R v Ross, 2023 MBPC 53

CITATION : R v Ross , 2023 MBPC 53 THE PROVINCIAL COURT OF MANITOBA Winnipeg, Manitoba BETWEEN His Majesty the King ) E. Dunsmore ) for the Crown – and – ) ) Hank Everett Ross ) Z. Jones ) for the Accused ) ) ) Decision Delivered: ) November 6, 2023 ALLEN, P.J. [ 1 ] Hank Ross is before the court charged having been convicted after trial of eight offences, which took place on March 27 and March 28, 2022. He is also being sentenced today for seven offences from April 7, 2022; five offences from April 17, 2022; nine offences from April 20, 2022; and four offences from April 24, 2022, all of which he has pled guilty to. [ 2 ] In

summary, the events before the court include an assault with a weapon from March 27, 2022. On that day, Mr. Ross had just been released from jail when he went to the complainant’s residence on [REDACTED] in Winnipeg. The complainant, [T.B.], was 20 years old at that time. She is the mother of a young child. [REDACTED]. [ 3 ] The complainant testified at trial that on that day at her residence, Mr. Ross punched her in the head area and other areas of her body, and dragged her around her apartment. Additionally, she said that he smashed her PS5 (PlayStation game console) over her legs.

She said that at one point he put her body face-down and smashed her head against the floor. She said that every time she tried to get up he threatened her with a knife. [ 4 ] [T.B.] testified at the trial of these charges, that the assault lasted approximately 45 minutes and that she was left with a bruised neck and blackened eyes. [ 5 ] At the time, a protection order was in place prohibiting Hank Ross from being in contact with [T.B.], going to her residence and “entering or remaining any place where the complainant happens to be”.

He was convicted of three breaches of the protection order for both March 27 and March 28, as well as assaulting the complainant with a weapon. Additionally, the evidence at trial established that the perpetrator took [T.B.]’s cell phone against her wishes – for that he was convicted of Theft. [ 6 ] The trial evidence established that Mr. Ross was also at the victim’s residence the next day, March 28, and a friend of [T.B.] noticed her facial injuries during a FaceTime phone call and called police. Police attended and found Mr.

Ross hiding under a baby crib in an upstairs bedroom. [ 7 ] Turning to the offences from April 7, 2022, Mr. Ross had been released on bail on April 5, and on April 7 returned to [T.B.]’s residence and was allowed entry. [ 8 ] What follows is the Crown’s

summary of the arrest reports which was filed at the sentencing hearing: [T.B.] advised that on April 7 th , 2022 at approx. 23:00 hours her ex-boyfriend Hank ROSS DOB [REDACTED] had attended her residence and requested to come in as he had no where else to go. ROSS was apologetic about the previous incident and [T.B.] allowed him entry to the suite. The two attended to the couch in the living room where they began to talk. After approx. 10 minutes ROSS became angry and smacked [T.B.] across the face.

ROSS was upset regarding being sent to jail and [T.B.] contacting police in regards to him assaulting her / breaching. After being hit across the face ROSS got on top of [T.B.] while she was protecting her face. He proceeded to place his forearm around her neck and choke her. Prior to losing consciousness ROSS stated “I don’t want to break your neck”. ROSS then stopped choking her but continued to strike her in the face and kneeing her in the ribs. The assault ended when the two heard a sound at the door. ROSS told [T.B.] to go upstairs while he looked outside to confirm if anyone was there.

Once confirming that no one was there ROSS fled the residence. Prior to leaving ROSS stated that things would be worse if she contacted the police. . . .

I observed slight bruising to [T.B.] ’s left eye and a split inner lip. It should be noted that this incident occurred on April 7 th , 2022 and the injuries were still visible on 2022-04-16. [T.B.] advised that she hadn’t contact police sooner as ROSS had made comments about things being worse if she contacted police. She only contacted police when she knew / believed that ROSS was out of the city and in God’s Lake Narrows. [ 9 ] As a result of that incident, Mr. Ross entered guilty pleas to charges of assault, uttering threats, two counts of breaching a protection order, two contact breaches and a curfew breach. [ 10 ] The next set of charges arise from events of April 17, 2022. The Crown’s

