R v Noskiye, 2016 ABQB 254

Court of Queen ’ s Bench of Alberta Citation: R v Noskiye, 2016 ABQB 254 Date: 20160509 Docket: 140146655Q1 Registry: Peace River Between: Her Majesty the Queen Crown - and - Travis Duane Noskiye Accused _______________________________________________________ Reasons for Sentencing Decision of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ Introduction [ 1 ] The Accused pled guilty to manslaughter on the last day of his trial. [ 2 ] According to the Indictment, he stands charged that:

ON OR ABOUT THE 13 TH DAY OF FEBRUARY 2013, A.D. AT OR NEAR THE HAMLET OF WABASCA IN THE PROVINCE OF ALBERTA DID UNLAWFULLY KILL [FN] AND THEREBY COMMIT MANSLAUGHTER CONTRARY TO

SECTION 236(

B) OF THE CRIMINAL CODE. [ 3 ] As stated above, he pled guilty on the last day of the trial, the day when the medical examiner was to testify about the death of a very small girl. Facts [ 4 ] The Agreed Statements of Facts provides as follows: • FN was the child of the step-sister of LP.

Above five months before the events described herein, LP and the Accused assumed the care of the child on a full-time basis in their home. • FN was approximately 2 years and 9 months old at the time of her death... • LP describes that FN had some deficiencies: she talked rarely, and she had taught herself to walk she did not walk in a normal fashion and was clumsy. [This means] FN was prone to falling, and would fall somewhat on a daily basis although she was improving over time. When she would fall, she would sometimes suffer injuries. Mostly this was bruising.

Once her fall required stiches. • On Monday, February 13, 2013 Linda Peechemow was at the hospital with her and the Accused’s daughter, A. [Thus] FN was left in the care of the Accused during this time at their home. • Linda Peechemow was unclear if FN had any injuries before she left to the hospital. • The Accused was responsible for the care of FN as well as the couple’s other child, E (approximately the same age or younger than FN) in the home... • During the Monday and Tuesday of that week, the Accused consumed a large quantity of marijuana on a continuous basis. [And] In the same period, he found himself losing his temper with FN and struck her physically on a number of occasions. [The violence happened repeatedly, meaning ...] On Monday, he struck FN while alone at the house with the children.

He kicked her once in the body while in the kitchen of the residence He later kicked her twice in the bedroom when she wouldn’t go to bed. He do so while not wearing shoes. • On Tuesday, the Accused kicked her three times in the head during the day and once to the body. The kicks to the head rendered FN unconscious for a period of time, about a minute. The head kicks landed to the side of her head and her back. The body kick landed in the rib area. • He picked her up and shook her to wake her up. He then fed her. • Tuesday night, after coming home from getting water, FN again did something to upset the Accused.

He lost control of his temper and kicked her twice in the head with his boots on. The kicks were with the heel area of his boot. • The Accused also on different occasions slapped or hit with his hand ... • At some point there was a loud bang, and FN began to cry. The Accused brought FN into the bedroom and laid her on the mattress. She was crying at the time. He covered her completely with a blanket, and left the room... • In the morning, the Accused left for school At the time, he did not check on FN and she appeared to all be sleeping.

The blanket was still covering her, including the head region. • After the Accused left, FN was eventually checked on. Her chin was cut, her face had blood, and she was not breathing; she was dead. • The report of the Medical Examiner finds the cause of death to be multiple injuries. There was no one injury that could be pointed to that caused FN to die. The injuries inflicted by the accused substantially contributed to FN’s death, but were not the sole cause. Some of the injuries were accidental or innocent; that is, caused by falls, or roughhousing between the children.

Victim Impact Statement [ 5 ] FN’s grandmother filed a Victim Impact Statement. She indicated how sad and hurt she was because she would not see her granddaughter ever again or have a relationship with her. She no longer sleeps well following FN’s death, and she expressed the grief felt having lost a family member as a result of a crime. She spoke to the sadness of knowing she would never get to see her granddaughter again.

Criminal Record of the Accused [ 6 ] The Accused acknowledged his previous criminal history, which mostly took place in 2014 and included six charges of Failing to Comply with Recognisance, and 1 Uttering of Threats, and 1 Fail to Appear.

