ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-1-0000195
DATE: 20151001

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAMIE SCHELL

Stephen Byrne, for the Crown

Vivian Ropchan, for the Jamie Schell

HEARD: August 18, 2015

r.f. goldstein j.

1. Overview

[1] On October 11, 2010 Jamie Schell robbed and assaulted O.N.. On December 8, 2014 a jury convicted him of robbery and assault causing bodily harm. He now comes before the Court for sentencing. I find that the appropriate sentence is 18 months. With credit for house arrest and pre-sentence custody, the actual sentence will be 90 days to be served intermittently on weekends. He will also be subject to a probation order for three years, a DNA order, and an order under s. 109(2) Criminal Code for ten years.

2. The Facts

(a) Circumstances of the offence

[2] On Saturday October 11, 2010, at about 6:20 or 6:30 in the morning, O.N. and her friend got on the subway at the Bay Street station. They had been out the night before and spent the night at a friend’s place downtown. Ms. O.N. took a train westbound while her friend went eastbound. Ms. O.N. took the subway to the Dundas West station, where, according to TTC video footage, she got off at about 6:48 am. Video footage shows Mr. Schell exiting a short time later.

[3] Ms. O.N. walked from the subway station towards her home on Glenlake Street. Her home was a 5-7 minute walk away. Mr. Schell followed her off the subway and then followed behind her as she walked along Dundas Street and turned onto Glenlake Street. Ms. O.N. first noticed Mr. Schell, who she did not know, when he was on the same train but paid him little attention. As she walked toward home, she was on the phone with the same friend. She mentioned on the phone that someone was following her.

[4] When Ms. O.N. got to the porch of her home, she heard someone running behind her. She turned around but did not see him. She was punched in the face. From what she remembered she was punched in the face a couple of times and then dragged down the stairs of the front porch. She ended up on the ground. She did not remember how many times she was punched. There were no weapons used. She remembered the attacker’s hand going underneath her skirt and touching the area around her crotch briefly. She testified that the entire attack was really fast. It lasted minutes, not hours. Her purse was taken from her during the attack and things were taken from her purse, including her make-up bag, camera, wallet, and perfume bottle.

(b) Circumstances of the offender

[5] A great deal of information was placed before the Court regarding Mr. Schell. I have reviewed a “Gladue” report dated April 2, 2015 prepared by Jeffrey McNeil of Aboriginal Legal Services Toronto; and a psychological counselling report dated August 11, 2015 from the Centre for Psychological Assessment, Treatment, and Education.

[6] Mr. Schell is a 40 year-old aboriginal person who is what is commonly referred to as a “status Indian”. He is a member of the Wasauksing First Nation. According to the “Gladue” report, Mr. Schell described a very unstable and difficult childhood, including incidents of sexual abuse and long-term alcoholism by family members. His father was an alcoholic and a residential schools survivor. Mr. Schell lived with his mother, then with his father when his mother had a new relationship, and then with his aunt and uncle when his father in turn began a new relationship. He described beatings by his alcoholic father and sexual abuse by an older step-sister. He became a ward of the state and was taken into foster care. He described being a victim of further sexual abuse and beatings while in foster care. He did not have a strong connection to his First Nations heritage during his early years, although he has developed one in the last ten years.

[7] Mr. Schell did not complete high school. He experienced periods of homelessness, drug addiction, and alcoholism. Although he mentioned a criminal record in the Gladue report, the Crown has not alleged a record – other than breaches arising from these charges – and has taken the position that Mr. Schell can be treated as a first offender. Mr. Schell did indicate in the psychological report that he was charged on eight occasions but has not been convicted of an offence. I gather that Mr. Schell was probably arrested a number of times for petty incidents. I agree with the Crown that he can be treated as a first offender for the purposes of this sentencing, as the breaches all post-date this offence.

[8] Mr. Schell completed a residential treatment program in 2005. He indicated that quit drinking alcohol at the age of 32. One of the psychological tests suggested that his alcohol dependency is low. The material I have reviewed indicates that his employment history has been spotty, although Mr. Schell indicated to me in Court that he has always worked and always supported himself. I infer that he has consistently been employed but has bounced around from job to job. His education history has also been spotty. He has studied carpentry and social work. It seems that he finally managed to find himself after taking a culinary arts program and working in the catering industry, which he has said he enjoys very much. He was working as a chef at the time of this offence. He was on a house arrest bail after his arrest. Regrettably, he breached that bail due to working late in the culinary program’s kitchen, and was arrested. That ended his ability to work while on bail. He is now receiving social assistance. Mr. Schell indicated that he is anxious to get back to work as a chef, and I believe him. I agree with the evaluation of the psychological counselling report that his plan to get back into the food industry is realistic and achievable.

