R. v. Jocko, 2019 ONCJ 812

ONTARIO COURT OF JUSTICE CITATION: R. v. Jocko, 2019 ONCJ 812 DATE: October 15, 2019 Court Information No. 1692, 2334,2333, 2332 Sault Ste. Marie BETWEEN: HER MAJESTY THE QUEEN — AND — DYLAN ALBERT JOCKO Before Justice John Kukurin Heard on October 7, 2019 Reasons Released October 15, 2019 K. Pritchard............................................................................................. counsel for the Crown B. Willson........................................................ counsel for the defendant Dylan Albert Jocko KUKURIN J. [ 1 ] These are Reasons for Sentence of the Offender, Dylan Albert Jocko, on several charges set out below: Information Offence Date Offence

Section Offence Description 1692 17 July 2019 s.145(1)(

a) Escape Lawful Custody 1692 17 July 2019 S.811 Breach of Recognizance 2334 15 October 2019 S.145(2)(

b) Failure to attend court 2333 31 July 2019 S.811 Breach of Recognizance 2332 10 June 2018 S.145(2)(

b) Failure to attend court

[ 2 ] The offender, an indigenous person, pleaded guilty to all of the above noted charges. He waived any election he had, and confirmed he wished them to be dealt with by this court. [ 3 ] The crown elected to proceed by indictment where it had such option. For these offences, they were all hybrid, and accordingly all proceeded by indictment. RELEVANT CRIMINAL CODE PROVISIONS [ 4 ] The most serious of the above charges were the two breaches of recognizance. The Recognizance was one that had been entered into under s.810.2 of the Criminal Code . The relevant

section and subsections are S. 810.2

(1) Any person who fears on reasonable grounds that another person will commit a serious personal injury offence, as that expression is defined in

section 752, may, with the consent of the Attorney General, lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named. S. 810.2

(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period that does not exceed 12 months. S. 810.2

(3.1) However, if the provincial court judge is also satisfied that the defendant was convicted previously of an offence referred to in subsection (1), the judge may order that the defendant enter into the recognizance for a period that does not exceed two years. Subsections (4.1) to (7) deal with conditions that may be imposed on such recognizances. [ 5 ] The punishment for a breach of a s.810.2 recognizance is set out in s.811 S. 811 A person bound by a recognizance under any of sections 83.3 and 810 to 810.2 who commits a breach of the recognizance is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than four years; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months. [ 6 ] The ‘escape lawful custody’ offence [s.145(1)(

a) CCC] provides: S.145 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on

summary conviction who (

a) escapes from lawful custody, [ 7 ] The failure to (re) attend court offence provisions in s. 145(2)(

b) are:

S. 145 (2) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on

summary conviction who, (

a) being at large on their undertaking or recognizance given to or entered into before a justice or judge, fails, without lawful excuse, to attend court in accordance with the undertaking or recognizance; or (

b) having appeared before a court, justice or judge, fails, without lawful excuse, to attend court as subsequently required by the court, justice or judge or to surrender themselves in accordance with an order of the court, justice or judge, as the case may be. POSITIONS OF CROWN AND DEFENCE ON SENTENCE [ 8 ] The crown and defence presented a joint position with respect to the custodial portion of the sentence to be imposed on these offences. That was for a period of 12 months (or 365 days) against which the offender was to be credited for time served in pre-sentence custody.

The credit was to be at a rate of 1.5 days for each day in custody. At the time submissions were heard on sentence, this was said to be 83 actual days for a credit of 125 days. However, as I adjourned the sentencing for a period of time, those days and the credit for them will have to be re-calculated. [ 9 ] There was no breakdown of the allocation of the custodial sentence among the offences.

It was a global amount as I understood the submission of counsel. [ 10 ] The portion of the sentence that was not presented as a joint submission was with respect to the probation order sought by the crown to follow the custodial portion of the sentence. The disagreement was to: (

a) the length of the probation term – 3 years (crown) and 1 year (offender) (

b) the inclusion of probation conditions 3, 4 and 10 (detailed below) FACTS AND CIRCUMSTANCES OF THE OFFENCES [ 11 ] The crown provided a

summary of the circumstances of the offences to the court. These were agreed by the offender to be substantially correct. The crown also provided a copy of the accused’s criminal and youth record.

