Here’s what happens when a sentencing judge considers the why and not the what

Law360 Canada (April 17, 2025, 1:45 PM EDT) --

John L. Hill

Our courts are clogged. Guilty pleas are often accepted to expedite matters and free up court time. However, a recent decision of Justice Brock Jones of the Ontario Court of Justice demonstrates how justice should be applied in the hurly-burly of crowded courtrooms. Justice Jones begins a sentencing judgment describing an all too familiar situation: “Every day in provincial court, accused persons plead guilty to lesser criminal offences. A startling number of those people are detained in custody, having been unable to obtain bail. They are overwhelmingly vulnerable, marginalized, and from historically disadvantaged communities. When presented with a Crown offer of ‘time served,’ accused persons accept, plead guilty, and are placed on a probation order. The probation orders inevitably include terms that have become commonly accepted and are often imposed without consideration of their potential consequences or utility” (R. v. Chakasim, 2025 ONCJ 171).

The case dealt with a 31-year-old Indigenous woman, Juanita Chakasim, appearing in a Gladue court having been arrested for striking, although not injuring, a security officer while trying to enter a Toronto community housing building on Dec. 2, 2024. Four weeks later, she threw a liquor bottle when asked to pay for it at a Toronto liquor store and then spat on the security officer who challenged her. She was charged with two counts of common assault.

The Crown proceeded summarily. Chakasim pleaded guilty. As often happens in busy courtrooms, defence counsel and the Crown agreed to a joint submission for time served since her arrest (43 days) and three years’ probation. It was expected that the judge would rubber-stamp the deal.

Fortunately, Justice Jones was more interested in justice and rehabilitation than in expediency, and he undercut the joint position. The sentence imposed used a restorative justice approach, encouraging the accused to rely on community-based organizations where she had established meaningful connections. The judge suspended sentence with six months’ probation, requiring her to report only once to sign the order. She was prohibited from possessing weapons, and she was to have no contact with victims. She was not to attend the community housing facility or the LCBO outlet where she engaged with store security. A victim fine surcharge was waived.

In reaching his decision on sentencing, Justice Jones took the unusual step of addressing why a crime had been committed and not simply what wrong had been done. By focusing on the “why” and not the “what,” the court could fashion a sentence that would urge compliance with societal norms rather than doom this offender to continuing confrontations with law enforcement officials.

Justice Jones looked at the offender’s background, which included a diagnosis of fetal alcohol spectrum disorder (FASD), a head injury and struggles with addictions. He also noted her co-operation with a social worker to obtain housing, her church- and Aboriginal-sponsored rehabilitative supports, and her intention to remain sober and compliant with the law. Her incarceration at the Vanier Centre for Women included segregation placement, public strip searches, and insulting and derogatory remarks and treatment by guards. It should never have happened.

The lesser punishment meted out by Justice Jones complied with s. 718.2(e) of the Criminal Code as interpreted by R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13. The Supreme Court was concerned with the overrepresentation of Indigenous offenders in the criminal justice system. Following the directive in R. v. King, 2022 ONCA 665, Justice Jones was aware of the realities of Indigenous Peoples in exercising his discretionary powers. In accordance with R. v. Hilbach, 2023 SCC 3, he understood that the effects of a sentencing measure may be particularly severe for Indigenous offenders. Even without expert testimony, the impact of FASD can be judicially noticed in assessing the offender’s moral culpability (R. v. J.P., 2020 SKCA 52; R. v. Dayfoot, 2007 ONCJ 332).

It was an error that Chakasim spent 43 days in Vanier. A short term of probation was all that was called for in her situation. Specific deterrence plays little, if any, role for an offender with FASD. For this reason, the judge refused to note any pre-sentence custody on her record. A lengthy probationary term does not enhance public safety. A simple breach would see her reincarcerated and disconnect her from vital support networks.

Instead of emphasizing punishment, the sentencing judge used restorative justice principles to encourage rehabilitation.

Justice Brock Jones looked to the individual to establish a just punishment that would encourage rehabilitation. Hopefully, this approach will be copied in other courts and become the standard in sentencing other individuals.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an 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) and The Rest of the [True Crime] Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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