COURT FILE NO.: 11386

DATE: 2015/06/30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

L. Tuttle, for the Crown

• and -

GRAHAM ALLAN WADE DOXTATOR and SHERMAN SHANE ELIJAH

A. Prevost, for the offender Graham Allan Wade Doxtator

P. Munn, for the offender Sherman Shane Elijah

HEARD: June 30, 2015

REASONS FOR SENTENCE

LEACH J. (ORALLY)

Introduction

[1] By way of general context and background, this matter was called to trial before judge and jury on September 8, 2014, at which time:

a. Mr Doxtator was facing one count on the indictment, for assault with a weapon causing bodily harm, contrary to s.267(a) of the Criminal Code; and

b. Mr Elijah was facing two counts on the indictment; one for assault contrary to s.266 of the Criminal Code, and one for uttering a threat to burn real or personal property, contrary to s.264.1(1)(b) of the Criminal Code.

[2] The charges stemmed from an incident that was said to have taken place late on or about October 22, 2012, at the Chippewas of the Thames First Nation, when Mr Doxtator and Mr Elijah attended just outside the home of the Young family and refused to leave the property. This in turn was said to have resulted in a verbal and physical quarrel during which the complainant Dakota Young was assaulted and sustained physical injuries. The theory of the Crown’s case included allegations that Mr Young had been hit with a baseball bat, which Mr Doxtator was said to have taken from the truck in which he and Mr Elijah had come to the property.

[3] Following arraignment of each accused, pleas of “not guilty” in relation to each count on the indictment and jury selection, trial commenced with an opening by Crown counsel, followed by examination-in-chief and cross-examination of the complainant and principal Crown witness, Dakota Young, on September 8 and 9, 2014.

[4] Cross-examination of Mr Young had not been completed when, on the morning of September 10, 2014, counsel advised that the parties had reached an agreement, whereby each accused intended to enter certain new pleas on the understanding that sentencing thereafter would proceed on the basis of an alleged and admitted factual basis somewhat less serious than the factual allegations the Crown apparently intended to advance at the outset of trial.

[5] In the result, following re-arraignment of the co-accused, and a plea inquiry made of each accused:

a. Pursuant to s.606(4) of the Criminal Code, Mr Doxtator entered a plea of “not guilty” to the offence of assault with a weapon causing bodily harm, but “guilty” to the related offence of possession of a weapon for a dangerous purpose, pursuant to s.88(1) of the Criminal Code.

b. Mr Elijah entered a plea of “guilty” in relation to the offence of assault.

c. In relation to the assault by Mr Elijah on Mr Young, the Crown confirmed its reliance on the testimony of Dakota Young, but also that it was not alleging that Mr Young was hit with the baseball bat. Instead, it was alleged by the Crown and admitted by Mr Elijah that the injuries caused to Mr Young were caused by Mr Elijah punching Mr Young in the face, and Mr Young then falling and hitting his face on the aforesaid truck and nearby gravel.

d. With respect to the s.88(1) “weapon dangerous” offence by Mr Doxtator, the Crown confirmed its reliance on the testimony of Dakota Young, except that the Crown was not alleging that Mr Doxtator took part in any hitting of Mr Young, or that there was any hitting of Mr Young with the baseball bat. Rather, it was alleged by the Crown and admitted by Mr Doxtator that, as described by Mr Young, Mr Doxtator did get out of the truck, while Mr Young was being assaulted by Mr Elijah, with a baseball bat he was ready to use if he felt that was necessary.

e. Findings of guilt were then made, corresponding to the guilty pleas entered by Mr Doxtator and Mr Elijah.

f. The remaining charges on the indictment then were withdrawn by the Crown, and the jury was dismissed.

[6] In relation to sentencing, I was advised by counsel that the sentencing of Mr Doxtator would be the subject of a joint submission, (not involving a custodial sentence), but that the sentencing of Mr Elijah would be the subject of competing submissions by the Crown and defence counsel, (with the Crown seeking a custodial sentence).

[7] Both offenders have a First Nations heritage, and I did direct preparation of a Gladue report in relation to Mr Elijah, as requested by defence counsel. However, in relation to Mr Doxtator, the parties were content to proceed instead by way of my directing a pre-sentence report, (pursuant to s.721 of the Criminal Code), in view of the anticipated joint submission that something less than a custodial sentence would be appropriate, in relation to Mr Doxtator’s offence.

[8] After directing preparation of those reports, I initially adjourned the matter to Assignment Court for the setting of a mutually convenient date for the making of further sentencing submissions.

[9] The matter then was the subject of a number of further adjournments, as all concerned waited for completion of both reports, and the Gladue report in relation to Mr Elijah, in particular.

[10] Over time, I was provided with copies of both reports, as well as a victim impact statement completed by Dakota Young.

[11] The matter then came back before me again today, for the completion of sentencing submissions.

[12] In addition to receiving counsel submissions today, I was provided with copies of each offender’s criminal record, as well as correspondence from Mr Elijah’s employer.

[13] Pursuant to s.726 of the Criminal Code, Mr Doxtator and Mr Elijah also were asked if they wished to provide me with any comments directly, but both declined the opportunity.

