COURT FILE NO.: 19-DV5268
DATE: 2021-11-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.N.
Accused
J. Bocking, for the Crown
J. McKnight, for the Accused
HEARD: October 12, 2021
publication ban in effect under s. 486.5 of the criminal code: Any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
REASONS FOR JUDGMENT re sentence
Aitken J.
Nature of the Proceeding
[1] On January 15, 2021, J.N. pled guilty to the aggravated assault of N.M. under s. 268(2) of the Criminal Code, R.S.C. 1985, c. C-46. It is now my task to sentence him for this offence. Crown counsel is seeking a sentence of two years less a day plus 18 months probation. Defence counsel is asking for a sentence of nine to twelve months with two to three years probation.
Circumstances of the Offence
[2] The following facts are taken from the Agreed Statement of Facts.
[3] J.N. and N.M. began dating in March 2018. Shortly after, N.M. disclosed to J.N. that she was HIV positive, having contracted it from her mother at birth. J.N. indicated that, although he realized the risk of being in an intimate relationship with her, he wanted to continue their relationship. Shortly after, the couple moved in together. In March 2019, J.N. tested positive for HIV. After receiving this news, J.N.’s drug and alcohol intake increased significantly and that became a stressor in the couple’s relationship. J.N. did not tell N.M. about his HIV status until the beginning of August 2019.
[4] On August 18, 2019, N.M. went to her place of employment while J.N. remained at their residence. She returned at 2 a.m. on August 19th. J.N. was awake and told her that he wanted to talk to her. N.M. put her things away and then joined J.N. on the balcony. J.N. advised that he would be moving out of their residence on August 29th. J.N. said that he had or would be “putting the papers into his brother’s name” as he was not going to be around. J.N.’s behaviour escalated. He blamed N.M. for his having contracted HIV. J.N. took his cigarette butt and flicked it onto N.M. It landed under her right eye. J.N. went into the apartment and N.M. followed. J.N. grabbed N.M.’s hair with such force that he pulled her weave out. J.N. said: “[y]ou think you were going to give me this, you think you would get away with that? I’m gonna kill you”. J.N. had a knife in his right hand. He began to stab N.M. in the neck. N.M. yelled for help and used her hands to protect her body. J.N. continued to stab N.M. in the neck as she moved under the dining room table. J.N. grabbed N.M.’s hair and continued to stab the back, side, and front of her neck.
[5] While laying on the floor, N.M. yelled at J.N.to stop and think of his kids, at which point J.N. stopped and began to back up. N.M. managed to stand up. She continued to tell J.N.to think of the children. N.M. was able to run out of the residence to seek help. She knocked on several doors, but no neighbours came to her assistance. N.M. ran out onto the street searching for help. She flagged down an Ottawa Police vehicle. The police took N.M. to the hospital where she was treated for approximately ten stab wounds to the neck and chin area, along with two stab wounds to her arms.
[6] At 2:54 a.m., J.N. called 911 stating that he was drunk and that he had just killed his girlfriend who had infected him with HIV. He provided his first name but said he could not remember his last name. J.N. was located inside his residence, covered in blood. The police asked him to exit the residence; however, J.N. said he couldn’t as his hands were shaking. The police opened the door and arrested J.N. without incident.
[7] Photographs of N.M. taken at the hospital underscore the seriousness of the injuries she sustained during the attack. She is lucky to be alive. There were two stab wounds at the back of her neck, a stab wound to her right cheek, a long wound requiring many stitches running from her right cheek under her jaw line and across her chin and left cheek to just under her left ear, two slashes to the left side of her neck, and further stab wounds on her arms.
[8] N.M. did not file a victim impact statement.
Circumstances of the Offender
[9] Most of the information provided to the court regarding J.N. comes from the Report of Dr. Floyd Wood of the Royal Ottawa Mental Health Centre dated June 30, 2021 following a psychiatric assessment under s. 21 of the Mental Health Act, R.S.O. 1990, c. M7.
[10] J.N.is a 34-year-old, single Black male. At the time of the report, he was residing in Sudbury but was travelling back and forth to British Columbia and Northern Alberta as a truck driver for various companies. He has two children aged nine and six who live with their mother in Ottawa.