[9] Mr. Schell has a son from a previous relationship. It appears that he took steps to deal with his alcohol and substance abuse problems so that he could rebuild his relationship with his son. He has indicated that he has been alcohol and drug-free since the age of 32. He has lived with an aunt and uncle while on house arrest, but currently lives with Charlene Gerrard, her two children, and Ms. Gerrard’s father. It appears to be a stable, healthy relationship. Mr. Schell appears to be involved in the lives of Ms. Gerrard’s children. Ms. Gerrard is supportive and plans to continue the relationship. They share First Nations heritage.

[10] Mr. Schell performed 10 different psychological tests during his evaluation. Detailed findings were presented in the report from the Centre for Psychological Assessment, Treatment, and Education. I will summarize some of the key results:

• Mr. Schell has a minimal level of depression with some experience of failure, irritability, and loss of pleasure;

• As I noted, the tests suggest that he has a low level of alcohol dependency and is not a current drug abuser;

• Mr. Schell does not share most of the traits or behaviours associated with psychopathology;

• Mr. Schell’s intellectual functioning is considered to be average;

• The IORNS test (Inventory of Offender’s Risk, Needs, and Strengths) indicates that Mr. Schell is at a high risk of recidivism;

• On the other hand, two other tests that measure actuarial risk and actual risk of future criminal and/or violent activity indicate that he is at a low risk for future criminal activity and at a low to moderate risk for future violent behaviour.

[11] Both the Gladue report and the report from the Centre for Pscyhological Assessment, Treatment, and Education believe that Mr. Schell can be safely managed in the community.

[12] Mr. Schell also suffers from Temporal Mandibular Jaw Disorder, which causes him pain and headaches.

[13] After observing Mr. Schell on the stand, and hearing him I do believe that he is sincere about wanting to get his life back on track and rebuild his relationship with his son. Despite the IORNS test result, Mr. Schell’s past history as well as two other tests do not does not indicate significant prospects for further criminal or violent behaviour.

[14] This is a case of a robbery and violent assault carried out by a stranger against a small, vulnerable woman walking alone on her own street. This kind of crime is the sort that people living in crowded urban areas fear most, and with good reason. The impact on the community cannot be underestimated. Violent, visible crime creates a climate of fear and suspicion. It causes individuals, and especially women, to curtail normal lawful behaviour. In this case, that has been exactly the effect on Ms. O.N.. In addition to painful physical injuries, it is fair to say she was traumatized. She has low levels of trust and no longer feels secure in our city. She moved from her neighbourhood. She has been prescribed anti-depressant medication. Although she has recovered physically, it is doubtful, and extremely tragic, that she will ever recover psychologically.

3. Legal Parameters

[15] Robbery carries a potential life sentence. It is a serious personal injury offence and a conditional sentence is not available: s. 742.1 of the Criminal Code. See also: R. v. Lebar (2010), 2010 ONCA 220, 101 O.R. (3d) 263 (C.A.).

[16] Mr. Byrne and Ms. Ropchan are in agreement that one of the charges should be stayed pursuant to the rule in R. v. Kinapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. The assault causing bodily harm charge is stayed.

4. Positions of the Crown and Defense

[17] Mr. Byrne, for the Crown, submits that Mr. Schell should serve a sentence in the range of 18-24 months in the reformatory, with probation for three years. He acknowledges that Mr. Schell’s status as an aboriginal offender requires the Court to take that into account, but given the violent nature of the offence those circumstances take on less importance.

[18] Ms. Ropchan, for Mr. Schell, argues that Mr. Schell should not be re-incarcerated. She says that he is entitled to 2:1 credit for the 12 days he spent in custody. She also says that he should receive credit for the 3 ½ years of house arrest. Her view is that a non-custodial sentence, combined with probation, is an appropriate disposition.

