COURT FILE NO.: CR-21-0018-00
DATE: 2022-10-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
T. Budd, for the Crown
- and -
JOHNATHON YELLOWHEAD
N. McCartney, for Mr. Yellowhead
Accused
HEARD: May 24 and September 19, 2022, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons on Application for Remand for Assessment
Overview
[1] On August 18, 2021, Mr. Yellowhead pleaded guilty to committing an aggravated assault on Jonah Thomas on September 21, 2019. He was convicted on the admitted facts read in on October 27, 2021.
[2] Mr. Thomas and Mr. Yellowhead were inmates at the Thunder Bay District Jail. Words were exchanged between them, and Mr. Yellowhead entered Mr. Thomas’ cell and dragged him into the corridor where Mr. Yellowhead and six co-accused assaulted Mr. Thomas. The assault was captured on video and lasted 34 seconds.
[3] Mr. Thomas was rendered unconscious. He was hospitalized and his injuries included a concussion, a fractured and displaced orbital bone which required surgical repair, a dislocated jaw, bruising to his heart, swelling, bruising and abrasions to the left side of his face and double vision.
[4] The Crown declared its intention to seek an assessment for a dangerous offender application on this sentencing and sought an order remanding Mr. Yellowhead for an assessment for use as evidence in a dangerous offender application.
The Dangerous Offender and Long-Term Offender Process
[5] In dealing with habitual violent offenders with the highest risk of recidivism, Parliament enacted special provisions that aim to protect the public by enabling lengthy prison terms and enhanced post-release supervision. These provisions create two classes of offenders: “dangerous” offenders and “long-term” offenders.[^1]
[6] The first stage of the process is ordering an assessment. The prerequisite for ordering an assessment is the offender’s conviction for a “serious personal injury offence.” It was not disputed that aggravated assault is such an offence.
[7] The court shall remand the offender for an assessment if the court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender or a long-term offender.[^2] [Emphasis added.]
[8] If an assessment is ordered and an assessment report filed, the court shall find the offender to be a dangerous offender if satisfied that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour showing a failure to restrain his or her behaviour and a likelihood of causing death or injury through failure in the future to restrain his or her behaviour;
(ii) a pattern of persistent aggressive behaviour showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour; or
(iii) any behaviour that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint[^3]. [Emphasis added.]
[9] A court may find an offender to be a long-term offender if satisfied that:
(i) It would be appropriate to impose a sentence of imprisonment of two years or more;
(ii) There is a substantial risk that the offender will reoffend; and
(iii) There is a reasonable possibility of eventual control of the risk in the community.
[10] Substantial risk is met where the offender has shown a pattern of repetitive behaviour that shows a likelihood of the offender causing death or injury to other persons.[^4]
Mr. Yellowhead’s Criminal Record and Related Background
[11] In support of the application for assessment, the Crown filed an affidavit of Detective Constable Blain Joynson which summarized Mr. Yellowhead’s background and convictions. The affidavit included a Gladue report from 2016.
[12] Mr. Yellowhead was born on October 15, 1996 and is now 26 years old.
[13] The Gladue report was prepared when he was 19. Between the ages of 15 and 17, Mr. Yellowhead spent 98 days at the Justice Ronald B. Lester Youth Centre in Thunder Bay. A social worker there described Mr. Yellowhead as “polite, respectful, cooperative with staff.” The social worker indicated that Mr. Yellowhead “did well in a structured environment” and “has the potential to do well in school now as an adult.” Mr. Yellowhead advised the report writer that he was interested in attending treatment for alcohol addiction.
Youth Convictions
November 21, 2011 (age 15)
[14] Mr. Yellowhead and another youth attempted to break into a variety store at Eabametoong First Nation by striking a lock with an axe. A passerby stopped their efforts.
December 11, 2011
[15] Mr. Yellowhead and three other youths broke into some businesses in the First Nation, took some canned goods and then sprayed fire extinguishers in the businesses.
December 15, 2011
[16] Mr. Yellowhead broke a window at his uncle’s home.
December 21, 2011
[17] Mr. Yellowhead was charged with theft of a snowmobile.
March 26, 2012
[18] Mr. Yellowhead and other youths took gas from a snowmobile and poured the gas over a building that was being renovated. A sock was lit on fire and thrown inside the building which started a fire.
[19] For the foregoing offences Mr. Yellowhead was sentenced on May 10, 2012, for time served, 46 days, plus one year probation.
January 5, 2013 (age 16)
[20] Mr. Yellowhead and other youths were charged with breaking into the school on the First Nation and police located “food items on his person”. He received a sentence of 30 days and 15 days supervision in the community.