[11] Both J.N. and N.M. are survivors of the Rwandan genocide. J.N. was seven when the genocide happened. He lived with his parents and four siblings in Kigali. His father was Tutsi and was being actively sought by the Hutus. He tried to get his family out of the country to safety but was stopped by the Hutus and rounded up with others at a hospital where the Hutus opened fire on everyone. J.N.’s parents and siblings were killed. He suffered a wound to his hand. After days of being around the corpses, he returned to his family home. It had been burnt down. Most of his neighbours had been killed. He foraged for himself until Hutu soldiers took him to a makeshift orphanage. There he was groomed to be a child soldier and was forced to take part in the killing of others. After contracting malaria approximately 18 months later, J.N. was dropped off at a second orphanage where he lived until his mother’s sister found him and adopted him. While at the second orphanage, J.N. was persistently sexually abused and threatened by 18-year-old males. This was in addition to the physical and emotional abuse he suffered at both orphanages and when he was a child soldier for the Hutus.
[12] In 1998, J.N. came to Canada with his aunt and various cousins as refugees. They eventually settled in Windsor. Two years later, J.N.’s aunt was diagnosed with lymphoma – the disease which eventually claimed her life in 2017. J.N. started in grade five after he arrived in Windsor. At that time, he did not speak English or French. He progressed each year with strengths in mathematics and physical education. While at school, J.N. was bullied due to his race and his language barriers. He got into trouble on several occasions for fighting. Nevertheless, he graduated in 2006 with most of his marks in the high seventies – a testament to his determination and resilience.
[13] J.N. attended Boreal College in Sudbury for Police Foundations, graduating on time after two years. He then attended Laurentian University, completing three semesters in social sciences. He could not afford to continue with his schooling. He moved to Ottawa to help his ailing aunt.
[14] After moving to Ottawa, J.N. worked at a call centre for about three years. He then moved to Alberta to work on the oil rigs. He stayed there until the end of 2014 when he got a job in Edmonton shipping railcars from the United States. At the end of 2016, J.N. moved to Ottawa and was able to be with his aunt when she passed away shortly after. J.N. was on Employment Insurance for most of 2017. He then completed a Class I driving course for truck drivers and has been employed in trucking most of the time since then. He works mainly in Alberta and British Columbia because the work is more lucrative there. His normal habit is to work three weeks on and one week off, with his coming back to Ontario for his week off.
[15] J.N. was in an on-and-off relationship with the mother of his children in Ottawa for about seven years. The relationship deteriorated over time due to the stresses of his being on the road so much and his being preoccupied with his aunt when he was in Ottawa. J.N. pays monthly child support to his children’s mother. He keeps in touch with the children through FaceTime.
[16] J.N. and N.M. were in a relationship for about 18 months. There were no other reported incidents of domestic violence between them, though they had arguments about the amount of time J.N. was away. N.M. worked at a server in a restaurant during their relationship. N.M. has a 12-year-old son, whom J.N. felt close to. That child and J.N.’s children got along well.
[17] J.N. has a number of interests and hobbies, including cooking and going to the gym. He lost a lot of friends after going to jail after this incident but he has two remaining friends and two cousins on whom he can rely for support.
[18] J.N. advised Dr. Wood that he does not have a diagnosis of HIV but does testing every three months to ensure that there is no delayed emergence. That, however, is in contradiction to the Agreed Statement of Facts attested to in January 2021 when J.N. pled guilty. At that time, J.N. agreed that he had tested positive for HIV. In regard to other medical issues, J.N. has sustained a few concussions over his life – one serious one following a blow to the head with a hammer when he was seven. Others resulted from sports injuries – the last occurring in 2018, when he lost consciousness for 30 minutes.
[19] Prior to the incident leading to this conviction, J.N. had had minimal psychotherapy or formal treatment for his history of trauma in the Rwandan Genocide. He saw a therapist shortly after his arrival in Canada, when he was having difficulty adjusting to his new life here. About four years ago, he participated for about six months in a group for individuals who fought or were involved in war zones. Once on bail following the charges in this matter, J.N. engaged in therapy virtually over Zoom. He felt that the sessions, which ended in December 2020, were helpful. J.N has never been on medications or hospitalized for mental health, and he has never attempted suicide, though at times has had suicidal ideation.
