, at the urging of the person taking the video, two more attackers join in. It is now a four-on-one beating. One can be heard saying, “who the fuck do you think you are, nigger?” I pause to note this victim is also Black.
[12] The group continues to rain punches and kicks on the Victim as he tries to stand up. The person filming takes the time to pick up all the Victim’s belongings, which have fallen to the ground.
[13] The assault continues, with the Offender at one point straddling the Victim and punching him in the head with both fists. At 00:48 the person filming says “Jacob, behind you.” He appears to be referring to an unrelated person who happens to be walking by and is behind the Offender. At 00:52 a voice I attribute to this passerby can be heard saying for the first time “he’s had enough”. This statement has no effect on the Offender. The speaker repeats over and over that the Victim has had enough but the beating continues. The Offender throws him to the ground again and at the 1:00 mark, stomps his head with his right foot. Another attacker stomps the Victim’s head several more times. As the passerby says, “You’re knocking the guy’s fucking head in”, the Victim, now defenceless and lying on the ground, is stomped one final time in the face by the Offender.
Positions of the Parties
[14] Crown counsel seeks a sentence of 15-18 months jail, followed by three years of probation. The Crown also seeks DNA samples as both counts are primary DNA offences, and a s. 109 weapons prohibition for ten years. For the Offender, counsel seeks a conditional sentence of 12-18 months, followed by two years of probation. Counsel did not argue against the ancillary orders.
The Principles of Sentencing
[15] Parliament has set out several directives a sentencing court must follow. These are found beginning at s. 718 of the Criminal Code. That section 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.
[16] The fundamental purposes of sentencing, as noted, are to protect society, contribute to respect for the law, and to maintain a just, peaceful, and safe society. All other sentencing objectives must be viewed through that lens. The list that follows this declaration sets out the objectives that individual sentences should pursue.
[17] Section 718.04 states that when the victim of an offence is a vulnerable person on account of their personal circumstances, a sentencing court must prioritize denunciation and deterrence in determining a fit sentence. In the present case, I have been told that both victims were homeless at the time of the attacks. With nowhere to stay, it is not surprising they were walking the streets alone in the wee hours of the morning. I find as a fact that both were vulnerable victims as a result of their personal circumstances.
[18] Section 718.2 sets out several factors Parliament has deemed to be aggravating. Two of those factors are relevant to this case. Paragraph (a)(i) of that section makes any offence “motivated by bias, prejudice or hate based on race” more serious. In the present case, the Offender can be clearly heard using a racial slur repeatedly against his victims, both of whom are Black. Can I find that the victims’ race was the sole motivating factor for these attacks? No, but that is not what the section requires. Parliament could have said, “motivated exclusively by bias, prejudice or hate”. They did not. If the offences were at least in part motivated by the race of the victim, the paragraph will apply. Based on the Offender’s own words, repeated ad nauseum, and the selection of the victims, it is clear to me that race played at least a part in these offences.
[19] The second statutorily aggravating factor present in this case is from paragraph (a)(iii.1). Where an offence has had a significant impact on the victim “considering their age and other personal circumstances, including their health and financial situation”, sentences should be increased. While I have no Victim Impact Statements in this case, I was told that the Victim Martin suffered a broken jaw. Both victims clearly lost property that was scooped up by the assailants. There is no question that these offences have had a significant impact on the victims, even without written statements from them.
[20] Section 718.2(b) reminds courts that sentences should be similar to those given to offenders in similar circumstances, and s. 718.2(d) directs that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate.
[21] Finally, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the Offender, pursuant to s. 718.1.
The Pre-Sentence Report
[22] I received a Pre-Sentence Report (PSR) authored by Darin Reybroek. It is detailed and helpful. It discloses a positive history, with strong family support. The Offender has not completed high school but is interested in doing so. He has been employed, but is not currently. Understandably, he is holding off looking for work until these matters are concluded.
[23] The Offender told the PSR author that alcohol consumption played a role in the offences. Since then, he has reduced his drinking and does not seem to see it as problematic. While he had experimented with drugs in the past, that is now limited to regular marijuana use.
[24] The Offender described the offences as “a dumb mistake, he wished he could take back.” He acknowledged that he knew what he was doing was wrong. He expressed hope for the victims to make full recoveries and understood the impact his actions had on them. He was remorseful. His plans for the future include finding work and buying a house with his partner.