August 19, 2013
[21] Mr. Yellowhead and other youths were found shooting a firearm until they ran out of bullets. He received a sentence of 37 days presentence custody and probation for 12 months.
February 2014 and April 2014
[22] Mr. Yellowhead was charged with property related offences including theft. He was placed on probation for one year.
September 30, 2015 (age almost 19)
[23] Mr. Yellowhead was charged with assaulting his common-law spouse. He punched her repeatedly and her injuries included soreness to her lips, arm, and ribs.
February 2016
[24] Mr. Yellowhead was charged with assaulting his common-law spouse. On one occasion he struck her, and she sustained a black eye. On another occasion he grabbed her neck from behind and she sustained a sore ear and abrasion on her cheek. The most serious incident occurred on February 7, 2016, when he punched her and threatened her with a knife.
[25] He received a global sentence of nine months of imprisonment plus 18 months of probation for these offences.
[26] He was released from custody on April 26, 2017.
September 5, 2017, Probation Assessment (aged almost 21)
[27] This assessment noted that Mr. Yellowhead presented with “antisocial behaviour patterns” and that he did “not appear to take responsibility for his present or past offences.” The assessment described Mr. Yellowhead’s deficiencies related to “anger management, problem-solving and impulsiveness.”
January 23, 2018
[28] Mr. Yellowhead assaulted his common law spouse. He was sentenced to one day (with credit for 146 days equivalent presentence custody) and probation.
December 6, 2018 – Manslaughter Death of Braiden Jacob (age 22)
[29] In April 2022 Mr. Yellowhead was tried for manslaughter and convicted by Warkentin J. on August 12, 2022.[^5]
[30] The evidence disclosed that nine young indigenous people, including Mr. Yellowhead and Mr. Jacob were drinking together in a local hotel. At about 1:10 AM on December 6, the nine youth were evicted from the hotel. All nine youth were significantly impaired. Mr. Yellowhead and Mr. Jacob left the hotel together. They were seen on video camera footage at the Limbrick Complex in Thunder Bay at about 1:41 AM and then observed leaving the area. At about 4:30 AM, Mr. Yellowhead was observed on video returning to the Limbrick Complex alone. Mr. Jacob’s body was found several days later in the Chapples Park area of Thunder Bay.
[31] The trial judge summarized the forensic pathologist’s opinions as follows:
The immediate cause of Mr. Jacob’s death was hypothermia in a man with blunt facial trauma and ethanol intoxication[^6];
The blunt facial trauma alone would not have resulted in Mr. Jacob’s death[^7];
It was the high level of ethanol in Mr. Jacob’s blood together with the effects of the blunt facial trauma that possibly resulted in a loss of consciousness that prevented Mr. Jacob from seeking shelter from the cold. It was failing to seek shelter during freezing temperatures that resulted in his death by hypothermia.[^8]
[32] In finding Mr. Yellowhead guilty of manslaughter the trial judge concluded:
[80] While it is impossible to know if Mr. Jacob was rendered unconscious from the assault, I find that Mr. Yellowhead had an objective foreseeability of the risk of bodily harm to Mr. Jacob in the context of what was a violent assault. It was objectively foreseeable that due to the level of Mr. Jacob’s intoxication together with the freezing temperatures in Thunder Bay in early December, that there was a significant risk of non-trivial harm to Mr. Jacob after an assault that caused substantial injury to Mr. Jacob.
[81] I find that it was Mr. Yellowhead who caused the blunt force facial trauma to Mr. Jacob and that the Crown has proven that these injuries were a substantial contributing cause to Mr. Jacob’s death.
[33] Mr. Yellowhead has not been sentenced for this offence.
Mr. Yellowhead was arrested for the manslaughter charge on December 14, 2018, and detained in custody in the Thunder Bay District Jail
[34] While in custody Mr. Yellowhead was involved in seven altercations with other inmates between January 22, 2019 and May 24, 2019. None of these incidents resulted in convictions except one. Although Mr. Yellowhead was charged along with two other inmates for an assault, at trial the court found that he did not participate in the assault, but he was found guilty of attempting to disarm a correctional officer by swatting at his arm while the correctional officer held out pepper spray.
September 21, 2019 – Aggravated Assault on Jonah Thomas at District Jail
[35] This is the present charge before me as described in the Overview.
Mr. Yellowhead was released on bail on November 28, 2019.
[36] On February 10, 2020, Mr. Yellowhead was charged with two breaches: possessing or consuming alcohol and breaching curfew.