4. Mitigating and Aggravating Factors

[19] I agree with the Crown’s position that the key aggravating factor is the brutal and random nature of the attack. The robbery was carried out with gratuitous violence. Ms. O.N. was assaulted, punched in the face, and her possessions taken. Mr. Schell fled with her purse and left her injured and lying on the ground. If his goal was simply to rob her for fleeting financial gain, there was no need to use such gratuitous violence. Ms. O.N. is a small woman, she was alone, and she easily could have been overpowered if she had chosen to resist a demand. I am not suggesting that there are “good” robberies and “bad” robberies – all are bad – I am simply saying that in the context of the goal of this robbery the brutality and violence was entirely gratuitous. I find that to be a serious aggravating factor.

[20] Ms. O.N. testified that during the course of the assault Mr. Schell’s hand touched her crotch area under her skirt. She said that this happened during the course of the assault, which was very quick and very violent. The Crown’s position is that this touching constituted a sexual assault and is therefore an aggravating factor.

[21] The Crown must prove aggravating factors beyond a reasonable doubt: Criminal Code s. 724(3)(e). In this case, I must be satisfied that Mr. Schell touched Ms. O.N. during the course of the assault, and that the touch violated her sexual integrity.

[22] I found Ms. O.N. to be an entirely credible witness. It was obvious that she did not lie or exaggerate. Any errors she made were honest mistakes of fact based on her lack of opportunity to observe or the passage of time. I believe her when she says that Mr. Schell touched her crotch area. Since the sexual touching occurred during the course of the assault, Mr. Schell is certainly open to liability for it. I agree with Crown counsel that it therefore constitutes an aggravating factor.

[23] That said, I have some doubts about whether Mr. Schell actually intended to violate Ms. O.N.’s sexual integrity. I base those doubts on the speed of the assault and Ms. O.N.’s obvious (and understandable) disorientation. Of course, where the results of the assault are reasonably foreseeable, intentionality is irrelevant to liability. I find that it was reasonably foreseeable that during the course of a violent and brutal assault like this that the perpetrator could reasonably foresee that touching in a sexual area of the victim’s body could occur.

[24] I do, however, also agree with the Crown, that under the circumstances the sexual touching ought not to have an impact on the overall sentence.

[25] It is also aggravating that Mr. Schell breached his bail conditions while this case wound its way through the courts. Of course, he has already been punished for that (and required to be under house arrest) and it plays no role in terms of the sentencing process, but I am aware of it.

[26] The chief mitigating factor here is Mr. Schell’s crime-free life up to this point. He comes to court as a first offender, which is in some ways remarkable considering that he spent a considerable period of time as an addicted indigent person. Most people who live that way fall into petty crime and accumulate convictions, but it appears that Mr. Schell, for whatever reason, did not.

[27] I also find it mitigating that Mr. Schell has settled into a solid relationship with a supportive partner. A further mitigating factor is the difficult life he has had, which is detailed in the Gladue report. I agree that systemic factors affecting the First Nations communities in this country, including the toxic effect of residential schools (his father was an alcoholic and residential schools survivor) and a legacy of discrimination and racism, has played a role in Mr. Schell’s life. For reasons that I will set out below, I am more dubious that there is a connection to this crime.

[28] Mr. Schell was asked if he had anything to say to the Court. He did not apologize. That is not surprising, given that he testified before the jury that he did not commit the crime. I obviously do not find it aggravating that he did not apologize. That said, Mr. Schell, to his credit, did indicate that he wishes to get his life back on track, rebuild his relationship with his son, and move forward with Ms. Gerrard, his partner. I do believe him.

6. Principles of Sentencing

[29] The purposes and principles of sentencing are set out in s. 718, 718.1, and 718.2 of the Criminal Code and there is no need to repeat them here.

[30] I must also pay particular attention to the circumstances of Mr. Schell, an aboriginal offender: Criminal Code s. 718.2(e). See also R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688. The Supreme Court of Canada has also relatively recently revisited the principles set out in Gladue in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. The Court summarized the Gladue principles, which I will briefly summarize here:

Subsection 718.2(e) of the Code is a remedial provision that requires the justice system to deal with the over-representation of First Nations people in Canadian prisons. That, in turn, requires sentencing judges to pay particular attention to their unique circumstances, which I summarize here:

• sentencing judges are to pay particular attention to restorative sentencing principles;

• sentencing judges are required to use a method of analysis in determining a fit sentence for First Nations offenders that differs from the circumstance of the wider community;

• sentencing judges must consider the unique systemic background factors particular to First Nations offenders as well as the types of sentencing procedures that may be appropriate to a First Nations offender.