[20] It is Dr. Wood’s opinion that J.N. currently presents with signs and symptoms consistent with a diagnosis of Posttraumatic Stress Disorder (PTSD) with dissociative episodes. He witnessed the murder of his parents and siblings when he was only seven. He was groomed as a child soldier, where he had to kill others while under the instruction of adults. He was sexually abused for years by older males. J.N. struggles with occasional nightmares, intrusive memories, images of traumatic events, and other symptoms such as negative alterations in cognitions and mood, irritability, reckless or self-destructive behaviour, hypervigilance, problems with concentration, and sleep disturbance. These symptoms worsen during the month of April, which is the month when his family was murdered. Dr. Wood is of the view that J.N. experienced a dissociative episode at the time of the attack on N.M. and when being arrested by the police. Both N.M. and the arresting police officers described J.N.as being in a daze, confused, and seemingly not able to follow commands while repeating his name over and over.
[21] Dr. Wood was unable to ascertain the events leading up to the dissociative episode due to the inconsistencies between J.N.’s recounting of events to Dr. Wood and the statements in the Agreed Statement of Facts respecting J.N.’s HIV status and when he learned about N.M.’s HIV status. J.N. advised Dr. Wood that he only became aware of N.M.’s HIV status on the night of the incident and that he had never tested positive for HIV. Dr. Wood in fact was able to confirm from the laboratory reports for J.N. that all his HIV tests had come back negative. The Agreed Statement of Facts stated that J.N. had learned of N.M.’s HIV status shortly after they started dating and that in early August 2019, he had received a positive HIV test. According to Dr. Wood, either scenario, coupled with J.N.’s consumption of alcohol on the night in question, likely resulted in a dissociative episode.
[22] Dr. Wood recommended the following as treatment for J.N.’s PTSD:
• The use of anti-depressant medications, such as Effexor, XR, Cipralex, or Zoloft;
• Cognitive Behavioural Therapy that might involve a component of prolonged-exposure therapy;
• A limit on J.N.’s use of alcohol, particularly during times of stress;
• If J.N. receives a provincial sentence, referral to the St. Lawrence Valley Correctional Treatment Centre, where he could benefit from more intensive services, engage in psychotherapy and addictions counselling, and have his medications monitored. This would require a sentence requiring a further six months incarceration at a minimum; and
• Eventual counselling on healthy relationships, including recognizing red flags and managing relationship issues so that any risk of violence is minimized.
[23] If J.N. follows these treatment recommendations, Dr. Wood is of the opinion that he would pose a minimal risk of reoffending in this fashion. If he does not follow through or meaningfully engage in these recommendations, he would be viewed as being at a low-to-medium risk of reoffending.
Analysis
[24] Aggravated assault carries a maximum term of imprisonment of 14 years.
[25] As mentioned above, Crown counsel is asking for two years less a day incarceration. Defence counsel is seeking nine to twelve months incarceration. Both want probation to follow.
[26] In my view, in the circumstances of this case, the key objectives of sentencing are the denunciation of this type of crime and the harm done to N.M., the rehabilitation of J.N., and the promotion in J.N. of a sense of responsibility for the physical and emotional harm he has caused N.M. and the negative impact this crime has had on her son and his children. Due to the nature of this crime – having taken place when J.N. was likely in a dissociative state associated with his PTSD – I do not consider either general or specific deterrence to be of greatest concern. As stated by Gillese J.A. in R. v. Batisse, 2009 ONCA 114, at para. 38: when “mental health problems play a central role in the commission of the offence … deterrence and punishment assume less importance.”[^1] Having said that, however, specific deterrence is important in the sense that J.N. needs to realize the harm he can cause others if he does not deal with his PTSD and seek the help he needs to manage it as effectively as possible.
[27] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. J.N. must assume responsibility for his actions – and he has done that by pleading guilty and accepting that he will be going to jail. However, in my view, considering his horrendous personal history arising out of the Rwandan Genocide, and the significant PTSD he has as a result, his level of culpability is reduced.
Aggravating Factors
[28] There are some aggravating factors in this case:
• J.N. abused his intimate partner – someone who trusted him.
• Although N.M. did not provide a victim impact statement, I conclude that this incident would have had a profound impact on her life. She is also a survivor of the Rwandan Genocide and she also witnessed the murder of her parents. She must carry that unimaginable trauma with her today. The trauma of J.N.’s sudden attack on her and the extent of her physical injuries – particularly those on her face – must have augmented whatever ongoing trauma symptoms she has carried with her since she was a child.
• Slicing someone’s face is a particularly awful offence and one for which N.M. will carry the scars for the rest of her life.
• At one point while he was on bail, J.N. breached the terms of his release by not residing with his surety.