Circumstances of the offence

[14] I begin with consideration of the circumstances of the offences in respect of which Mr Doxtator and Mr Elijah have been convicted. In that regard:

• I already have mentioned that the offences stem from an incident that took place on or about October 22, 2012.

• At the time, Dakota Young and his younger brother Brandon were living at the home of their parents, at the Chippewas of the Thames First Nation. Dakota was 21, and Brandon was 16. (With no disrespect intended, I will continue hereafter to use their first names, in order to make it clear which brother I am talking about.)

• Late on the night of October 22, 2012, Dakota was at home and in his basement bedroom when a vehicle drove up the gravel drive leading to the home, and then stopped in the drive a short distance from the house.

• Dakota thought it was Brandon being dropped off by friends, and a short time later, Brandon did enter the house. However, Brandon did not go to his own room as expected, but instead came down to Dakota’s room, looking worried and concerned, and pacing back and forth. Brandon informed Dakota that Mr Doxtator and Mr Elijah had brought Brandon home, but were still outside and apparently waiting for Brandon to come back out. Brandon did not want to go back outside, and asked Dakota if he would go outside instead to convey that message. Dakota agreed to do that for his brother, and got himself dressed to go outside.

• On exiting the house, Dakota approached the driver’s side of the truck and recognized both its occupants from earlier associations. Mr Elijah was sitting in the driver’s seat of the truck, while Mr Doxtator was sitting in the front passenger seat. Dakota informed them that Brandon now was in the house, and that Dakota “wanted them gone”. Dakota told them to leave, (or in his words, “Get the Hell out of here”), adding that they should stop talking to his brother because Brandon was too young to be associating with them. (Mr Elijah, for example, was at least 10 years older than Dakota, and therefore 15 years older than Brandon.)

• In response, Mr Elijah swore at Dakota and refused to leave, saying words to the effect of “Fuck that, we’re not leaving unless he [meaning Brandon] comes out. We want to talk to him.” That in turn prompted some harsh language by Dakota, who admits he was getting mad and angry. In particular, Dakota emphasized that Brandon was “in for the night”, and that Mr Elijah and Mr Doxtator should “Get the fuck off” the Young family’s property. During that verbal confrontation, Mr Doxtator apparently was saying and doing nothing.

• Matters then escalated when Mr Elijah “hopped out of the truck”, apparently wanting to confront and fight Dakota. He brought himself “face to face” and “chest to chest” with Dakota, as the two of them continued to trade similar angry words back and forth; for example, with Mr Elijah demanding that Brandon come outside, and Dakota insisting that was not going to happen. Eventually, Dakota left to go back inside the house and Mr Elijah got back inside the truck. Dakota says that Mr Doxtator did not exit the truck during this initial confrontation, and although he initially made reference to shoving back and forth, eventually indicated that Mr Elijah had not touched him (or vice versa) during that initial confrontation.

• Unfortunately, Mr Elijah and Mr Doxtator did not then leave the property. They instead remained, with the truck headlights flicking on and off, and its horn being sounded as many as 20 times. During that time, Dakota and Brandon remained inside the home, waiting to see if the truck would leave, and discussing the situation and what to do. Dakota did not want to fight, but felt that Mr Elijah did, and told Brandon that. Eventually, at Brandon’s suggestion, the brothers decided to both go outside for the purpose of having Brandon try to “talk it out”, and ask Mr Elijah and Mr Doxtator once again to leave.

• At some point, Dakota was made aware by Brandon and/or Mr Elijah that Mr Elijah and Mr Doxtator wanted gasoline or money for gasoline, but Dakota made it clear to Brandon that he should not be giving them either, (particularly since the gasoline belonged to the brothers’ father).

• When the brothers exited the home, Brandon approached the truck while Dakota held back in an area closer to the home, watching what was happening, and trying to listen to what was being said. In his words, he was looking out to “make sure nothing bad happened”, and so that he could maybe intervene as necessary if it did.

• At that point, Dakota observed Mr Elijah get out of the truck again, and run up to bring himself face to face with Brandon. Dakota says Mr Elijah began arguing with Brandon right away, and appeared ready to fight, with his chest out and his fists clenched, as Brandon began to back away. However, Dakota did not intervene until he saw Mr Elijah throw a punch at Brandon, which Brandon was able to avoid.

• Dakota then stepped in to separate Brandon and Mr Elijah, pushing them both back and away from each other, at which point Mr Elijah “swung” at but missed Dakota. Dakota once again then repeatedly told Mr Elijah that he should get back in his truck, get off the property, and leave the brothers alone. However, Mr Elijah continued to yell and swear, pushing at Dakota and threatening to fight and “kick [Dakota’s] ass”, as Dakota physically directed Mr Elijah back towards the truck by pushing Mr Elijah and grabbing his wrist. Throughout this further confrontation, Mr Doxtator once again had remained in the truck.

