R. v. Cook, 2023 MBPC 8

CITATION: R. v. Cook, 2023 MBPC 8 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) J. Koffman ) for the Crown – and – ) ) Jeremy Andrew Cook ) E. Pollock ) for the Accused ) ) Reasons for Decision Delivered: ) February 10, 2023 CARLSON, P.J. INTRODUCTION [ 1 ] Jeremy Cook pleaded guilty to an aggravated assault he committed on June 1, 2022 in Winnipeg, Manitoba. [ 2 ] This is a sentencing decision.

The Court must decide what sentence is appropriate for Jeremy Cook for committing this offence. [ 3 ] There is not a joint recommendation as to sentence. [ 4 ] The Crown seeks a sentence of five years imprisonment going forward, and noting, but not deducting, Mr. Cook’s time in custody of 255 days as of, and including, today, credited at 1:1. That is in total, a sentence equal to close to six years, specifically five years, eight and a half months. [ 5 ] Defence counsel argues for a sentence equal to 21 months jail, comprised of noting Mr.

Cook’s time in custody, credited at 1.5 to 1, or 383 days, such that a sentence going forward would be just over eight months jail to be followed by three years supervised probation. CIRCUMSTANCES OF THE OFFENCE [ 6 ] At approximately 2:00 a.m. on June 1, 2022, Mr. Cook and a youth co-accused came upon Mr. Sanderson, who was walking alone in a lane behind Red River Community College in Winnipeg. Mr. Cook and the youth co-accused did not know Mr. Sanderson. The youth co-accused, who was holding a knife, approached Mr. Sanderson and tried to take an item of clothing from Mr. Sanderson’s hands.

The youth co-accused started swinging the knife and proceeded to stab Mr. Sanderson in the upper body, multiple times, and then pushed Mr. Sanderson to the ground. Mr. Cook, who was holding a large knife, approached Mr. Sanderson while Mr. Sanderson was lying on the ground, and proceeded to stab Mr. Sanderson repeatedly on his body and to kick him multiple times. Both Mr. Cook and the youth co-accused continued to stab and kick Mr. Sanderson, and tried to remove items of clothing from Mr. Sanderson as an injured Mr. Sanderson tried to flee. Mr. Cook and the youth co-accused took Mr.

Sanderson’s backpack and items of clothing and fled the scene. [ 7 ] Police were alerted and located Mr. Cook and the youth co-accused. Both had blood on their hands and clothing. Each of Mr. Cook and the youth co-accused was found with a knife, and Mr. Cook was found with Mr. Sanderson’s backpack and possessions. When interviewed, Mr. Cook admitted stabbing and kicking Mr. Sanderson. [ 8 ] Mr. Sanderson was located in an unresponsive state. He had multiple stab wounds to his chest, back and arms. He was rushed to hospital in critical condition and required surgery for his injuries.

CIRCUMSTANCES OF THE OFFENDER [ 9 ] Several reports were filed at the sentencing hearing, specifically a Pre-Sentence Report (“PSR”) dated December 9, 2022, prepared by probation officer Chris Stasica, an assessment done by Dr. N. Bowman and Dr. A. E. Chudley of the Health Sciences Centre Clinic for Alcohol and Drug Exposed Children on July 8, 2003 (the “FASD assessment”, which was sealed at the sentencing hearing), and a FASD Court Docket

Summary prepared for court on January 12, 2023 by Ginger Abraham. [ 10 ] These exhibits, as well as submissions of counsel, provided extensive information about Mr. Cook. Familial Background

[ 11 ] Mr. Cook is an Indigenous, 22-year-old male. He was apprehended by Child and Family Services (“CFS”) shortly after birth due to alcohol and solvent abuse by his mother. He was placed in a foster home in Selkirk for the first seven years, and then moved to another foster home in Winnipeg’s north end for two and a half years. He was then placed in another home for a year and a half. Then at age 11, he lived for a brief time in Lundar with foster parents and his sister but he was removed from that home. Mr.

Cook says he was physically, verbally and sexually abused prior to age 12 in some of those homes. [ 12 ] When he was 12, Mr. Cook was placed in a home with foster parents, and was there for about three years, when he was removed due to allegations he was behaving in a sexually inappropriate way. He was placed at the Charter House Hotel but stayed in touch with his foster mother, who advocated for him and hoped he could return to her home. However, his attitude was poor and he refused to return and follow her rules, and threw a rock into her home.

Ultimately, his foster mother refused to allow him to stay with her for the safety of the other children in her home, though she did remain in contact with him. He was relocated by CFS to an Emergency Placement, at which time his anger increased as did his drug and alcohol use. He became increasingly involved with gangs. He absconded more frequently, had poor school attendance and behavior and used drugs. He was returned to the Charter House Hotel placement, which is where, while still a youth, he committed an aggravated sexual assault in 2016. [ 13 ] At age 14, Mr. Cook became a father.

