COURT FILE NO.: CR-18-0059-00
DATE: 2021-07-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Kozak for the Crown
- and -
MYLES EVAN BRIAN WABANO
B. Sacevich for the Accused
HEARD: December 4, 2020 at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Reasons For Sentence
OVERVIEW:
[1] On January 23, 2020, I found Mr. Wabano guilty of two charges:
a. having robbed Liana Millar on March 14, 2018 and injured her by stabbing her contrary to s. 343 (b) of the Criminal Code; and
b. having committed an assault against Carol Seaton on March 14, 2018 contrary to s. 267 (a) of the Criminal Code by threatening her with a bottle.
[2] Submissions were made by counsel as to sentence on December 4, 2020. This matter took some time to reach sentencing submissions and the delivery of a sentence today. The COVID-19 pandemic has been a significant contributing factor. The pre-sentence report could not be completed until October 2020. Even after sentencing submissions were made, the date for delivery of this decision had to be delayed due to COVID-19 restrictions on Mr. Wabano and his surety’s ability to leave and return to their home community. These delays are understandable.
[3] For reasons that follow, I sentence Mr. Wabano to a period of incarceration of 2 years less a day, with enhanced credit for time served of 377 days to be applied against that sentence. He is to be subject to a period of probation of 2 years and other ancillary orders as set out in this decision.
FACTS:
Circumstances of the Offence:
[4] The facts of the case are fully set out in my written reasons reported at R. v. Wabano, 2020 ONSC 721, and will not be repeated here, save for a brief summary to provide context to these reasons.
[5] March 13, 2018 was a terrible day for Liana Millar and Carol Seaton. It was the day they buried Ms. Seaton’s partner, who was Ms. Millar’s father. It became even more memorable for reasons they could not have anticipated.
[6] Late that night the two women drove to a Tim Horton’s for coffee. The restaurant was closed, so they went through the drive-thru and sat in their car in the parking lot drinking their coffee, talking and trying to console each other’s grief.
[7] Just before 1:00 a.m. on March 14, 2018 the vehicle door was opened by Mr. Wabano. Neither of the women knew Mr. Wabano. As the door was opened, Mr. Wabano proceeded to stab Ms. Millar in the arm and demand her purse. She immediately gave him her purse, and he began to take off on foot. Not aware that Ms. Millar had been stabbed, Ms. Seaton chased Mr. Wabano to recover the purse and was threatened with a liquor bottle. She tackled him to the ground, with the assistance of Ms. Millar, who rushed to her aid, and grabbed the purse. Mr. Wabano was able to become free and ran back to the nearby hotel where he was staying. He suffered some cuts and scrapes to his face, but otherwise was not harmed in the altercation.
[8] Ms. Millar was treated for her injuries at the hospital, which were not severe, but have had lasting impact on her. Ms. Seaton had no known injuries.
[9] The issue for determination at trial was identity. Mr. Wabano denied he committed the crimes and suggested that it was John Moonias.
[10] Mr. Wabano and Mr. Moonias were acquaintances. On the night of March 13, 2018, Mr. Wabano was 22-years old. He was in Thunder Bay for a medical appointment related to an injury sustained in an attack against him. He and Mr. Moonias connected through mutual friends on social media and ultimately gathered at a local hotel along with other youths. Both young men were intoxicated.
[11] When the group disbanded, Mr. Wabano and Mr. Moonias remained together. Mr. Moonias testified at trial that he went his separate way from Mr. Wabano after becoming scared and frightened by Mr. Wabano’s actions. He described him as ‘blacking out’ while they were walking on a street, followed by a period of aggressive, swearing and angry behaviour. When Mr. Wabano began talking about robbing a local convenience store and pulled out a knife. Mr. Moonias became fearful and left Mr. Wabano shortly after midnight.
[12] Mr. Moonias did not end up far from the scene of the robbery and assault against Ms. Millar and Ms. Seaton. His intoxicated state and actions caused the police to be called for a disturbance unrelated to the Tim Horton’s robbery.
[13] In the days following, Mr. Moonias became aware that the police were looking for him as a suspect in the Tim Horton’s matter. Mr. Moonias and Mr. Wabano bear a resemblance to each other. He turned himself in to police. His family members then brought to the attention of police a group chat conversation between Mr. Moonias and Mr. Wabano. Mr. Moonias was released, and voluntarily provided a statement to police. Mr. Wabano was subsequently charged with the crimes.
[14] The day after the robbery, Mr. Wabano sent messages to Mr. Moonias in a group chat bragging about having robbed two women near the Tim Horton’s. He corrected details reported in local media that he said were not accurate. He suggested the robbery was a success, which it was not. Mr. Wabano later denied to police any involvement in the crimes and suggested he was only trying to impress other members of the group with his bravado.