summary of the arrest report reads: On April 17, 2022 at around 5:30 pm, ROSS, attended [T.B.] ’s residence at [REDACTED]. ROSS told [T.B.] that he planned to ‘pimp her out’ by taking photos of her and placing them on “Leolist” (an escort website) and that he wanted her to have sex with people for money. ROSS told [T.B.] that he would hurt her if she did not do as he said. [ 11 ] As a result of that interaction, Mr. Ross plead guilty to uttering threats, two breaches of a protection order, and two breaches of his bail provisions as to attending and contacting [T.B.]. [ 12 ] The next set of charges arise from events of April 20. The Crown’s

summary of the arrest report reads: Today (Apr 20), ROSS attended to [T.B.] ’s residence at [REDACTED]. ROSS knocked on the door, which [T.B.] answered. ROSS demanded [T.B.] ’s phone from her. ROSS then grabbed [T.B.] and punched her in both the head and the face. ROSS then ordered [T.B.] onto the floor and kneed her in both her ribs and her back. [T.B.] fell onto her stomach on the floor, and ROSS sat on her back and wrapped his arms around her neck, choking her from behind.

As ROSS was choking [T.B.] he said “I’m going to kill you”, “I don’t care if I go to jail”, “it will only be a manslaughter charge”, “I’ll only get 4-5 years”. He then punched [T.B.] in the back 5-6 times. [T.B.] , at this point was breathing heavily from being choked. ROSS then told her to breathe and to calm down.

He then said “I don’t want to see you like this” and that he did not want to make her face like the last time. [T.B.] took this to mean that he was referring to the previous time he assaulted her, where he bruised and marked up her face. [T.B.] was then able to stand up, and ROSS grabbed her neck with one hand and choked her up against the wall. ROSS then departed the suite and apartment block with [T.B.] ’s phone. [T.B.] followed ROSS to the intersection of [REDACTED] and grabbed him from the front, demanding he return her phone to her.

ROSS then punched [T.B.] in the back of the head, in front of several bystanders and passing vehicles – saying that he did not care if there were people around. ROSS then threw [T.B.] ’s iPhone, approximate value of $1500, into a puddle, rendering it ineffective. ROSS then walked off as [T.B.] retrieved her phone from the puddle and attempted to call 911 (operator was not able to hear her due to the water damage). ROSS briefly approached [T.B.] again, wanting to know who she was calling. He then said “are you for real, you’re going to do this again” (call police).

ROSS then ran off. [T.B.] was later able to reach police and report the assault. [T.B.] sustained the following injuries: Bleeding to outside of left ear Sore and bruised back and ribs Sore and bruised arms Sore and scratched neck Swollen and bleeding left cheek

Swollen and bruised left jaw line [13] Mr.

Ross plead guilty to assault causing bodily harm, choke to overcome resistance, uttering threats, mischief to property(under), two counts of disobeying a protection order and one breach of a no contact condition of a probation order. [14] Finally, he plead guilty that on April 24, 2022 he again went to her residence, triggering two protection order breaches and twocharges of failing to comply with conditions of a release order. [15] The Crown’s position on sentencing is as follows: - For all charges from March 27 and March 28, 2022: One year incarceration; - For all of the charges from April 7, 2022: Six months jail consecutively served; - For the breaches from April 17 and April 20: Six months jail consecutively served; - For the Utter Threats charge from April 17 and all the other charges from April 20: 18 months jail consecutively served; For a total of between 45 and 48 months of jail. [16] The defence position is that a total period of incarceration of between 30 and 35 months is called for. [17] Hank Ross has been in custody for 448 days, which when enhanced, becomes 672 days. [18] Mr.

Ross is 27 years old. He has a criminal record. His first entry was as a youth in 2013 for Robbery, wherein he received acustody/supervision sentence. He was as an adult convicted of Robbery in 2015. At the same sentencing, he also dealt with two counts ofPossession of Property Obtained by Crime. He received a 10-month jail sentence. [19] In 2016, he was convicted of being in possession of property obtained by crime. He was noted to have 125 days of pre-sentencecustody plus given a fine. [20] In 2017, he was convicted of failing to comply with both a probation order and a recognizance.

He again received a jailsentence, in that case 66 days. [21] Also in 2017, he was convicted of driving while impaired (causing bodily harm) and possessing property obtained by crime.

Onthe first charge, he received a jail sentence of 17 months, 29 days. [22] In 2018, he was again given a jail sentence, 30 days for failing to comply with a probation order. [23] In 2019, over two separate sentencings, he was convicted of five instances of failing to comply with court orders. [24] In 2020, he was convicted of Assault and Theft Under. [25] In 2021, he was convicted on three separate sentencings of failing to comply with probation orders and two counts of Mischief.The last breaches were of domestic conditions. [26] A pre-sentence report (PSR) was filed in this matter.

