Court File and Parties

Court File No.: CR-19-0181-00 Date: 2023-04-27 Ontario Superior Court of Justice

Between: His Majesty The King Thomas Bud, for the Crown

- and -

Jonathan Yellowhead, Accused Neil McCartney and Brooke Rogers, for the Accused

Sentencing Submissions Heard: December 9, 2022, at Thunder Bay, Ontario

Before: Regional Senior Justice B. R. Warkentin

Reasons on Sentence

[1] On December 9, 2018, the body of Braiden Jacob was discovered in Chapples Park in Thunder Bay, Ontario. The cause of death as determined by the forensic pathologist, Dr. M. Pickup, was “hypothermia in a man with blunt facial trauma and ethanol intoxication”.

[2] I found that Mr. Yellowhead caused the death of Braiden Jacob, and convicted him of manslaughter on August 12, 2022, after a two-week trial. Sentencing submissions were heard on December 9, 2022.

[3] The Crown is seeking the imposition of a sentence of between 8 to 12 years of incarceration less the time Mr. Yellowhead has spent in pre-sentence custody with credit to be allocated at 1.5:1 days.

[4] The Defence has suggested that the appropriate sentence is one of three to five years, less credit for the time Mr. Yellowhead has served on the basis of credit of 2:1 days.

Background of the Offence

[5] On December 5, 2018, a group of nine young people met at the Victoria Inn in Thunder Bay. They congregated in a hotel room that was registered to Jonathan Yellowhead. Mr. Yellowhead had purchased a “Texas mickey” of vodka. A Texas mickey contains 120 ounces. The nine young people shared the bottle of vodka and over the course of about four hours consumed the entire bottle.

[6] None of the young people were from Thunder Bay. They were from various remote First Nation communities and were in Thunder Bay for differing reasons. The victim, Mr. Jacob was in Thunder Bay from the community of Webebquie with his mother and sister for grief counselling.

[7] Mr. Yellowhead was from the community of Fort Hope, Ontario. Before congregating in Mr. Yellowhead’s hotel room on December 5, 2018, Mr. Yellowhead and Mr. Jacob had never met. Mr. Jacob was 17 years old, and Mr. Yellowhead was 22 years old.

[8] Sometime around 1:10 am on December 6, 2018, the nine youth were evicted from the Victoria Inn due to an incident that involved a broken window. They were all significantly impaired.

[9] Mr. Yellowhead and Mr. Jacob left the hotel together. They were observed on the Victoria Inn video cameras as fleeing the hotel together and then later seen on video camera footage in an area of Thunder Bay known as the Limbrick Complex at about 1:41 am on December 6 and leaving that area shortly thereafter. Mr. Yellowhead was observed on video, returning to the Limbrick Complex by himself shortly after 4:30 am on December 6 and seen to enter Unit 46E.

[10] Later that morning, Mr. Yellowhead’s father, Norman Yellowhead picked Mr. Yellowhead up from Unit 46E and on December 7, 2018, Mr. Yellowhead flew from Thunder Bay to Fort Hope also known as Eabametoong First Nation.

[11] Mr. Jacob’s mother contacted the Thunder Bay police on the morning of December 6th to report that Mr. Jacob was missing. The last sighting of Mr. Jacob was on the surveillance video from the Limbrick Complex on December 6, 2018, at 1:41 am.

[12] On December 9, 2018, at approximately 11:30 am, Mr. Jacob’s body was found in the Chapples Park area of Thunder Bay by a man out walking his dog.

Cause of Death

[13] I accepted the evidence of the forensic pathologist, Dr. M. Pickup that the immediate cause of death was “hypothermia in a man with blunt facial trauma and ethanol intoxication”.

[14] Dr. Pickup explained that neither the blunt force trauma nor the ethanol intoxication was sufficient on its own to cause Mr. Jacob’s death.