• Dakota succeeded in physically getting Mr Elijah back to the driver’s door of the truck, at which point Mr Elijah was calling to Mr Doxtator for assistance by saying “Help me” and “Let’s kick his ass.” Dakota remembers Mr Doxtator slowly opening the truck passenger door and getting out to stand beside the vehicle at that point, but does not recall Mr Doxtator saying anything at the time. Dakota looked at Mr Doxtator, and said “No, I’m going to put him in the truck and you guys are going to get out of here”.

• Dakota then tried to disengage by walking “sternly” back towards the house, and hoping Mr Elijah and Mr Doxtator would just leave. However, Mr Elijah continued to yell at Dakota, asking why he “thought he was so tough”, before then running towards Dakota, at which time Dakota knew there was going to be a fight. He turned to tell Brandon to go into the house, at which point he was punched in the back of his head by Mr Elijah. This was followed by further yelling, (with Mr Elijah indicating his desire to fight and Dakota emphasizing that he was not intimidated and that Mr Elijah was being ridiculous), before a physical fight then began in earnest.

• In particular, Dakota says Mr Elijah swung again at him again, but he was able to avoid the punch, grab Mr Elijah’s arm and put him into a “bit of a headlock”. Mr Elijah continued to flail and “swing back and forth” at him, trying his best to punch Dakota, and Dakota in turn punched Mr Elijah a couple of times while once again walking Mr Elijah back towards the truck and continuing to say that they should just “get off the property”. While this was happening, Mr Elijah repeatedly was yelling at Mr Doxtator to “get the bat”. Dakota could see that Mr Doxtator was still standing beside the open passenger door of the vehicle. He then heard Mr Doxtator “scrambling around in the truck”, before he then saw Mr Doxtator with a “regular” 3 foot aluminum baseball bat in his right hand, holding it off to his right side, facing down.

• Within five feet of almost making it back to the truck, and no more than “a second or two” after seeing Mr Doxtator with the bat in his hand, Dakota then received a blow to the head that caused him to remember nothing further until his next recollection of being walked towards and into the house by Brandon.

• Although Dakota was of the belief that he was hit by the baseball bat being wielded by Mr Doxtator, the parties have agreed, (as noted above), to proceed on the basis that Dakota’s loss of consciousness and other injuries actually were caused by a punch to the face by Mr Elijah, followed by Dakota hitting his head on the truck and gravel of the drive. In my view, that approach conforms to the evidence. In that regard, Dakota has no memory of seeing Mr Doxtator approach or swing the bat. Moreover, Dakota also says he was again walking Mr Elijah back to the driver’s door of the vehicle, and almost there, (with Mr Doxtator having remained on the far side of the vehicle near its passenger door), just before the blow that caused him to lose consciousness. In my view, that makes it very unlikely that Mr Doxtator would have been able to bridge the relevant distance, (getting around the vehicle to the location of Dakota and Mr Elijah), in the “1 or 2 seconds” between Dakota’s last sighting of Mr Doxtator and Dakota’s loss of consciousness.

• In the result, Dakota was not able to say how the altercation ended, but he was able to provide a detailed description of his resulting injuries, which resulted in his being taken by ambulance to hospital for treatment. His testimony in that regard was supplemented and confirmed by a number of photographs taken by the police during the course of their investigation, on the night of the incident.

Task

[15] My task is to determine an appropriate sentence for each offender, each of which has, to date, spent two days in actual pre-sentence custody in relation to the crimes that bring them before me.

Circumstances of the offenders

[16] The personal circumstances of Mr Doxtator were outlined in considerable detail in the pre-sentence report noted above. This was supplemented by Mr Doxtator’s criminal record, which also was filed as an exhibit.

[17] I have reviewed and considered all of that information, but note that his personal circumstances include the following:

• He is currently 27 years old, and of aboriginal descent.

• He was born in London but was raised both here and by the Oneida First Nation. Unfortunately, his childhood and upbringing were difficult and traumatic, for reasons set forth in the pre-sentence report that include a history of family violence, alcoholism, drug abuse and absenteeism. Both parents apparently engaged in violent behaviour, substance abuse and criminal conduct, and Mr Doxtator was exposed to various forms of child abuse. Mr Doxtator developed his own issues with substance abuse at an early age, and perhaps not surprisingly given his various challenges, his education suffered.

• Unfortunately, Mr Doxtator’s personal difficulties continued into his adult life, where he has been on the receiving end of domestic violence, as both he and his former spouse struggled with their own addiction problems, involving alcohol and drugs, which in turn resulted in custody issues relating to Mr Doxtator’s own two children.

• Mr Doxtator also has a criminal record, which details a number of 2006 youth court offences, as well as numerous adult offences in 2010 and in 2012. However, the offences are primarily of a property-related nature, with some corresponding problems in complying with legal process and consequences. None of the offences involves violence, or indicates an inclination towards violence.