[25] Overall I find the PSR to be positive. It shows a person with a loving and supportive family, and who is very different from the person he was in 2022. The Offender took responsibility for his actions and seems to understand their impact.
Caselaw
[26] The Crown relies on three cases in seeking a 15-18 month jail sentence.
[27] The first is R. v. Archibald, 2024 ONCJ 241. The Crown does not rely on the case for its factual similarity but rather on its summary of the law related to aggravated assault. Justice Wright referred to the well-known decision of Justice Code in R. v. Tourville, 2011 ONSC 1677. That decision set out three levels of aggravated assault at paragraphs 27, 28 and 30. I do not include paragraph 29 below as it related to case-specific facts before Justice Code:
[27] The parties have helpfully provided me with a large number of sentencing cases, dealing with the offence of aggravated assault. That offence, contrary to s. 268 of the Criminal Code, carries a maximum sentence of fourteen years imprisonment. The cases disclose a wide range of sentences. At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The “Gladue report” disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems. Some of these features are not dissimilar to the case at bar.
[28] In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), 175 C.C.C. (3d) 440 (Ont. C.A.).
[30] At the high end of the range are cases where four to six years imprisonment have been imposed. 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. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson (2005), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A).
[28] The Crown argues that the Offender falls in the mid-range described in Tourville.
[29] In the case of R. v. Morrisseau, 2010 ABPC 404, the offender, together with two others, attacked the victim on a city bus. While all punched the victim, the offender admitted to stabbing him in the chest and cutting his face with the knife. The bus had several passengers on it at the time. It was acknowledged by the Crown that there was no evidence the offender was the ringleader, and it did not pursue a finding that the attack was racially motivated despite one of the group using a racial slur. The offender told the author of an FAOS report (which was not defined but appears to be a psychiatric report) that the reason for the offence was that he was intoxicated and believed the victim to have sexually assaulted his girlfriend the year prior. He expressed remorse for his actions and had no prior record. The Court imposed a sentence of 21 months jail after a guilty plea.
[30] Finally, the case of R. v. T.F.B. dealt with charges of robbery and possession of burglary tools. The offender assaulted and robbed two victims, one of whom was a sleeping homeless person. When they saw he had no money, the two assailants punched and kicked him. The other robbery was akin to a home invasion. A significant distinguishing factor in this case is that the offender had a prior record for aggravated assault and was on parole for that offence at the time of the offence for which he was being sentenced. In the result, the offender received an 18-month sentence for the robbery of the homeless victim and six months consecutive for having his face masked while committing the offence.
[31] Counsel for the Defendant did not file any caselaw but did rely on the sentences imposed on others in the Offender’s group. One received a 9-month jail sentence for his participation in only one of the two attacks. Another was deemed an “exceptional case” by the sentencing judge and received a 9-month conditional sentence. I was not provided a copy of either sentencing decision, but was told by Crown counsel that the offender who received a conditional sentence had “relatively minimal involvement”. This characterization was not disputed by counsel for the Offender.
[32] I find the most useful case cited to be the Tourville decision. Despite it being from 2011, it continues to provide valuable instruction in sentencing for aggravated assault. As noted by Justice Wright in Archibald, supra, the levels set out by Justice Code have been upheld several times by the Court of Appeal for Ontario and remain good law.
Mitigating and Aggravating Factors
[33] The Offender has several mitigating factors working in his favour.
[34] Chief among them are his guilty plea and remorse. While the guilty plea was not entered at an early opportunity, and while this matter had initially been set for trial, the plea is still meaningful. I note that in sentencing submissions the Crown conceded that it was having difficulty maintaining contact with the victims. This could have made proving the charges more difficult. That said, the offences were entirely caught on video. There was no hint of a consensual fight or of self-defence. The plea is meaningful but there is also, in my view, an element of acknowledging the inevitable.
[35] To the PSR author and to me the Offender has expressed remorse for his actions. I believe that remorse to be sincere. I accept that he understands the impact of what he did, both on his victims and on himself, though calling it a dumb mistake doesn’t come close to reflecting the gravity of his actions. He told me he can be someone in society who makes a difference. I agree. The Offender strikes me as an intelligent young man with the ability to succeed. I can’t lose sight of his rehabilitative prospects in determining a fit sentence.