[15] It was Dr. Pickup’s opinion that it was the high level of ethanol (from alcoholic beverages) in Mr. Jacob’s blood together with the effects of the blunt facial trauma that possibly resulted in a loss of consciousness, preventing Mr. Jacob from seeking shelter from the cold. It was failing to seek shelter during freezing temperatures that resulted in his death by hypothermia.

[16] The trial evidence was set out in detail in my reasons for judgment after the trial and will not be recited again here. Notwithstanding that the evidence for the Crown was largely circumstantial, I found that it was Mr. Yellowhead who caused Mr. Jacob’s death and rejected the alternate theories that had been advanced by the defence. I convicted Mr. Yellowhead of manslaughter.

Victim Impact Statements

[17] During sentencing submissions, I received victim impact statements from Mr. Jacob’s grandmother, Emily Jacob and his sister, Meredith Jacob.

[18] They described how Mr. Jacob’s death traumatized their family; a family that had already been dealing with tragedy. The family had been in Thunder Bay to attend grief counselling because of the suicide and deaths of other close family members. To lose Mr. Jacob at a time when the family was attempting to recover from tragedy was devastating for them.

[19] Since Mr. Jacob’s death the family has lost others to suicide and mental illness. Both Mr. Jacob’s grandmother and sister described the hopelessness members of the family have felt and how Mr. Jacob’s death has increased those feelings. Meredith Jacob described recurring nightmares in which she relives the trauma of Mr. Jacob’s death.

[20] The purpose of victim impact statements is to provide information to the judge about the impact of the crime for the judge’s consideration in accordance with the principles of sentencing and to provide the victim with an opportunity for meaningful participation (s. 722 of the Criminal Code, R.S.C. 1985, c. C-46).

[21] I have considered the victim impact statements for the purpose set out in the Code and not for any aggravating purposes in determining the sentence that I will impose. I wish to thank Emily and Meredith Jacob for providing their statements and for informing the Court about the devastating effects the death of Mr. Jacob has had on their family.

Pre-Sentence Report and Gladue Report

[22] As part of the sentencing submissions, defence counsel introduced a Pre-Sentence Report from August 2021 related to separate convictions for assault and aggravated assault, an updated Pre-Sentence Report, dated September 26, 2022, for this manslaughter conviction and a Gladue Report that was prepared in August 2016 when Mr. Yellowhead was 19 years of age. Defence counsel submitted that these three reports provided the court with sufficient information for this sentencing hearing.

[23] The Gladue Report describes both the history of residential school experience and its aftermath for the Eabametoong First Nation (referenced elsewhere as Fort Hope) in Northwestern Ontario, as well as for Mr. Yellowhead and his family personally.

[24] Mr. Yellowhead’s parents are both from Eabametoong First Nation as were their parents. Both families have a history of attending residential schools. Neither of Mr. Yellowhead’s parents completed high school.

[25] Mr. Yellowhead was born and raised in Eabametoong. He was the youngest of three children. He also had an older half-brother who assisted in caring for Mr. Yellowhead when he was a child.

[26] Eabametoong is a remote community approximately 360 kilometers north of Thunder Bay and is accessible only by air or in the winter for a few months (January – March) by a winter/ice road. In 2016 when the Gladue Report was prepared there were approximately 1,500 band members who lived on the reserve and there was a 60 - 75% unemployment rate. While sustenance hunting, trapping, and fishing is common, the cost of equipment and supplies needed to engage in these practices is unattainable for many of those who are unemployed, leaving them with few options.

[27] Most of the older community members are residential school survivors. The effects of the residential school system have affected virtually every member of the community.

[28] Within the community, there are few resources available for band members. Most medical care is provided in Thunder Bay or elsewhere; secondary and post-secondary education is not available on the reserve, so many students either leave school early or move away in order to obtain their education.

[29] Alcoholism, prescription and non-prescription drug abuse are significant problems in the community as is gas sniffing and teen pregnancies.

