ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 7215
DATE: 2012-01-11

BETWEEN:

HER MAJESTY THE QUEEN – and – FRANKLIN ALBERT JACKPINE Defendant

D. Peterson, for the Crown
E. McCooeye, for the Defendant

HEARD: August 10, 2011

GAREAU, J.

[ 1 ] The accused, Franklin Albert Jackpine was charged with 6 different counts in the indictment dated June 13, 2011.

[ 2 ] On August 10, 2011 the accused entered pleas of guilty to counts 1 and 4 of the indictment as amended. Count 1 of the indictment reads as follows:

“Franklin Albert Jackpine stands charged that between the 1 st day of October, 2010 and the 3 rd day of October, 2010, at the Village of M[…] First Nation, in the said Region, being in a position of trust or authority towards V.L., a young person, did for a sexual purpose touch directly the body of V.L., a young person, with a part of his body, to wit: hands, finger, contrary to section 153 (a) of the Criminal Code of Canada .”

Count 4 reads as follows:

“Franklin Albert Jackpine stands further charged that between the 1 st day of October, 2010 and the 3 rd day of October, 2010, at the Village of M[…] First Nation, did commit a sexual assault on V.L., contrary to section 271 of the Criminal Code of Canada .”

[ 3 ] Counts 2, 3, 5 and 6 of the indictment are to be withdrawn at the request of the crown.

[ 4 ] On August 10, 2011, a pre-sentence report was ordered with a Gladue component and sentencing was adjourned to November 18, 2011.

[ 5 ] Submissions as to sentence were received by the court on November 18, 2011 and the decision as to sentence was reserved to be delivered on January 11, 2012 at 2:00 p.m..

[ 6 ] Prior to making findings of guilt and the registration of a conviction on counts 1 and 4 of the indictment referred to above, the court heard a recitation of the facts, which can be summarized as follows:

(a) Mr. Jackpine was born on November 20, 1955 and is a resident of M[…] First Nation;

(b) The complainant, V.L., was 17 years of age at the time of the incidents;

(c) V.L. was suffering from what she referred to as “internal spiritual turmoil”. She sought out the assistance of Mr. Jackpine who is a “pipe carrier” and a cultural leader within the Ojibway culture;

(d) Ms. V.L. had met Mr. Jackpine at a Pow wow in 2010. V.L. sought out Mr. Jackpine’s assistance and arrangements were made for V.L. to attend Mr. Jackpine’s residence for a weekend of spiritual and physical healing;

(e) On October 1, 2010 Mr. Jackpine picked V.L. and her friend T.W. up at their residences in the S[…] First Nation. They went to Mr. Jackpine’s residence at 129 Village Road, M[…] First Nation.

(f) Mr. Jackpine took V.L. into his bedroom to begin the healing process. He instructed V.L. to remove all of her clothing down to her underwear and a t-shirt. He indicated to V.L. that this was part of the healing process. V.L. removed her bra but left her t-shirt on.

(g) Mr. Jackpine is confined to a motorized scooter. He would manoeuvre his scooter around the bed where V.L. was laying. Mr. Jackpine caressed V.L.’s body and used his hands and fingers to touch V.L.’s vagina and her breasts under her t-shirt.

(h) According to V.L. this encounter lasted up to an hour. When V.L. questioned Mr. Jackpine about his actions, he told her that this was part of the normal practice in this healing ritual. V.L. accepted that Mr. Jackpine’s actions were normal and a part of the practice and she believed that Mr. Jackpine was helping her.

(i) Ms. V.L. and Ms. T.W. stayed in Mr. Jackpine’s residence overnight. On October 2, 2011 V.L. again went into the bedroom at Mr. Jackpine’s home. Once again, she stripped down to her underwear and t-shirt and removed her bra. Again, Mr. Jackpine caressed V.L.’s body including her bare breasts. He touched V.L.’s vagina and played with her clitoris. On this occasion, Mr. Jackpine digitally penetrated Ms. V.L.’s vagina with his finger. When asked about this by V.L., Mr. Jackpine told her that he found a tear in her vagina and was checking to see whether or not she could have children. V.L. believed that Mr. Jackpine’s actions were part of the healing process. Again this episode lasted up to one hour.

(j) Ms. V.L. and Ms. T.W. remained in Mr. Jackpine’s home on October 2, 2010 and overnight. While at the house, Mr. Jackpine would make comments about their bodies, including their breasts and butt.