• However, despite these many challenges and setbacks, Mr Doxtator is confirmed to have made many positive strides towards self-rehabilitation, and has a number of very positive support networks available to him, which he now seems to be using to the fullest extent possible. In that regard:

o He now enjoys a much more positive relationship with his parents and extended family, as well as a very supportive new partner or spouse, and a very valued relationship with his two sons.

o He has been forthcoming about his struggles with substance abuse, and has been actively addressing such concerns, both for himself and the sake of his children, (with custody issues providing a strong motivation for him in that regard). He has completed a number of substance abuse and residential cultural programs at a local healing lodge, and is receptive to further counselling. Although he commendably has held a number of sustained manual labour jobs in the past, he is also actively involved in efforts to upgrade his formal education, to supplement and expand his future employment opportunities.

o He has actively embraced his first nations culture, and has ended his contact with negative peer influences.

o By all accounts, he is both remorseful for his conduct that led to this proceeding, and highly motivated to put this incident behind him and move forward in positive ways.

[18] The personal circumstances of Mr Elijah were outlined in considerable detail in the thorough and admirable Gladue report, mentioned above. That was supplemented by Mr Elijah’s criminal record, which also was filed as an exhibit.

[19] I have reviewed and considered all of that information as well, but note that Mr Elijah’s personal circumstances include the following:

• He too is 27 years old, and is also of aboriginal descent. Although born in London, he too has strong lifelong ties to the Oneida First Nation, where he has spent much of his life.

• Unfortunately, his upbringing and childhood also have been marred by parental fighting, separation and abandonment, (by his mother). While he apparently and thankfully was not exposed to direct child abuse, he was exposed to alcoholism, (particularly on the part of his father), and racism.

• Mr Elijah nevertheless certainly has seen more than most people’s share of tragedy. In particular, in addition to the deaths of grandparents who seem to have been providing important substitute supports, Mr Elijah lost three uncles to separate alcohol-related car accidents, and another uncle to suicide (when that uncle shot himself). In addition to those deaths, Mr Elijah lost a former girlfriend and a sister in further separate and extremely tragic circumstances. In relation to his former girlfriend, Mr Elijah was present when the vehicle in which the couple were travelling was rear-ended by a drunk driver, resulting in his girlfriend’s death. The same accident left Mr Elijah with his own skull fracture and brain injury, which undoubtedly has compounded his difficulties and ability to cope. In relation to his sister, she froze to death when she apparently was abandoned by others outside the Oneida cultural centre in the dead of winter, struggling unsuccessfully to get inside. Many of these deaths came within a very short time of each other, which understandably has taken a severe toll on Mr Elijah’s emotional and mental health.

• Mr Elijah also has struggled with addictions, and drugs in particular, to the point where he was taking and pawning even the basic household items of his girlfriend and children to fund his habit.

• Mr Elijah also has a criminal record, but it is limited to a relatively small number of apparently related and modest offences in 2009. Apart from an obstruction offence, his previous crimes also are property-related, and involved no violence or indications of an inclination towards violence.

• Mr Elijah nevertheless also seems to have turned a corner, making great strides in terms of self-rehabilitation. In that regard:

o He now has a very firm and supportive partner and spouse, who seems very determined to help keep Mr Elijah on the straight and narrow – having given something of an ultimatum that, unless Mr Elijah continues on his productive and constructive path, the relationship will be over, (all of which is providing him with a very strong incentive to keep up his good behaviour). They share three children, (including two children from his partner’s former relationship, but whom Mr Elijah apparently has embraced as his own). He also now regularly sees another child of his own from a previous relationship.

o He has taken on regular and productive employment, re-treading tires, that keeps him regularly and gainfully occupied Monday through Friday.

o He has taken advantage of various programs designed to help him with his grief and substance abuse issues, including a number of programs offered to and by the First Nations Community, (including healing lodges), all of which seems consistent with his other very active efforts to embrace his First Nations heritage. Such steps also include Mr Elijah’s active and ongoing participation in a methadone treatment program to transition himself away from his addiction to drugs.

o By all accounts, Mr Elijah is “staying clean”, working hard, devoting himself to his family and children, and is much, much happier and healthier. He seems genuinely committed to change.

[20] Again, each offender has spent two days in actual pre-sentence custody for the offences that bring them before me.

Position of the crown

[21] In relation to Mr Doxtator, the Crown submits, (by way of what was largely a joint submission), that having regard to all the circumstances, an appropriate disposition would be suspended sentence and a period of probation, pursuant to s.731(1) of the Criminal Code, coupled with a number of ancillary orders.

[22] In particular, the Crown submits that, beyond a suspended sentence, I should order:

• a period of probation in the range of 18 to 24 months, with terms including a non-contact order in relation to the Youngs, and required participation in any counselling programs recommended by the probation officer;

• an order compelling Mr Doxtator’s provision of the number of samples of bodily substances reasonably required for forensic DNA analysis, pursuant to ss.487.04 and 487.051(3); and

• a mandatory s.109 weapons prohibition order, for a suggested period of 10 years.

[23] In relation to Mr Elijah, the Crown submits that, having regard to all the circumstances, an appropriate disposition would be imposition of a custodial sentence of 60-90 days, followed by a similar period of probation in the range of 18-24 months, on similar terms as those sought in relation to Mr Doxtator, and buttressed by ancillary orders similar to those sought in relation to Mr Doxtator.