His son is now eight years old and in CFS care. He has no contact with his child or with the child’s mother. [ 14 ] During his years in CFS care, Mr. Cook had sporadic visits with his own mother. Mr. Cook told the author of the PSR that in 2019, his mother froze to death inside a bus shelter in Winnipeg. Mr. Cook said he met his biological father once in 2020. Mr. Cook advised that he and his father were both homeless, wandering the streets of Winnipeg, and met in a shelter. Mr. Cook said his father struggles with alcohol and drug addictions and has a long criminal record. [ 15 ] According to CFS information, Mr.

Cook’s mother grew up in CFS care, and she was sexually abused. She engaged in solvent abuse, alcohol abuse, and criminal activity. CFS records indicate that Mr. Cook’s father had a history of substance abuse and criminal involvement. He was also in CFS care. He also had mental and physical health issues and violent offending behavior. [ 16 ] Mr. Cook has biological siblings. They are all over the age of majority. There was no information about his contact with them. School, Employment and Programming [ 17 ] From kindergarten to grade five, Mr. Cook attended four different schools, in three different communities.

He had a hard time with the schoolwork, with switching schools and not knowing the other students and teachers. He had temper tantrums. Since Mr. Cook was diagnosed with Fetal Alcohol Spectrum Disorder (“FASD”) at a young age, starting in grade six and following, he had specific and individualized programing through an FASD program in Winnipeg. However, academically things were difficult, his attendance deteriorated and his behaviour escalated to causing disturbances, coming to school under the influence of drugs and once bringing a cap gun to school when he forgot it was in his coat.

He had problems managing anger at school. [ 18 ] Mr. Cook has not been employed, except for some recent employment he has had as a unit cleaner while in custody. [ 19 ] As to programming, while in custody he tried to complete some workbooks but his limited cognitive abilities meant limited success. He did ask to join programs in custody but he was not able to participate as he would have issues with others in the group. The case manager at Headingley Correctional Centre (“HCC”) noted that Mr. Cook is very impulsive and reacts quickly, apologizing after his reactions.

Recollection of, and Attitude toward the Offence [ 20 ] Mr. Cook does not have a recollection of committing the offence, although he accepts that he did. He was using methamphetamine and was drunk on alcohol at the time, and does not remember. He told the author of the PSR that “when I am high on drugs and drunk I make poor choices that lead me back to jail. I was sad when I learned of my actions”. He told the Court at the end of the sentencing hearing, that he was sorry for what he had done. He is remorseful, and takes responsibility for his actions, after the harm has been done. Criminal Record [ 21 ] Mr.

Cook was convicted in 2016 of an aggravated sexual assault as a youth. That offence had horrendous facts, and as a result of the offence, the victim was in a coma and was taken off life support, but survived. Although the Crown sought an adult sentence, the maximum youth sentence of three years custody and community supervision was imposed. In 2017, Mr. Cook was convicted as a youth of assaulting a peace officer, and was sentenced to 60 days of custody and community supervision. In 2018, he was sentenced to one day in court, as an adult, for uttering a threat.

In each of 2021 and 2022 he was convicted of three breaches of no contact orders, receiving 18 months of supervised probation for the three 2021 breaches (all committed on different dates) and 45 days time in custody and one day court appearance for the three breaches sentenced in February of 2022. FASD, ADHD and Intellectual Disability Diagnoses [ 22 ] Mr. Cook was diagnosed with Partial FASD in 2003, when he was three years old. At that time, he showed some signs of problems with attention, poor focus, some aggression and memory issues. The deficits experienced by Mr.

Cook are general cognition, adaptive behaviour, attention regulation, memory and motor skills. A psychiatric or psychological assessment (it is not clear which), done in 2016 revealed he had significant impairments in sensory processing and with gross and fine motor delays, attention problems, poor social skills, poor memory and impaired adaptive skills which would affect his day to day functioning. [ 23 ] Although executive functioning is not listed in the FASD assessment as a deficit, there are references throughout the materials about Mr. Cook’s impulsivity.

[ 24 ] He was diagnosed in 2006 (at six years old) with Attention Deficit Hyperactivity Disorder (“ADHD”). [ 25 ] He was diagnosed with moderate intellectual disability, in 2015, having an IQ of 54, in the extremely low range. [ 26 ] The psychologist at HCC noted that Mr. Cook was always polite, cooperative and engaged, though easily distracted. The psychologist commented that Mr. Cook is impulsive and is “100 percent a follower”. Mr. Cook struggles with impulse control and immediately regrets his actions.

The psychologist said, “He does have a functioning moral compass but because of this impulsivity often violates, with his behaviours, his values and beliefs”. The psychologist notes that although she and Mr. Cook worked on developing alternate coping strategies, in the heat of the moment when he is very emotionally charged and could benefit from using the strategies, he would not or was unable to access the strategies, and would revert back to his old harmful coping strategies. Substance Use [ 27 ] At the time of the offence at issue, Mr.

Cook was high on methamphetamine and was drunk on alcohol to the extent that he does not remember committing the offence. [ 28 ] Mr. Cook told the author of the PSR that he was first exposed to alcohol at age 10, and first felt drunk at age 14 after drinking some vodka. He said once he was relocated in November 2014, his use of alcohol increased to once a week and he drank at parties but did not get drunk. He says he has never completed any addiction programs. [ 29 ] Mr. Cook said he first used marijuana around age 13, and experimented with crack cocaine a couple of times.

