R. v. Jacko, 2017 ONSC 5584

CITATION: R. v. Jacko, 2017 ONSC 5584

COURT FILE NO.: 16-A9690

DATE: 2017/09/22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Christopher Jacko

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Brian Bencze, Counsel, for the Crown Kimberly D. Hyslop, Counsel, for the Defendant

HEARD: August 21st, 2017

REASONS FOR SENTENCE – GIVEN ORALLY

[1] On January 25, 2017 at the end of a three day trial, Christopher Jacko was convicted of five significant criminal offences. I ordered a pre-sentence report (PSR) and, in light of his aboriginal heritage, a “Gladue” report. On August 21, 2017 I heard sentencing submissions from counsel as well as hearing from Mr. Jacko himself. The matter was adjourned to September 22, 2017 for sentencing.

[2] At the outset it is useful to stress that Canadian criminal law seeks to strike a balance between the need to preserve peace and order, to enforce the law and to rehabilitate offenders. Offenders are not to be deprived of liberty if less restrictive sanctions are appropriate and particular attention is to be paid to the circumstances of aboriginal offenders.[^1]

[3] These reasons explain how various factors were considered in determining the appropriate sentence and what penalty I have imposed.

Circumstances of the Offence

[4] On February 21, 2016 Mr. Jacko left his apartment carrying a knife in his pocket. At the time, he was at liberty on a recognizance (“bail order”) and was prohibited from having any knife or other edged weapon outside of his residence or from possessing a weapon as defined in the Criminal Code. As a result of previous criminal convictions he was also subject to a weapons prohibition under section 109 of the criminal code. He knew it was illegal to carry a knife and he should have known from previous experience that it was a very bad idea.

[5] Later that day Mr. Jacko visited IGO Cyberhouse, a store on Bank Street owned and operated by Xuefong “Stephen” Zhong. He entered the store at around 6 p.m. with the intention of purchasing extra data for his cellular telephone. Mr. Jacko became upset when he was advised by Mr. Zhong that he was not eligible to purchase additional data. He reacted with profanity and he created a scene in front of other customers and their children. Mr. Jacko was escorted from the store and during a subsequent conversation outside the door, he punched Mr. Zhong in the face. A struggle ensued and during the struggle Mr. Jacko stabbed Mr. Zhong in the abdomen.

[6] Detailed reasons for conviction were given orally at the end of the trial. In brief, I rejected the plea of self-defence and found that Mr. Jacko had assaulted Mr. Zhong twice, once when he punched him and a second time when he stabbed him. I found that Mr. Jacko “sucker punched” the store owner and during or following the subsequent scuffle he used the concealed knife he was carrying illegally and stabbed Mr. Zhong. I found that the punch was an unjustified assault and that even though Mr. Zhong then managed to wrestle Mr. Jacko to the ground, there was no air of reality to Mr. Jacko’s evidence that he feared for his life. Stabbing the store owner was an unjustified and disproportionate response to whatever violence Mr. Zhong had offered in response to being punched.

[7] Mr. Jacko was convicted of common assault contrary to section 266 of the Criminal Code (Count 1 on the indictment), aggravated assault contrary to section 268 (2) of the Code (Count 3 on the indictment), possession of a weapon for the purpose of committing an offence contrary to section 88 (1) (Count 4), carrying a concealed weapon when prohibited from doing so contrary to section 90 (2) (Count 5) and breach of recognizance contrary to section 145 (3) of the Code (Count 6). All other counts were stayed or withdrawn.

[8] It is worth noting that although Mr. Jacko acknowledged being in possession of the knife and described it as a hunting knife or “Buck Knife” with a folding blade of approximately 10 cm.,the knife itself was not available. Mr. Jacko disposed of the knife subsequent to the incident when he knew the police were looking for him.

Circumstances of the Offender

[9] Mr. Jacko is 26 years of age and he has a lengthy criminal record including numerous convictions for assault and carrying weapons. He has repeatedly breached court orders and conditions imposed upon him. Since his first conviction in Youth Court in 2004 Mr. Jacko has been before the courts 17 times. As noted above, he was at liberty on a recognizance when he committed these offences. That recognizance relates to pending charges in Sudbury which are similar in nature to these.

[10] Although those charges relate to an earlier incident, they have not been disposed of because Mr. Jacko was incarcerated here in Ottawa. I am advised there is a bench warrant. While he remains entitled to the presumption of innocence with respect to the outstanding charges in Sudbury, he presents with a history of convictions for violent offences and has shown himself to be unable or unwilling to comply with court orders and weapons prohibitions.