Position of the defence

[24] Neither defence counsel took issue with the ancillary orders sought by the Crown, or with the suggested terms of probation.

[25] On behalf of Mr Doxtator, defence counsel largely supported the submissions of Crown counsel, by way of a joint submission, but suggested that a more appropriate period of probation would be 15 months.

[26] On behalf of Mr Elijah, defence counsel did not take issue with many of the Crown’s submissions, (including the suggestion that a lengthy period of probation was required), but disagreed with the Crown’s submission that a custodial sentence was appropriate. In the alternative, it was submitted that any custodial sentence be served by way of an intermittent sentence, so as not to interfere with Mr Elijah’s ongoing employment and support of his family, which form a substantial part of his ongoing self-rehabilitation efforts.

Sentencing objectives

[27] As emphasized by s.718 of the Criminal Code, 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 that have one or more of the following objectives:

a. Denunciation of unlawful conduct;

b. Deterring the offender and others from committing offences;

c. Separation of offenders from society, where necessary;

d. Assisting in the rehabilitation of offenders;

e. Providing reparations for any harm done to victims or the community; and

f. Promotion of a sense of responsibility in offenders, and their acknowledgment of the harm done to victims and the community by their conduct.

[28] Pursuant to s.718.1 of the Criminal Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.

[29] Pursuant s.718.2 of the Criminal Code, I note that, amongst other considerations, the court is obliged to take into account that:

i. Sentence should be reduced or increased to account for any mitigating or aggravating circumstances relating to the offence or the offender;

ii. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

iii. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

iv. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[30] The sentencing objectives outlined above are applicable in relation to all convictions, and I accordingly have them in mind throughout the process of arriving at just sentences for Mr Doxtator and Mr Elijah, in relation to the convictions now before me.

[31] However, the legislation provides further guidance as to how these general sentencing objectives should be applied, including provisions whereby, pursuant to subsection 718.2(a)(iii.1) of the Criminal Code, aggravating circumstances are deemed to include evidence that the offence had a significant impact on the victim, considering his or her age and other personal circumstances, including his or her health and financial situation.

[32] Beyond such legislative directions, I have regard to judicial authority offering further guidance on how sentencing generally should be approached in relation to such situations.

[33] That includes judicial authority expanding on the implications of s.718.2(e), and the need to pay “particular attention to the circumstances of aboriginal offenders”. Such matters are often referred to informally as “Gladue” considerations, as they were canvassed by the Supreme Court of Canada in the seminal case of R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688.

[34] In that regard, I have prior familiarity not only with the Gladue decision itself, but numerous other cases which have reiterated, refined and/or applied such Gladue principles and considerations over the ensuing years. These include the following: R. v. Wells, [2001] 1 S.C.R. 207; R. v. J.R., 2006 40236 (ON SC), [2006] O.J. No. 4777 (S.C.J.), affirmed 2008 ONCA 200, [2008] O.J. No. 1054 (C.A.), application for leave dismissed without reasons, [2008] S.C.C.A. No. 189; R. v. Collins (2011), 2011 ONCA 182, 104 O.R. (3d) 241 (C.A.); R. v. Berens (2011), 2011 MBQB 255, 271 Man.R. (2d) 297 (Q.B.); R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. D.B., [2013] O.J. No. 5163 (C.A.); and R. v. G.H.E., [2014] O.J. No. 3047 (S.C.J.).

[35] Those authorities suggest general Gladue principles that include the following:

• Whenever the sentencing choices available are narrowed to one involving incarceration, a sentencing judge is obliged to consider the unique systemic or background factors that have contributed to the difficulties faced by aboriginal people in both the criminal justice system and throughout society at large, and the circumstances which may have played a part in bringing a particular aboriginal offender before the courts. This reflects, in part, a recognition that s.718.2(e) has a particular remedial purpose for aboriginal offenders, as it was intended to address, in part, the serious problem of over-incarceration of aboriginal offenders in Canadian penal institutions.

• The sentencing judge also should recognize that most traditional aboriginal conceptions of sentencing hold restorative justice to be the primary objective, and consider the types of practicable procedures and sanctions which may be appropriate in the offender’s circumstances because of his or her particular aboriginal heritage.

• However, the application of Gladue principles does not necessarily mandate a different sentencing result, (as opposed to use of a modified sentencing methodology). In particular, it does not mean that a sentence will automatically be reduced. Nor does it alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender, with due regard to other mandated objectives and principles of sentencing. Where the crime involved is a serious and/or violent one, Gladue considerations certainly are not ignored, but primacy may still be given to the principles of denunciation, deterrence and/or separation from society if and as necessary, (rather than giving greater weight to the principles of restorative justice). To the extent generalizations may be made, (and without rising to the level of a principle of universal application), the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders, given that, in such circumstances, the goals of denunciation and deterrence are accorded increasing significance.

• While an aboriginal offender need not establish a direct causal link between his or her circumstances and an offence, the Gladue factors do need to be tied in some way to the offender and the offence. This is because the rationale for Gladue considerations lies in recognition that many aboriginal offenders come from situations of social and economic deprivation with few opportunities for positive development, and these circumstances may diminish their moral culpability. The rationale may be undermined or lacking where the evidence suggests that an offender has little or no knowledge of or participation in his or her aboriginal culture. See R. v. D.B., [2013] O.J. No. 5163 (C.A.).