[36] I asked the Offender why he did what he did. He said he thought the people he was with were cool and he wanted to fit in. As I believe I pointed out to him at the time, the people he wanted to impress are not in court supporting him. They’ve scattered. It is his family who stands behind him. The letter from his mother, filed as an exhibit, shows the support the Offender has and will continue to have. I have also received a letter from his football coach, who extolled the Offender’s hard work, commitment, and compassion.
[37] The Offender is also youthful. While he is an adult, and must be sentenced as an adult, he was 18 at the time of these offences. He was 20 at the time of his pleas, and is now 21. He is a young man with many years ahead of him.
[38] He also comes before the Court with no prior criminal record. Unlike the offenders in some of the cases cited by counsel, he does not have a history of violence or other criminal behaviour. There is every reason to think rehabilitation will be effective in keeping the Offender out of trouble in the future. I do not see specific deterrence as a pressing objective in this case.
[39] Finally, the Offender gave an inculpatory statement to police. He identified himself as the person in the red shirt. I was told, however, that in the course of that statement, he also attempted to claim he was only defending himself from the victim Habimana. That is obviously false and could only have been an attempt to avoid responsibility for what really happened. I remind myself, though, that at the time of the statement, he was 18 years old and likely in a police interview room for the first time in his life. Given the context, I do not put undue weight on this manufactured defence.
[40] Just as there are mitigating factors that work in the Offender’s favour, there are aggravating factors that weigh against him.
[41] As I always do when determining sentence, I caution myself not to use an element of an offence as an aggravating factor. Regarding the victim Martin, for example, I cannot use the injury caused as an aggravating factor as wounding is part of the charged offence. Likewise, I cannot use the taking of Habimana’s wallet as aggravating as the Offender has pleaded to the offence of robbery, which includes the theft as a constituent element.
[42] Each offence, however, involved both an assault and a theft. The Victim Martin was assaulted, but there was also at least the attempt to steal from him, as evidenced by the Offender going through his pockets and urging the others to “get everything off this nigger right now.”
[43] The Victim Habimana was clearly robbed, but he was also assaulted far beyond what was necessary to carry out the theft. Section 343 of the Criminal Code states:
343 Every one commits robbery who
(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;
(c) assaults any person with intent to steal from him; or
(d) steals from any person while armed with an offensive weapon or imitation thereof.
[44] The Offender is charged under paragraph (c), that he did assault the Victim with intent to steal from him. The assault and the theft are assumed to be connected. In the video it is clear that the assault was well in excess of supporting any intent to steal from the Victim. The Victim’s wallet and belongings are gathered up long before the end of the assault. I can view the prolonged, violent attack on the Victim that continued unabated after the theft as an aggravating feature on the charge of robbery.
[45] As I have already indicated, the vulnerability of the victims is a statutorily aggravating factor. People enduring homelessness are of necessity living on the street. They have no shelter to keep them safe. They are thereby exposed to the risk of crossing paths with the wrong people. That is exactly what happened to both victims in this case.
[46] The use of racial epithets against Black victims is aggravating. As heinous as these random, violent attacks are, they are made even worse by the Offender repeatedly using a hateful, revolting slur against both victims.
[47] The impact on the victims is clear on the face of these events. Unfortunately, the true extent of that impact is unknown as the transience of the victims has prevented the Crown from staying in contact with them.
[48] Finally, the way in which these offences were committed is itself extremely aggravating. Counsel for the Offender disputed the Crown’s use of the term “gang violence”, saying that carried a negative connotation and that it should be considered “group violence”. In my view, gang violence is exactly what this was. A gang of like-minded individuals moved around downtown Windsor looking for victims. Habimana and Martin were complete strangers to them. Their only crime was being in the wrong place at the wrong time. When the gang, led by the Offender, saw them, they were attacked with ruthless violence. Having watched the videos several times, I am surprised the worst injury inflicted was a broken jaw to Martin. The attackers are vicious and unrelenting, even as the victims lay prone and defenceless. The chief attacker throughout both incidents is the Offender.
[49] It is clear from the videos that the Offender was the leader of this group. He is the one who first squares off with Habimana, and he is the one who does nearly all the talking to both victims. He directs the actions of the other assailants. I agree with his counsel that the others were certainly involved, but there is no other inference to be drawn from the video but that the Offender was the ringleader.