[11] Mr. Jacko’s antisocial behaviour is not difficult to explain. I have no doubt that he views the world as hostile and potentially dangerous. He has had a difficult life including bullying, abuse, poverty, and a lack of education. His descriptions of those experiences are set out in detail in the PSR and the Gladue Report.

[12] Mr. Jacko was born on November 8, 1990 in Sudbury Ontario. His mother is an aboriginal woman from Wikwemikong Unceded Indian Reserve on Manitoulin Island. He knows little about his father who left Mr. Jacko’s mother when Mr. Jacko was approximately two and was often in jail. Mr. Jacko describes an early life filled with physical abuse and a history of being in and out of care. He lived on and off the reserve and was frequently bullied in school. He dropped out of school at the age of 16, he has no significant employment history and he has a history of substance abuse. While there was no suggestion during the trial that substance abuse played any role in this incident, Mr. Jacko is currently enrolled in a methadone program.

[13] Mr. Jacko is himself the father of three children but has none of them in his care. His oldest daughter is in the care of her mother. His younger two children are both crown wards having been apprehended at birth during a period of time when Mr. Jacko was in and out of jail.

[14] Mr. Jacko moved from Sudbury to Ottawa in 2015 and he has been in a relationship. He indicates that he hoped for a fresh start in Ottawa though he was before the court in Ottawa and was convicted of causing a disturbance, obstructing a peace officer and breach of recognizance in October of that year. Mr. Jacko has been in custody since he was arrested for the current charges and was denied bail.

[15] Counsel have reviewed the pre-sentence and pre-trial detention and deducted a small number of days for which Mr. Jacko was previously given credit. They agree that he is entitled to credit for 525 days actually served. The defendant asks that a multiplier of 1.5 be applied and this is not contested by the Crown. As such this is equivalent to 788 days’ time served as of August 21st, 2017. Since then he has been in custody an additional 30 days and using the same multiplier this would generate a credit of 45 days bringing the total credit to 833 days or the equivalent of 27 months.

[16] Although there are limited services available in the detention centre, Mr. Jacko has taken steps to connect with support services in the community. Included in these services are services designed to assist people of aboriginal background and rehabilitation services. These are also described in both the PSR and Gladue reports.

[17] Mr. Jacko expresses remorse for stabbing Mr. Zhong. He states his wish to turn his life around and to complete his education including post-secondary education. Mr. Jacko appears sincere in his wish to change his life. Whether he has the capacity to do so over a sustained time period is another matter. Certainly his criminal record and in particular his history of non-compliance with orders is not a basis for optimism.

Impact of the offences on the victim and the community

[18] I am required to consider the impact of the crime on both the victim and the community at large. There is a victim impact statement which was filed with the court.

[19] Fortunately Mr. Zhong survived the knife attack and was able to make such a statement. He hopes with time to make a full recovery but over a year after the incident he continues to suffer physical effects of being stabbed in the abdomen. The victim also describes himself as more concerned with security, more anxious, and more irritable. It has also had an effect according to him on the manner in which he operates his store and has therefore had a financial impact. It is important to recognize that for the victim of a crime of violence, a sentence that is just and appropriate may be an important part of the healing process.

[20] While there is no community impact statement and no specific evidence of any effect this particular crime has had on the community, it is necessary to recognize that this was an attack on a store owner in the middle of a public street. Much media attention has been devoted to an apparent spike in violent crime in Ottawa and to incidents involving wanton use of weapons over apparently trivial arguments. Engaging in a fight while carrying a weapon is a recipe for disaster because it carries the obvious potential for escalation. Carrying a weapon while prohibited from doing so adds to the gravity of the situation.

[21] The community expects that individuals who employ weapons in the commission of offences will face consequences. The community is also entitled to believe that court orders will be respected and enforced. Weapons prohibitions are an important component in permitting judicial interim release or in imposing non-custodial sentences. Offenders who breach those conditions and then use a weapon in commission of another offence while they are at large on such conditions are of significant concern. It is precisely this scenario that has produced pressure in recent years to restrict the availability of bail, to bring in minimum sentences and to get “tough on crime”. It is readily apparent that these are circumstances that would alarm the community.