The accuracy of this was also not contested by the offender. [ 12 ] The criminal record shows a regular pattern of quite serious offences as a young offender, including violent offences such as assault, assault with a weapon, threatening, carrying a concealed weapon, as well as obstruct police, break and entry, and a variety of breaches, or offences against the administration of justice (e.g. failure to attend court, breaches of recognizances and of probation).

The custodial sentences imposed on him as a young person reflect the serious nature of these offences. [ 13 ] These escalated once he became an adult, in the number of violent offences as well as in the number of breaches or failure to comply offences. These were documented mainly in Sault Ste. Marie criminal court and spanned from 2007 to 2011 during which period every year had some convictions. These stopped in 2011 but the reason was because the offender was charged, along with other individuals, with first degree murder and causing indignities to a dead body [1] .

The offender remained in pre-trial custody for these offences for a number of years before they were dealt with. Their resolution was a guilty plea on offences of manslaughter and on causing indignities. Finally in July 2016, the offender received a 10 year custodial sentence and was given pre-trial credit of 8 years on the manslaughter conviction. He also received a 3 years concurrent custodial sentence on the causing indignities conviction. No probation was involved or imposed on these sentencings.

Considering the offender’s life prior to his manslaughter offence, it is fair to say that he spent at least half of it behind bars, either in pre-sentence custody, or as a sentenced prisoner. He can easily fit into the category of a confirmed, life long criminal.

[ 14 ] Although no probation was involved in his manslaughter and indignities sentencing, about the time of his release from custody, an information was laid, clearly with the consent of the Attorney General, a pre-requisite, under s.810.2 of the Criminal Code , seeking that the offender enter into a s.810.2 recognizance. He ultimately did so on Feb 8, 2018. The recognizance was for 18 months and had a number of conditions.

These dealt with his residency address, reporting any residency changes to a police officer in London (where he apparently resided at the time) or to another police service if he resided elsewhere, a curfew condition (11 pm to 6 am daily), presenting himself at his address to police checking curfew compliance, reporting in person to police each Friday, not purchase, possess or consume alcohol or other intoxicants, and avoid places where they are sold, not own or possess any firearms or weapons, seek and pursue employment or education, and report changes in these within 24 hours, do not communicate, contact or be within 25 meters of a list of eleven persons (who had been involved as co-accused or witnesses or family of the victim of the manslaughter conviction) or be within 100 metres of their places of residence, employment or schooling, or any other place named to him by police. [ 15 ] The offender was approved a London, Ontario residency address on June 1, 2018.

Presumably, he was compliant with his s.810.2 Recognizance conditions until then. He subsequently failed to report to London police and a search was initiated – unsuccessfully. On July 18, 2018, Anishnawbe Aski Police (NAP), a native police service, reported to London police that the offender was at Brunswick House First Nation (located in Northern Ontario near the town of Chapleau on Highway 101). [ 16 ] Apparently, the offender contacted the NAP police and asked if he could remain at the Brunswick House reserve. He was arrested and charged with breach of his s.810.2 Recognizance conditions.

The offender did not attend all of his court dates in Chapleau court and was charged with two failures to attend on October 15, 2018 and April 18, 2019. He was apparently released, or went AWOL and was next located in Sault Ste. Marie where, on July 15, 2019, when questioned by a police officer, he mis-identified himself by the name “Wyatt” and when he was told he was being arrested, he fled on foot, was pursued, lost, and eventually was apprehended by another Sault Ste. Marie police officer. He was charged with escape lawful custody.

It was learned that the offender was not then residing at Brunswick House, but was then residing with a friend or relative in Sault Ste. Marie. He had not complied with weekly reporting, residency and reporting changes conditions of his s.810.2 Recognizance. He has been in custody since being arrested. [ 17 ] Although when he left London is not known for certain, from what is known, it is a reasonable inference that he was not complying with his s. 810.2 conditions from sometime between June 1, 2018 and July 18, 2018.