[15] The Crown also adduced evidence at trial of videotape surveillance at different locations, including Tim Horton’s. While Mr. Wabano’s face was not always clear, this surveillance combined with the description of the assailant originally given by Ms. Millar and Ms. Seaton lead me to conclude that even without the group chat admission, the Crown had proved beyond a reasonable doubt that it was Mr. Wabano who committed the robbery and assaults.
Circumstances of the Offender:
[16] Sentencing is an individualized process. The circumstances of the offender are to be taken into consideration in determining a fit sentence.
Gladue report:
[17] Mr. Wabano is an Indigenous person. A Gladue report was prepared in February 2019 for the purpose of a bail hearing. An updated reported was not sought for sentencing. The February 2019 report was comprehensive and relied upon by the Crown and the Defence at the sentencing hearing.
[18] Mr. Wabano is of Ojibway ancestry. He is a member, and lifelong resident of the Eabametoong First Nation (also known as “Fort Hope”). Fort Hope is located approximately 360km north of Thunder Bay. It is accessible only by air, water and winter roads. The legacy of colonialization and residential schools on this community have been tragic to say the least and cannot be properly captured in this decision.
[19] Education and employment opportunities in Mr. Wabano’s community are limited, as are medical facilities. Alcoholism and substance abuse have been long-standing challenges faced by this community dating back to the days of the fur trade and exacerbated by the legacy of residential schools. This has had a significant impact on families and youth in the community.
[20] By 2010, when Mr. Wabano was a youth, the situation in the community was so dire that Chief and Council declared a State of Emergency. A significant portion of the adult population suffered from opiate addictions. Youth in the community were struggling, culminating in the tragic stabbing death of two youth and a rash of youth suicides linked to suicide pacts.
[21] Multiple other social issues have plagued the community including poverty, family dysfunction, and an overall sense of hopelessness amongst youth. A community leader reported that a significant number of Fort Hope’s youth end up in court for offences that are either directly or indirectly related to drug and alcohol abuse. While community leaders continue to do what they can to slowly improve the plight of their people, they remain frustrated with the lack of available resources.
[22] Mr. Wabano has suffered the effects of being raised in this environment. He was raised by his mother and maternal grandparents. His mother struggled with alcoholism and depression. Mr. Wabano suffers from Fetal Alcohol Spectrum Disorder (FASD), depression and anxiety and substance abuse. His FASD is manifested in impulsive behaviours that he struggles to manage. This is a common symptom of FASD.
[23] Mr. Wabano has very little relationship with his father, who is a member of a different community. His father is a survivor of abuse at the hands of Ralph Rowe. His paternal grandmother is a residential school survivor.
[24] Mr. Wabano was exposed to a lot growing up. In the Gladue report he described to the writer that he was exposed to a drinking lifestyle from a very early age. He witnessed violent acts committed in his home by others. He began getting into fights at an early age. He first experimented with drugs at the age of 8 years, and then alcohol. When he was 13 years old, he began inhaling solvents. He experienced tragic losses of family members. He spent time in the foster care system and has been to various treatment centres. He has engaged in cutting and has attempted suicide on at least four occasions by various methods. He has not completed his high school education.
[25] Despite all the trauma of his upbringing, Mr. Wabano maintains a very close relationship with his mother and his sisters, along with his maternal grandmother. He lives with his grandmother and assists in her care.
Pre-Sentence Report:
[26] Mr. Wabano’s mother is now sober and doing well. She has been a positive support for him and sees him daily. With the support and encouragement of his mother, Mr. Wabano has gone from daily opiate and other substance use, to being sober since approximately May 2020. He has successfully participated in his community’s Suboxone program.
[27] Mr. Wabano still lives with his grandmother and assists her with household chores and maintenance. He would like to complete his education but will need to leave his community to do so. He struggles to maintain employment.
[28] Mr. Wabano currently refuses to take his prescribed medication for depression but has been working on his mental health with the help of nurses and other community supports.
[29] Mr. Wabano has a youth criminal record with a total of ten convictions, for which he spent time in detention centres. Many of these convictions pertain to failures to comply with conditions of undertakings, recognizances or dispositions. His last conviction as a youth was in 2013.
[30] Prior to the Tim Horton’s incident in 2018 Mr. Wabano had no adult criminal record. He does have two convictions since for failure to comply with his recognizance. The pre-sentence report refers to compliance issues while supervised as a youth that Mr. Wabano seems to have experienced as an adult offender, although to a much lesser extent. He required encouragement to report to probation and was described as “difficult to engage in meaningful conversation”.