[36] Bearing in mind the general sentencing objectives and guidelines outlined above, I turn next to a consideration of possible aggravating and mitigating factors.

Aggravating factors

[37] In my view, this case presents a number of aggravating circumstances, (some of which are applicable only to Mr Elijah, or more applicable to him than Mr Doxtator, as I will indicate), and include the following:

• First, the crimes resulted from both offenders entering upon property that was a private residence, and remaining there when it was made very clear to them that they were both unwelcome, and that they repeatedly were being told to leave. Our law generally underscores the sanctity of private homes, where residents such as Dakota Young and Brandon Young were entitled to feel safe and secure, and the tenacious invasion of such sanctity is an aggravating consideration. Having said that, I think it is less so in relation to Mr Doxtator, as he was not the driver of the vehicle in which he arrived at the apparently somewhat rural property, and short of Mr Doxtator getting out of the vehicle and walking a considerable distance away, in the middle of the night, it was Mr Elijah who effectively had a large measure of control over whether and when the two men would leave the property as requested.

• Second, there are the criminal records of each accused, which are a factor. Having said that, the record of Mr Elijah is fairly modest, and although the record of Mr Doxtator is more lengthy, the criminal records of both offenders reflect no prior history of violence or inclination towards violence.

• Third, and perhaps foremost of the aggravating factors, I think, is the impact which the offender’s conduct has had on the life of Dakota Young. That impact, deemed to be an aggravating factor pursuant to s.718.2(a)(iii.1) of the Code, was evident in Dakota’s testimony at trial, (supplemented by photographs of his injuries, taken by the police at the hospital on the night of the incident), and was addressed in more compelling detail in Dakota’s Victim Impact Statement, (which he apparently felt unable to read out loud during the course of sentencing submissions). In the course of his testimony, Dakota indicated that his resulting injuries included not only a loss of consciousness, but also a “big gouge” to his face running from above his left eyebrow down the centre and bridge of his nose, (requiring 7-8 stitches), as well as cut and very swollen lips, (requiring 12 stitches). He still has noticeable scarring in the relevant areas, and a bulge in his lip. Again, Dakota’s testimony was supplemented and revised, to some extent, by his victim impact statement. Amongst other things, that statement indicates the following:

o Dakota now confirms that he required 7 stitches to his eyebrow, 5 stitches to his nose, and 10 stiches on his lip.

o In addition to those initial facial injuries, Dakota says he also sustained “goose eggs and bruises” all over his head, shoulders and back.

o From the time of the incident until the present, he has continued to experience frequent migraine headaches.

o He is also very sensitive about his facial scarring, which has been and continues to be a very humiliating, devastating and permanent reminder of the incident, not only when he looks in the mirror but as others continue to comment on the scars. For months after the incident, he found it difficult to even look in the mirror, and he largely remained at home in darkness, upset, without venturing outside to go to school, or to visit family and friends. Indeed, he felt so embarrassed by his injuries that he was unable to go back to the hospital to have his stitches removed professionally.

o Dakota’s feelings of anger and humiliation are compounded by his family and others continuing to bring up the incident, and by his own memories whenever he visits his parent’s home and the scene of what happened.

o The deep-seated nature of his trauma is underscored by the fact that he apparently now experiences night terrors and bad dreams, which sometimes requires his girlfriend to wake him as he is “kicking, punching and crying” in his sleep.

• The impact of the offenders’ conduct on Dakota Young unfortunately therefore seems destined to continue afflicting him for the foreseeable future.

• I think it fair to say that the impact on Mr Young was attributable in much larger measure to the conduct of Mr Elijah, rather than Mr Doxtator, insofar as it was Mr Elijah whose conduct on the night in question was much more confrontational and aggressive, and it was Mr Elijah’s conduct that resulted in the infliction of Dakota Young’s physical injuries. However, Mr Doxtator also bears a measure of responsibility for that conduct, particularly insofar as his taking up the baseball bat in a visible and menacing way clearly had an impact on Dakota, and contributed to the feelings of trauma and upset that he has experienced. In that regard, I note, for example, that Dakota was still under the impression at trial that he had been struck a number of times with that baseball bat. That may not have happened, but Mr Doxtator’s conduct contributed to Dakota’s upset and trauma by providing the basis for his beliefs and fears in that regard.