Thereafter, whether he was complying or not is uncertain, or even how he may have been complying if he was. Clearly, he was not complying after he failed to attend court in Chapleau on April 18, 2019. The18 month term of the s.810.2 Recognizance expired in August 2019. At most, and being extremely generous in inferences from the evidence, he was compliant from February 8, 2018 to July 18, 2018 – only for 5 of 18 months ARGUMENTS OF CROWN AND DEFENCE ON PROBATION [ 18 ] The crown made the following argument. The purpose of the s.810.2 Recognizance should not be confused with the purpose of a probation order.

For the former, it is to monitor the risk of the offender in the community and to manage the risk that the offender poses to members of the community by its conditions. The probation order also shares some of these purposes, but it has rehabilitation of the offender and re-integration back into society as a primary function. With a s.810.2 Recognizance, it is based on a statutorily based pre- requisite of a judicial finding that a fear exists to believe that the offender “will commit a serious personal injury offence”.

The fact that the offender entered into the s.810.2 Recognizance is an acknowledgement by him that he was the source of the risk that he would commit such serious personal injury offence. [ 19 ] The conditions of the s.810.2 Recognizance are not meant to rehabilitate the offender. Rather, they are meant to protect the public by close monitoring of the offender in the community. The conditions may have been draconian, but are so by necessity. Persons who qualify for a s.810.2 Recognizance have already demonstrated that they are at high risk to re-offend, and in ways that involve serious violence to others.

A close monitoring has to be in the forefront of the conditions that constrain such a person. [ 20 ] The crown and accused arrived at a global sentence with respect to custody. The crown submitted that a maximum term (3 years) probation order with conditions that incorporated many of the conditions in the prior s. 810.2 Recognizance was appropriate and, indeed, necessary to protect the public from the offender once his custodial sentence was served.

The custodial portion of his sentence would serve the main sentencing principles of specific and general deterrence, and denunciation, but would do so for only a relatively short time. The 3 year probation order would continue beyond that time to achieve the paramount objective, namely to protect the public from this high risk offender. [ 21 ] The crown provided a list of probation conditions that it wished to be included in the probation order. It was, with some minor variations, a mirror image of the previous s.810.2 Recognizance conditions.

The major differences in the probation conditions included reporting to a probation officer as directed, complete all counselling directed by him or her (including the signing of any releases to

monitor counselling) and remaining 50 metres rather than 100 metres from the persons listed (the same persons as on the s.810.2 Recognizance). Missing from the probation conditions sought were prohibitions from attending places where drugs or alcohol is sold or dispensed, to make efforts to pursue education or employment and report any changes to police within 24 hours, and to report to police any intimate relationships. [ 22 ] The new conditions sought still provided for the offender to report to police his address, or changes of address and get permission in advance of any relocations of residence.

They still required him to be subject to the same curfew 11 pm to 6 am daily, and to present himself to any peace officer attending at his residence during curfew hours to check if he was complying. [24] The defence argument with respect to the probation was two pronged. First, the offender argued that three years was too long and one year was appropriate. Why this was so was not precisely stated. However, there was reference made to Charter s.11(

h) which provides S.11 . Any person charged with an offence has the right (

h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; [25] The offender’s counsel was asked by the court if he was advancing a Charter argument on the sentencing. He indicated that he was not. However, he also indicated that the crown’s position on sentencing came perilously close to breaching s.11(

h) Charter rights. The offender submitted that a probation term had not been an available sentencing option that could be imposed to follow his sentence on the manslaughter and indignities convictions.

The crown’s seeking a probation order now, on the s.810.2 breaches, was tantamount to re- sentencing him for the prior offences for which he had already been punished, and had satisfied the sentence imposed. [26] Aside from the length of the probation order sought by the crown, the offender took issue with conditions 3, 4 and 10 on the crown’s wish list for him. [27] Condition 3 was the 11 pm to 6 am curfew and condition 4 was the obligation to present himself at the door when a peace officer was checking his curfew compliance during curfew hours.

