R. v. Jacko (L.),

• Jurisdiction: Ontario
• Judge: Winkler, C.J.O., Goudge and Watt, JJ.A.
• Neutral Citation: 2010 ONCA 452
• Citation: (2010), 263 O.A.C. 326 (CA),2010 ONCA 452,101 OR (3d) 1,256 CCC (3d) 113,[2010] OJ No 2583 (QL),263 OAC 326,(2010), 263 OAC 326 (CA),101 O.R. (3d) 1,263 O.A.C. 326,[2010] O.J. No 2583 (QL)
• Date: 14 January 2010
• Court: Court of Appeal (Ontario)

R. v. Jacko (L.) (2010), 263 O.A.C. 326 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. JN.061

Her Majesty the Queen (respondent) v. Lance Jacko (appellant)

Her Majesty the Queen (respondent) and Cody Sebastian Manitowabi (appellant)

(C50301 (M37540/C50571); 2010 ONCA 452)

Indexed As: R. v. Jacko (L.)

Ontario Court of Appeal

Winkler, C.J.O., Goudge and Watt, JJ.A.

June 17, 2010.

Summary:

The accused, Jacko and Manitowabi, were youthful recidivists and status Indians, who committed various offences during a home invasion on an Indian reserve. They were sentenced to four years in penitentiary. The accused appealed.

The Ontario Court of Appeal allowed the appeals. Both sentences were reduced to two years less one day; however, Jacko was allowed to serve his sentence in the community, while Manitowabi was to serve his sentence in a provincial reformatory.

Criminal Law - Topic 5720.1

Punishments (sentence) - Conditional sentence - General - The Ontario Court of Appeal reviewed the statutory requirements and principles governing the imposition of conditional sentences - The court stated, inter alia, that "Aboriginal status does not guarantee a conditional sentence. It is, nonetheless, an important factor for the sentencing judge to consider in determining whether to impose a conditional sentence  ... " - See paragraphs 65 to 73.

Criminal Law - Topic 5720.1

Punishments (sentence) - Conditional sentence - General - The accused, Jacko and Manitowabi, were youthful recidivists and status Indians, who committed various offences during a home invasion on an Indian reserve - They were sentenced to four years in penitentiary - The accused appealed their sentences - The Ontario Court of Appeal allowed the appeals, because: (1) the trial judge failed to accord sufficient weight to the accused's aboriginal heritage, and more generally, to the sentencing objective of restorative justice; (2) the trial judge appeared to have excluded the availability of a conditional sentence on the basis that the paramount sentencing objectives were deterrence and denunciation; (3) the trial judge failed to give sufficient weight to the nature of the community in which the offences were committed and the views of that community (sentencing circle); and (4) the trial judge appeared to have treated the range of sentence discussed in R. v. Wright (Ont. C.A. 2006) as imposing a de facto minimum sentence for these offences, despite the prosecutor's apparent acknowledgment of the adequacy of a two-year sentence - The court stated that to consider guidelines as constituting a de facto minimum sentence was inconsistent with the fundamental principle of proportionality, and amounted to either judicial creation of a category of excluded offences or a presumption that conditional sentences were inappropriate for certain offences - Both were wrong - See paragraphs 75 to 82.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The Ontario Court of Appeal stated that "...  depending on its terms, a conditional sentence order can deliver significant measures of denunciation and deterrence ... Incarceration may provide for more denunciation and deterrence than a conditional sentence. But, at least as a general rule, a conditional sentence is more tailored to accomplishing the restorative objectives of rehabilitation, reparation and promotion of a sense of responsibility in the offender ... Of greater importance, when, as here, the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be realized for a particular offender, a conditional sentence is likely the appropriate sanction, provided denunciation and deterrence considerations are adequately serviced by the sentence  ... " - See paragraph 94.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused (Jacko), an 18 year old status Indian (now age 23), and four others, pushed their way into an apartment on an Indian reserve - Disguised - He inflicted blows on one of the occupants - Weapon involved - He was convicted of robbery while armed with an offensive weapon, break, enter and commit assault, and disguise with intent - Prior record - Abusive home background - Struggled at school - Became involved with alcohol and drugs - Since this incident, turned his life around - Completed high school, stopped using drugs and alcohol and got a job - Completed community college carpentry and building program - Began a stable relationship and had two young children - Sentencing circle supported community sentence - He was sentenced to four years' imprisonment - The accused appealed the sentence - The Ontario Court of Appeal allowed the appeal - The court imposed a sentence of two years less a day to be served in the community, with conditions - See paragraphs 83 to 102.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused (Manitowabi), an 18 year old status Indian (now 22), and four others, pushed their way into an apartment on an Indian reserve - Weapon involved - No disguise - The accused ransacked and stole things from the apartment - He did not participate in the beatings of the occupants - He was convicted of robbery while armed with an offensive weapon and break, enter and commit theft - Rebellious youth - Completed high school, but nothing further - Had not taken counselling for substance abuse - Prior record - Remained high risk to re-offend - Sentencing circle recommend community sentence, subject to conditions - He was sentenced to four years' imprisonment - The accused appealed the sentence - The Ontario Court of Appeal allowed the appeal and sentenced the accused to two years less one day in a provincial reformatory - A conditional sentence was not appropriate in these circumstances - See paragraphs 83 to 105.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - The Ontario Court of Appeal stated that "... sentencing is an inherently individualized process. Sentences can be expected to and do vary to some degree across various communities. The just and appropriate mix of sentencing objectives, the application of the fundamental principle of proportionality depends on the needs and current conditions of and in the particular location where the crime occurred. It is all the more so where the community has offered its input to the sentencing court" - See paragraph 93.