(k) On Sunday, October 3, 2010 once again went into Mr. Jackpine’s bedroom and once again removed her clothing down to her underwear and t-shirt without her bra. Mr. Jackpine touched V.L.’s body concentrating on her vagina and playing with her clitoris with his fingers. Again, this episode lasted up to one hour.

(l) Ms. V.L. and Ms. T.W. stayed at Mr. Jackpine’s residence overnight on Sunday, October 3, 2010. On Monday, October 4, 2010 Ms. V.L. and Ms. T.W. were driven back to their residences.

(m) Mr. Jackpine told Ms. V.L. that she should not tell anyone about the weekend but if she had to she could. On October 5, 2010 Ms. V.L. discussed the events of the weekend with her boyfriend L.M. who contacted native elders who advised him that Mr. Jackpine’s actions were not part of traditional native healing. Mr. L.M. passed along this information to Ms. V.L. who then contacted the police.

(n) T.W. did not witness the events in the bedroom, but she did confirm that V.L. was in Mr. Jackpine’s bedroom for up to one hour on each occasion and did confirm that Mr. Jackpine made comments about their bodies during the weekend.

[ 7 ] The court must determine the fit and appropriate sentence to be imposed for the offences in counts 1 and 4 of the indictment referred to above.

[ 8 ] Counsel for the accused is asking the court to impose a reformatory sentence followed by probation suggesting that this is appropriate given the background of the accused, the mitigating factors in this case and that it is consistent with the sentencing principles set out in Section 718 of the Criminal Code of Canada .

[ 9 ] At the sentencing hearing on November 18, 2011 counsel for the crown submitted that the principles of deterrence and denunciation were paramount in offences against children and urged the court to impose a penitentiary term of between 2 to 4 years.

[ 10 ] The crown’s submission was tempered by a letter dated November 25, 2011 that I received from Dana Peterson, Crown Counsel. For the record, I will recite the contents of that letter in its entirety:

“I am writing to clarify the Crown’s position regarding the appropriate sentence for Mr. Jackpine. After submissions were made on November 18, 2011, Mr. McCooeye and I had a brief discussion about whether or not we had previously discussed the Crown’s sentencing position on a plea of guilt. Specifically, we were trying to recall what we discussed at the non-judicial pre-trial when the matter was at the Ontario Court of Justice level. At the time of our discussion, neither of us could recall the specifics of the non-judicial pre-trial.

I returned to the office to review the file and my notes for the non-judicial pre-trial held on January 17, 2011. My notes indicate that resolution of the matter is likely and that the Crown is likely to seek upper reformatory and that there are no firm positions regarding sentence until the Gladue Report is prepared.

Mr. McCooeye and I did not discuss sentencing ranges again until days before the sentencing hearing when I indicated that I was seeking a penitentiary term and Mr. McCooeye indicated that he was seeking a reformatory term. There was no mention of the non-judicial pre-trial discussions.

I deeply regret the oversight of not reviewing the non-judicial pre-trial notes prior to making the Crown’s sentencing submissions. The Crown’s position on sentence is that after weighing the aggravating and mitigating factors identified at the sentence hearing, the appropriate sentence for Mr. Jackpine is upper reformatory with probation to follow.

Mr. McCooeye and I discussed this matter yesterday and he agreed that I may write to Your Honour directly. The matter is presently scheduled to return to court on January 11, 2012 for sentencing decision. If you prefer, I would be happy to attend in open court to clarify the Crown’s position on the record.”

[ 11 ] I highlight the following comments made by Ms. Peterson in her letter to the court: “The Crown’s position on sentence is that after weighing the aggravating and mitigating factors identified at the sentence hearing, the appropriate sentence for Mr. Jackpine is upper reformatory with probation to follow.”

[ 12 ] These comments appear to indicate that counsel for the crown and counsel for the defence are ad idem that a reformatory sentence and not a penitentiary sentence is appropriate for Mr. Jackpine, albeit that the crown is seeking a longer reformatory sentence than Mr. McCooeye feels is appropriate in the circumstances of this case.

[ 13 ] I must point out that in my view Ms. Peterson’s letter of November 25, 2011 showed a high level of personal integrity on her part, a great deal of professionalism and conduct consistent with the high duty required of a crown attorney. She is to be commended for altering the crown’s position on sentencing when it was appropriate to do so.

[ 14 ] The court is guided by Section 718 of the Criminal Code of Canada which sets out a list of principles and objectives that the court must consider when determining the appropriate sentence to be imposed. Section 718 reads as follows:

718. The fundamental purpose of sentencing is 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;

(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 acknowledgement of the harm done to victims and to the community.