Mitigating Factors
[29] There are many mitigating factors in this case:
• J.N. pled guilty thereby obviating the need for a trial. A preliminary inquiry was held which reduces to some degree the mitigating impact of the guilty plea.
• J.N. has no previous criminal record.
• J.N. has had no contact with N.M. since September 2019 and has not posed any further threat to her while he has been on bail.
• J.N. suffered unimaginable loss and trauma as a child with the murder of his parents and siblings; the loss of his community; being conscripted as a child soldier; experiencing physical, emotional, and sexual abuse as a child under the control of Hutu soldiers or at orphanages; having to leave his homeland and emigrate to Canada; struggling to be accepted at school; experiencing bullying as a result of his race and ethnicity; and then losing his beloved aunt who was his primary support in his new life in Canada. It is no wonder he suffers from PTSD.
• Despite the tragedies that informed his childhood, J.N. showed great strength and resiliency in finishing school, attending college and university, getting training as a truck driver, and maintaining employment.
• J.N. showed a caring and compassionate side when moving to Ottawa to support his aunt while she was dying.
• Despite working as a trucker and not being physically available for his children much of the time, J.N. has at least maintained his relationship with them and has voluntarily provided financial support for them.
• About four years ago, J.N. showed some insight into his PTSD and its impact on his life by attending group psychotherapy sessions for six months for those involved in war zones. Since the offence against N.M., J.N. has again pursued counselling for his PTSD.
[30] In R. v. Navarathinam, 2021 ONSC 4241, at paras. 28-30, Roberts J., relying heavily on decisions of Code J.[^2], set out the broad range of sentences that have been imposed in Ontario for the offence of aggravated assault. Sentences range from intermittent sentences and even non-custodial sentences in exceptional cases to high reformatory terms for offences with mid-range gravity (often first offenders in situations with some elements suggestive of consent fights), to four to eight-year sentences for the most aggravated cases. In a number of cases, the Ontario Court of Appeal has upheld the categorization outlined by Code J.[^3]
[31] Counsel tried hard to find cases with some similarity to this one but, of course, that is always a difficult task. No two offences and no two offenders are ever identical. Each offender has his or her own story and each offence arises from unique circumstances.
[32] In circumstances where an accused has a mental health condition, it is incumbent on the sentencing judge to consider whether there was a causal link between the accused’s mental health condition and his criminal conduct in deciding what would be a fit and just sentence: R. v. Fabbro, 2021 ONCA 494, at para. 20. At para. 25, Gillese J.A. stated:
For mental health to be considered a mitigating factor in sentencing, the offender must show a causal link between their illness and their criminal conduct. That is, the illness must be an underlying reason for the conduct. And, there must be evidence that a lengthy sentence would have a serious negative effect on the offender such that it should be reduced on compassionate grounds. [Authorities not included.]
[33] Crown counsel pointed to R. v. Haly, 2012 ONSC 2302 where the accused was sentenced to four and a half years imprisonment (before credit of 18 months for pre-sentence custody) for stabbing a stranger in the back multiple times at a fitness club. The accused was 28 years old, had no criminal record, had a history of substance abuse, and had been diagnosed with a major depressive disorder. The court did not consider the accused’s mental illness a mitigating factor. One distinguishing feature of that case was that there was only a tenuous link between the accused’s depressive disorder and the attack.
[34] In this case, Dr. Wood has provided his professional opinion that J.N. was having a dissociative episode at the time of the attack on N.M. that was triggered, in all likelihood, either by his finding out that N.M. was HIV positive or by his believing that he had tested positive for HIV. Dr. Wood diagnosed J.N.as suffering from PTSD – as one would expect with a person who had experienced what he has from a very early age. Dr. Wood explained how the various traumas experienced by J.N. produces a constellation of symptoms that fuel negative beliefs and emotions and make it difficult for J.N.to control those emotions. There can be no question that there is a causal link between J.N.’s PTSD with dissociative symptoms and his criminal conduct toward N.M.
[35] There is also evidence from which I can infer that a lengthy period of incarceration in a federal institution would have serious negative consequences for J.N. The progress he has made in recognizing his challenges with PTSD and seeking help for that condition would be reversed rather than supported by spending years behind bars – a situation which I can easily conclude would take him back to his days as a captive of Hutu soldiers who imposed their will on him in unspeakable ways.