Criminal Law - Topic 5809.2

Sentencing - General - Establishment of sentencing or healing circle - [See second Criminal Law - Topic 5720.1 and Criminal Law - Topic 5801.1 ].

Criminal Law - Topic 5830.9

Sentencing - Considerations on imposing sentence - Uniqueness of community where offence committed - [See Criminal Law - Topic 5801.1 ].

Criminal Law - Topic 5831.4

Sentencing - Considerations on imposing sentence - Judicially determined minimum sentences - [See second Criminal Law - Topic 5720.1 and Criminal Law - Topic 5849.23 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See first Criminal Law - Topic 5720.4 and first Criminal Law - Topic 5847.1 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See first Criminal Law - Topic 5720.4 and first Criminal Law - Topic 5847.1 ].

Criminal Law - Topic 5837.1

Sentencing - Considerations on imposing sentence - Community representations or petitions (incl. views of sentencing circle) - [See second Criminal Law - Topic 5720.1 and Criminal Law - Topic 5801.1 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The Ontario Court of Appeal reviewed the principles applicable when sentencing aboriginal offenders (Criminal Code, s. 718.2(e)) - See paragraphs 58 to 64.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The Ontario Court of Appeal stated that "Restorative justice objectives do not trump other sentencing objectives in every case involving aboriginal offenders. Separation, denunciation and deterrence retain their fundamental relevance for some offenders who commit serious offences. As a general rule, the more serious and violent an offence, the more likely it is that the terms of imprisonment imposed on similarly-circumstanced aboriginal and non-aboriginal offenders will not differ significantly, and indeed may be the same. That said, in some instances of serious and violent crime, the length of a sentence of an aboriginal offender may be less than that imposed on a non-aboriginal offender ... Serious crime and the objectives of restorative justice are not incompatibles in the sentencing process - restorative justice objectives may predominate in the sentencing decision for aboriginal offenders convicted of serious crimes  ... " - See paragraph 64.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The Ontario Court of Appeal stated: "...  that sentences for serious or violent offences should approach or be equivalent for aboriginal and non-aboriginal offenders is a rule of general, but not universal or unremitting application ... As in every sentencing decision, sentencing aboriginal offenders proceeds on an individual basis. The analysis is, as it must be, holistic, designed to achieve a fit sentence in the circumstances, the elusive fundamental principle of proportionality ... Equipped with s. 718.2(e) [Criminal Code], sentencing courts are furnished a substantial measure of flexibility and discretion that permits the consideration in appropriate circumstances, of alternative sentences to incarceration that are at once apposite for the aboriginal offender and community and congruent with the governing purpose, objectives and principles of sentencing" - See paragraph 91.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See both Criminal Law - Topic 5720.1 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - [See second Criminal Law - Topic 5720.1 and Criminal Law - Topic 5849.23 ].