[ 15 ] Mr. Jackpine is a traditional Ojibway man who acquired his ancestry through both his maternal and paternal family. This requires the court to pay close attention to Section 718.2 (e) of the Criminal Code of Canada which directs the court to consider all available sanctions that are reasonable in the circumstances for an offender “with particular attention to the circumstances of aboriginal offenders. All other punishment other than imprisonment should be considered and incarceration should be used only when all other penalties are inappropriate given the nature of the offences and the circumstances of the offender.

[ 16 ] Given the provision in Section 718.2(3), I have applied my mind to any unique systemic or background circumstances which may have existed with respect to Mr. Jackpine.

[ 17 ] In this regard, the court has had the benefit of a pre-sentence report prepared by Sue Guillemette entered as Exhibit 2 and a Gladue Report prepared by Mrs. Hollee Tijerina, a Gladue Report specialist, entered as Exhibit 3. I have reviewed both reports carefully and considered the comments and observations in both reports.

[ 18 ] Those reports set out Mr. Jackpine’s background and personal circumstances.

[ 19 ] Mr. Jackpine is 56 years of age. He was born on November 20, 1955.

[ 20 ] Mr. Jackpine is a registered status Indian who maintains band membership with the M[…] First Nation. He is fluent in the Ojibway language. He has extensive knowledge of the traditional teachings, customs and practices of the Ojibway.

[ 21 ] Mr. Jackpine is a pipe carrier. In the Ojibway culture, carriers are held in high regard due to their ability to communicate with the Spirit world through the use of their pipe. To be given a pipe is a great honour and enormous responsibility requiring self-discipline and selflessness.

[ 22 ] Mr. Jackpine is one of 7 children. His parents consumed alcohol which sometimes resulted in violence. He grew up in an environment where alcoholism and family violence played a major role in his development as a child. He often witnesses his father beating up his mother.

[ 23 ] Mr. Jackpine has struggled with “unresolved feelings of abandonment concerning his parents for not being there to protect him from the abuse he suffered as a child.”

[ 24 ] Mr. Jackpine was sexually victimized by several people, both women and men, when he was between the ages of 8 and 15. Other children in his home were also sexually abused.

[ 25 ] Mr. Jackpine has lived n his own since the age of 16 years. He has a grade 8 education and experienced difficulty in school related to his ethnic differences. He has had several relationships none of which have lasted a great deal of time or have been permanent.

[ 26 ] Mr. Jackpine has had various jobs and has been unemployed since 1987. He currently received ODSP for muscular dystrophy, a condition he was diagnosed with in 1992. His health has deteriorated and he has been using a motorized scooter for the past 6 years.

[ 27 ] Mr. Jackpine abused alcohol from the age of 12 until he achieved sobriety in his mid 20’s. He has not abused alcohol or drugs for the past 23 years.

[ 28 ] Mr. Jackpine has a criminal record which was entered as Exhibit 1. This record dates back to 1974 and includes 5 separate offences of theft, fraud, possession of a narcotic and causing a disturbance. Most recently, on January 15, 2001, Mr. Jackpine was convicted of sexual assault contrary to Section 271 of the Criminal Code of Canada and failure to attend court contrary to Section 145(4) of the Criminal Code of Canada . Mr. Jackpine received a sentence of 2 years less 1 day conditional sentence with 12 months probation on the sexual assault charge and a 30-day conditional sentence to be served concurrently on the failure to attend court offence.

[ 29 ] The law is clear that denunciation and deterrence are the primary guiding principles in sentencing an offender where children under the age of 18 are victimized and where the offender was in a position of trust or authority and used this position to prey upon and take advantage of unwilling and unsuspecting victims.

[ 30 ] There are mitigating factors which must be considered by the court. Mr. Jackpine entered a plea of guilty and at the earliest opportunity indicated his intention of doing so sparing the victim of having to testify in court and reliving the events. I am satisfied that Mr. Jackpine is sincerely remorseful for his actions and I accept the comments in both the pre-sentence report and the Gladue report which indicates this. The author of the pre-sentence report, Exhibit 2, notes the following:

“...his participation and extensive knowledge of the Anishinabek culture has led community members to respect him as a culture leader. During the current offences, he used his position to access the victims. The offender expressed understanding of the victims suffering caused by his actions and is remorseful.”

