R. v. Friday, 2012 ABQB 371

Court of Queen ’ s Bench of Alberta Citation: R. v. Friday, 2012 ABQB 371 Date: 20120605 Docket: 110207099Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Daniel Lawrence Friday Accused _______________________________________________________ Reasons for Sentence of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] On February 20, 2011, Stacy Bert Steinhauer died. He had been stabbed by Daniel Lawrence Friday in the early evening of February 19, 2011, following a day of heavy drinking at Mr. Friday’s apartment and elsewhere. Mr. Steinhauer and Mr.

Friday were both very intoxicated at the time of the stabbing. [ 2 ] After he was stabbed, Mr. Steinhauer left Mr. Friday ’ s apartment and wandered outside for a time before laying down in the snow. It was an extremely cold night - colder than -30C with wind chill. [ 3 ] About 6 hours after the stabbing someone saw Mr. Steinhauer laying outside of Mr. Friday ’ s apartment building, assumed that he was drunk and would soon come into the building. A quarter of an hour later the same person went back outside to check on Mr. Steinhauer again and discovered that he was bleeding and in distress.

The person could not wake Mr. Steinhauer up. He attempted to

call for help but did not succeed in doing so for over an hour. [ 4 ] When medical help arrived Mr. Steinhauer ’ s condition was very serious. He was taken to hospital in critical condition. He went into cardiac arrest. CPR was administered for almost 3 hours and he was finally stabilized. However at about noon, about 17 yours after the stabbing, he died. [ 5 ] The autopsy report indicates that there were 3 stab wounds. One to Mr. Steinhauer ’ s left cheek, one to his right thigh, and one to the middle of the right side of his back. There was a superficial puncture injury on the back of his neck.

The medical examiner reported: This injury [the neck injury] and the stab wound of the right side of the back were superficial. The stab wounds of the left cheek and the right thigh were deeper, and although they did not damage any major blood vessels, they would have been capable of producing slow blood loss over a prolonged period of time. There were other minor cuts, some of which would have been a source of blood loss. [ 6 ] Mr.

Steinhauer ’ s blood alcohol level at the time of admission to hospital was measured at 350 mg per 100 ml of blood - more than 4 times the level of blood alcohol content at which driving is criminal. The medical examiner reported: This level of alcohol is high enough that it could be considered as a cause of death in the absence of any other findings at autopsy.

Given the alleged several hours delay between this individual receiving his injuries and his admission to hospital, it would be reasonable to assume that his blood alcohol concentration was significantly higher when he received his injuries unless there was evidence to suggest that he had consumed alcohol after this time. It appears there was no such evidence. [ 7 ] The medical examiner came to the following conclusion concerning the cause of Mr. Steinhauer ’ s death: The cause of death was attributed to stab wounds of the face and thigh.

Blunt injuries (in particular a laceration of the forehead), cold exposure, and the toxic effects of alcohol (ethanol toxicity) were all thought to be significant contributory factors towards causing death. [ 8 ] Mr. Friday was initially charged with second degree murder. However he plead guilty to manslaughter and the Crown agreed to accept that plea. He was also charged with breach of probation because at the time of the stabbing he was subject to a probation order, one condition of which was that he not possess or use alcohol. He plead guilty to that charge as well. [ 9 ] Mr. Friday is 26 years old.

He was 25 at the time of the stabbing. He was born on a First Nations reserve in Kamsack in east central Saskatchewan. He had no meaningful relationship with his father and has no contact with him now. His family consisted of his mother, older brother, younger sister, and himself. The First Nations community in which he lived was plagued by the social problems that feature largely in many First Nations communities: alcohol and other substance abuse, unemployment, and poverty. Mr.

Friday does not recall any abuse when he was a child but his parents, like many in his community, suffered from chronic alcoholism. [ 10 ] He went as far as Grade 11 in school. Then he moved to Alberta. He has never been married. He has no children. He has a fragmented work history – consisting of day labour and employment on a casual basis. [ 11 ] Mr. Friday also suffers from alcohol abuse. Indeed alcohol and drunkenness have featured in all of his previous convictions

which I am about to describe, as indeed it features in the present convictions. [ 12 ] Mr. Friday has a significant criminal record. The record put in evidence indicates that this is the 14 th occasion upon which he has been sentenced by a court since he became an adult 8 years ago. He has been convicted and sentenced for 25 offences on 13 previous occasions. His convictions have been for a wide variety of offences.

He has: - 10 convictions for failure to comply with a probation order - 4 convictions for theft under $5000 - 2 convictions for possession of a weapon for a dangerous purpose - 2 convictions for assault - 1 conviction for each of: - breach of undertaking given to a peace officer - robbery - assault with a weapon - assault causing bodily harm - uttering a threat - unlawful confinement - mischief [ 13 ] His record indicates that on the 13 previous occasions he has been sentenced, the sentence has involved incarceration 11 times. His longest sentence was for 18 months. [ 14 ] Mr.