Criminal Law - Topic 5847.1

Sentencing - Considerations on imposing sentence - Restorative justice - The accused, Jacko and Manitowabi, were youthful recidivists and Status Indians, who committed various offences during a home invasion on an Indian reserve - Jacko was disguised - Physical violence and threats were involved - The accused appealed their four year penitentiary sentences - The Ontario Court of Appeal held that the appropriate sentence was at the upper end of the reformatory range, thus making a conditional sentence a possibility - The sentencing objectives of denunciation and deterrence were at work, however restorative justice sentencing objectives were of crucial importance in the circumstances - Those included rehabilitation, victim reparations, promoting a sense of responsibility and acknowledgment of the harm their conduct did to the victims and their community - The court stated that "In cases such as these, we must do more than simply acknowledge restorative justice sentencing objectives and note approvingly the rehabilitative efforts of those convicted. They must have some tangible impact on the length, nature and venue of the sentence imposed" - See paragraphs 83 to 88.

Criminal Law - Topic 5847.1

Sentencing - Considerations on imposing sentence - Restorative justice - The Ontario Court of Appeal stated that "...  the sentencing objective of restorative justice may be assigned greatest weight in the sentencing determination despite the seriousness of an offender's crime  ..." - See paragraph 92.

Criminal Law - Topic 5847.1

Sentencing - Considerations on imposing sentence - Restorative justice - [See both Criminal Law - Topic 5720.1 and second and third Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See first Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5849.23

Sentencing - Considerations on imposing sentence - Home invasion - The Ontario Court of Appeal stated that "... while our decision in Wright [R. v. Wright, 2006] and cases following its lead describe a range of sentence for 'home invasion' cases, it is clear from Wright itself that these cases require an especially nuanced approach to sentencing that involves a careful examination of the circumstances of the case at hand, of the nature and severity of the offenders' conduct and the circumstances of each offender involved in the offences ... Sentencing 'ranges', such as that described in Wright, are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality and is not faithful to the teachings of Wright itself. Individual circumstances matter" - See paragraphs 89 and 90.

Criminal Law - Topic 5851

Sentence - Break and enter - [See second and third Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5855

Sentence - Robbery - [See second and third Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5935

Sentence - Disguise with intent - [See second Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The Ontario Court of Appeal discussed the limits of appellate intervention permitted on a sentence appeal - The court stated that "Despite the expansive language of the mandate awarded us by s. 687(1) of the Criminal Code, absent an error in principle, a failure to consider a relevant factor, an overemphasis of the appropriate factors or the imposition of a sentence that is demonstrably unfit, we are disentitled to intervene to vary a sentence imposed at first instance" - See paragraphs 47 to 49.

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 33].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 47].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 47].

R. v. Wells (J.W.), [2000] 1 S.C.R. 207; 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273; 2000 SCC 10, refd to. [para. 64].

R. v. Whiskeyjack (R.) (2008), 243 O.A.C. 150; 93 O.R.(3d) 743; 2008 ONCA 800, refd to. [para. 64].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 66].

R. v. W.W. (2006), 218 O.A.C. 215; 216 C.C.C.(3d) 54 (C.A.), refd to. [para. 82].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.2(e) [para. 58].

Counsel:

James E. Weppler, for the appellant, Lance Jacko;

William Thompson, for the appellant, Cody Sebastian Manitowabi;

Gillian Roberts, for the respondent in the Jacko appeal (C50301/M37540);

Joan Barrett, for the respondent in the Manitowabi appeal (C50571).

These sentencing appeals were heard on January 14, 2010, before Winkler, C.J.O., Goudge and Watt, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Watt, J.A., on June 17, 2010.