[31] Mr. Wabano is described in the pre-sentence report as showing a “lack of remorse and insight”. He has minimized his role in the offence and does not accept responsibility for his actions.
[32] With respect to recommendations, the report points to this being a challenging situation to respond to with any degree of meaningful rehabilitative options given the limited community resources. Maintaining sobriety will reduce the risk of reoffending, with Mr. Wabano’s family viewed as a strong support to assist with this. Overall, the report recommends the following terms of any community supervision order that the court may consider:
a. Mr. Wabano report to a probation officer as required; and
b. that he attend any counselling, programming/traditional healing practices as can be arranged by the probation officer.
[33] Defence counsel advised the court that Mr. Wabano has, on his own initiative, already participated in a healing lodge.
Impact on the Victims:
[34] Ms. Seaton did not provide a victim impact statement. She provided no evidence at trial as to the impact of the events of March 14, 2018 on her. She was not injured in the robbery or the attempted assault on her. The court recognizes that this does not mean she was not impacted by the incident.
[35] Ms. Millar did provide a victim impact statement. She has been affected by Mr. Wabano’s actions in a profound and lasting manner. The impact has been emotional, physical and financial. It has extended to her spouse, and her small Northern Ontario community. Her plans and goals for the future have been replaced by uncertainty and ongoing struggle. As she wrote in her statement: “Who knew I was going to have to say goodbye to so much more than just my father that day”.
[36] Emotionally, Ms. Millar describes that she is now afraid to drive at night or go out at all after dark unless she is with her husband. Even during daylight hours, she will no longer sit in a vehicle and wait for people or chat. She is “paranoid” in parking lots. She is fearful of visiting family in Thunder Bay anymore. She feels like she is always looking over her shoulder in a constant state of anxiety when out in public. She feels angry by the fact that she is permanently affected by this attack when all she wanted to do was get a simple cup of coffee. She has a right to feel angry. It was not a lot to expect that she could go out at night and have a cup of coffee without being attacked in her own car.
[37] Physically, she does not have full use of her hand anymore. At trial, she described the permanent loss of sensation in her fingers that has resulted from the stabbing of her arm and the ongoing pain she experiences. She has difficultly with her grip, and she experiences swelling. She states that she is reminded of the attack each time she uses her hand.
[38] Financially, the injuries sustained by Ms. Millar have significantly impacted her as a small business owner and co-owner of a farm with her husband. Ms. Millar makes all her own products for sale in her store but is no longer able to make as much as she used to. As a result, she has had to give up contracts and can no longer fill the large orders that she used to complete with no difficulty.
[39] On the farm she owns with her husband, they previously had over 200 animals. She was largely responsible for the chores. She can no longer do them. Day to day tasks are enough of a struggle with her hand. Ms. Millar and her husband have had to make the difficult choice of downsizing the farm to less than 20 animals. She does not say whether there were other contributing factors to this decision.
[40] The downsizing of her farm has had an impact not only on Ms. Millar and her husband, but their small community. She describes that before the attack she often volunteered to have school children visit the farm and have tours. She taught them where their food came from. Every Canada Day they used to open their farm to the community so that townspeople could interact with and have pictures with the animals. Their farm was even featured in a news interview as they were the only farm that far north. None of this happens anymore.
POSITIONS OF THE CROWN AND THE DEFENCE:
The Crown’s Position:
[41] While the Crown acknowledges the individual circumstances of Mr. Wabano and the relevant considerations applicable to him as an Indigenous offender, it points to the fact that the convictions for which Mr. Wabano is to be sentenced are for serious crimes related to a random, violent and unprovoked attack in a public place. The Crown argues that the maximum sentence for robbery is life imprisonment, while assault with a weapon carries a maximum prison term of ten years.
[42] The Crown argues that the circumstances surrounding the offence and the impact on the victim calls for a sentence that emphasizes denunciation and deterrence. However, the Crown acknowledges that principles of restraint and sentencing of Indigenous offenders warrant a sentence that strikes a fair balance between denunciation and deterrence, and rehabilitation. The Crown acknowledges the significant progress made by Mr. Wabano with respect to his sobriety and argues that his ongoing efforts are to be encouraged.
[43] The Crown seeks the following disposition:
a. 30 months to 36 months, less credit given for 377 days enhanced pre-sentence custody (251 days multiplied by 1.5), for a total remaining sentence of 18-24 months less a day, to be served in a provincial correctional facility;
b. Probation for two years with conditions as recommended in the pre-sentence report, in addition to a no-contact provision with respect to the victims;
c. Ancillary orders including a DNA requirement and ten-year weapons prohibition.