Analysis
[50] Counsel for the Offender seeks a conditional sentence of 12-18 months. To impose a conditional sentence, I must be persuaded of several things. Section 742.1 sets out the prerequisites. In the present case, the relevant factors are:
- The sentence must be less than two years;
- A conditional sentence must not endanger the safety of the community;
- A conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in ss. 718 to 718.2.
[51] In this case, I agree that a fit sentence would be less than two years. A conditional sentence is therefore a possibility. I must consider if such a sentence would meet the second and third requirements set out above.
[52] At first blush, it would seem that a conditional sentence on these facts would indeed endanger the safety of the community. These were random, violent attacks on strangers. They are the sort of stories that strike fear in the hearts of citizens. Without question, on that night, the Offender and his gang posed a grave danger to the community.
[53] In assessing this point, however, I must consider both the Offender’s actions at the time of the offences and where the Offender is today. It is clear from the PSR that he has made significant changes in his life. He no longer associates with any of the people he did that night. He is focused on his future, and on living a successful life with his family and partner. In determining if a conditional sentence would endanger public safety I must consider the potential consequences of him being in the community. Does the Offender currently pose a danger to others? Taking all the evidence into account, I find he does not. His sincere remorse and insight into what he did shows he is unlikely to engage in further violent conduct.
[54] The sentence I impose turns on the third point: Would a conditional sentence be consistent with the purpose and principles of sentencing?
[55] I have set those purposes and principles out in these reasons. I have considered Parliament’s direction regarding aggravating features and the care that should be taken before depriving someone of their liberty. I also take into account the sentences imposed on other offenders from that night.
[56] In addition, I have also considered the punitive effect a conditional sentence would have on the Offender. While the caselaw is clear that a conditional sentence can be punitive, the degree to which it is will vary from case to case. In the Offender’s case, a conditional sentence would not noticeably change his day-to-day life. He would still live at home with his family. He would still see his parents and partner. He would still watch sports on television with his father. In these circumstances, a conditional sentence of imprisonment would not have the punitive impact it would need to have to be an appropriate sentence.
[57] After careful consideration, I find a conditional sentence for multiple, prolonged, violent attacks on random strangers would not be consistent with the purpose and principles of sentencing. A jail sentence is required in this case. Further, given the Offender’s leading role in the assaults, a sentence above what the other offenders received is called for.
[58] I do not say that lightly. I recognize the strides the Offender has made since that night, and I commend him for them. They will set him up for a bright and productive future. He is sentenced today not for who he is, but for what he did.
[59] Bearing in mind that a first sentence of custody should be as short as reasonably possible, the Offender will be sentenced as follows:
He will be imprisoned for a period of 12 months, concurrent on each count;
On release from custody he will be bound by a probation order for two years concurrent on each count. In addition to the statutory conditions, the terms of probation will be as follows:
a. You will report in person to a probation officer within two 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. You are to 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, either directly or indirectly, by any physical, electronic, or other means with Hezron Habimana or Jesse Martin;
d. Do not be within 100m of any place where you know any of those persons to live, work, go to school, or anywhere you know them to be except for required court attendances;
e. Do not associate or communicate, by any physical, electronic, or other means, or be in the company of Tyler Ducharme, Tyrell Patterson, Quinn Davis-Ducharme, or John Maceldowney-Turbin;
f. Do not possess any weapons as defined by the Criminal Code; and
g. Attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by your probation officer, and complete them to the satisfaction of your probation officer, specifically for but not limited to alcohol abuse, anger management, and psychiatric or psychological issues.He will be ordered on each count to provide a sample of his DNA to the Windsor Police Service for inclusion in the national DNA databank, forthwith; and
He will be prohibited on each count from possessing weapons pursuant to s. 109 of the Criminal Code for ten years;
[60] I will waive the victim surcharges given the custodial sentence.
[61] I do not ignore the tremendous impact this sentence will have on the Offender. My sincere hope is that this ends a dark chapter in your life and that you go on to accomplish your goals. This sentence reflects what you did. It does not define you as a person. I wish you and your family the best.
Released: 23 June 2025
Signed: Justice S. G. Pratt