7. Ancillary Orders

[31] Robbery is a primary designated offence and there will, as such, be an order taking a sample of Mr. Schell’s DNA. There will also be a s. 109 order for 10 years and a firearms prohibition for life.

8. Final Decision

[32] This is a tragic case. A young woman been physically and psychologically damaged through the callous and brutal actions of Mr. Schell. Also tragically, it appears that Mr. Schell’s life was truly on track when he committed this offence. I truly do not understand the motivation behind what was clearly a crime of opportunity. I can speculate that Mr. Schell was angry about something unrelated – he seems to have had some anger and was arriving home after a long night of work – and took it out on Ms. O.N.. That, of course, is unknowable.

[33] Mr. Schell is a First Nations offender and, as I mentioned, I must take that into account not only in determining a fit sentence, but also in terms of the analysis that I must perform. I am aware from my review of the Gladue report that the well-known problems of alcoholism, discrimination, and residential schools have played a most unfortunate role in Ms. Schell’s upbringing. These issues obviously affected him, and clearly played a key role in his early, aimless years of drug dependency and alcoholism. By 2010, however, he seems to have been on track and his unfortunate background appears to be somewhat disconnected from the offence. If Mr. Schell had committed this crime during his aimless years, I would be inclined to find that the factors mentioned at paragraphs 64-67 in Ipeelee played a role. The distance, however, makes proposition dubious although it cannot be discounted.

[34] In Ipeelee, the Court took on the notion that s. 718.2(e) of the Criminal Code is simply a form of race-based sentencing discount. At the risk of simplifying the nuanced and complex analysis in this part of Ipeelee, the Supreme Court essentially resolved the question by adopting the following comment from the Manitoba Court of Appeal in R. v. Vermette, 2001 MBCA 64, 156 Man. R. (2d) 120 at para. 39 of that case (para. 73 of Ipeelee):

The section does not mandate better treatment for aboriginal offenders than non-aboriginal offenders. It is simply a recognition that the sentence must be individualized and that there are serious social problems with respect to aboriginals that require more creative and innovative solutions. This is not reverse discrimination. It is an acknowledgment that to achieve real equality, sometimes different people must be treated differently.

[35] The Court later stated the following at paras. 75 and 79 of Ipeelee:

Section 718.2(e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has been, and continues to be, the fundamental duty of a sentencing judge…

No two offenders will come before the courts with the same background and experiences, having committed the same crime in the exact same circumstances. Section 718.2(b) simply requires that any disparity between sanctions for different offenders be justified. To the extent that Gladue will lead to different sanctions for Aboriginal offenders, those sanctions will be justified based on their unique circumstances - circumstances which are rationally related to the sentencing process. Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e).

[36] I turn now to the difficult task of crafting an appropriate sentence. Crown counsel takes the position that the proper range of sentence in the circumstances of this case is 18-24 months. I agree with the Crown. Since Mr. Schell is a first offender, in my view the appropriate sentence falls at the low end of this range. As I will explain, however, when credit for pre-trial custody and house arrest is taken into account, Mr. Schell will have three months or 90 days to serve. He will serve his 90 days intermittently. That sentence takes into account the principle of rehabilitation and gives meaning to restorative justice. Mr. Schell will also be on probation for three years.

[37] Let me explain my analysis.

[38] First, dealing with pre-sentence custody, I am prepared to give Mr. Schell credit at 2:1 for his 12 days of incarceration. The pre-trial custody occurred before the legislation changed, and he is entitled to the benefit of the lesser punishment, which means he receives credit for 24 days.