Condition 10 was to attend counselling as directed by his probation officer and provide consents so that the probation officer could monitor compliance directly with his counsellor. No specific type of counselling was mentioned in the crown’s list. [28] The offender argued that probation orders are “punishment” and the crown seeks to punish him further for his offences of manslaughter and indignities, in the guise of a sentence for his recognizance breaches and the other offences for which he is before this court.

That this is so, he argues, is evident from the types of conditions that the crown seeks and the length of time it wishes them to be in force. Condition 10, he claims is useless, and was never intended to be effective. THE LAW WITH RESPECT TO S.811 SENTENCING [29] Criminal Code s.811 provides the sentencing available for breaches of s.810.2 Recognizances. It provides a maximum time for a custodial term. It says nothing about probation. [30] Probation orders can be imposed to follow custodial sentences.

This is true even for custodial sentences imposed on convictions for breaches of s.810.2 Recognizances. [2] [32] The law on sentencing for breach of a s.810.2 Recognizance is fairly well developed in the jurisprudence. The considerations that are relevant were set out in a trial decision R. v. Zimmerman [3] which was approved on appeal and stated more succinctly by the Alberta Court of Appeal in R. v. Zimmerman [4] as:

“(

i) the primary purpose of sentencing for a breach of a s. 810.2 recognizance is the protection of the public and paramount consideration should be placed on this purpose and on the sentencing objectives of specific and general deterrence; (ii) the gravity of the breach must be examined in the context of the offender's history; (iii) the sentencing judge must never lose sight of the proportionality principle; (iv) a breach of a s. 810.2 recognizance will usually result in a more serious sentence than a breach of a probation order as s. 810.2 recognizances and probation orders have different primary purposes and come with different risks when breached; (

v) a s. 810.2 recognizance has similar purpose and method as a long-term offender order but should not be confused with a long-term offender order; (vi) when sentencing for a breach of a s. 810.2 recognizance, the sentencing judge should be concerned about managing the offender's risk to the community; (vii) deliberately absenting oneself to subvert the conditions of close supervision in a s. 810.2 recognizance is an aggravating factor; and, (viii) the sentencing judge must consider all of the principles of sentencing in s. 718 to s. 718.2 of the Criminal Code .” [33] The leading decision in Ontario emanates from our Court of Appeal in the 2006 oft cited decision of R. v.

Labbe [5] . The appellate court, in that case, reduced the concurrent sentences of 21 months on two counts of breach of a s.810.2 Recognizance, to twelve months concurrent. The rationale was that the sentencing trial judge had accepted the argument that the offender in that case, simply by virtue of having been placed on a s.810.2 Recognizance, was to be considered close to the “worst offender” in applying the sentencing principle of proportionality.

That, said the appeal court, emasculates the proportionality principle and would automatically treat s.810.2 breach offenders as the “worst offenders” with no regard for the gravity of the breach or of any rehabilitative steps taken by the offender. This was an error in principle that warranted appellate interference. [34] The appellate court in Zimmerman said nothing about the 3 year probation order that the trial court also imposed other than to indicate that it did not interfere with it. The offender did not appeal that part of his sentence.

I take this to be tantamount to appellate approval of the addition of long term probation to a custodial sentence on a s.810.2 Recognizance breach. ANALYSIS [35] The first reality of the s.810.2 Recognizance is that the offender, Dylan Jocko, did not comply with the conditions it contained. He deliberately absented himself from London, and moved many miles away to Brunswick House reserve. He was completely free from any monitoring during this time. It was clearly a deliberate choice on his part.

By doing what he did, he effectively undermined the entire purpose of the s.810.2 Recognizance which was the close monitoring that was needed for the protection of the community. This shows, at best, a complete lack of understanding on the offender’s part of the purpose of these conditions, and, at worst, a complete disdain for them. [36] The second material facts were that the offender, after he was arrested, appears to have been released on bail and was required to attend court in Chapleau.