[ 31 ] It is noted in both reports that Mr. Jackpine has suffered upset over the charges and his current situation. He feels shame and guilt. The criminal charges have resulted in Mr. Jackpine removing himself from his usual community cultural activities. As noted in Mrs. Tijerina’s report, “...he is no longer active in the community as he has isolated himself due to his physical disabilities, mental health and his fear of gossip in the community about his criminal history and current matters before the court.” As a pipe carrier, an individual is held to a high standard of duty for the care of his community. Mr. Jackpine has recognized that he has breached this duty to the community and is noted in Ms. Tijerina’s report, “Mr. Jackpine reported that he fears the responsibility of being a pipe carrier and has chosen to set it aside until he feels he can wholly accept his duty. Furthermore, he reports that he fears his transgressions will transform themselves into harm upon himself; a karma of sorts. He recognizes that he has much healing to do before he can help others.”

[ 32 ] The reports also indicate that Mr. Jackpine’s response to community supervision in the past was good and he is considered to be a suitable candidate for future community supervision.

[ 33 ] Mr. Jackpine suffers from declining health. He is confined to a motorized scooter. He requires assistance to perform most of the daily tasks of living. Undoubtedly, any custodial sentence will have a negative impact on him and a much more severe consequence than if he had minimal health difficulties. As Mr. Jackpine himself stated at the sentencing hearing: “If I am incarcerated, I might as well just be dead.” Any custodial sentence will result in hardship to Mr. Jackpine due to his failing health and this is a factor that the court can consider. As noted in paragraph 55 of the decision of Hill, J. in R. v. Simmons, [2007] O.J. No. 5397 : “The ill health of an offender is a factor worthy of consideration in sentencing.”.

[ 34 ] The acts themselves were isolated in time, did not extend over a long or protracted period of time and did not involve acts of physical violence or threats against Ms. V.L..

[ 35 ] These facts noted above are significant mitigating factors when considering a proper and fit sentence to be imposed on Mr. Jackpine.

[ 36 ] The court must also be cognisant of the aggravating factors in this case. Mr. Jackpine has a previous conviction for sexual assault for which he received a 2 year less 1 day conditional custodial sentence. The offence involved a young person under the age of 18 years. The offence involved Mr. Jackpine breaching his position of trust in the community and actually using his position as a healer in the community to create the opportunity to enable him to prey upon V.L.. I agree with the submissions of the crown that for the acts to occur required a compliant victim which makes the position of trust that Mr. Jackpine held a significant factor in the commission of the offences. There also appears to be an escalation in the nature of the actions of Mr. Jackpine over the weekend. The first incident involved a caressing of Ms. V.L.’s body; This escalated to digital penetration of Ms. V.L.’s vagina. It is as if Mr. Jackpine was testing the waters to see what he could get away with. An initial action was followed by a more serious action once Mr. Jackpine was satisfied that Ms. V.L. would comply.

[ 37 ] In attempting to balance the mitigating factors and the aggravating factors in this case, I am very sensitive to the Gladue factors and to Section 718.2 (e) of the Criminal Code of Canada which requires consideration of the systemic and background factors that have contributed to the difficulties faced by Mr. Jackpine as a person of Aboriginal heritage. The Gladue Report prepared by Ms. Tijerina indicates that Mr. Jackpine experienced the following systemic background factors:

Substance Abuse

• Mr. Jackpine’s biological mother and father abused alcohol;
• He experienced alcohol related domestic violence;
• His mother was absent from the family home due to alcohol abuse;
• He was sexually abused when there was no adult supervision;
• Violence erupted in the family home between friends of the family;
• His father was given alcohol by non-Aboriginal hunters for his services as a bush guide;
• Mr. Jackpine would hide in the house to escape the violence;
• His maternal grandmother was an alcoholic; she died from cirrhosis of the liver;
• His grandmother asked him to hide bottles of alcohol;
• He witnessed violence between his mother and grandmother;
• His mother was given up at birth because of alcohol abuse and disability;
• Mr. Jackpine was heavily addicted to alcohol, drugs and solvents;
• He would steal alcohol and consume with friends or family members;
• He was an injection drug user who contracted Hep C;
• Substance abuse contributed to family poverty.

Poverty

• Alcohol abuse contributed to family poverty;
• The family lived with inadequate heat, shelter and clothing;
• Mr. Jackpine has largely been dependent on Ontario Works or Ontario Disability Support Program;
• Mr. Jackpine is not formally educated beyond Grade 8.

Community/Family Breakdown, Dislocation or Fragmentation

• Mississauga has experienced political corruption;
• Band members needed to take a stand against Chief and Council;
• Mr. Jackpine’s mother was absent from the family home;
• He does not know his extended family;
• He had an unhealthy relationship with his grandmother;
• Mr. Jackpine was an absent father due to his transiency and substance abuse;
• His mother was given to another family at birth;
• His mother was sexually abused by her siblings;
• Mr. Jackpine was sexually abused by both men and women;
• Mr. Jackpine is an inactive Pipe Carrier;
• Mr. Jackpine has isolated himself due to his disabilities and mental health issues;
• Drug and alcohol abuse is rampant in Mississauga;
• Gossip is rampant in the community; is seen as a breakdown of traditional values and beliefs.