Gladue Factors

[22] Mr. Jacko is an aboriginal person as defined in the Constitution Act, 1982 and he is entitled to the considerations identified in R. v. Gladue,[^2] He identifies as Ojibway, is a “status Indian” within the meaning of federal legislation and is a registered member of Wikwemikong first nation. Under the Criminal Code I am required to consider how Mr. Jacko’s aboriginal background should inform the sentence.[^3] In Gladue the Supreme Court of Canada has articulated the need to address the overrepresentation of aboriginal offenders in the Canadian penal system, the need to be sensitive to aboriginal traditions in designing sentencing options and the concern that aboriginal offenders may be least likely to find rehabilitation in Canadian prisons where racism is often rampant.[^4]

[23] I have discussed some of Mr. Jacko’s background circumstances earlier in these reasons. I will add that in his youth he spent some time in his aboriginal community and was at one time known as a skilled ceremonial dancer. Mr. Jacko has numerous relatives in Wikwemikong. Unfortunately Wikwemikong was also the scene of his first encounters with the criminal justice system. His earliest convictions were in Wikwemikong Youth Justice Court involving charges laid by the Wikwemikong Tribal Police Service.

[24] As set out in the Gladue report, Mr. Jacko’s life has been touched by the residential schools experience. His maternal grandmother who died in childbirth was a student at the “Spanish Indian Residential School” in 1953. No doubt other members of that generation would also have experienced the family disruption, cultural disruption and attempted assimilation inherent in that experience. The long term intergenerational harm to families and communities inflicted by residential schools has been recognized by various authorities.

[25] Mr. Jacko also has personal experience of family breakdown, foster care and intervention by child welfare authorities. Mr. Jacko’s experience may be seen as an exemplar for some of the symptoms described by the Truth and Reconciliation Commission.

[26] As a youngster, Mr. Jacko experienced bullying motivated by racism. He was bullied in school in Sudbury for being aboriginal and he was bullied in Wikwemikong for being “zhagaanash” or non-aboriginal. Bullying and a sense of not fitting in is something too often experienced by children of mixed heritage and is frequently encountered by aboriginal children in the absence of strong family and community support. Bullying has a well documented impact on the self esteem and self worth of children.

[27] Further details are contained in both the PSR and the Gladue Report. His early life experiences help to explain why Mr. Jacko has gravitated towards a life of violence, criminal activity and substance abuse. Besides the turmoil of being in and out of care and dealing with abusive parental figures, he experienced the loss of his brother to suicide. He appears to have suffered from the family and community fragmentation marked by legacies of colonialism and racism which echo through many aboriginal families. For that he is deserving of a measure of sympathy and understanding.

[28] Understanding the genesis of antisocial behaviour is one thing. This does not of course justify perpetrating violence against an innocent store owner. Nor does it diminish the importance of denunciation, deterrence and protection of the community. This is a crime triggered by a dispute over a commercial transaction in downtown Ottawa in relation to a cellular telephone data plan. The community impacted by the crime is the local community in Ottawa and there is nothing in the record before me to suggest that the offender’s original aboriginal community would not recognize the importance of consequences for such a needless act of violence.

[29] It is worth reproducing paragraphs 78 – 81 of the Gladue decision which read as follows:

78 In describing the effect of s. 718.2(e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant.

79 Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non‑aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.

80 As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances?

81 The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstances in light of the aims and principles of sentencing as set out in Part XXIII of the Criminal Code and in the jurisprudence, the judge must strive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2 (e), sentencing judges have been provided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration which are appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing. In this way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender.

Legal Parameters and the Principles of Sentencing

[30] These are significant offences bearing on public safety, maintenance of order and the rule of law. Common assault (count 1) carries a maximum penalty of 5 years imprisonment. Aggravated Assault (count 3) carries a maximum penalty of 14 years. Carrying a weapon for a dangerous purpose (count 4) carries a maximum of 10 years. Carrying a concealed weapon (count 5) up to 5 years and (count 6) breach of condition carries a maximum of 2 years.

[31] In crafting an appropriate sentence I am required to take into account the purposes and objectives of sentencing set out in Part XIII of the Criminal Code. Of those objectives, given the criminal record of Mr. Jacko, denunciation and deterrence as well as the protection of society are of primary significance. The sentence must also demonstrate recognition of the harm done to the victim and the community while giving appropriate weight to the Gladue factors.

