R. v. Jimmy, 2017 BCSC 1218

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Jimmy, 2017 BCSC 1218 Date: 20170310 Docket: 38386-3 Registry: Duncan Regina v. Richard James Jimmy Before: The Honourable Mr. Justice Thompson Oral Reasons for Sentence Counsel for Crown: R. Opel Counsel for Defence: R. Drury Place and Date of Hearing: Duncan, B.C. March 10, 2017 Place and Date of Sentencing: Duncan, B.C. March 10, 2017 [ 1 ] THE COURT: On 16 December 2016, a jury convicted this 37-year-old offender of aggravated assault on his younger brother, Wilson Daniels. The assault was carried out with a knife.

It occurred in Duncan on the afternoon of 13 December 2015. Both men had been drinking heavily. Circumstances of the Offence [ 2 ] Mr. Jimmy and Mr. Daniels are both members of the Cowichan Tribes. They are full brothers and grew up together. Mr. Jimmy has taken his mother's last name and Mr. Daniels his father's. Both men have multiple assault convictions. Each has a very serious alcohol problem, and when they drink together what begins as a good time turns to argument and, sometimes, to fighting. [ 3 ] On this occasion, both men were at their great-uncle's house party. Both were highly intoxicated. They argued.

Mr. Daniels punched Mr. Jimmy in the face. They wrestled and Mr. Daniels came out on top. At this time, their great-uncle told all the partygoers to leave. [ 4 ] When Mr. Daniels and Mr. Jimmy were out on the street, there was another altercation between them. In the course of that altercation, Mr. Jimmy used a knife and Mr. Daniels was cut. He was taken to hospital via ambulance. He had three knife wounds: a one and one-half inch laceration to his forehead, a one and one-half to two inch laceration to his left forearm, and a one inch laceration to his left flank. These cuts were stitched up. [ 5 ] Mr.

Jimmy did not testify at trial. On his behalf, counsel argued that the Crown had failed to establish all of the necessary elements of an aggravated assault, and, in the alternative, if an aggravated assault occurred, the Crown had failed to prove that it had not occurred in self-defence. Of course, the difficulty is that jury deliberations are secret and we therefore do not know all of the facts that were found by the jury.

Section 724 of the Criminal Code , sets out my task: Information accepted 724.

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender. Jury

(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. [ 6 ] The principles to be followed in these circumstances were outlined in R. v. Ferguson, 2008 SCC 6 at paras. 17-18 . The starting point is to determine the issues on the sentencing. Then, the judge is to find only those facts necessary to impose a proper sentence. These facts are determined from the issues before the jury and their verdict. In circumstances such as the case at bar, when the factual

implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical processes of the jury; rather, he or she should come to an independent determination of the relevant facts. In doing so, the judge is bound by the express and implied factual implications of the jury's verdict and must accept as proven all facts, express or implied, that are essential to the jury's verdict. Aggravating facts must be established beyond a reasonable doubt; other facts must be established on a balance of probabilities. [ 7 ] What are the issues on this sentencing?

We know from the verdict that the jury found that all elements of the offence of aggravated assault were proven. What we do not know for certain is which one or more of the elements of self-defence were found by the jury to be absent. In fact, different jurors may have had different opinions on which self-defence ingredients were missing. We know from the verdict, however, that each juror found that at least one of the elements of self-defence was missing. Again, the sentencing judge should not attempt to follow the logical process of the jury.

I am to come to an independent determination of the relevant facts. [ 8 ] The issue, then, is which element or elements of the defence is lacking?

Section 34 of the Criminal Code in relevant part provides: Defence - use or threat of force 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances. Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [ 9 ] As I instructed the jury, there are three questions to answer when considering self-defence: 1. Has the Crown proved beyond a reasonable doubt that Mr. Jimmy did not believe on reasonable grounds that force or the threat of force was being used against him? (the “belief question”) 2. Has the Crown proved beyond a reasonable doubt that Mr. Jimmy did not commit the act for the purpose of defending or protecting himself from the use or threat of force? (the “purpose question”) 3.

Has the Crown proved beyond a reasonable doubt that Mr. Jimmy's act was not reasonable in the circumstances? (the “reasonableness of the act” question) [ 10 ] For the reasons I expressed during submissions at this sentencing hearing, I have reached the conclusion that it is the third self- defence question that tripped up Mr. Jimmy's self-defence position. [ 11 ] In addressing this third question, I considered the relevant circumstances of Mr. Jimmy, the relevant circumstances of Mr. Daniels — including his long history of doing violence when intoxicated — and the relevant circumstances of the act of striking Mr.