He says since 2015 he has used marijuana every day. He started using fentanyl, meth, crack cocaine and pills. [ 30 ] He says that his friends and acquaintances are all addicted to alcohol and drugs, and that it is not possible for him to stop using substances while associating with his friends. Use of Supports in the Community [ 31 ] Since Mr. Cook was diagnosed with FASD at three years old, he has had resources available to him since that time. His IQ qualifies him to have the resources of Community Living Disability Services (“CLDS”) available to him for life. To his credit, Mr.

Cook has some history of engaging with, and using, his supports. At the time of the offence, Mr. Cook has had the support of the FASD Justice Project, CLDS and Probation Services. FASD Justice Project and CLDS were working together to try to get funding for a supervised, structured residential placement for Mr. Cook. The funding had not been secured. [ 32 ] It seems that Mr. Cook does communicate his needs to the team of people supporting him in the community. Due to his substance use struggles, he would lose contact, but would eventually reach out for assistance. Connection to Culture [ 33 ] Mr.

Cook advised the author of the PSR that he has little knowledge of Bloodvein First Nation, which is where his family is from. He has never lived on a First Nation. He does not speak his family’s traditional language. He has attended cultural outings in the community. He is willing to attend programs and counselling based on Aboriginal teachings. Behaviour in Custody [ 34 ] The PSR indicates that Mr. Cook has had 69 incidents while in custody, including contraband, unlawful acts and threatening/abusive behaviour. It seems that these incidents cover all the periods of Mr.

Cook’s time in custody since 2015, as a youth and then as an adult. [ 35 ] The more current information is that during Mr. Cook’s time in custody since August 2022 (shortly after the current offence was committed), to December 9, 2022 (the PSR date), his case manager reports that Mr. Cook “has already had nine incidents since August 2022, some involved taking other inmates’ mediation requiring a medical escort to a hospital, making contraband (weapons), assaulting staff and behaving in a threatening and abusive manner towards his compatriots and institutional staff.

Recently employed as the unit cleaner and assists staff with unit duties when asked. His behaviour is unpredictable but his recent activity in custody has been better.” Assessed Risk [ 36 ] Mr. Cook is assessed by Probation Services as a very high risk to reoffend. [ 37 ] Mr. Cook’s supports all express that he requires significant supports for the rest of his life to keep himself and the community safe. The PSR author opines that safety of Mr. Cook and the community requires that Mr. Cook reside in a supportive, structured and staffed placement with 24-hour supervision. [ 38 ] Mr.

Cook’s probation officer opined that when Mr. Cook was in the community from February 25, 2022 to June 1, 2022, he was homeless and was without any stability. He contacted his probation officer to see if housing was available as he recognized he needed that. Despite many meetings being held to try to secure a residence for Mr. Cook, no plan was able to be put in place. His probation officer said, “I truly believe unless a supportive/structured/staffed placement is secured for Jeremy prior to release it will be a challenge for him to be successful in the community”. SENTENCING PURPOSE, OBJECTIVES AND PRINCIPLES

[ 39 ]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing. It is to protect the public and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more objectives.

The objectives include: • denouncing unlawful conduct and the harm done to victims; • deterring the offender and others from committing offences; • separating offenders from society where necessary; • assisting in rehabilitating the offender; • reparations for harm done to victims or the community; and • promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims or the community.

Proportionality [ 40 ] It is a fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 719.1 of the Criminal Code ). Seriousness of the Offence [ 41 ] This was a serious offence. Mr. Cook had, and used, repeatedly, a weapon, to seriously injure a random victim, who had done nothing to provoke him. The maximum punishment is 14 years imprisonment, which speaks to the seriousness with which Parliament views the offence of aggravated assault.

Moral Blameworthiness [ 42 ] There are two factors put forward by defence as reducing Mr. Cook’s blameworthiness for committing this offence – his diagnoses and his Gladue factors. Mr. Cook’s Diagnoses (FASD, ADHD and Intellectual Disability) [ 43 ] A diagnosis on its own, does not necessarily mean a reduction in moral blameworthiness. There will only be such reduction if an offender establishes that there is a nexus between an offender’s diagnosis or diagnoses and the offence for which he is being sentenced ( R. v. Friesen , 2016 MBCA 50 ; R. v. J.M.O. , 2017 MBCA 59 ; and R. v. J.E.D ., 2018 MBCA 123 ).

An individualized analysis is required. [ 44 ] In J.M.O. , at paragraph 73 , J.A. Mainella set out the approach to be used to determine if there is the required nexus in a particular case: 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. [ 45 ] The FASD assessment establishes that Mr. Cook suffers from deficits of five brain domains. He has deficits of general cognition, adaptive behaviour, attention regulation, memory and motor skills. He also has a diagnosed moderate intellectual disability with an IQ of 54 (in the extremely low range), and an ADHD diagnosis.