[32] Rehabilitation remains an important consideration but the criminal record and the repeated breaches of court orders require that professions of regret and promises to live differently must be regarded with a degree of scepticism.

Positions of Crown and Defence

[33] Counsel for the defence acknowledges that a custodial sentence must be imposed but it is her position that “time served” plus probation of 2 – 3 years would be appropriate. This would be roughly two years and three months incarceration.

[34] The Crown seeks a global sentence of 4 years plus 3 years probation. Deducting time served, this would require a further 1 year and 9 months incarceration before the start of the probationary period.

Aggravating Factors

[35] The primary aggravating factor is Mr. Jacko’s criminal record and particularly his history of violence, weapons offences, and failure to abide by restrictions imposed on him by the courts.

[36] I also consider it an aggravating factor that these acts of aggression and violence took place in the course of an ordinary commercial transaction in front of shoppers going about their business accompanied by children.

[37] The fact that he was on judicial interim release when he committed these offences also triggers the requirement that consecutive sentences be considered pursuant to s. 718.3 (4) of the Code.

Mitigating Factors

[38] The mitigating factors are the harsh and difficult childhood experienced by the offender which may well have shaped Mr. Jacko’s overdeveloped sense of being under threat and his ready resort to violence. Mr. Jacko’s admission to certain elements of the offences during the trial and his post-conviction expression of remorse are also worthy of some consideration. As indicated above, I heard Mr. Jacko voice his remorse. He says that he understands the pain he inflicted on Mr. Zhong and his family and he has read the victim impact statement. He acknowledged that he should not have been carrying a knife and he understands the need to change his behavior. He also acknowledged to the Gladue worker that he knew the legitimacy of his remorse would be questioned. He told her that “I know people may feel that some people will say anything to get out of jail”.

[39] Mr. Jacko has also taken steps to connect with community organizations including aboriginal organizations. He has reached out to the Salvation Army, to Wabano and to other organizations and he has actively explored the requirements for entry into drug and alcohol rehabilitation programs. He is attempting to wean himself off methadone in order to qualify. He appears to recognize the need for mental health supports.

[40] Mr. Jacko’s relatively young age also speaks to the need to pursue rehabilitation if it is at all possible. He told the writers of the reports that he wants to get back into his native heritage and he wants to go to school. He would like to take business and technology at Algonquin College.

[41] Of course he has also served a significant amount of pre-trial detention in the Ottawa Carleton Detention Centre. He describes the OCDC as the worst jail he has ever been in and of course he has limited access to tools of rehabilitation when he is simply being held in detention pending the decision of the court. I agree that the multiplier of 1.5 days is appropriate. Although I am not obliged to use a precise mathematical calculation in giving credit, I find that detention to the date of sentencing is equivalent to 27 months time served.

Analysis

[42] Both counsel argued for a global period of incarceration followed by probation of up to three years. Neither the Crown nor the defence sought to allocate the sentence amongst the offences but I am required to specify the sentence for each offence.

[43] I am in agreement that a long period of probation is required. Despite his record of failing to adhere to previous requirements or indeed because of that, three years of probation is appropriate. This will give Mr. Jacko the chance to demonstrate that this time he is serious about turning his life around and it will provide him with a framework and tools to pursue rehabilitation. At the age of 26 if he does not rehabilitate himself and if he continues with the pattern he has pursued since he was 14 then his future will be a bleak one indeed. As set out in the PSR, he has previously demonstrated short periods of reintegration and compliance when under community supervision orders. The PSR notes the absence of supports such as family, peers, mental health and access to his cultural roots. The Gladue recommendations provide a framework for addressing some of these deficits.

[44] The more difficult question is the question of incarceration. The longest sentence he appears to have received for any of his prior convictions is the equivalent of one year imprisonment. That was for the 2013 assault with a weapon. I do not know the circumstances of the previous convictions other than what is shown on the record of convictions. He has a litany of probation orders, suspended sentences and interim release orders along with weapons prohibitions. Clearly other judges have attempted to fashion orders to facilitate rehabilitation and despite his professed desire to change his life, Mr. Jacko has been unable to maintain himself in compliance. On the other hand, many of his prior offences appear to have been drug related while that is not the case in the matter before me.

[45] The four years proposed by the Crown is in my view unduly harsh. It ignores entirely any focus on rehabilitation and focuses almost entirely on denunciation and deterrence. Those are important but notwithstanding the gravity of the offences, this is at the high end of an appropriate range and it ignores the Gladue factors.