The report states that his probation officer is “of the opinion that [he] maynot be suitable for Probation Supervision due to his repeated breach of Court ordered conditions within days after his release fromcustody and significant victim safety concerns” (PSR, at page 6). [27] The PSR also outlines Mr. Ross’s “extensive history of behavioural incidents in a Provincial custodial setting.

These incidentsinclude the display of threatening and abusive behaviour towards staff and other inmates, possession of contraband and sharing his PINfor the institutional phones with other inmates” (PSR, at page 6). [28] When asked about the complainant, Mr. Ross “blamed the victim for asking him to stay with her” (PSR, at page 7). [29] Mr. Ross has treaty status with God’s Lake Narrows First Nation. He has significant Gladue factors (see R v Gladue, (SCC), [1999] 1 SCR 688). He was placed in Child and Family Service (CFS) care at eight years of age as a result of hisparents’ alcohol addiction.

He reports that he was exposed to violence, abuse and neglect while in his parents’ home. It would appearthat his father and paternal grandfather attended residential schools. [30] Several of Mr. Ross’s immediate family members were contacted to contribute to the PSR. They all expressed hope that hewould overcome the addiction issues that they feel are ruining his life. [31] Mr. Ross has no formal or casual employment history. He has also been consuming alcohol, apparently to excess, since age 17or 18.

He believes that he has been diagnosed with schizophrenia and drug-induced psychosis. [32] The report concludes at page 16: The subject does not appear to have made any attempt to cooperate with assessment and treatment while in community to address hissignificant addiction issues and his childhood trauma. He displayed limited remorse for the offences and had little insight into how hisactions seriously impacted the victim. Despite expressing his willingness to comply with programming and supervision, the subject’soverall attitude and past non-compliance with community supervision suggested otherwise.

[ 33 ] The report lists him as a very high risk to re-offend and not a suitable candidate for community supervision. [ 34 ] The defence says that Mr. Ross has participated in a substance abuse program while in custody and that he initiated efforts to get into, and has been in, the Winding River therapeutic counselling program since May of this year. The defence also points out that Mr. Ross suffered a significantly difficult childhood having been apprehended 9 times from his parents and placed on 13 occasions in 8 different foster homes – all of that taking place between the ages of 10 and 12. [ 35 ] The fundamental principle of sentencing in Canadian law is found in the Criminal Code at

section 718.1 : “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 36 ] In this case, the repeated breaching of protection orders, probation orders and bail conditions, which were placed to protect the victim, is obviously serious. Mr. Ross’s behaviour towards the complainant has left her fearful and considerably conflicted. To her credit, she testified as to what transpired but, nevertheless, expressed concern to the Crown Attorney that she was sorry that Hank Ross was not seeing their child. [ 37 ] Mr.

Ross is not being sentenced today for one episode of domestic violence. What is before the court is a protracted period of abuse that totally ignored societal sanctions and prohibitions. Within short days or even hours of getting out of jail, this perpetrator was back at his victim’s door and thereafter within a short period of time became angry and was physically abusing her. The gravity of this offence is obvious. [ 38 ] Mr. Ross’s culpability is tempered somewhat by his addiction issues and by his upbringing. This is a person who was raised amidst chaos and dysfunction.

He is unfortunately, and some would say inevitably, repeating the traumas that he grew up with. In addition, the upheaval of his experience in the child welfare system would have made it close to impossible for this man to enjoy the stability necessary to develop into a stable person. His attitudes and behaviours today appear, unfortunately, to be an outflow of what he experienced as a child and adolescent. [ 39 ] In my opinion, there are significant Gladue factors in this case. [ 40 ] Defence counsel filed materials relating to recent and past programming that Mr. Ross participated in.

This programming included recent sessions on parenting and alcohol/drug dependency. Additionally, extensive materials from Mr. Ross’s child welfare history were provided to the court. Although there does not appear to be an actual fetal alcohol spectrum (FAS) assessment, there are several references in the file that indicate he had been diagnosed with a cognitive deficit.

One such reference is found in the Awasis Agency of Northern Manitoba document “Child’s Social History” dated September 13, 2010, which says at page 2, “Hank Ross Jr. was diagnosed for ADHD [attention deficit hyperactivity disorder] and FAE [fetal alcohol effect]”. [ 41 ] Additionally, from the Awasis file, Child’s Social History document dated February 11, 2011 (at page 3): “Hank Ross and his siblings were diagnosed with FAS/FAE”. [ 42 ] It appears that the Awasis Agency operated on the assumption that Mr.