He did not attend his first court date, and also a later one, which I presume is when he left the jurisdiction of the Chapleau court and came to Sault Ste. Marie, also without notification to anyone. [37] The third set of circumstances were those surrounding his arrest in Sault Ste. Marie. He gave a false name to police when

questioned. Later, when actually placed under arrest, he fled, was pursued, and evaded the law for a short time before being apprehended. [38] In short, the promise he made to the justice system in his s.810.2 Recognizance was subverted by his own decisions and conduct.

It was almost totally ineffectual in achieving what it was meant to do. [39] In effect, what transpired were events that confirm that the offender is still a high risk to the community at large, that the offender has little if any regard for his promises to abide by conditions imposed on him by the justice system, and he has almost complete disregard for the authority of the justice system over him. He does what he wants when he wants and little seems to have changed over the years. [40] This brings the court to a consideration of his record of criminal offending.

This is replete with offences contrary to the administration of justice. He shows 23 offences as a youth and 29 as an adult. There are six offences of assaults and threatening, some assaults are with a weapon or causing bodily harm. He also has drug offences, break and entry offences and of course, his manslaughter and indignities offences. His time in custody are numerous and regular. From his record alone, I infer that he is a career criminal and will likely only offend again. [41] This raises the rhetorical question of what the sentencing before me is intended to accomplish.

I am satisfied, based on the case law, and the fact that I have a joint submission of both counsel, that the 12 month custodial term is a proper one. It serves the sentencing principles of specific and general deterrence, adequately, and in my view, also achieves objectives of denunciation [s.718 (a)] and separation of the offender from the community [s.718(c)], at least for a time.

It will be subject to the appropriate credits for time served. [42] However, the probation that follows custody is normally considered as a rehabilitative measure often to assist in the transition from custody to freedom in the community. Probation generally contains conditions to assist the offender from re-offending. Probation also facilitates community program access for those for whom such programs are deemed by the court to be helpful in getting on to a more pro-social life path. There is no question that probation is also a punishment.

It can restrict freedoms by imposing curfews, or require mandatory periodic reporting, or restrict the probationer from attending places he might otherwise be free to attend or contact persons he might otherwise contact. [43] In the context of a sentence under s.811 for breach of a s.810.2 Recognizance, probation is an acceptable inclusion. It is not prohibited and has been used and endorsed by a variety of courts. The first consideration is the conditions of the probation order. [44]

Section 732.1(2) sets out mandatory provisions of all probation orders.

Section 732.1(3) sets out a list of optional provisions that the court may include in a probation order. Nowhere in this list is there any specific provision for a curfew and for presenting oneself at one’s residence door when a peace officer attends to check curfew compliance. If this is authorized, it is authorized under a catch-all clause, namely clause (

h) S.732.1(3) (

h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community.

In contrast, one specified condition that a court may include in a s.810.2 Recognizance is to require the offender to return to and remain at his residence at specified times, which I take to be a curfew condition. [See s.810.2 (4.1)(d)] [45] Conditions 3 and 4 sought by the crown are clearly desirable for protection of society, but I find it a stretch to see how they facilitate the offender’s successful re-integration into the community.

If they do, they do so in a marginal way. [46] In this case, I agree that the probation conditions sought by the crown are essentially intended to replace the conditions that bound the offender on his s.810.2 Recognizance, despite the several differences, which I consider rather negligible. Are these conditions of probation a duplication of punishment that the offender has received before? And should he be subjected to them again? [47] My response is that they are, and he is. The fact is that he did not undergo the sanction of the conditions in his s.810.2

Recognizance because of his own decision to avoid doing so. His non-compliance was the result of his unilateral decision to abscond. Therefore, even though they were imposed, they were not complied with. My thinking is that he should optimally be subject to another s.810.2 Recognizance with perhaps more stringent conditions than in the previous one. However, I am not faced with that decision. I am faced with whether, in all of the circumstances, a probation order is appropriate with the terms proposed by the crown.