[30] The Band Chief and Council and the Elders have worked to organize youth programs to teach the young people about their culture and heritage. As a result of many of these programs there are more youth who are succeeding, however this often requires them to leave the community.

[31] Mr. Yellowhead’s father, Norman Yellowhead, was taken into foster care as an infant and eventually raised by his maternal grandmother. Mr. Yellowhead’s parents were in their early 20’s when they married, and they struggled with alcohol abuse that at times resulted in domestic violence. Mr. Yellowhead witnessed these struggles of his parents as a young child.

[32] The Gladue report indicated that Mr. Yellowhead’s parents separated when he was around 3 or 4 years of age and shortly thereafter Mr. Yellowhead’s father attempted suicide. In the Pre-Sentence Reports, Mr. Yellowhead stated that his parents separated when he was around 12 years old. Mr. Yellowhead’s half-brother was murdered in Thunder Bay in 2014.

[33] Mr. Yellowhead’s father no longer uses alcohol or drugs and is involved in a Christian jamboree band that travels to different First Nation communities. Mr. Yellowhead’s mother works in Eabametoong First Nation as a social worker.

[34] Mr. Yellowhead left school in Grade 5. He has lived between Eabametoong First Nation and Thunder Bay since he was a child. In approximately 2015 he began a relationship with a woman, and they have three children together. She and the children reside in Eabametoong. They currently have an amicable relationship although in 2016 Mr. Yellowhead was charged and convicted of domestic assault against her and in 2018, while on probation from that conviction was again convicted of another assault against her. The assaults were violent, and the second conviction included threatening her with a knife.

[35] Mr. Yellowhead has a history of alcohol abuse and abusing Percocet.

[36] In 2021, while in custody after being charged in the death of Mr. Jacob, Mr. Yellowhead committed an assault for which he later pled guilty. This assault happened after the charges that resulted in the manslaughter conviction and therefore, while mentioned in the Pre-Sentence Report, does not factor into my consideration on this sentence.

[37] During his current incarceration for the assault, Mr. Yellowhead has sought treatment for depression and has accessed harm reduction, suboxone to manage his opiate misuse. He has enrolled in the high-school program and as at the time of the Pre-Sentence Report update of September 2022, had completed 27 credits towards his high school diploma. His teacher submitted a letter noting that Mr. Yellowhead has worked hard to complete the coursework and that he is presently working on a business course. Mr. Yellowhead is committed to completing his high school diploma and to seeking gainful employment. He is interested in working as a heavy equipment operator and also interested in becoming a social worker to assist other youth.

[38] The Pre-Sentence Reports both comment that Mr. Yellowhead had a past association with a gang, the Northside Savages, which he claims has been disbanded and that he has no current affiliation and is not involved in gang activity.

[39] Both reports comment on Mr. Yellowhead’s tendency toward violence and that any probation order should require that Mr. Yellowhead engage in intensive counselling and supervision.

Mitigating and Aggravating Factors

[40] To assist a trial judge in arriving at a “just and appropriate punishment,” Parliament enacted s. 718.2 of the Criminal Code which sets out a number of aggravating or mitigating factors that a judge may consider to formulate an appropriate sentence.

Aggravating Factors

[41] The significant aggravating factor in this case is Mr. Yellowhead’s criminal background that includes prior instances of violence.

Mitigating Factors

[42] Mr. Yellowhead was 22 years of age when he committed this offence. He was a young, Indigenous male whose family and community has been shaped by the Indian Residential School system. I have already set out the Gladue factors that are present. These are mitigating factors that are important considerations in this sentencing.

[43] When offered the opportunity to speak during the sentencing hearing, Mr. Yellowhead expressed remorse for causing Mr. Jacob’s death.

[44] In the recent past, while in custody, Mr. Yellowhead has sought to complete his high school diploma and has succeeded in completing most if not all of the necessary credits.