With all of that information, the first criterion set out in the J.M.O. approach is met. [ 46 ] As to the second criterion, although there is not more recent medical information that speaks to impulsivity, a history of aggression and impulsivity, even when Mr. Cook was three years old, was noted in the initial FASD assessment. The offence before the Court, given its unprovoked nature, and extreme violence, is aggressive and consistent with being impulsive. In my view, the reports filed do provide evidence on which an informed decision may be made as to the nexus.

Would more specific evidence about impulsivity have been helpful? Yes. But the evidence before the court is sufficient to be permit an informed decision. [ 47 ] As to the third criterion set out by J.M.O. , Crown counsel did concede that the aggravated assault now before the court seemed to be an impulsive act, as was the sexual assault he committed as a youth. The reports all suggest that Mr. Cook impulsively acts and then regrets his actions afterwards. I am prepared to find that the nexus is established between Mr.

Cook’s mental circumstances and his commission of the offence, and that elements of his diagnoses and cognitive limitations played some role in his commission of the aggravated assault. Those circumstances are not wholly responsible. But there is a nexus. [ 48 ] Accordingly I find that Mr. Cook’s cognitive limitations, ADHD and FASD circumstances, do reduce his moral blameworthiness to a degree such that Mr. Cook’s sentence will be a lesser sentence than an offender in the same circumstances as Mr. Cook, but for his diagnoses, would receive for the same offence. Gladue Considerations

[49] Since Mr. Cook is Indigenous, the principles set out in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and in R. v.Ipeelee, 2012 SCC 13 , [2012]1 S.C.R. 433, must be considered. In order for Gladue considerations to play into determining afit sentence for an Indigenous offender, there does not need to be the same kind of nexus established as required above.

The Court is ableto, and does, take judicial notice of the well recognized systemic factors that have impacted Indigenous peoples, including colonization,displacement and the residential school system. [50] The PSR sets out ways in which these factors have specifically impacted Mr. Cook’s family members, and in turn, Mr. Cook. These factors include Mr.

Cook being in care of CFS essentially since birth, being moved from home to home and then placements thatdid not provide sufficient supervision, his FASD which is linked to his mother’s own struggles with alcohol and drugs, that his familymodeled alcohol and substance abuse, his disconnect from both his parents and siblings, informing then his own struggles with addiction,lack of contact with his own child, and disconnection from his reserve and culture.

His own lack of stability, in terms of housing andsupervision, required particularly due to his cognitive challenges and issues related to his FASD and ADHD, exacerbated by his struggleswith addiction, are connected to the commission of this offence. Mr. Cook has the insight to recognize this himself. [51] Mr. Cook’s Gladue factors reduce his moral blameworthiness. It is easy to see the link between how Mr. Cook’s family wasimpacted by colonialism, and its impact on Mr. Cook. [52] The Court has to consider to what extent Gladue factors impact Mr. Cook’s moral blameworthiness.

In the case of a veryserious offence, as here, although moral blameworthiness is reduced, the balance required to achieve proportionality still weighs moreheavily on the seriousness of the offending behaviour (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, at para. 79). [53] So, though certainly Gladue considerations do reduce Mr. Cook’s moral blameworthiness, the impact of which is somereduction in his sentence, the gravity of the offence will carry greater weight in determining a sentence that is proportionate. SENTENCING OBJECTIVES IN THIS CASE [54] This offence is Mr.

Cook’s second extremely violent attack that has left someone with significant injuries. Protection of thepublic in this case has to be the paramount objective. The public has to be protected from Mr. Cook’s violent conduct. [55] Specific and general deterrence, denunciation, rehabilitation and restraint are also required to be considered. [56] This is a challenging case for sentencing. Mr. Cook is young. He is vulnerable. He has a lot of life ahead of him. He knows heneeds to do better and wants to. He knows he needs supports to do that and is willing to accept supports and resources.

Rehabilitation isimportant for him to be successful and for him and others to be safe in the community. The hurdle is that Mr. Cook has significantchallenges that are not his fault, due to his FASD, ADHD and cognitive limitations, and due to the impact of colonialism, and that theeffect of those challenges and impacts make him a danger to the public. His FASD situation is a lifelong situation. Five of his braindomains are affected. He has a hard time controlling his impulses. Both the aggravated sexual assault in 2016 and this offence wereimpulsive. The PSR references another impulsive action of Mr.

Cook’s which was dangerous – he apparently started a fire at his sister’sresidence when he got upset that his sister was not home. Mr. Cook’s impulsive actions have demonstrated dangerous consequences. Hisaddiction to alcohol and hard drugs, combined with his challenges, is as Crown counsel said “a recipe for disaster”. In addition torehabilitation so that Mr. Cook can learn strategies to deal with situations in a less volatile way, and without lashing out with violence,Mr.

Cook needs constant supervision and monitoring to reduce his risk of reacting with violence and harming members of the public. [57] So, rehabilitation has to be addressed in a way that also protects the public. So far, no plan has been able to be put in place thatcan offer that rehabilitation in the community sufficient for the court to be satisfied that the public can be safe from Mr. Cook. [58] By all accounts, Mr. Cook knows his violent behaviour is wrong. He wants to stop it.