Unemployment/Low Income or Lack of Employment Opportunity

• Mr. Jackpine is not formally educated beyond Grade 8;
• He has a certificate in addictions counselling;
• He is living with Becker’s Muscular Dystrophy;
• He is dependent on a Personal Support Worker for daily care;
• He has largely been dependent on Ontario Works or the Ontario Disability Support Program.

Indian Residential School

• His biological father and paternal uncle attended a residential school.

[ 38 ] As Ms. Tijerina notes in her report, “Mr. Franklin Albert Jackpine has experienced most of the systemic background factors expressed in R. v. Gladue.”

[ 39 ] In her submissions to the court the crown described the Gladue report as “tragic”. My view is that is an understatement. The crown acknowledged that Mrs. Tijerina’s report and the Gladue factors “calls for a great deal of respect and attention in our sentencing hearing” involving Mr. Jackpine. I agree entirely with that submission and I have given the Gladue report due weight and consideration when considering an appropriate sentence to be imposed on Mr. Jackpine.

[ 40 ] I have also not lost sight of the overriding principles of denunciation and deterrence. The consideration of these principles does not change because Mr. Jackpine is of Aboriginal heritage. Although Section 718.2(e) of the Criminal Code of Canada requires the court to pay “particular attention to the circumstances of Aboriginal offenders” and therefore to be very mindful of the traditional Aboriginal concepts of justice which hold restorative justice to be a primary objective. Section 718.2 (e) does not alter the fundamental duty of the court to impose a sentence that is fit for the offender and the offence. It is, therefore, open to the sentencing court to give primary consideration to the principles of denunciation and deterrence where the offence requires it regardless of the fact that the offender is an Aboriginal person. In coming to this conclusion, I rely on the case of R. v. Wells [2002], 1 S.C.R. 207 , a decision of the Supreme Court of Canada.

[ 41 ] I have taken into account all the pertinent factors in this case, including both the mitigating and aggravating factors and the root systemic difficulties that Mr. Jackpine has experienced as an Aboriginal person, in imposing a sentence that I believe is fit and just.

[ 42 ] In my view, a fit sentence is a total sentence of 21 months incarceration followed by a period of 3 years probation with strict terms. Mr. Jackpine, on count four of the indictment, being the offence of sexual assault contrary to Section 271 of the Criminal Code of Canada , I sentence you to a period of incarceration of 21 months. On count one of the indictment, being the offence contrary to Section 153 (a) of the Criminal Code of Canada , I sentence you to a period of incarceration of 21 months to be served concurrently to the period of incarceration in count four. My intention is that Mr. Jackpine receive a total sentence of 21 months.

[ 43 ] I do not consider this sentence a lesser sentence to that received by Mr. Jackpine in 2001 for sexual assault given the fact that the 2001 sentence was a conditional sentence and the current sentence is not and the fact that in 2001 the court would not have had the benefit of an extensive Gladue report that was available to me in considering the appropriate sentence for Mr. Jackpine.

[ 44 ] Mr. Jackpine, following your release from custody, you will be subject to a probation order for a period of 3 years. You shall report to a probation officer within 14 days of your release from custody. In addition to the statutory terms in the probation order, you will be bound by the following provisions which will form part of your probation order:

(a) you will have no direct or indirect communication with V.L. or T.W.;

(b) you will remain at least 100 meters away from the residence, school, or place of employment of V.L. and T.W.;

(c) you shall be prohibited from attending any pow wow’s or other activities related to your native culture where children under the age of 18 years are attending;

(d) you will obtain such assessment, treatment and counselling as recommended by your probation officer;

(e) you are prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 18 years;

(f) you will attend and complete such Sex Offender Relapse Prevention Programs and Residential Sexual Abuse Survivors Programs that are available for Aboriginal men.

[ 45 ] In addition to the aforementioned orders, there will be ancillary orders including a DNA order and the SOIRA order under the Sexual Offender Information Registration Act for a period of 20 years.

Justice E. Gareau

Released: January 11, 2012

COURT FILE NO.: 7215
DATE: 2012-01-11

ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – FRANKLIN ALBERT JACKPINE

REASONS FOR SENTENCE

Justice E. Gareau

Released: January 11, 2012