My decision is that it is, subject to one exception. [48] The question of the rehabilitative aspects of a probation order being appropriate for a person such as Dylan Jocko is one that has been dealt with in other similar cases. While sentencing for s.810.2 breaches are primarily for protection of the public, rehabilitative objectives, while not the primary ones, are still within the objectives of such sentences. [49] With respect to conditions 3 and 4 of the crown, these are clearly not rehabilitative in nature but serve the objectives of close monitoring the offender’s residence and curfew compliance there.

Clearly, these were found to be valid and desirable objectives by Orsini J. who imposed the s.810.2 Recognizance. I also find that they are, not only based on the criminal record of the offender, his convictions on, and the circumstances of, his manslaughter and indignities charges, but also on the most recent breaches and the fact that without these, he would be essentially unmonitored and free to roam in society at will. [50] The original s.810.2 Recognizance was for a term of 18 months. The probation term sought by the crown is for 3 years.

This does cause me some concern. [51] I must assume that the 18 month length of the s.810.2 Recognizance was for an appropriate period. I have no way of knowing how the crown proceeded when it sought such s.810.2 Recognizance. In any event, it is now asking for almost identical conditions to be imposed, admittedly in the context of a probation order, for a considerably longer period than was originally imposed. There was no submission on why this longer period was necessary or even proper.

There appears to be no reason for the length of three years other than it is the maximum time that the offender can be placed under these conditions. The fact is that the offender will be out of the community while he is serving his custodial sentence, before he even starts any probation term. The crown cannot ask for the maximum probation term simply to provide the most (ie longest) period of protection. [52] Much has been said in s.811 sentencing decisions about the principle of proportionality. I cannot simply assume that this offender is the worst offender.

In fact, other offenders described in the case law may be even worse than Mr. Dylan Jocko. Moreover, he has not committed any offence of violence while he was absconding. At most, his offences were against the administration of justice. Nor can I assume that the offences were the worst offences. I am speaking of the offences with which the offender is charged before this court. I am not speaking of the previous offences on his record. [53] There appear to be few mitigating factors that the court can apply in this sentencing. The guilty plea is one that is traditionally seen as an indication of remorse.

I concede that to be a mitigating factor. The only other mitigating factor is that the offender contacted the NAP police service from where he was in Brunswick House reserve and effectively turned himself in to the authorities. [54] There were many more aggravating features, the most egregious being his providing a false name when questioned and his escape when arrested. [55] Having regard to all of the circumstances, specifically that (

a) his previous term under conditions was only 18 months; (

b) his custodial sentence on these charges is the most severe form of punishment; (

c) he is spending some time in custody before he even starts probation; (

d) he did comply with his recognizance albeit for a short period of several months; and (

e) he is an indigenous offender who has not committed a violent offence in the charges before me. [56] I feel that two years of probation under most of the conditions that the crown suggests, is sufficient by way of an additional sanction that is meant to protect the public. I agree that a counselling condition without any indication of what counselling is for makes little sense and I do not like to leave that decision in the hands of a probation officer. Besides, this offender has long ago passed the point

where he is amenable to counselling or is likely to profit by it. Counselling works when a person engages with a counsellor. There is no indication that Mr. Dylan Jocko has, in the past, or will in the future do so. [57] I add that despite this offender’s lengthy history in this court in this city, I had very little information about him. I had no pre- sentence report, no psychological or psychiatric assessment reports, no letters of support, and little description from London of his compliance with the s.810.2 Recognizance immediately after it was first in force. Some of this information would have been helpful if it was available. [58] In

summary, when sentence is imposed, the custodial portion of his sentence will remain 12 months subject to credit for pre- sentence custody at 1.5 to 1 as of the day of imposition of my sentence. The probation order will be for two years. It will follow the custodial portion of the sentence. The conditions will be as requested by the crown except that clause 10 dealing with counselling will not be included. I have not heard any breakdown of the custodial portion of the sentence among the various offences but am open to any reasonable suggestions. Released: October 15, 2019 Justice John Kukurin