But, in the heat of the moment, he is justnot able to use tools and strategies he has learned, and reverts to violence, which he regrets having used afterward. That is his currentsituation. I am not certain that, given his challenges, any sentence can be effective to specifically deter Mr. Cook. [59] If we are looking at a community of persons with the same challenges that Mr. Cook has in terms of considering generaldeterrence, it is unlikely such people will be deterred by a sentence given to Mr. Cook, for the same reasons that Mr.

Cook is unlikely tobe specifically deterred. [60] But it is important to effect general deterrence and denunciation, for the general public to see that the kind of attack Mr. Cookperpetrated on Mr. Sanderson, even taking into account Mr. Cook’s challenges, will be seriously sanctioned. The actions of Mr. Cookand his youth co-accused are the kind of actions that law-abiding citizens worry about. Someone minding his own business, just walkingdown the street, should not have to worry about being attacked and injured.

Society has to see that someone who does that will be sent tojail for a long time and that such behaviour will not be tolerated. [61] Restraint is required given Mr. Cook’s young age, specific challenges and Indigenous heritage (ss.718.2(

d) and (

e) of theCriminal Code). [62] When all the information about Mr. Cook, his needs and his supports, is considered in the context of the current violent,random, unprovoked attack on Mr. Sanderson causing injuries, and knowing the history of the violent, unprovoked, aggravated sexualassault in which the victim nearly died, unfortunately, this is a situation in which Mr. Cook has to be incarcerated to protect the public.He cannot be trusted to be safely in the community, even with all of the supports he has due to his challenges. MITIGATING AND AGGRAVATING FACTORS [63]

Section 718.2(

a) of the Criminal Code requires a sentence to be increased or reduced to account for any relevant aggravating ormitigating factors of the offending or the offender.

[ 64 ] The mitigating factors are: • Mr. Cook pleaded guilty, and did so at an early stage. As a result, the victim did not have to testify and court resources were saved. A guilty plea is also an acceptance of responsibility. • Mr.

Cook expressed remorse for his offending, both to the author of the PSR and to the Court when given an opportunity to speak at the end of the sentencing hearing. • He is young, only 22 years old. • The Gladue factors I have reviewed. • His FASD diagnosis, ADHD and cognitive limitations. • He has in the past availed himself of special programs and resources offered due to his FASD diagnosis. [ 65 ] There are aggravating factors, as follows: • He has a related criminal record, most notably the aggravated sexual assault he committed as a youth, which involved extreme and unprovoked violence, causing life threatening injuries. • This was an unprovoked, random attack on a stranger. • It was a two-on-one attack, at night. • Mr.

Cook was armed and used his weapon, a knife. • Multiple stab wounds and multiple kicks were inflicted by Mr. Cook, all while the victim was on the ground and unable to even fight back. • The victim sustained significant injuries, being found unresponsive and taken to hospital in critical condition. It is known that he had surgeries and that he was on disability for some period of time. Despite efforts by Crown counsel, no further information was provided by the victim.

Apart from physical impact, the Court can certainly note the terror and pain that the victim must have felt, and can be quite certain that the victim can be expected to experience ongoing trauma. • Mr. Cook was on probation at the time of the offence. [ 66 ] While not mitigating or aggravating, the fact Mr. Cook was intoxicated by alcohol and under the influence of methamphetamine at the time of his offending behaviour is relevant, both as to impact on Mr. Cook’s decision making and to the heightened risk that he poses given his conduct while under the influence of substances.

THE RANGE OF SENTENCE FOR AN AGGRAVTED ASSAULT USING A WEAPON CAUSING SIGNIFICANT INJURIES [ 67 ] The Manitoba Court of Appeal, in R. v. Kravchenko , 2020 MBCA 30 , set the sentencing range in Manitoba, for cases involving aggravated assault where there is an unprovoked attack on a stranger with a weapon and significant resulting consequences, as a term of imprisonment of between four and eight years. [ 68 ] The range set in Kravchenko is to be considered in this case, due to the nature of the offending. It is however, only a range, to be used as a starting point.

The unique facts of the offending and of the offender will determine where a sentence should fall within that range, or whether the fit sentence should fall below the bottom of the range, or should be above the top of the range. Sentencing is an individualized exercise. CONSIDERATION OF CASELAW [ 69 ] Both counsel filed caselaw.

It is helpful to see what other courts have done, and in particular how the factors of Gladue considerations and diagnoses, including FASD, have been factored in to determining fit and proportionate sentences for offenders who have committed aggravated assaults with weapons, unprovoked, on stranger victims, who have suffered significant consequences. [ 70 ] In Kravchenko , an offender who stabbed a 15-year-old girl, in a church washroom, such that she barely survived and suffered long term physical and mental consequences, had his sentence varied on appeal from 10 years, to eight years imprisonment.

He had a limited criminal record. He was 41 years old. He had an isolated lifestyle. He had no cognitive limitations or diagnosed mental health issues. A psychiatric report done stated that the underlying cause and motivations for his actions were largely unknown but speculated the offence could have occurred during a major depressive episode. The offender was found to have high moral culpability. There were immigration consequences for the offender.