[37] It is also alleged that he assaulted Carl Wapoose on February 10, 2020 and was held in custody. Counsel for Mr. Yellowhead advises that this charge was dismissed on April 25, 2022. The Crown advises that the charges were withdrawn when witnesses did not attend.
Pre-sentence Reports
[38] Since hearing submissions from counsel, I received two presentence reports. The first, dated September 27, 2021, was prepared for the sentencing on the aggravated assault charge. The latter, dated August 12, 2022, was prepared for the manslaughter sentencing but it is relevant because it provides an update since 2021.
[39] Both reports outlined that Mr. Yellowhead suffered from a Percocet addiction between the ages of 17 and 21 and that he now is on a Suboxone program and wishes to enter a treatment program. With respect to the aggravated assault conviction, he said, “I feel stupid. It was really wrong, and I am sorry for my actions.” He said that he would comply with community supervision because he is “older and more mature”. It is noted that he had eight previous noncompliance offences.
[40] The most recent report noted that Mr. Yellowhead had completed 27 credits towards his high school diploma while incarcerated. The education program coordinator from the Penetanguishene Learning Centre provided a letter of support noting that Mr. Yellowhead worked very hard on all his courses and that she would continue to work with him until he graduates. Mr. Yellowhead reported that he is currently being treated for depression.
[41] His ex-partner and mother to his three children described Mr. Yellowhead as a “caring person and good father.” She confirmed that the relationship “had a rough start but they have made amends and have agreed to co-parent their three children” once Mr. Yellowhead returns to their community.
Positions of the Parties
The Crown
[42] The Crown submits that the threshold for ordering an assessment is low, that what is required is a possibility, not probability or likelihood, that the offender could be found to be a dangerous or long-term offender.
[43] The Crown relies on the following statement of law from Roccamo J. in R. v. Vanderwal[^9]:
[27] It is universally agreed that the threshold is a low one. It is less than the civil burden of proof and far less than the criminal burden of proof. The language in section 752 requires the court to consider the totality of the record of evidence and information in support of the application to decide whether there are reasonable grounds to believe the offender might, not will, be found a dangerous offender or a long-term offender. To require any more at this stage of proceedings is to run the risk that a sentencing justice must come close to making findings on an incomplete body of evidence and without the benefit of the assessment proposed under section 752.1. [Emphasis added.]
[44] Mr. Yellowhead’s past behavior, the Crown argues, would meet any one of the three categories of behavior outlined in S. 753(1): “repetitive behavior”, “persistent aggressive behavior”, or “behavior that is of such a brutal nature”.
[45] Alternatively, the Crown argues that Mr. Yellowhead meets the criteria for designation as a long-term offender under s. 753.1 even if there is a reasonable possibility of eventual control of risk, because the appropriate sentence for this offence would be two years imprisonment or more and that there is a substantial risk that Mr. Yellowhead will reoffend.
[46] Two of the co-accused in the aggravated assault of Mr. Thomas received a sentence of three years. Two received a sentence of two years less a day. One received a lesser sentence. One was ordered to undergo an assessment for determination of dangerous or long-term offender status.
The Defence
[47] Counsel for Mr. Yellowhead argues that the principle of parity would preclude a dangerous or long-term offender designation for this offence given the sentences received by the six co-accused. He notes that Mr. Yellowhead has been in custody for this offence for approximately 2.5 years.
[48] Counsel for Mr. Yellowhead relies on this passage from Nordheimer J. in R. v. P.H.[^10]
32 I accept the Crown's point that the threshold for obtaining an assessment order in not a high one. At the same time, however, the threshold ought not to be placed so low that it will result in an assessment order being made in virtually any case where the underlying offences are disturbing or upsetting. The assessment order is the starting point for the dangerous offender and long-term offender application. It puts into play a time consuming process that may ultimately lead to the imposition of one of the, if not the, most serious penalties available for an offender. It seems to me that it is the responsibility of the court to act as a gatekeeper regarding such applications to ensure that the process is not put in motion except in those cases where there is a reasonable prospect that the relief sought might actually be granted, that is, where there is a real possibility, to use the language from Naess, that an application for either designation might be successful. [Emphasis added.]
[49] Counsel for Mr. Yellowhead submits that the convictions and background of Mr. Yellowhead do not rise to the level that it can be said that there are reasonable grounds to believe that Mr. Yellowhead might be found to be a dangerous or long-term offender.
Analysis and Disposition
Does this behavior amount to reasonable grounds to believe that Mr. Yellowhead might be found to be a dangerous or long-term offender?