Mitigating factors

[38] In this case, there nevertheless also are a number of important potentially mitigating factors, many of which have been emphasized by counsel and the aforesaid pre-sentence report for Mr Doxtator and the Gladue report relating to Mr Elijah. They include the following:

• First and foremost, perhaps, are the guilty pleas the both offenders entered in relation to their respective crimes, and the contrition, remorse and acceptance of responsibility reflected in those guilty pleas. Although the pleas were entered only after the commencement of trial, I agree with counsel submissions that their timing should not undermine their weight. In particular, it was the nature of the evidence elicited at trial which justified, in the end, the Crown’s suggestion and support of pleas to offences less serious than the position taken by the Crown when the matter proceeded to trial. In other words, a degree of testimony was required in order to establish, to the satisfaction of all concerned, that the offences of Mr Doxtator and Mr Elijah involved conduct less serious than what originally had been alleged. In my view, both Mr Doxtator and Mr Elijah merit considerable credit for their guilty pleas, which effectively were made as soon as possible after the necessary measure of trial proceedings noted above. By doing so, they also obviated the need for further cross-examination of Dakota Young, and the need for Brandon Young to testify at all. (Crown submissions indicated and emphasized that Brandon was experiencing considerable anxiety about that, and that testifying would have been a particular ordeal for him given his intellectual immaturity.)

• Second, while both Mr Doxtator and Mr Elijah both have criminal records, there is as I have said no prior indication of violence or violent tendencies, and their post offence conduct indicates no further difficulties with the law.

• Third, as noted above, and as described in much greater detail in the relevant pre-sentence and Gladue reports, both offenders already have made considerable progress towards self-rehabilitation, including commendable steps to address and rise above previous addictive behaviours, further their education and/or productive employment, embrace their aboriginal heritage, and make the most of their very supportive community and family connections.

• Fourth, as noted above, both offenders have an aboriginal heritage, with which they are connected or connecting, and the extremely sad familial and personal histories of both men, described in the pre-sentence and Gladue reports, more than satisfies me that they are individuals who have been affected by the systemic factors discussed in cases such as the Gladue, Wells and Ipeelee decisions, noted above. To the extent possible, I therefore am inclined to have very considerable regard to such Gladue considerations in this case, in arriving at appropriate sentences for Mr Doxtator and Mr Elijah.

Further analysis

[39] With the above in mind, I now turn to determination and imposition of appropriate sentences for the offences now before the court.

[40] In that regard, in addition to the matters outlined above, I bear in mind the sentencing objective, noted above, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[41] However, all counsel candidly indicated that they were unable to find any precedents involving fact situations similar or readily comparable to the circumstances of this case, and none therefore were provided.

[42] Moreover, the reality, of course, is that no two cases are exactly alike in any event, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 92:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[43] Turning first to the case of Mr Doxtator, on balance, and having regard to all the circumstances outlined above, I think the joint submission of Crown and defence counsel, supporting imposition of a suspended sentence pursuant to s.731 of the Criminal Code and a period of probation, would not be inappropriate or bring the administration of justice into disrepute.

[44] Certainly, what Mr Doxtator did on the night in question, in getting out of the truck and retrieving or brandishing the baseball bat in a manner Dakota Young understandably viewed as threatening, in no way can be viewed as “commendable”.

[45] However, Mr Doxtator did nothing more than that, and it seems to me that he seemed somewhat reluctant to involve himself in the escalating confrontation at all, and therefore exercised restraint until such time as his friend Mr Elijah appeared to be at the submissive and receiving end of physical restraint and blows being inflicted by Dakota Young, and was specifically crying out for help.

[46] This does not excuse his behaviour, but it does help to explain it. And that explanation, coupled with the mitigating factors I have outlined, and the fact that the aggravating factors have less application and force in relation to Mr Doxtator, support my view that the suggested disposition is acceptable.

[47] As to the length of probation, I think a period of 18 months, with the suggested terms, would be appropriate. Mr Doxtator has made commendable progress towards self-rehabilitation, and I think compliance with the suggested terms of a more extended period of probation, is likely to support such efforts.

[48] Turning to the case of Mr Elijah, the nature of his conduct is obviously much more serious, and has produced far more serious consequences.

[49] I am very sympathetic with the challenges he has faced, and have considerable regard for the many commendable efforts he has made to put his life on a more structured and productive path, all of which should not be substantially undermined by imposition of a sentence that may be counter-productive in the longer term, to the detriment of Mr Elijah and his family, but also the broader community.

[50] Having said that, the aggression displayed by Mr Elijah on the night in question may have its explanations, but it was disturbing, and it seems to me that the nature of that conduct, akin to a home invasion, and the clearly serious and long-lasting physical and emotional impact on Dakota Young, cannot pass without the imposition of some form of custodial sentence to underscore the principles of denunciation, as well as general and specific deterrence.

[51] In particular, letting such conduct and consequences pass without the imposition of some measure of meaningful custodial sentence seems, to me, likely to send a very wrong message to Mr Elijah, the victim Dakota Young, and the wider community, that the court does not think what happened was a serious matter.

[52] Having regard to all the circumstances, I think Mr Elijah’s sentence should include a custodial sentence of 45 days, to be followed by an 18 month period of probation similar to that of Mr Doxtator.

[53] However, against that sentence, Mr Elijah should receive credit for the two days he spent in pre-sentence custody, which I am also willing to credit on the basis of 1.5 days for each actual day in custody, pursuant to the provisions of s.719(3.1) of the Criminal Code, for a total credit of 3 days, thus requiring Mr Elijah to spend a further 42 days in custody.