The Defence Position:
[44] The Defence argues that the sentence should be:
a. 2 years less a day, minus 377 days enhanced pre-sentence custody;
b. probation for a two-year period on terms as recommended in the pre-sentence report; and
c. the Defence takes no issue with the ancillary orders sought.
[45] The Defence argues that this sentence will best strike the appropriate balance between denunciation and deterrence and encourage Mr. Wabano’s path to rehabilitation. While the Defence does not minimize the violent nature of the attack on Ms. Millar and Ms. Seaton, counsel points to the significant efforts taken by Mr. Wabano to address his substance abuse issues that were a significant contributing factor to the crimes.
SENTENCING PRINCIPLES:
[46] Section 718 of the Criminal Code sets out the following principles and objectives of sentencing:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b. to deter the offender and other persons from committing offences;
c. to separate offenders from society, where necessary;
d. to assist in rehabilitating offenders;
e. to provide reparations for harm done to victims or to the community; and
f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[47] The principle of denunciation refers to public condemnation of the criminal behavior. In R. v. M.(C.A.), 1996 CanLII 230 (SCC), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 81, Chief Justice Lamer wrote for the Court that “[i]n short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law”.
[48] The principle of deterrence reflects a message to be sent to the offender (specific deterrence), or to the community (general deterrence), that breaking the law by committing a crime of this nature will attract punishment and consequences. The hope is to dissuade future criminal conduct for fear of attracting punishment.
[49] Section 718.1 requires that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In other words, the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the harsher the sentence will be: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450.
[50] Section 718.2(a) requires that a sentence be increased to account for any aggravating factors or reduced to account for any mitigating circumstances. Aggravating circumstances generally tend to make the offence more troubling while mitigating circumstances moderate the severity of the offence: R. v. Bushby, 2021 ONSC 4082, at para. 161.
[51] Sections 718.2(d) and (e) require restraint in sentencing, acknowledging that sentences are not only intended to be punitive, but also remedial. Imprisonment should be the penal sanction of last resort, to be used only where no other sanction or combination of sanctions are appropriate to the offence and the offender.
[52] Section 718.2(e) also directs the sentencing judge to approach the sentencing of Indigenous offenders differently. It is a recognition that the circumstances of Indigenous people are unique, and that there are unique systemic or background factors that may have played a part in bringing the offender before the court. There should be a focus on restorative justice.
[53] While in some instances the sentence of an Indigenous offender may be less than that imposed on a non-Indigenous offender, this will not always be the case, particularly for more serious and violent offences. Section 718.2(e) does not mean that the sentences of Indigenous offenders should automatically be reduced. The sentence imposed must still take into consideration all the relevant sentencing principles, factors of the offence, and circumstances of the offender. The history of colonialism, displacement and residential schools and the lasting consequences on Indigenous people in Canada, including their over-representation in the prison system, does provide context for the circumstances of many Indigenous offenders.
[54] When it comes to youthful offenders, the courts have recognized that subject to the individual circumstances of the case, denunciation and general deterrence should not always be the primary focus and that rehabilitation should be a significant factor. Overall, the sentence imposed on a youthful offender should be the shortest possible to achieve the relevant sentencing objectives.
[55] In each case, there may be one or more sentencing principles at play. Some principles may conflict with others. The job of the court is to attempt to balance all of the relevant principles with the aggravating and mitigating circumstances and the circumstances particular to the accused, while ensuring that similarly situated offenders receive similar sentences for crimes of the same nature: See R. v. Barry Matthews, 2020 ONSC 5459, at paras. 38 and 39.
CASELAW:
[56] Neither the Crown nor the Defence provided any caselaw support for the sentence they seek.
ANALYSIS:
[57] The Crown and the Defence agree that denunciation and deterrence must play a role in the sentencing of Mr. Wabano, while balancing the principles of restraint and rehabilitation.
[58] While there is some element of specific deterrence required in this sentence, general deterrence plays a greater role. Firstly, I acknowledge that but for his two breach charges, Mr. Wabano has not been involved with the criminal justice system in the three and a half years since the incident. He is working hard, with the constant support of family, to stay out of trouble. More importantly, I accept the part of the Gladue report that suggests specific deterrence should not play as significant a role in this sentence as criminal sanctions often lack deterrent effect on those with FASD who act impulsively and are unable to regulate and control their emotions. Because of this, recidivism rates are considerably higher for individuals with FASD, who despite their best efforts, often tend to be more vulnerable to negative influences.
