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letter to the Crown Attorney
Joseph Wamback
1046 Lockwood Circle
Newmarket, Ontario
L3X 1M2
March 10, 2000
Robert Ash, Crown
Attorney
50 Eagle Street,
Newmarket, Ontario.
L3X 1M2
Re: Jonathan Wamback Assault case, failure to make
Section 16 application.
Dear Mr. Ash
I am discouraged with the decision reached by the Crown Attorneys office and the election to proceed with in youth
court and again request that you make application for transfer to ordinary court.
Your office provided me with a court of appeal decision dated Jan 26, 2000, and I fail to understand how it has anything to
do with the facts of Jonathan’s assault and search of Justice.
I was told that there was no down side to an application. Surely, the potential to establish precedent setting case law in
search of justice must be part of your objectives as a Crown Attorney.
I am also concerned that I have yet to receive a written response to my questions submitted to your office on Sept 29, 1999.
The issues raised were of great importance to me.
It is my understanding that the considerations in making determination and the findings of fact lie with the court and not the
Crown Attorney.
I understood that determination by the court for a successful transfer is based upon the following considerations:
(a)
the seriousness of the alleged offense and the circumstances in which it was allegedly committed;
My understanding of the evidence is that Jonathan was initially assaulted in the park by the accused, and after he left, was
followed (or chased) by 5 young men, including the accused, in a car. (The accused had the opportunity to stop the assault but
made a conscious decision to follow or pursue with intent).
Jonathan was confronted a second time by the accused and assaulted a second time. When Jonathan fell to the ground he
was assaulted again with kicks to his head and body.
The police photographs 2 weeks after Jonathan’s’ surgery show the damage to his skull as well as bruising to his upper
body.
The accused had numerous opportunities to stop the assault but at each juncture, made conscious decisions to not only continue
but escalate the assault on a much smaller and younger person (Jonathan was only 15 years old). An important issue of fact, as
I have been told by your office, is that at no time did Jonathan attempt to strike back or ever initiate the assault.
This is clearly a premeditated assault with intent to injure and at no time was there compassion shown for Jonathan.
By not proceeding with a transfer application to ordinary court, your office is making decisions on issues of
determination of fact, is frustrating our community, setting the wrong example for youth and sends messages that are counter
productive to the perception of justice in Canada.
The decision not to apply for a transfer appears contrary to the positions taken and statements made by Attorney General,
James Flaherty, Premier Mike Harris and our new Chief of Police Julian Fantino, who have publicly stated their wishes to get
tough on youth crime.
(b) the age, maturity, character and background of the young person and record.
I am told by your office that the accused have no criminal record, however they were 16 and 17 at the time of the assault
which is the upper limit of the young offender status, and the arresting officers told both Jon’s mother and myself that these
men were known trouble makers in Newmarket.
(c) the adequacy of this Act, and the adequacy of the criminal code or any other Act of Parliament that would apply in
respect of the young person if an order were made under this section, to meet the circumstances of this case.
The refusal to apply for a transfer limits the court in its abilities to deal with the seriousness of the assault, and
injuries caused.
The provisions of the ordinary court and the Criminal code part 23 section 718
Purpose and Principles of
sentencing state;
to denounce unlawful conduct;
To deter the offender and other persons from committing offenses;
To separate offenders from society, where necessary;
To assist in rehabilitating offenders
To provide reparations for harm done to victims or to the community; and
To promote a sense of responsibilities in offenders, and acknowledgment of the harm done to victims and the community.
By failing to apply for transfer the Crown has effectively removed these principles from the process of finding of
fact and determination of sentence from the court. I suggest that the "swarming" nature of the assault on my son is of such
concern, especially recently, that it is conduct that properly merits consideration of both denunciation and deterrence to
others in any sentence imposed.
These concepts, as you know, do not appear in the YOA and retention of
the case there necessarily means that they will not be available to a YOA sentencing court.
If there ever was a compelling reason to transfer such a violent offense, surely this must be the case.
I also
point out that the maximum incarceration available for such an offense in ordinary court is 14 years rather than 2 years in
youth court.
In a great many crimes (impaired driving causing bodily harm or death or repeat impaired driving come to mind), I
believe that courts have significantly increased the sentences imposed in response to a clearly greater need for deterrence
and denunciation.
I had always believed that the law and the duty of those who are trusted to administer it are not simply some mechanical
repetition of the status quo. Rather, if I understand Premier Harris and Attorney General Flaherty correctly, it is meant to
be an evolving and responsive process to deal with the realities of life for the people of Ontario which includes new and
worsening types of crimes such as swarming and the catastrophic injuries occasioned by it.
You and your office may be prepared to accept the status quo but I, and millions of other parents and citizens like me are
not.
d) the availability of treatment or correctional resources;
This should not apply, however since the
sentencing provisions of ordinary court allow for longer sentences then it would naturally follow that longer terms of
rehabilitation would be made available to the accused under a successful transfer and trial in ordinary court.
(e) any representations made to the court by or on behalf of the young person or by the Attorney General or his
agent; and
any other factors that the court considers relevant.
Why haven’t the comments by the arresting officers,
known trouble makers
been further investigated? I was told by the police that two of the accused tried to evade capture.
The injuries to
Jonathan are as serious as can possibly be without death resulting. Jonathan will suffer for the rest of his life from the
injuries caused by the cowardly attack by the physically larger and older men. These injuries will prevent Jonathan from
achieving his pre attack life goals. They have removed opportunities for Jonathan to participate in any form of contact sport
including down hill skiing, which Jonathan so dearly loved.
Jonathan suffers, physically and emotionally each and every day, and may continue so for the rest of his life. His
attackers have stolen his vibrancy and vitality not only from his family, but our community and country. Jonathan’s cognitive
impairment may be life long, effectively eliminating a University degree. At this stage Jonathan has already lost a full year
of his schooling and he may lose many more. The financial cost to our family is anticipated to be staggering.
I respectfully request that you answer me, in writing so that I may have the opportunity to pursue my
options.
Sincerely
Joseph F Wamback
Cc The Hon. Mike Harris
The Hon James Flaherty
Julian Fantino
Lorne Honickman
Scott Newark
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