General Principles of Sentencing

[45] The offence of manslaughter is serious. Manslaughter arises where a person commits an unlawful act that causes the death of another person. The Criminal Code, however, points to an important difference between a person who commits manslaughter and a person who commits murder. In the case of murder, there is an intent to kill. When someone commits manslaughter, that intent to kill is not present. When someone commits manslaughter, it is an offence that was not planned and presumes the death was unintended and might have been accidental.

[46] This definition does nothing to relieve the tragedy and sorrow for family and friends following the unnecessary death of a young person. It is unlikely there is anything this court can do to provide comfort in the face of such loss of life.

[47] As a judge, however, I am directed to consider the list of principles and objectives that applies when a Court must determine a fair and just sentence as set out in section 718 of the Criminal Code. The principles in that section require that unlawful conduct should be denounced while at the same time deterring the offender and others from committing similar crimes.

[48] The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the aspect of conduct, not on the personal characteristics of the offender.

[49] The principle of deterrence is set out in section 718 (b) of the Criminal Code. Deterrence seeks to provide a threat or example to the offender (specific deterrence), or to others (general deterrence), in order to discourage crime by making it clear that criminal behaviour of this nature will result in the imposition of severe punishment.

[50] It is the task of the sentencing judge to assign the relative weight to the specific circumstances of the case before the Court so that the sentence is shaped in a way that is specific to the offender while following a uniform approach.

Law and Analysis

[51] The Crown seeks a sentence of between 8 and 12 years, less credit for the 25.5 months served in pre-sentence custody on the basis of 1.5:1 or 38.25 months credit.

[52] Defence counsel argued that a 3-to-5-year sentence would be appropriate after application of the Gladue factors that are present and that the circumstances of Mr. Yellowhead’s pre-sentence custody would entitle him to credit on the basis of 2:1 days or the equivalent of 51 months credit for time already served.

[53] I have considered the case law cited by both the Crown and defence in support of their respective positions on sentence.

[54] Crown counsel cited 4 cases that involved Indigenous offenders convicted of manslaughter: R. v. Kwandibens, 2021 ONSC 7525; R. v. Loon, 2020 ONSC 619; R. v. Wabasse, 2017 ONSC 1269; R. v. Killiktee 2011 ONSC 5910. In the cases cited by the Crown, all accused pled guilty to manslaughter, a mitigating factor to be considered on sentence that is not present with Mr. Yellowhead (I note that not pleading guilty is not an aggravating factor). In three of the cases cited, the accused were sentenced to a range of between 8 and 10 years and one accused was sentenced to 16 years. All were provided credit for pre-sentence custody. The Crown did not provide a comparison of sentences for Indigenous and non-Indigenous offenders convicted of manslaughter.

[55] Defence counsel pointed to cases where the range of sentence for manslaughter was 3 to 5 years: R. v. Thomas, 2016 ONSC 7944; R. v. Thompson 2010 ONCA 463; R. v. Brizard, [2006] O.J. No. 729. He also referenced the leading cases setting out the necessity of the sentencing judge to consider the violence perpetrated by Mr. Yellowhead through the lens of his community as well as his own experience in his childhood: R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Ipeelee 2012 SCC 13.

[56] The range of sentences that may be imposed for the offence of manslaughter ranges from a non-custodial sentence up to and including life imprisonment. In establishing such a broad range of sentences, Parliament has acknowledged that a conviction for manslaughter may be the unfortunate result of an accident that has no physical violence associated with the incident, which in those instances the sentence would be on the low end of the range. Higher sentences are imposed when there is significant violence, such as stabbings or beatings that result in the victim’s death. If that violence is coupled with a history of violent behaviour by the accused, the sentences tend to be at the higher end of the scale.

[57] In considering the case law that supports the range of sentences sought by the Crown, I note that while pleading guilty in those cases was a mitigating factor, in each of those cases, the accused had virtually no defence to the allegations. They were either caught committing the act on video camera or there were eyewitnesses who identified the accused. In other words, there was no chance that the accused would be found not guilty at trial.