Friday has been in remand custody since his offence. At the time of the sentencing submissions counsel were agreed that he was entitled to 447 days credit for the time he has served in pre-trial custody. That was 25 days ago. He has now served 472 days in pre-trial custody. This equates to roughly 16 months. [ 15 ] Mr. Friday made his guilty pleas very early. Though the matter was set for preliminary hearing this was only done in an attempt to speed up the issuing of the autopsy report. The preliminary hearing was never held. The matter was never set for trial. There is no dispute that Mr.

Friday is entitled to the full mitigating benefit of his early guilty pleas in the determination of a fit sentence. [ 16 ] The crime of which Mr. Friday has been convicted is obviously very serious. His actions caused the death of another young man. The victim impact statements prepared by Mr. Steinhauer ’ s father and uncle provide profound descriptions of the tragedy Mr. Friday ’ s actions have caused. [ 17 ] It is acknowledged that Mr. Friday ’ s actions were the product of his drunken state. It is also acknowledged that though his actions were extremely violent, the parts of Mr. Steinhauer ’ s body that Mr.

Friday stabbed were not the parts that one intending to kill another would likely stab. And the force of the stabs does not appear to have been excessively severe given that Mr. Steinhauer was able to leave, to walk around, to attempt to stop his own bleeding by using an

article of clothing as a makeshift tourniquet, and to survive in the bitter cold for many hours. It is also acknowledged that there were other factors, besides the stabs inflicted by Mr. Friday, which made major contributions to the cause of Mr. Steinhauer ’ s death – his blood alcohol content, the extreme cold, the passage of as many as 8 hours after the stabbing before he received any aid. [ 18 ] Objectively viewed, Mr. Friday ’ s acts would be recognized as ones likely to subject Mr. Steinhauer to risk of serious bodily injury. They are more serious than acts which would be recognized as likely to subject a victim to risk of bodily harm which was neither

trivial nor transitory and less serious than acts which would be recognized as likely to subject a victim to risk of life-threatening injury. [19] The information available does not give much insight into how Mr. Friday subjectively viewed his acts when they occurred. The knife was a kitchen knife which Mr. Friday had in his apartment. It does not appear to have been a weapon which he carried inanticipation of violence. In his statement to police given on the evening of the day Mr. Steinhauer died, Mr.

Friday said that Mr.Steinhauer had become aggressive and fought with a third person who was drinking with them for part of the day. Mr. Friday also saidthat Mr. Steinhauer punched him in the arms and neck and that Mr. Friday fought back which seemed to make Mr. Steinhauer angrier. He said he grabbed the knife and warned Mr. Steinhauer to stop hitting him. Mr. Steinhauer did not stop. Mr. Friday said he struck outat Mr. Steinhauer with the knife and stabbed him 3 times and identified 2 of the 3 places where he stabbed Mr. Steinhauer to police.

Thissuggests some subjective belief that the stabs would not have been life threatening. [20] It appears that the circumstances are in the middle category identified in R. v. Laberge (1995) 1995 ABCA 196 , 165A.R. 375 (Alta. C.A.). Counsel were agreed on that characterization. [21] I recently had occasion in R. v. Sinclair 2011 ABQB 652 to review several sentencing authorities where the circumstanceswere similar to this case. In Sinclair itself I concluded that, objectively assessed, Ms.

Sinclair’s offence was in the third and most seriousLaberge category though consideration of the subjective indications ameliorated that classification to some extent. I held that a 5-yearsentence was fit. [22] This case is in the second Laberge category. And in my view Mr. Friday’s moral blameworthiness is significantly reducedby the fact that factors other than his acts contributed significantly to the tragedy of Mr. Steinhauer’s death. [23] Counsel addressed the implications of the Supreme Court’s recent decision in R. v. Ipeelee 2012 SCC 13.

I gather that whenthe Supreme Court released this decision in late March 2012, the discussions between counsel that resulted in the

summary disposition ofthis case were well underway if not completed. [24] At the sentencing hearing counsel addressed whether or not this sentencing ought to be delayed while a pre-sentence reportwas obtained. Mr. Teskey submitted that though the Supreme Court identifies the importance of the Court being aware of the personalcircumstances of an aboriginal offender for the proper application of s. 718.2(e), and though the Supreme Court clearly recognizes that apre-sentence report will be an appropriate way of obtaining that information, it does not say that it is the only way. [25] Mr.