[54] Moreover, in order to minimize the disruptions to Mr Elijah’s employment and corresponding implications for him and his family, I also am willing to direct his custodial sentence be served on an intermittent basis, pursuant to the provisions of s.732 of the Criminal Code. In particular, I direct that his custodial sentence shall be served intermittently on Saturdays and Sundays, so as not to interfere with his current employment that takes place from Monday to Friday of each week.

[55] Terms of each offender’s probation shall be set out as I will indicate during the formal imposition of sentence.

[56] As for the various further orders requested by the Crown, and not opposed by the defence, in my view they not only are appropriate but in some respects mandatory, in the circumstances. In particular:

• The DNA sample order requested by the Crown was not opposed by the defence, in relation to either offender, but I independently think such an order is appropriate in relation to both men. Each of their offences fall within the s.487.04 definition of a “secondary designated offence”. (The offence of “assault” is specifically and expressly included in that definition, and Mr Doxtator’s offence falls within the more generic and inclusive definition of an offence that may be prosecuted by way of indictment for which the maximum punishment is imprisonment for five years or more.) Moreover, given the violence and overt or inherent threat of violence exhibited during the incident by the behaviour of each accused, and the minimal impact the taking of DNA samples would have on each offender’s privacy and security, I also think a DNA sample order in Form 5.03 is justified in relation to each of the offenders pursuant to s.487.051(3).

• A mandatory weapons prohibition order is required in relation to each offender, pursuant to s.109(1)(a) of the Code. Having regard to the circumstances, I think that prohibition should be for a period of 10 years.

• The terms of probation for each accused will include the requested order directing that each offender not contact the Youngs. However, I also think it appropriate, in the circumstances, to impose an additional non-communication order in relation to Mr Elijah, pursuant to s.743.21(1) of the Criminal Code, making it clear that Mr Elijah also is to have no contact with the Youngs during the custodial period of his sentence. Both offenders need all the incentive this court can provide to stay away from the Youngs and leave them alone, and the Youngs should have the additional comfort of such an order and such terms of probation.

Formal imposition of sentence

[57] Mr Doxtator and Mr Elijah, I am going to ask you to stand up please.

[58] For the reasons I have outlined, Mr Doxtator, I am sentencing you to a suspended sentence, with an 18 month period of probation, with terms that will be similar to those imposed in relation to Mr Elijah, and which I therefore will specify in relation to both of you in a moment.

[59] Mr Elijah, for the reasons I have outlined, I am imposing a custodial sentence of 45 days, albeit with credit for your 2 days of pre-sentence custody credited on a “1.5 for 1” day basis, thus requiring you to serve another 42 days in custody. However, that custodial sentence is to be served intermittently on Saturdays and Sundays, so as not to interfered with your employment and ongoing efforts at self-rehabilitation.

[60] Your custodial sentence formally will commence today, and thereafter be served from 7am on Saturdays to 7pm on Sundays.

[61] Terms and conditions of your respective 18 months of probation, applicable to each of you, shall include the following:

• To keep the peace and be of good behavior;

• To appear before the court when required to do so by the court;

• To notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;

• To refrain from any direct or indirect contact, communication or association with either Dakota or Brandon Young, or knowingly come within 200 meters of either brother’s place of residence, education or employment;

• To attend and actively participate in any and all programs of rehabilitation recommended and directed by your respective probation officers, which may include, but which shall not be limited to, the programs offered by and/or to the aboriginal community, as described in the Gladue report prepared in relation to Mr Elijah.

[62] Mr Elijah’s period of probation also shall commence immediately, (despite the additional requirements of his intermittent custodial sentence), and each accused shall report to his probation officer within 72 hours.

[63] There will, as well, be further ancillary sentencing orders made in relation to each of you, whereby:

• Pursuant to ss.487.04 and 487.051(3) of the Code, within 72 hours, you each will report as necessary to provide the number of samples of bodily substances that is reasonably required for forensic DNA analysis; and

• Pursuant to s.109(1)(a) of the Code, you each will be subject to a mandatory weapons prohibition order, for a period of 10 years.

[64] Mr Elijah, you will be subject to a further ancillary order, pursuant to s.743.21(1) of the Criminal Code, whereby you shall refrain from any direct or indirect contact or communication with either Dakota or Brandon Young during the custodial period of your sentence.

[65] Gentlemen – what happened on the night that brings you here was unfortunate and foolish. You could and should have left the property when you were asked to leave.

[66] Instead, a night of stupid and shameful conduct has saddled you with a further criminal history and sentence. It’s also left your victim with consequences that he is going to be dealing with long after you have served your respective sentences.

[67] You need to seriously understand that, were it not for the mitigating factors I’ve described, you would have received a much more serious sentence for what you have done.

[68] However, there’s a lot before me to indicate that you’ve both turned something of a corner, and are well on the road to making something more of your lives.

[69] For the sake of you and your families - - Stay on that road. You do not want to be back here again.

[70] For now, I will endorse the indictment and the warrants of committal accordingly.

“Mr. Justice I.F. Leach”

JUSTICE I. F. LEACH

Released: (Orally) June 30, 2015