There was no FASD diagnosis and were no Gladue considerations. [ 71 ] The Crown filed two cases in which sentences of nine years and seven years were imposed for offences of aggravated assault, in the cases of R. v. Clymer , 2017 ONCJ 432 and R. v. Kim , 2010 BCCA 590 respectively. In both those cases, the offenders were significantly older than Mr. Cook, had extensive criminal records, and neither had Gladue factors nor had a diagnosis of FASD. Also, both offenders in those cases had committed multiple aggravated assaults that were being sentenced – Mr.

Clymer was sentenced to two seven-year concurrent sentences, and Mr. Kim had his sentence reduced to 13 years for totality. [ 72 ] In R. v. Larose , 2013 BCCA 450 , filed by the Crown, the offender was younger than Mr. Clymer, Mr. Kim and Mr. Kravchenko. Mr. Larose was 29. He had a significant record, had no Gladue considerations and no FASD diagnosis. He was sentenced to seven years concurrent on each of two aggravated assaults causing life threatening injuries.

[ 73 ] Crown counsel also filed R. v. Michelle , 2015 MBCA 6 . Mr. Michelle committed an aggravated assault by participating in a group beating of a victim, and cutting the victim repeatedly with a knife. He had a significant record for violence, specifically over 50 adult convictions over 25 years, many for violent offences. He did have Gladue factors, but no FASD issues. He was sentenced to the equivalent of eight years imprisonment. [ 74 ] I have no difficulty finding that a fit sentence for Mr. Cook should be lower than the nine-year, seven-year, eight-year, seven- year and eight-year sentences imposed on Mr.

Kim, Mr. Clymer, Mr. Kravchenko, Mr. Larose and Mr. Michelle respectively. None of those offenders had the overall reduced moral blameworthiness that Mr. Cook has. [ 75 ] Defence counsel filed R. v. Paquette , 2012 BCSC 1497 . Mr. Paquette was sentenced to two years jail and supervised probation for an aggravated assault, which was a beating that resulted in serious injuries with life long effects. No weapon was used. Mr. Paquette had a long criminal record that included several convictions for violent crimes. He had Gladue factors. He suffered from mental disorders and was cognitively impaired.

The judge said “he may also suffer from FASD”, although there was no FASD assessment or diagnosis. He was suffering from physical health issues. [ 76 ] Defence counsel filed R. v. Okimaw , 2016 ABCA 246 . Mr. Okimaw was found guilty after trial of aggravated assault. He stabbed the victim eight times. He admitted the facts but went to trial because claimed self-defence. That defence was rejected. He was 27 years old and had nine prior convictions, but none were for violence. He had consumed alcohol and drugs the day of the offence. He had Gladue factors. He was diagnosed with ADHD, ADD and depression.

He thought he had been diagnosed with FASD but did not have a diagnosis. The Court of Appeal held that the Gladue factors impacted his moral blameworthiness. As to his “most likely” FASD, the Court of Appeal discussed reduced moral blameworthiness but did not draw a nexus. The offender had done pre-sentencing rehabilitation efforts. The Court reduced the 30-month sentence given by the sentencing judge to a sentence equal to 21 months, and three years probation. [ 77 ] This is the same sentence that defence counsel says is a fit sentence for Mr. Cook. [ 78 ] Defence also filed R. v. Charlie , 2020 YKCA 6 .

The offender was sentenced to 18 months jail and 30 months probation for aggravated assault. He had FASD and Gladue factors, and his moral blameworthiness was reduced. He had a record. The important distinguishing factor from the case before me is that the offence did not involve a weapon. Mr. Charlie kicked the victim twice, including once in the head, causing serious injury to the victim’s eye. In upholding the sentence on appeal, the Court specifically referenced the lack of a weapon being used and referenced another case of the Yukon Court of Appeal (“YKCA”) ( R. v.

Quash , 2019 YKCA 8 ) in which the YKCA noted that the use of a weapon, especially when it causes life-threatening or permanent injuries, moves the aggravated assault higher up the scale on the established range (at paras. 49-51 of Quash , referenced at para 58 of Charlie ). The established range for sentences for aggravated assault in the Yukon was clarified to be 16 months to 6 years imprisonment, with a note that an unprovoked attack with a weapon would tend to imposition of a sentence at the higher end. [ 79 ] Finally, defence counsel filed R. v.

Sumner , 2022 MBPC 3 , a recent decision of Judge Devine of this court. Mr. Sumner pleaded guilty to a residential break and enter and a subsequent aggravated assault. He was 21 years old. He had no youth or adult criminal record at all. The aggravated assault did not involve the use of a weapon, but involved him viciously punching and kicking a fellow gang member in the head and face until the victim was unconscious, and then continuing to kick him in the head. He beat the victim almost to death. Mr. Sumner filmed himself doing this on his phone, and then posted the video on Facebook. Mr.