Teskey advised that he has spent many hours with Mr. Friday and felt that the information he could give the Court in hissentencing submissions would be sufficient for this purpose. Mr. Teskey, for that reason, encouraged me not to order a pre-sentencereport. He also noted that the difference between the positions taken by the Crown and Defence is relatively small. The informationwhich it might be anticipated would come from a pre-sentence report would probably not have significant impact on the determination ofwhere in the submitted narrow range of fit sentences Mr. Friday’s sentence should be located.

He was also concerned that anadjournment for a pre-sentence report would cause a significant delay because the resources of those who prepare pre-sentence reportshave been severely strained. He anticipated a 4-month delay. I will proceed as Mr. Teskey suggested. [26]

Section 718.2(

e) requires the Court to take the following principle into account when determining a fit sentence: All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders withparticular attention to the circumstances of aboriginal offenders. [27] In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, the Supreme Court held that this provision requiressentencing judges to use a different method of analysis in determining a fit sentence for aboriginal offenders. When sentencing anaboriginal offender, a judge must consider (

a) the unique systemic or background factors which may have played a

part in bringing theparticular aboriginal offender before the Courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate inthe circumstances of the offender because of his or her particular aboriginal heritage or connection. [28] In Ipeelee the Supreme Court makes it clear that this principle applies even to serious offences where incarceration is

necessary. It applies in every case involving an aboriginal offender. [ 29 ] The first consideration identified in Gladue relates to moral blameworthiness. In Ipeelee the Court said at para 73 : First, systemic and background facts may bear on the culpability of the offender to the extent that they shed light on his or her level of moral blameworthiness. [ 30 ] In my view that consideration applies here. Mr. Friday grew up in a community and family plagued by alcoholism. He has himself been plagued by alcoholism for most if not all of his adult life. Alcohol abuse featured in all of his previous 25 convictions.

It most certainly featured centrally in the present convictions. The moral blameworthiness which properly attaches to his crime is lower given this consideration than it would otherwise be. I do not say that the fact he was extremely drunk when the offence was committed is a mitigating factor. I say that the fact that he grew up in a community and family where alcoholism was a dominate life feature made it nearly inevitable that he would become an alcoholic. This reduces the blameworthiness of a crime that is linked causally to his alcoholism. [ 31 ] As to the second Gladue consideration, Mr.

Teskey did not contend for a sentence which after credit for time in custody would put Mr. Friday in a provincial facility. Such a contention would probably not have been accepted in any event. But Mr. Teskey was content not to make it because he suggested that Mr. Friday and society will be best served if Mr. Friday is sentenced to a federal facility given that the federal corrections system, both in the incarceration and parole portions of the sentence, will provide greater opportunity for Mr.

Friday to receive treatment for his alcoholism and to receive training which will promote development of the life skills that he will need if he is ever to escape the downward spiral in which alcoholism has entrapped him. [ 32 ] The Crown submitted that a fit sentence would be between 5 and 6 years. The Defence submitted that a fit sentence would be between 3 ½ and 4 ½ years. The offence was serious. Mr. Friday ’ s moral blameworthiness is middle range – his acts having been ones which objectively were likely to put Mr. Steinhauer at risk of serious bodily harm.

That level of blameworthiness is ameliorated by the fact that there were other factors beyond Mr. Friday ’ s acts which contributed significantly to the cause of Mr. Steinhauer ’ s death. It is also ameliorated by consideration of the features of Mr. Friday ’ s aboriginal background which I have mentioned. His early guilty plea significantly mitigates. His criminal record significantly aggravates. [ 33 ] Having considered these factors and the authorities cited by counsel as well as the authorities reviewed in them, I have concluded that a fit sentence for Mr. Friday ’ s offence is 4 years.

From that I would deduct 16 months to account for the time Mr. Friday has spent in remand custody. This leaves a sentence of 2 years 8 months. [ 34 ] Mr. Friday on this manslaughter count I sentence you to 2 years 8 months. On the breach of probation count I sentence you to 90 days concurrent. [ 35 ] I understand that it has been necessary for Mr. Friday to be housed in protective custody while in remand. Mr. Teskey indicated that the reasons this has been necessary would not likely exist if Mr. Friday were to serve his sentence in a prison in Saskatchewan.

He asked that I direct that the warrant of committal be endorsed with my recommendation to that effect. I so direct. [ 36 ] There will also be a DNA order and a s. 109 weapons prohibition. [ 37 ] I also direct the forfeiture of all items seized by the police in this case. Heard on the 11 th day of May 2012.

Dated at the City of Edmonton, Alberta this 4 th day of June 2012. Brian R. Burrows J.C.Q.B.A. Appearances: S. Bykewich for the Crown K. J. Teskey for the Accused