Ross had been assessed with a cognitive deficit but that no actual diagnosis was done, or if a report was done it was never placed in his file. [ 43 ] At one point, his cognitive abilities were assessed in 2012 and the clinical assessment prepared at that time said, “Hank’s general cognitive ability is within the Low Average range of intellectual functioning as measured by the FSIQ [Full Scale IQ]. His overall thinking and reasoning abilities exceed those of approximately 19 percent of children his age. . .

Given his cognitive ability, Hank does not meet the criteria for supportive living services” (Clinical Management Group, Clinical Assessment dated October 11, 2012, at page 5). [ 44 ] In any event, Mr.

Ross made several comments during some of these assaults, which in my opinion indicate that he was aware of the injury he was doing to the victim, and that he was aware that there would be criminal consequences to his actions. [ 45 ] As stated by the Manitoba Court of Appeal in R v JMO , 2017 MBCA 59 ( Okemow ) at paragraphs 107 to 109 , it is not enough to find that the offender suffered from a cognitive deficit but that a causal link to the offence must be found.

The Court in JMO said the following (at paras 107 and 108): As previously explained, there is no question that a mental illness or some other form of cognitive limitation can impact a sentence by diminishing an offender’s moral culpability or, alternatively, justifying less emphasis on the principle of deterrence. The difficulty here is that the judge proceeded on the basis that the young person had diminished moral culpability for the two armed robberies simply because he suffered from ARND [alcohol-related neurodevelopmental disorder] and ADHD.

The error in principle here was the judge’s failure to make a finding of fact that there was a causal link between the young person’s mental circumstances and his commission of the two armed robberies.

Absent that finding, the judge could not proceed on the basis that the young person had diminished moral culpability for the armed robberies. [ 46 ] Additionally, the Court at paragraph 160 said, “Whether, and if so, the degree to which a cognitive impairment of an offender impacted criminal behaviour is a question for a sentencing judge, not an expert witness.” [ 47 ] As well, the Court of Appeal further said: A reduction of moral blameworthiness for the purposes of sentencing, either for an adult or a young person, due to a recognized and properly diagnosed mental illness or other condition where the functioning of the human mind is impaired, is a “fact-specific” case-by-

case determination as opposed to an automatic rule that the mental illness or cognitive limitation necessarily impacted the commission of the offence in question ( see R v Roulette , 2015 MBCA 102 at para 7 ; R v Friesen , 2016 MBCA 50 at para 23 ; R v Manitowabi , 2014 ONCA 301 at paras 55-57 ; R v Ellis , 2013 ONCA 739 at paras 107-127 ; R v Ramsay , 2012 ABCA 257 at paras 33-39 ; R v Branton , 2013 NLCA 61 at para 35 ; and R v MJH , 2004 SKCA 171 at para 29 ). [ Okemow , at para 72 .] [ 48 ] Further, that Court went on to say in paragraph 73: It is suggested that, when sentencing offenders with a mental illness or some other form of cognitive limitation, such as a form of FASD, sentencing judges keep separate and properly assess the following questions: 1.

Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2. Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct? 3.

Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. [ 49 ] In applying these criteria to this case, I am not satisfied that the evidence before the court establishes that Mr. Ross suffers from a recognized mental illness or some form of cognitive limitation.

I am also not satisfied that there is evidence before the court that would link any cognitive limitation he may suffer from to his conduct that is being assessed in this court. [ 50 ] In any event, as stated earlier, I believe that Mr. Ross’s remarks and behaviours during these crimes are inconsistent with the suggestion that these were impulsive acts consistent with the actions of a person with FASD. [ 51 ] It is an aggravating factor that the abuse inflicted on [T.B.] took place within a domestic relationship. Criminal Code

section 718.2 reads: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii) evidence that the offender, in committing the offence, abused the offender's intimate partner or a member of the victim or the offender's family. [ 52 ] Further,

section 718.201 reads as follows: A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims. [ 53 ] It is aggravating that Mr. Ross continued this abusive behaviour having been jailed, being out on bail, and being placed on restrictive conditions. [ 54 ] It is of significant concern that even while assaulting her he was blaming her for reporting him to the police.

