A Yukon man whose jail sentence more than doubled after a Crown appeal is taking his case to the Supreme Court of Canada.
The country’s highest court opened a file for Wesley Quash on July 8.
Quash’s application of leave to appeal, filed by lawyer Vincent Larochelle on June 28, argues that Quash’s case raises three matters of national and public importance related to the sentencing of offenders with mental and cognitive limitations as well as sentencing ranges.
Quash was convicted of aggravated assault in 2018 after slashing another man in the face with a pocketknife in Whitehorse’s McIntyre subdivision two years earlier.
In his decision, territorial court Judge Michael Cozens wrote that the victim had been walking down the street and “was saying things loudly to no one in particular and for no particular reason, other than the intoxicated and boisterous mood that he was in” when Quash confronted him.
What began as a verbal back-and-forth then escalated when the victim “went up to (Quash) quickly, in an aggressive manner,” and in response, Quash pulled out a pocketknife and cut the victim’s face.
Cozens originally sentenced Quash to 10 months in jail with credit for time served followed by 30 months of probation, noting that, among other things, Quash’s “significant cognitive deficiencies and limitations” meant he “cannot be held accountable for his actions to the same degree that someone without such deficiencies and limitations can be.”
The Crown, however, appealed the sentence, arguing that Quash should have received four to five years of jail instead.
In a split decision this April, the Yukon Court of Appeal found that the 10-month sentence was “demonstrably unfit,” with two of the three judges finding Cozens had placed “undue emphasis” on Quash’s “cognitive limitations in the absence of evidence that these limitations played a role in his criminal conduct.”
The majority also found that Cozens had incorrectly identified the sentencing range for aggravated assault in the Yukon, finding that it was 16 months to six years in jail, not six months to six years.
The Court of Appeal changed Quash’s sentence to two years in jail, minus time served, followed by 30 months’ probation, with the lone dissenting judge finding that Cozens had been in the best position to determine an appropriate sentence.
In the Supreme Court of Canada application, however, Quash’s lawyer alleges the Yukon Court of Appeal erred on three grounds: requiring offenders to present expert evidence showing a “casual link” between their cognitive limitations and criminal offending in order for the limitations to be considered during sentencing; the “general requirement” that offenders show a direct link between their cognitive limitations and the commission of offences in order for the limitation to be considered a mitigating factor at sentencing; and using case law from other jurisdictions to establish proper sentencing ranges.
The application claims that the requirements related to offenders showing the link between their cognitive or mental limitations and their offences in order to have them considered at sentencing are “wrong as a matter of law and policy.”
“This rigid framework proposed for evidence of cognitive limitations or mental illnesses is not only inconsistent with the flexible approach to sentencing procedure, it also ignores a fundamental reality of the criminal justice system: judges are required to act on imperfect information, time is limited, resources are limited. In short, criminal procedures are messy,” the application says.
“…In the real world, offenders who suffer from cognitive limitations are undiagnosed and receive little to no medical support. They are homeless, unemployed and have fragile or non-existent social networks. They have barely enough mental and cognitive capacity to provide cogent instructions to their overworked legal aid counsel. They are probably waiting in jail for sentencing to occur after having breached a bail condition to abstain from the consumption of alcohol. Neither time, financial nor human resources would allow the thorough and complete evidence required by the court of appeal.”
As well, the application says the trial judge noted Quash’s “phobic anxiety” was “consistent with his use of excessive force, and that his ability to act in a rational and considered manner is diminished by reason of his cognitive limitations.” This was an “obvious link” that the majority of the Court of Appeal ignored, the application argues, even though a trial judge is in the best position to “appreciate these limitations based on first-hand observations.”
The Yukon Court of Appeal, the application also argues, “relied heavily” on cases from British Columbia to establish the sentencing range for aggravated assault, “brushing aside Yukon case law in the process.”
“In doing so, the Yukon Court of Appeal has disregarded the bulk of Yukon authorities on the matter, emanating from a number of territorial judges, which is sensitive to the territorial reality and context.”
The Supreme Court of Canada has not yet issued a decision on whether the appeal will be allowed to go ahead.
Contact Jackie Hong at jackie.hong@yukon-news.com