Daniels with a knife. I have considered all of the circumstances listed in s. 34(2)(

a) through (g). I conclude beyond a reasonable doubt that Mr. Jimmy's act of striking Mr. Daniels with a knife was unreasonable. [ 12 ] The three wounds suffered by Mr. Daniels as a consequence of Mr. Jimmy striking him with a knife included a one inch cut on his back. I find beyond a reasonable doubt that Mr. Daniels was unarmed, and that Mr. Jimmy's response to his brother's unarmed attack was to strike blows with a knife including a blow to his brother's back. I am satisfied beyond a reasonable doubt that Mr.

Jimmy's act was beyond the bounds of being reasonable in the circumstances and, accordingly, the third necessary element of self-defence is missing. In consequence, he had no lawful excuse for committing an aggravated assault on his brother.

Circumstances of the Offender [13] Mr. Jimmy's circumstances are well summarized in the pre-sentence report. I do not intend to refer to it in particular detail. Thesummary reads in part: Mr. Richard James Jimmy, aged 37, is currently before the court on one count of aggravated assault against his brother, Wilson Daniels.Mr. Jimmy describes a difficult upbringing, having witnessed and being victim to physical violence. Mr. [Jimmy] further reports beingmolested at the age of seven. His grandparents as well as his father attended residential school and alcoholism runs through the family. Mr.

Jimmy reports having aGrade 10 education and maintains regular employment in the forestry and fishing industry. He reports being financially stable. He has noassets to speak of. Mr. Jimmy has five children from three different relationships. While he maintains a close relationship with hisgrandparents and parents, he reports having a strained relationship with his brother. Mr. Jimmy acknowledges that he struggles with alcohol which contributes to his violent offences. He has no recollection of the offencedue to his level of intoxication. Therefore, his attitude towards the offence is difficult to assess. Mr.

Jimmy recently took

part in treatmentat Vision Quest Recovery Centre and is motivated to maintain his sobriety. [14] Mr. Jimmy has a significant — albeit somewhat dated — record of assaults. In April and May 2002, he committed offences ofassault and received a total of 21 days in jail with 12 months of probation. On 25 May 2002, he committed an aggravated assault, andreceived a one-year jail sentence and a probation order of two years. In April 2009, he committed an assault and received a three-monthconditional sentencing order, and a 12-month probation order was imposed.

In October 2010, he committed the offence of assaultcausing bodily harm and was imprisoned for six months with a one-year probation order. Discussion [15] The Crown's position on sentence is that three to four years’ imprisonment before credit for time served would be anappropriate sentence. The offender's position on sentence is that 16 to 18 months before credit for time served would be a fit and propersentence. Aggravated assault is a serious offence. It carries a maximum of 14 years under the Criminal Code. There is no minimumpunishment. [16] I have had regard to s. 718 of the Criminal Code. This

section affirms that the fundamental purpose of sentencing is tocontribute along with crime prevention initiatives to respect for the law and the maintenance of a just, peaceful, and safe society byimposing just sanctions with one or more of the objectives specified. In the case at bar, all of the objectives in s. 718 come into play. Afit sentence involves a weighing of the need for denunciation, deterrence, the need to protect the public, and promote a sentence ofresponsibility while acknowledging the harm done, with, on the other hand, the objective of assisting Mr. Jimmy's rehabilitation.

It goeswithout saying that the public will be best protected if Mr. Jimmy can find a way to overcome his alcohol problem. [17]

Section 718 also requires adherence to other important principles. First, proportionality: it is a fundamental principle ofsentencing that a sentence must be proportionate to the gravity of the crime and the degree of responsibility of the offender. This isreflected in s. 718.1 of the Criminal Code. [18] Second, a consideration of aggravating and mitigating circumstances: s. 718.2(

a) provides that a sentence should be increased orreduced to account for any relevant aggravating or mitigating circumstances. [19] Third, parity: s. 718.2(

b) provides that a sentence should be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances. No two cases or offenders are alike. Cases must be contrasted and compared in an effort toachieve fairness and consistency in sentencing. [20] Further, and importantly, I am mindful in particular of s. 718.2(

e) and the following passages from R. v. Ipeelee, 2012 SCC 13at paras. 59-60: When sentencing an Aboriginal offender, a judge must consider [the factors outlined in R. v. Gladue, (SCC), [1999] 1S.C.R. 688]: (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offenderbefore the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for theoffender because of his or her particular Aboriginal heritage or connection . . . Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people inCanadian society [citation omitted].

To be clear, courts must take judicial notice of such matters as the history of colonialism,displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higherunemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. Thesematters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary contextfor understanding and evaluating the case-specific information presented by counsel. [21] It is apparent from Mr.

Jimmy's circumstances that his life has features of the consequential disadvantages listed by Mr. JusticeLeBel in the Ipeelee case. Appreciation of the “systemic and background factors,” including the exposure of his family to the residentialschool system and the consequent struggles of many Cowichan Tribes people with family violence, abuse, and substance misuse, puts inproper context the case specific information I have been provided with by counsel and the author of the pre-sentence report. [22] As for aggravating factors, Mr. Jimmy does have a record with previous assault convictions.