As well, his remarks reflect full awareness of what he was doing – remarks such as: - “I don’t want to break your neck”; - “I am going to kill you”; - “I don’t care if I go to jail”; - “It will only be manslaughter”; - “I’ll only get 4 to 5 years”. [ 55 ] Additionally, he punched her in the head, in public, in front of bystanders, while saying to [T.B.] that he did not care if people saw what he was doing. [ 56 ] I am satisfied that, however affected by psychological dysfunction or addiction issues, the remarks made by this perpetrator illustrate that he knew what he was doing while he was abusing this victim. [ 57 ]

Section 718 of the Criminal Code reads:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: ( a ) [T]o denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 58 ] In this case, the nature of the abuse calls for deterrence and denunciation. The public and Mr. Ross must realize that behaviour of this nature will result in significant consequences.

I do believe that despite the codified principles as to restraint and as to sentencing relying upon other tools than incarceration if possible, that in this case given the gravity of the offences and the need for denunciation and deterrence, that separation from society is called for. [ 59 ] Rehabilitation must always be a consideration, and particularly in this case, as Mr. Ross is still relatively youthful at 27 years of age. It is a positive factor that he has been in the Winding River program since May. It is a positive sign that he did plead guilty to a significant number of these offences.

Although this must be tempered somewhat by the fact that he plead guilty after [T.B.] had attended and did testify at the trial of the first set of charges. [ 60 ] It is also of some concern as to the offender’s rehabilitative prospects, in that he has on a number of sentencings previously been given the benefit of probation and he has not only not benefitted from probation, but has not followed probation conditions. [ 61 ] Having given consideration to all of the above, including the aggravating and mitigating factors, the Gladue factors and the principles of sentencing, Mr.

Ross will be sentenced as follows: [ 62 ] As to the Assault with a Weapon charge from March 27, 2022, he will be sentenced to a period of incarceration for 270 days (approximately nine months). [ 63 ] As to the theft of the complainant’s cell phone from that date, he will be sentenced to a period of incarceration for 60 days.

That incarceration to be concurrent to the 270-day sentence above. [ 64 ] As to all the breaches from March 27 and March 28, 2022, he will be sentenced to 30 days of jail on each breach, all to be served concurrently. [ 65 ] As to the Assault and Uttering Threats from April 7, 2022, he will be sentenced to jail for 180 days, to be served concurrently to each other but consecutively to the other sentence. [ 66 ] As to all the breaches from April 7, he will be sentenced to concurrent 30-day sentences. [ 67 ] As to the charge of uttering threats from April 17, 2022, he will be sentenced to jail for 90 days consecutive. [ 68 ] As to the nine breaches from April 17 and April 20: 180 days concurrent to each other but consecutive to the above sentences. [ 69 ] As to the Assault Cause Bodily Harm, Choke and Utter Threat charges from April 20, he will be sentenced to 365 days concurrent to each other but consecutive to the other sentences.

As to the Mischief charge from that date, he will receive a 90-day concurrent period of incarceration. [ 70 ] As to the four breaches from April 24, he will be sentenced to 90 days concurrent to each other but consecutive to the other sentences. [ 71 ] Taking a last look at the cumulative total of these sentences, I am satisfied that the total sentence of 1,175 days, does not constitute a crushing sentence or a sentence that will prohibit this offender from rehabilitating his life. Given his circumstances and the danger he currently presents to the victim and to the community, Mr.

Ross appears to need significant rehabilitative counselling, which hopefully he will be exposed to while incarcerated. [ 72 ] Mr. Ross has 448 days of time in custody, which enhanced by a factor of 1.5 becomes 672 days.

Of those days, 365 will be taken from the Assault Cause Bodily Harm sentence, leaving no time going forward on that charge. [ 73 ] Remaining available is 307 days, 270 of which will be used on the Assault with a Weapon charge, which leaves that charge with no time going forward. [ 74 ] The final 37 days of enhanced credit will be taken from the 90 days he received as to the Uttering Threats charge, which will reduce that charge to 53 days going forward. [ 75 ] In

summary, he has received a period of incarceration for 1,175 days, reduced by served credit of 672 days, leaving 503 days going forward.

[ 76 ] There will be a two-year period of unsupervised probation to follow his incarceration, which will include a requirement that he have no contact with and not attend within 30 metres of where [T.B.] lives, works, worships, etc. Additionally, there will be a DNA order, the sample for which is to be taken while in custody. There will be a 10-year weapons prohibition pursuant to

section 109 of the Criminal Code . Court costs and surcharges are waived. Original signed by Judge Allen H. L. ALLEN, P.J.