Sumner is Indigenous and has a diagnosis of FASD. Mr. Sumner was intoxicated by alcohol and drugs at the time. He also was diagnosed with ADHD, ODD and reactive attachment disorder. He had Gladue factors. Mr. Sumner had the ongoing support of the FASD Justice Program. He had strong support of his family and within the small community where he planned to live. Judge Devine determined that Mr. Sumner had some prospects for rehabilitation, but they were limited at that time and required further development before he could safely be released into the community.

She found there was no complete plan nor demonstrated behaviour yet. Judge Devine found that protection of the community, going hand in hand with rehabilitation, was the key sentencing objective. She found the FASD did operate to mitigate moral culpability and considered Gladue . Judge Devine concluded that the sentence on the aggravated assault would be four years, which was reduced to three years for totality, in considering his sentence on the other offence, as well as three years supervised probation. He had spent significant time in custody before sentencing. [ 80 ] In my view, the sentence for Mr.

Cook must be higher than the sentences imposed in the cases of Paquette (where no weapon was used and where no nexus was made between an FASD diagnosis and the offence) and Charlie (where no weapon was used). As to the Okimaw case, the important and very significant distinguishing factor between Mr. Okimaw and Mr. Cook is that Mr. Okimaw did not have any prior convictions for violence whereas Mr. Cook has a prior youth conviction for a horrendous aggravated sexual assault. Mr. Cook’s offending establishes a dangerous pattern of behavior. In my view, Mr. Cook’s sentence must be higher than Mr.

Okimaw’s. [ 81 ] The most helpful case in my view is the Sumner case. Although it was an aggravated assault without a weapon, it was a vicious beating that nearly killed the victim. Like in Mr. Cook’s case, there was reduced blameworthiness due to FASD and Gladue considerations. The distinguishing factor of most relevance is that Mr. Sumner had absolutely no criminal record, adult or youth, whereas Mr. Cook has convictions for violence, most notably the aggravated sexual assault for which he received the maximum youth sentence. On the other hand, the Sumner case has egregious factors that Mr.

Cook’s case does not have - the recording of the assault, posting on social media and showing no remorse, but instead defending the beating. [ 82 ] The youth co-accused that committed the aggravated assault with Mr. Cook had a minimal youth record, with no prior violence, and received the maximum youth sentence for committing the aggravated assault with Mr. Cook – that is, a sentence of three years of custody and community supervision. ANALYSIS [ 83 ] Mr.

Cook is a 22-year-old Indigenous man who committed a violent offence with a knife, stabbing a victim unknown to him, and unprovoked, multiple times, causing the victim significant injuries, requiring surgery, but the extent and impact of which are presently unascertained. Mr. Cook has a history, both while in custody and in the community, of getting angry and striking out with

violence. He has a record, including aggravated sexual assault of a victim who nearly died due to Mr. Cook’s attack on her. He has arecent history of noncompliance with court orders. Deterrence, especially general deterrence, and denunciation must be addressed by thesentence imposed on Mr. Cook. But at the forefront is protection of the public. Long-term protection of the public requires rehabilitation.For Mr. Cook, rehabilitation requires specialized and significant resources for life, given his FASD diagnosis and cognitive challenges. [84] Defence argues that it is best for Mr.

Cook and for society in terms of its protection, for Mr. Cook to receive a provincialsentence going forward, because the FASD Justice Project can only provide persons serving provincial sentences with resources andsupport. Mr. Cook is now 22 years old. He can receive support from the FASD Justice Project until age 25, if he is serving a provincialsentence or is out of custody. [85] There is no doubt that the resources provided by the FASD Justice Project can greatly assist and support Mr. Cook and cancontribute in that way to protection of the public, to the extent the required resources are available.

Unfortunately the fact such supportsare available to Mr. Cook, and the fact he has connected with his supports, do not guarantee protection of the public, or that Mr. Cookwill not re-offend in spite of the resources. At the time this aggravated assault was committed, Mr. Cook did have the support of theFASD Justice Project, CLDS and Probation Services. Mr. Cook still committed the aggravated assault. Mr. Cook was diagnosed at threeyears old with FASD, and has had the available resources since that time. And yet, Mr.

Cook still committed the horrible aggravatedsexual assault in 2016. [86] There is no guarantee that FASD Justice Project, CLDS and/or Probation Services, will be able to secure a residentialsupervised arrangement for Mr. Cook that would be sufficient to address his needs and risk factors, that Mr. Cook would be compliantand continue to be compliant and of good behaviour, and, even if he did, that such arrangement in addition to other resources provided,will serve to protect the public from Mr. Cook’s violent behaviour. [87] The bottom line is, that while the public would no doubt be safer with Mr.

Cook having resources of the FASD Justice Project,if that project is able to secure the supervised setting for Mr. Cook that he needs to reduce his risk, and if Mr. Cook is cooperative, takesadvantage of that, and follows all his court conditions, the reality is that the resources of the FASD Justice Project cannot guarantee thatsuch a supervised setting will be available for Mr.

Cook, that he will accept it and stay in it, that he will follow conditions, and above all,that notwithstanding the best efforts of all his supports, that he will not act out impulsively and aggressively, as he has demonstrated he isprone to do. There is simply no guarantee that supports in the community, no matter how extensive or excellent, can be counted on toprotect the public from Mr. Cook. [88] His impulsive and violent behaviour has continued in remand custody, where he is supervised and provided resources.