I acknowledge a significant gapfrom 2010 until the present offence. The use of a weapon is aggravating. And I must take into account that although his physical wounds

are well-healed, the emotional wounds to Mr. Daniels continue. He reported bouts of depression to the author of the pre-sentence report. [23] There are, however, important mitigating facts. Mr. Daniels, a man with his own serious record of assaults, provokedMr. Jimmy. And, in important contrast to the cases relied upon by the Crown, two of the three elements of self-defence are present in thiscase. I find that Mr. Jimmy is a man with significant strengths, despite his very difficult upbringing.

And this is not a case whereexercising his right to a trial and the corresponding absence of a guilty plea is indicative of a lack of remorse. There was a very live self-defence issue in this case. I heard from Mr. Jimmy during the sentencing hearing, and I accept that his remorse for what happened to hisbrother is genuine. [24] It is stating the obvious that one root of the problem here is alcohol abuse: Mr. Jimmy is capable of anger and violence whenintoxicated. Mr. Jimmy has taken important but incomplete steps toward recovery.

His time at Vision Quest showed that it is possible forhim to overcome his addiction, and when he does, and I think he will, I am confident that the public will be fully protected. [25] I was referred to R. v. Johnson (1998), (BC CA), 131 C.C.C. (3d) 274 (B.C.C.A.) where the court refers to arange of sentences for assault convictions of this type. At para. 10: . . . the range of sentence for similar offences is broad, and lies between 16 months' and six years' imprisonment.

Sentences at the lowerend of the range tend to be imposed in "fight" situations in which the altercation escalates and results in injuries to the victim. Sentencesat the higher end of the range tend to be imposed in situations where the victims are attacked with a weapon, without provocation andwithout any opportunity to defend themselves. [26] Ranges are useful tools and can be important guidelines. They are not averages, however, and they cannot become, in effect,judicially-imposed mandatory minimum and maximum sentences. [27] The particularly important facts in this case include Mr.

Daniels' provocative behaviour and the presence of the belief andpurpose elements of self-defence; Mr. Jimmy's use of a knife and his previous albeit dated record of assaults; Mr. Jimmy's indigenousheritage and the disadvantages visited upon him in consequence; the hope that still exists for Mr. Jimmy to overcome his alcoholaddiction; Mr. Jimmy's strong work ethic and attachment to the work force; and the support of his family. There is no question thatdeterrence and denunciation, however, must play an important role in the sentence that I am to impose. Sentence [28] Would you stand up, please, Mr.

Jimmy. [29] On balance, I think two years' imprisonment less credit for time served, at a rate of 1.5:1, is a fit and proper sentence in this caseand that is the sentence that I impose upon you. I know that you hope to re-establish a relationship with your brother, but you areprohibited from contacting him while you are in custody pursuant to s. 743.21. [30] You will provide a DNA sample by the least invasive means practicable. [31] I impose the mandatory 10 years' weapons prohibition provided for in the Criminal Code. [32] Mr. Jimmy, you are lucky to have the support of your family who have assembled here today.

My sense of it is that you are agood man, you are a hardworking man, and I really do hope that you find the strength to overcome your alcohol problem. [33] The victim fine surcharge is waived. [34] Anything else, counsel? [35] MS. OPEL: To clarify, My Lord, that there is no probation to follow the sentence? [36] THE COURT: There is no probation to follow the sentence. [37] MS. OPEL: And with respect to the no-contact, there are a number of Wilson Daniels, so it is Wilson Daniels the Third. [38] THE COURT: Wilson Daniels the Third? [39] MS. OPEL: Correct. [40] THE COURT: Okay. Now, Mr.

Jimmy, you have no doubt in your mind about who you are not supposed to be contacting,right? [41] THE ACCUSED: Yes. [42] THE COURT: It’s your brother. Okay. And that is for the period of time during which your sentence runs. [43] MS. OPEL: Sorry, My Lord, just to -- clarification on the credit. He will receive -- [44] THE COURT: Yes. [45] MS. OPEL: -- what amount did you specify that as? [46] THE COURT: One point five days for every day.

[ 47 ] MS. OPEL: Correct. [ 48 ] THE COURT: Yes. Do you know how many days he has been in custody? [ 49 ] MS. OPEL: I think we calculated six months, did we? Or can we leave it as that? [ 50 ] THE COURT: Are counsel content with a six-month credit? [ 51 ] MR. DRURY: Yes. [ 52 ] MS. OPEL: That is what you have calculated? [ 53 ] MR. DRURY: That is right. [ 54 ] MS. OPEL: Yes. [ 55 ] THE COURT: He will have a six-month credit then towards the two-year sentence. “Thompson J.”