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| John L. Hill |
Jimmy, a 29-year-old Indigenous man, spent an evening drinking with his 40-year-old uncle, Greg Parenteau, in November 2019. Both men had too much to drink and an argument erupted.
The uncle punched Jimmy in the face. What began as a defensive reaction led to Jimmy inflicting multiple blows on his uncle and continuing to punch and stomp on him as he lay unconscious on the floor. Jimmy walked out and the uncle’s son found Parenteau, still unconscious, somewhat later. Only on the next day was the severity of the beating discovered.
After being transported to hospital, it was found that the head injuries were life-threatening. After weeks in hospital, Parenteau was discharged but with permanent impairment of his memory, cognitive function, physical mobility and motor skills requiring extensive physical therapy to retrain himself to walk and talk.
At trial, Jimmy offered no evidence, claiming he lashed out in self-defence. The court found he had gone beyond what might have qualified as a proportionate response; he was convicted of aggravated assault. Jimmy had a prior record for assaultive behaviour. He had served a total of 87 days in jail previously. The Crown asked for a five-year sentence. But the sentencing judge disagreed. He justified a sentence of two years less a day followed by two years’ probation and a community service order appropriate. The Crown appealed.
The majority found that the sentencing judge did commit errors in principle sufficient to allow appellate court intervention (R. v. Friesen 2020 SCC 9).
The sentencing judge said Jimmy was too young and not violent enough to be given a penitentiary term. The Appeal Court did not find a 29-year-old too young nor is there a requirement that an offender be “very, very violent” before a sentence over two years is imposed.
The sentencing judge also erred in the application of the “jump principle.” This concept, although not included in the Criminal Code, has been used by courts to exercise restraint. Even though a previous jail term was less than three months, it would not be offensive to drastically increase the penalty in this case due to the seriousness of the harm inflicted on Parenteau.
The trial judge also erred in the application of section 718.2 (e) of the Criminal Code. Jimmy was an Indigenous offender. The factors set out in R. v. Gladue [1999] 1 S.C.R. 688 and R. v. Ipeelee 2012 SCC 13 are meant to credit Indigenous offenders who have suffered from deprivations attributable to being raised and mistreated due to an Indigenous background. Jimmy was raised in a prosperous First Nation community and there was no analysis of his background that would support the application of Gladue principles. His grandparents attended residential school but Jimmy did not.
In the end, the majority held that the sentence should be set aside, and a three-year sentence imposed less 38 days for pre-sentence custody. The sentence imposed amounted to 1,057 days.
This case is illustrative of how our judges lack knowledge of our correctional systems. Imposition of a penitentiary term may seem harsh, but it all depends on where the sentence is served. All provincial jails are maximum security, often overcrowded and lacking in rehabilitative programs. Once the carceral sentence is served there is probation and community service to complete.
Most inmates believe being under state control during probation is as rough a penalty as being held inside. The provincial term imposed on Jimmy could amount to 1,460 days. This includes jail time and days on probation. Even if Jimmy was paroled at the earliest date, he would spend over 1,200 days under state control.
The 1,057 days imposed by the Court of Appeal may well be served in a prison housing medium or minimum-security inmates and include access to school or programming not available in a provincial institution. Since it is now a federal term of incarceration, the probation and community service order do not apply (R. v. Cuthbert 2004 ONCJ 294).
Sometimes, one wins by losing.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.
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