[46] On the other hand, given the history of non-compliance with probation, simply releasing the offender and sentencing him to time served ignores the impact on the victim and the community. Both I think would find it shocking if no further jail time was involved.

[47] In my view an appropriate sentence for Mr. Jacko under these circumstances is an effective sentence of 33 months of incarceration followed by three years of probation. He is entitled to a deduction for time served which I find to be equivalent to 27 months. Accordingly he will serve an additional six months and the period of probation will begin upon his release.

[48] As to the terms of probation, apart from the usual statutory terms, there will be an order that he not contact Mr. Zhong by any means and he will be prohibited from attending within 200 m. of IGO Cyber House, 223 Bank St., Ottawa. He will be required to make efforts to seek employment or to participate in education. He will be required to report regularly and to maintain his residence at a location approved by his probation officer.

[49] I will not impose a complete ban on alcohol or drugs during probation because the evidence demonstrates that Mr. Jacko is wrestling with addiction and also because there is no evidence that substance abuse had anything to do with these offences. I will however require him to participate in a program of rehabilitation as he has indicated he wishes to do so and of course he will be subject to the general requirement that he keep the peace and be of good behaviour. This requires him to be in compliance with laws regulating drug and alcohol use and restraining public intoxication.

[50] Mr. Jacko will be required to attend and actively participate in any assessment, counselling, or rehabilitation programming as directed by his probation officer. This should include attendance at a long term residential treatment addictions program such as the Salvation Army Anchorage Treatment Program or an approved program focusing on rehabilitation for aboriginal addicts. He will also be referred to the “New Beginnings” program at the Wabano Centre for Aboriginal Health and to the other resources identified in the Gladue report.

[51] In addition to the mandatory s. 109 order, Mr. Jacko will be prohibited from owning or possessing any weapon as defined by the criminal code. I am also imposing a prohibition on carrying a concealed knife outside his residence for any reason or having possession of a knife outside of his residence for any purpose other than preparation and consumption of food, education or employment. I will also make an exception for the use of a hunting knife or fishing knife as part of a pre-approved aboriginal cultural program supervised by an elder or other approved person and for the limited purpose of such program.

Conclusion and Sentence

[52] On count 1, the sentence will effectively be 18 months imprisonment followed by one year of probation to commence upon his release from custody and to run concurrently with the other sentences. The actual sentence will be time served plus one year of probation.

[53] On count 3, the sentence will effectively be 33 months imprisonment followed by three years of probation to commence upon his release from incarceration and to run concurrently with the other sentences hereby imposed. This generates a sentence of time served plus six months in prison followed by three years of probation.

[54] On count 4, the sentence will effectively be 33 months imprisonment followed by three years of probation to commence upon his release from incarceration and to run concurrently with the other sentences I am imposing. This also generates a concurrent sentence of time served plus six months in prison followed by three years of probation.

[55] On count 5, the sentence will effectively be 18 months imprisonment followed by one year of probation commencing when he is released from incarceration also running concurrently with the other sentences. The actual sentence will be time served plus one year of probation.

[56] On count 6, the sentence will effectively be 15 months imprisonment to run consecutively to the sentences imposed on counts 1 and 5 followed by two years probation to run consecutively to the probation imposed under counts 1 and 5. This produces a sentence of time served plus six months in prison starting today and two years probation starting when he completes the probation under counts 1 and 5.

[57] For clarity, the total period of incarceration for all five offences combined shall effectively be 33 months and the total probationary time for all five offences shall be three years. There shall be credit given for 27 months of time served which is based on the actual time served times a multiplier of 1.5. As a result, the global sentence will be time served plus 6 additional months in prison followed by three years of probation.

[58] I have set out the precise terms of probation in a separate document and they will be incorporated into the formal probation order. There will be the mandatory weapons prohibition and the requested DNA orders and such other ancillary orders as may be required.

[59] The probation authorities and prison authorities should be provided with access to the recommendations in the Gladue report so that they may attempt to provide Mr. Jacko with access to culturally appropriate resources and services.

Mr. Justice C. MacLeod

Date: September 22nd, 2017

[^1]: Part XIII, Criminal Code, in particular ss. 718, 718.1 and 718.2 [^2]: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688 [^3]: S. 718.2 (e) of the Criminal Code [^4]: See in particular paras 61 – 64, 68 – 69 and 70 – 74, R. v. Gladue