[36] Both Crown and Defence counsel agree that a period of incarceration is required to adequately denounce the nature of the offence committed by J.N. and to adequately recognize the harm done to N.M. They also agree that incarceration should be in a provincial, not federal, institution. The real question is whether the sentence should be one or two years. Crown counsel quite reasonably argues that he has taken the mitigating circumstances into account in suggesting two years instead of four years, which would be the bottom of the range for an aggravated assault in the most serious category. Defence counsel simply argues that the period of incarceration not be any longer than is required to afford J.N. the opportunity to benefit from programs that would be offered at St. Lawrence Valley Correctional Treatment Centre, which Dr. Wood strongly recommended as an appropriate placement for J.N.
[37] According to Dr. Wood, for an inmate to benefit from the programming at the St. Lawrence Valley Correctional Treatment Centre, their sentence should be such that they end up serving at least six months. Three months is the minimum stay in the program and there is often a waiting list to enter the program.
[38] Although I accept Crown counsel’s submissions that a reduction of two years from the base sentence for the most serious aggravated assaults could adequately reflect the mitigating factors I listed above, there are additional considerations which, in my view, call for a further reduction in the period of incarceration. Those include the following:
• J.N. has been living in the community on bail for over two years. Although there was one breach for not continuing to live with his surety, there were no further breaches. In this regard, J.N. has shown that he is able to be a pro-social and productive member of society over an extended period of time. This, in turn, supports Dr. Wood’s assessment that he presents a low risk of re-offending. This reduces the importance of separating J.N. from society to protect others.
• Ultimately, to provide the most protection to society from any further acts of violence on the part of J.N., what is most important is for J.N. to learn how to live with PTSD and manage it as best he can. Incarcerating J.N. in an environment other than a treatment setting will likely impede progress toward that goal.
• Due to the experiences J.N. had as a child in Rwanda, being incarcerated will be a disproportionately harder experience for him than others who were not subjected to such trauma as a child.
• J.N. will be going to jail at a time when conditions in the various institutions are very difficult as a result of COVID restrictions and staffing shortages. What inmates experience these days while incarcerated puts a whole new level of meaning to the phrase “hard time”.
Disposition
[39] Taking all these considerations into account, and being guided by the principle of restraint in sentencing, I sentence you, J.N.to a period of incarceration of one year or 365 days. You will receive credit for your 25 days of presentence custody at a rate of 1.5 to one, for a total of 38 days. This leaves a balance of 327 days remaining to be served. It is my strong recommendation that you serve your sentence at the St. Lawrence Valley Correctional Treatment Centre.
[40] Following this period of incarceration, you will be on probation for a period of two years during which you will be subject to the following conditions:
• Keep the peace and be of good behaviour;
• Appear before the court when required to do so by the court;
• 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;
• Report to a probation officer within one week of being discharged from prison and thereafter, when required by the probation officer and in the manner directed by the probation officer;
• Remain within Canada unless written permission to go outside Canada is obtained from the court or the probation officer;
• Abstain from communicating, directly or indirectly, with N.M. unless authorized to do so in advance and in writing by the probation officer;
• Abstain from being within 250 metres of any place where you know N.M. to be;
• Abstain from being within 250 metres of any place which you know is N.M.’s place of residence or place of work;
• Abstain from owning, possessing, or carrying a weapon;
• Attend and participate in all counselling or therapeutic programs recommended by your probation officer; and
• Sign all relevant consent forms to enable the probation officer to verify your attendance at and progress in such counselling or therapeutic programs.
[41] In addition, you shall be subject to the following corollary orders:
• A weapons prohibition order under s. 109 of the Criminal Code for a period of ten years; and
• A DNA order.
[42] J.N. shall be given 18 months from today’s date to pay the victim surcharge.
Aitken J.
Released: November 12, 2021
COURT FILE NO.: 19-DV5268
DATE: 2021112
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.N.
Accused
publication ban in effect under s. 486.5 of the criminal code: Any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
REASONS FOR JUDGMENT RE SENTENCE
Aitken J.
Released: November 12, 2021
[^1]: See also R. v. Dedeckere, 2017 ONCA 799, at para. 14.
[^2]: R. v. Tourville, 2011 ONSC 1677, at para. 27, and R. v. Seerattan, 2019 ONSC 4340, at para. 36.
[^3]: R. v. Jones, 2013 ONCA 245; R. v. Pomanti, 2017 ONCA 48; and R. v. Randhawa, 2020 ONCA 668.