[58] The law provided by the Crown also includes only offences of extreme physical violence by the offender. In each of those cases, the victim was either beaten or stabbed to death. With those factors present, it is possible that the accused, should they have proceeded to trial, would have been facing 2nd degree murder convictions rather than manslaughter convictions.

[59] Those factors are very different than the circumstances of Mr. Yellowhead. The violence perpetrated on Mr. Jacob by Mr. Yellowhead requires that both the principles of denunciation and deterrence weigh in favour of a custodial sentence of some length. However, the evidence was that Mr. Jacob died from hypothermia, not from the injuries he sustained at the hand of Mr. Yellowhead. The forensic pathologist was unable to determine if the assault on Mr. Jacob had even caused Mr. Jacob to lose consciousness. It was because Mr. Jacob was unable to seek shelter after being assaulted that resulted in his death by hypothermia.

[60] In addition to the case law cited by the Crown and defence, I have also considered a variety of manslaughter convictions for non-Indigenous offenders: R. v. Isenor, 2007 NSPC 70; R. v. Yusuf, 2012 ONSC 2421; R. v. Pimentel, 2022 ONSC 3023; R. v. Fan, 2019 ONSC 6403; R. v. Johnson, 2017 ONSC 3512; R. v. Bushby, 2021 ONSC 4082. The range of sentence in those cases was from three years to eight years, depending on the circumstances.

[61] The cases where an eight-year sentence was imposed resulted after a trial where the offender was acquitted of the more serious offence of murder and convicted of manslaughter.

[62] The cases where a three-year sentence was imposed involved offenders with no prior history of violence or criminal conduct.

[63] It would be a miscarriage of justice for this court, having regard to the Gladue factors that are present, to impose a period of custody for an Indigenous offender that exceeds sentences for similar conduct for non-Indigenous offenders.

[64] After consideration of all the factors and circumstances present in this case, I find that a proper sentence is five years and four months incarceration less pre-sentence custody of 51 months after credit of 2:1.

[65] I have determined that credit on a 2:1 basis is appropriate in light of the abhorrent conditions in the jail where Mr. Yellowhead was incarcerated. For much of Mr. Yellowhead’s pre-sentence custody, he was in a total or partial lockdown situation because of staffing issues in the prison, followed by the Covid-19 pandemic lockdowns. These conditions warrant credit of 2:1.

[66] After subtracting the pre-sentence custody, the remaining sentence that Mr. Yellowhead shall serve is 13 months.

[67] I note that sentencing judges are tasked with determining whether sentencing options, other than jail, may play a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime: Gladue at para. 65.

[68] Because this sentence is less than two years, I am entitled to impose a period of probation. This is a case where the maximum period of probation of three years is appropriate. I accept the recommendations set out in the Pre-Sentence Report for the probationary period and order the following conditions in addition to the usual conditions of probation: a) To report as directed to your probation officer; b) To actively pursue education or employment opportunities; c) To sign any releases of information necessary to permit your probation officer to monitor participation and completion of all assessments, counselling and rehabilitative programs; d) Not to possess any weapons as defined by the Criminal Code; e) To refrain from the purchase, possession and consumption of alcohol and other illicit substances except with a valid prescription; and f) To attend and actively participate in all rehabilitative and psychological programming as directed by your probation officer including but not limited to: i) Trauma; ii) Grief and loss; and iii) Substance (opiate) use.

[69] Conviction for manslaughter engages certain mandatory orders. Manslaughter is a primary designated offence that requires Mr. Yellowhead to surrender a sample of his DNA for forensic analysis and an order to that effect is made. Mr. Yellowhead is also prohibited from possessing non-restricted firearms for a period of ten years and restricted and prohibited firearms and weapons for life, pursuant to s. 109 of the Criminal Code.

The Honourable Regional Senior Justice B. Warkentin Released: April 27, 2023