[39] Second, Mr. Schell was on a strict house arrest bail for 3 ½ years. This house arrest involved very difficult and cramped conditions. He was unable to work most of that time. I am also aware that it was largely due to his breach of a curfew condition that he was unable to work. I accept that it was a hardship and that he is entitled to credit: R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.). In R. v. E.B., 2013 ONCA 429, the trial judge took a strict house arrest condition into account but did not give a precise mathematical formula. The Court of Appeal indicated that no precise mathematical formula is required. In Downes, the accused spent 18 months on a strict house arrest. The Court of Appeal credited him with 5 months custody for that amount. In my view, Mr. Schell should be credited with approximately 14 months of pre-trial custody for the 3 ½ years he spent on house arrest. I am aware that Mr. Schell was unable to work due to his own breach. That said, it is of note that the breach involved a curfew because he was working, and not freestanding criminal activity. I will credit Mr. Schell with 15 months of pre-sentence custody, which means that he must serve another three months. I am not applying a strict mathematical formula; but rather I am looking at the totality of the pre-sentence custody and house arrest in order to craft an appropriate disposition that takes into account the principles of general and specific deterrence and rehabilitation. Although some may take issue with the methodology, I believe it allows me to craft a sentence using restorative justice principles that accord with the approach set out by the Supreme Court of Canada.

[40] Third, I respectfully disagree with Ms. Ropchan that a non-custodial term of imprisonment is called for. The circumstances of this offence call for a denunciatory sentence, which means that a term in jail is required. Although I certainly take into account Mr. Schell’s troubled history, I believe it did not play the dominant role in this offence. That said, there is no doubt that it played some role. It would be very easy simply to warehouse Mr. Schell and give him a strong denunciatory sentence. Nonetheless, given Mr. Schell’s circumstances as a First Nations offender, and in keeping with the principles set out in Gladue and Ipeelee, I think something more creative is called for. That is why I am imposing a further three months to be served intermittently. This will permit Mr. Schell to be out of custody during the week, where he can look for a job, he can begin his re-integration into society, and he can make use of the resources available in the First Nations community.

[41] I realize that an intermittent sentence is unusual for an offender who is not currently employed. Nonetheless I have the very strong impression that Mr. Schell is eager to get back to work and that he is likely to find work in his chosen field relatively quickly. I also think that it is very important to Mr. Schell’s self-esteem and progress for him to be employed. I think principles of restorative justice require that the Court do what it can to facilitate that while at the same time properly denouncing the crime and punishing the offender.

[42] I accept that Mr. Schell is at a low risk of recidivism and that he can be managed in the community. That said, the need for general deterrence and denunciation must still play an important role in the circumstances of this offence, which is why he will still serve some time in custody.

[43] I also believe that a period of probation is appropriate in order for Mr. Schell to be properly supervised, to make use of the specific community resources available to him, and to assist in getting his life on track. I do not believe that a curfew or any other provision limiting his mobility is necessary, although there will be a no-contact term with Ms. O.N..

[44] Accordingly, Mr. Schell will serve 90 days intermittent. He will report to the institution every Friday by 7 pm and be released every Monday by 6 am. While he is out of custody he will be bound by the terms of the probation order.

[45] Since robbery is a primary designated offence pursuant to s. 487.04 of the Criminal Code, there will be a mandatory order to take a sample of Mr. Schell’s DNA.

[46] There will also be a prohibition order for ten years under s. 109(2)(a) of the Criminal Code.

[47] Upon the completion of his custodial sentence, Mr. Schell will be placed on probation for three years. The terms will be as follows:

• He will report to a probation officer within two working days of the completion of his intermittent sentence, and thereafter as required.

• Mr. Schell will seek and maintain employment, or take courses as approved by his probation officer.

• Mr. Schell will have no contact with O.N., either directly or indirectly.

• Mr. Schell will meet with Bronson Bob, his Gladue Aftercare Worker, within seven days of the completion of his intermittent sentence and thereafter as Bronson Bob requires. He will work with Bronson Bob or his designate to develop an appropriate aftercare plan that will meet Mr. Schell’s spiritual and temporal needs. Mr. Schell will report his progress to his probation officer. His probation officer is authorized to make such inquiries with Bronson Bob as may be required in order to monitor Mr. Schell’s progress. Mr. Schell is to execute any waivers that may be necessary for his probation officer to do so.

• Mr. Schell will attend traditional counselling or therapy sessions at Anishnawbe Health Toronto as recommended by Bronson Bob or his designate. Mr. Schell will report his progress to his probation officer. His probation officer is authorized to make such inquiries with Anishnawbe Health Toronto as may be required in order to monitor Mr. Schell’s progress. Mr. Schell is to execute any waivers that may be necessary for his probation officer to do so.

R.F. Goldstein J.

Released: October 1, 2015

COURT FILE NO.: 12-1-0000195
DATE: 20151001

ONTARIO
SUPERIOR COURT OF JUSTICE