[59] As Ms. Millar described in her victim impact statement, all she wanted to do on March 14, 2018 was go out at night in her car for a cup of coffee with a family member. She was in a public place, on a main street that was well lit. A woman in this community, indeed any citizen of this community, should be able to do so without fear of robbery and attack. A clear message must be sent to Mr. Wabano and others that this attack on unsuspecting citizens who are simply going about their business, will not be tolerated and will be punished.
[60] Actions have consequences. Mr. Wabano’s actions have had serious and significant consequences for Ms. Millar. Her physical health has been permanently compromised. Her financial well-being has been permanently compromised. Her emotional well-being has been permanently compromised. Her sense of personal safety and security has been taken from her. Her family and community have been affected. All for the contents of a purse that Mr. Wabano was not even successful in recovering. I accept that the significance of the impact on Ms. Millar is an aggravating factor to be taken into consideration in sentencing, and I have done so.
[61] The pre-sentence report referred to Mr. Wabano’s lack of remorse and his refusal to accept responsibility for his actions. At the delivery of these reasons Mr. Wabano addressed the court and accepted responsibility for his actions. He acknowledged that there must be consequences for what he has done. He expressed remorse and a desire to continue to heal.
[62] Despite the fact that denunciation and deterrence must play a role in the sentence to be imposed, rehabilitation and the principle of restraint are significant considerations in this case. Mr. Wabano is a youthful offender. He has demonstrated with the break between his youth record and adult record, and with his ability to stay out of the criminal justice system in the past few years that he can refrain from criminal behaviour despite the significant obstacles he has experienced, not the least of which are the symptoms of FASD that he is prone to.
[63] Mr. Wabano, at 24-years old, has experienced more challenges and tragedy than any person should experience in a lifetime. In reaching my decision I have been very cognizant of Mr. Wabano’s circumstances as an Indigenous offender. One cannot deny the continuing impact on Mr. Wabano, his family, and his community of Canada’s dark history of colonialism and residential schools.
[64] In the face of all of these obstacles, Mr. Wabano has spent the past few years working hard to manage his mental health and addictions issues. He has participated in healing initiatives. He has accessed the community and family supports available to him. He has been successful in putting his life on a different path than he was on when he committed this crime in March 2018, despite the odds being stacked against him. He would like to return to school. His actions, along with his acceptance of responsibility today, demonstrate maturity. Particularly given the part that substance abuse played in the committal of this crime I find that these actions and efforts constitute a mitigating factor in sentencing.
[65] Because of the significant efforts made by Mr. Wabano towards healing and rehabilitation and given Mr. Wabano’s youth and lack of adult criminal record, I do not accept the Crown’s submissions that the appropriate sentence is in the range of 30 – 36 months. Mr. Wabano needs to continue his journey of healing and I fear that a sentence of this length could significantly derail his efforts. While there is some education and other programming available in correctional facilities, the Gladue report notes that there is a notable lack of services geared towards offenders suffering from FASD.
[66] I accept the Defence position as to the appropriate sentence in this case.
SENTENCE AND ANCILLARY ORDERS:
[67] Taking into consideration all of the foregoing, Mr. Wabano I sentence you to a custodial term of two years less a day, which is reduced by credit of 377 days for time served in pretrial custody. The balance of your sentence shall be served in a provincial correctional facility.
[68] Upon release, you shall be subject to a probation order for a period of two years, subject to the following terms and conditions:
a. You shall not communicate, directly or indirectly with Liana Millar or Carol Seaton. This prohibition shall also extend to your period of incarceration;
b. You shall report to your probation officer, as required; and
c. You shall participate in any counselling, traditional healing or other programming as can be arranged by the probation officer.
[69] In addition, you shall be subject to the following orders:
a. You shall submit a sample of your DNA to the DNA Data Bank pursuant to s. 487.051(1) of the Criminal Code; and.
b. You shall comply with a weapons prohibition for ten years following your release from jail pursuant to s. 109 of the Criminal Code.
[70] In closing, Mr. Wabano, you broke the law and caused permanent damage to one of your victims. As I said, and you have acknowledged today, there must be consequences for those actions. My hope is that this incident was a turning point for you. You have done so very well in the past few years to overcome the challenges that led you to commit this crime. I am impressed by your efforts and progress, and I was impressed by your statement here today. I sincerely hope that you continue to seek support from your family during your period of incarceration, and that you use your time in jail to access any available supports to continue your healing journey and work towards accomplishing your education goals.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: July 6, 2021
COURT FILE NO.: CR-18-0059-00
DATE: 2021-07-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MYLES EVAN BRIAN WABANO
Accused
REASONS FOR SENTENCE
Nieckarz J.
Released: July 6, 2021