[50] I agree that the threshold for ordering an assessment is low and, also, that it is the responsibility of the court to act as a gatekeeper as Nordheimer J. stated since ordering such an assessment “puts into play a time consuming process that may ultimately lead to the imposition of one of the, if not the, most serious penalties available for an offender.”
[51] With respect to the parity argument, as the past behaviour of the different offenders varies, parity has a minimal role in determining whether an assessment should be ordered.
Dangerous Offender
[52] Is Mr. Yellowhead a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
a pattern of repetitive behaviour showing a failure to restrain his or her behaviour and a likelihood of causing death or injury through failure in the future to restrain his or her behaviour?
a pattern of persistent aggressive behaviour showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour?
any behaviour that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint?
Long-Term Offender
Is it appropriate to impose a sentence of imprisonment of two years or more?
Is there is a substantial risk that the offender will reoffend, i.e., has the offender shown a pattern of repetitive behaviour that shows a likelihood of the offender causing death or injury to other persons?
Is there is a reasonable possibility of eventual control of the risk in the community?
[53] None of the youth convictions constitute behaviour supporting reasonable grounds to believe that Mr. Yellowhead might be found to be a dangerous or long-term offender.
[54] While all intimate partner violence is serious and the threat with the knife very serious, none of the four assaults over three years resulted in serious injury. It was during this period that Mr. Yellowhead has suffered from a Percocet addiction. Since then, he has been on a Suboxone program. His former common-law partner says that they made amends and agreed to co-parent their three children.
[55] The manslaughter of Mr. Jacob on December 6, 2018 occurred when all involved individuals were significantly impaired. The pathologist found that the blunt facial trauma alone would not have resulted in Mr. Jacob’s death. The pathologist concluded that it was the high level of ethanol in Mr. Jacob’s blood together with the effects of the blunt facial trauma that possibly resulted in a loss of consciousness that prevented Mr. Jacob from seeking shelter from the cold. Consequently, he died of hypothermia.
[56] With respect to the altercations with other inmates at the Thunder Bay District Jail and the aggravated assault upon Mr. Thomas, I take judicial notice of the continual overcrowding and frequent lockdowns present at this facility. I am not satisfied that this behavior while imprisoned in these conditions is predictive of future behaviour as contemplated by the dangerous or long-term offender designations. I note that Mr. Yellowhead has expressed remorse for the assault upon Mr. Thomas.
[57] I also take note of the progress that Mr. Yellowhead has made with his education while incarcerated and the positive comments from the education program coordinator and the social worker from the Youth Centre.
[58] Based on the totality of the information from all occurrences, I do not find that this behaviour amounts to reasonable grounds to believe that Mr. Yellowhead might be found to be a dangerous or long-term offender.
[59] Based on the totality of the information from all occurrences, I do not find that this behaviour amounts to reasonable grounds to believe that this is a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing death or injury through failure in the future to restrain his behaviour.
[60] Similarly, based on the totality of the information from all occurrences, I do not find that there are reasonable grounds to believe that there is a pattern of persistent aggressive behaviour showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences of his behaviour.
[61] Similarly, based on the totality of the information, I do not find that there are reasonable grounds to believe that there is behaviour of such a brutal nature to compel the conclusion that Mr. Yellowhead’s behaviour in the future is unlikely to be inhibited by normal standards of restraint.
[62] Finally, while a sentence of two years or more is appropriate, based on the totality of the information, I do not find that there are reasonable grounds to believe that Mr. Yellowhead has shown a pattern of repetitive behaviour that shows a likelihood of him causing death or injury to other persons.
[63] For the foregoing reasons, the application for an order for an assessment is dismissed.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: October 17, 2022
COURT FILE NO.: CR-21-0018-00
DATE: 2022-10-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Crown
- and –
JOHNATHON YELLOWHEAD
Accused
REASONS ON APPLICATION FOR REMAND FOR ASSESSMENT
Newton J.
Released: October 17, 2022
[^1]: Criminal Procedure in Canada, 2nd ed, Penney, Rondinelli, Stribopoulos LexisNexis at 17.29. [^2]: Application for remand for assessment 752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1. [^3]: Application for finding that an offender is a dangerous offender: 753 (1). [^4]: Application for finding that an offender is a long-term offender: s. 753.1. [^5]: R. v. Yellowhead, 2022 ONSC 4679. [^6]: 2022 ONSC 4679 at para. 13. [^7]: 2022 ONSC 4679 at para. 17. [^8]: 2022 ONSC 4679 at para. 19. [^9]: 2010 ONSC 265. [^10]: [2005] O.J. No. 6698.