Thoughhis behaviour is apparently better recently, there have been multiple such incidents. [89] There is no demonstrated behaviour yet that suggests he can safely be released into the community soon. Nor is there a plan forsafe release. [90] In balancing the facts of the offence, and the specific circumstances of Mr. Cook with the fundamental purpose of sentencing,relevant sentencing principles and objectives, in the context of the requirement that the sentence be a proportionate one, considering thecase law, I find that a sentence equal to four years imprisonment is the fit and just sentence for Mr.

Cook for the aggravated assault onMr. Sanderson. [91] But for Mr. Cook’s moral blameworthiness being reduced due to his Gladue and FASD factors, an appropriate sentence wouldbe further into the range set by the Manitoba Court of Appeal in Kravchenko. Mr. Cook’s conduct was violent, and there were seriousinjuries sustained by the victim. [92] A sentence less than four years would, in my view, fail to adequately address denunciation, deterrence and most significantly,protection of the public. [93] Mr.

Cook has been in custody, prior to sentencing, for 255 actual days as of and including today, January 10, 2023. [94] Crown counsel says, due to the 69 incidents Mr. Cook has been involved in while he has been in custody, enhanced credit forpresentence custody is not available to him, such that he should receive credit only at the rate of 1:1. Defence counsel says Mr.

Cookshould receive 1.5:1, as has become the custom. [95] I do not think it is fair for me to consider the 69 incidents referenced in the PSR when considering whether or not to credit Mr.Cook with enhanced credit for his time in custody waiting to be sentenced for this offence. Those 69 incidents referenced in the PSRseem to date back as far as 2015, so from the time Mr. Cook was about 15 years old. [96] The more relevant information is the nine incidents he has had while in custody on remand status for this offence. Nineincidents is a lot.

Although we do not have details, it sounds as though some or all of them are serious, and some included violence. Wedo not have information as to how he has been doing in custody since the PSR was prepared in December 2022. We do not have anyinformation as to what, if any, sanctions he received for the incidents in the institution.

The PSR does state that while his behaviourremained unpredictable as of December 2022, his recent activity in custody had improved. [97] The decision as to enhanced credit is discretionary, is limited to 1.5 for each day spent in pre-sentence custody and may begiven if the circumstances justify it (s. 719 (3.1) of the Criminal Code). [98] The fact of pre-sentence custody usually gives rise to an inference that an offender has lost eligibility for parole therebyjustifying the giving of enhanced credit.

It is then up to the Crown to challenge this inference which it can do by showing that badconduct in jail makes it unlikely he will be granted parole (R. v. Summers, 2014 SCC 26 , 2014 1 S.C.R. 575 at para. 79). Enhanced credit may be denied when it is likely he will not obtain early release or parole (Summers at para. 71). [99] In R. v. Slack, (2015), 2015 ONCA 94 , 321 C.C.C. (3d) 474 (Ont. CA), the offender had three misconducts while in

custody. There was limited information about the details of the misconduct. The sentencing judge denied enhanced credit based solely on the institutional misconduct. The Ontario Court of Appeal held that given the nature of the thin record of institutional misconduct, it could not be said that the Crown showed that such misconduct would disentitle him to parole or statutory release. [ 100 ] In dealing with a federal sentence (which Mr.

Cook’s will be), one must consider sections 127 to 130 of the Corrections and Conditional Release Act S.C. 1992, c. 20 (“ CCRA ”) which provide that a federal offender is entitled to statutory release after serving a certain portion of the sentence unless there is a contrary order made by the National Parole Board in accordance with the CCRA . [ 101 ] In my view, the evidence presented of Mr. Cook’s institutional misconduct does not reasonably support the inference that he would likely be denied parole or statutory release based on poor conduct.

It may be that he would be denied, but there is not enough information provided in the sentencing hearing to persuade me that that is necessarily the case. There is just not enough information provided to meet the Crown’s burden to establish that it would be. [ 102 ] Accordingly, I am prepared to credit Mr. Cook with his time in custody to date at 1.5 to 1. [ 103 ] That means he is credited with 255 days at 1.5, for a total credit of 383 days. SENTENCE IMPOSED [ 104 ] A sentence equal to four years is the fit sentence for Mr. Cook. [ 105 ] His time in custody is noted as equivalent to 383 days.

When four years (equal to 1,460 days) is reduced by 383 days, the sentence going forward for Mr. Cook is 1077 days. That is just shy of three years. The exact sentence going forward is 1077 days. [ 106 ] There are several ancillary orders, as follows: • The offence is a primary designated offence pursuant to s. 487.051 of the Criminal Code . Mr. Cook is to have a DNA sample taken in custody. • Mr.

Cook is subject to a mandatory weapons prohibition pursuant to s. 109 of the Criminal Code , which will be a 10-year order. • Costs and victim surcharge are waived pursuant to s. 737 (2.1) of the Criminal Code as such an order would cause undue hardship to Mr. Cook. “Original signed by” C. CARLSON, P.J.