Personal Circumstances [7] The Accused and his counsel advised the Court that he attended elementary and high school in Wabasaca, Alberta, afterwhich he studied life management skills programs for several months. According to the Pre-Sentence Report (the “PSR”), he receivedsafety tickets for oilfield work, was an apprentice carpenter with the Big Stone Band, and worked plumbing and construction.

He held avariety of other jobs while growing up. [8] Additionally, while in prison, he has completed several courses through Alberta Health Services, including Addictioncourses, Parenting, Anger Management, Safe and Heath, and Behaviour On The Street. [9] The Accused wants to return to work and his family as soon as he is released from prison.

Position of the Parties Submissions of the Crown [10] The Crown seeks a sentence “... of around 8 – 12 years in jail.” The Crown further seeks ancillary orders for weaponsprohibition and for the Accused to provide a DNA sample. [11] In its written submissions, the Crown discussed the Criminal Code, RSC 1985, c C-46 (the “Code”), and the analyticalframework for manslaughter.

The Crown referred to several key cases that involve manslaughter: R v Laberge, 1995 ABCA 196(“Laberge”); R v SDC, 2013 ABCA 46 (“SDC”) and R v Will, 2015 SKCA 11. [12] The Crown referred the Court to further cases that apply the Laberge analysis: R v Nickel, 2012 ABCA 158; R v KSH, 2015ABCA 369; and R v BJG, 2013 ABCA 260. [13] In addressing Laberge, the Crown pointed out cases involving a higher level of moral blameworthiness: R v MB, 2015 ABQB156 (“MB”) and R v Lavoie, 1987 ABCA 138. [14] Alternatively, if the Court chose the middle ground of Laberge, then the Crown asked that the case of R v Choy, 2013 ABCA334 (“Choy”) apply.

Under Choy and SDC, the accused received 8 and 7.5 years jail respectively. Gladue Factors [15] Canadian courts are required to consider all reasonable alternatives to incarceration, particularly with regard to Aboriginaloffenders like the Accused in this case, under

section 718.2(

e) of the Code. R v Gladue, (SCC), [1999] 1 SCR688(“Gladue”) set out principles that require the court to take into account the circumstances and historical abuses suffered byAboriginal peoples. For minor crimes, a court should consider Aboriginal alternatives to incarceration, such as restorative justice, whichincorporates community members and the victim in determining an appropriate sentence. Where a crime is more serious, courts may findthat more conventional sentencing objectives, such as protection of the public and deterrence, are appropriate.

The Code provisions,however, provide guiding objectives and are not a substantive power; the court is not to impose a sentence outside the range of legallyavailable penalties. [16] The Crown submits that the disadvantages recognized by the Supreme Court in Gladue are present in this case, but were notmoderate or extreme. The Court was informed that there is a history of residential schooling in the Accused’s family, as well as somehistory of family violence, but that these were not disadvantages prevalent in the Accused’s life.

For example, at least one of his parentsstopped using alcohol, and the Accused had a solid history of employment. [17] The Crown points to the primary sentencing considerations at law of denunciation and deterrence, and also addressed themoral culpability issue as discussed in Laberge. In the present case, the moral culpability assessment is higher because there was morethan one incidence of injury.

These multiple injuries are discussed in the medical examiner report, referred to below. [18] With regard to aggravating factors, the Crown points out the age of the toddler, the Accused being in a position of trust, theAccused not calling for any help, and multiple strikes to the child. In other words, this was not a single case where the Accused “lost it.” [19] For mitigating factors, the Accused did plead guilty, though not until the end of the trial. Some Gladue considerations arepresent, though the relevant aspects are more ancestral than present in the life of the Accused.

Submissions of Defence [20] Counsel for the Accused, who seeks a sentence of 2-5 years, stated that this case is obviously difficult; a young child has died,and her life matters and should be central in this case. [21] For comparative cases the Defence prefers the decision in SDC, where the Court of Appeal, in dismissing an appeal from adecision of Associate Chief Justice Rooke, stated at para 56: The sentence imposed by the sentencing judge is effectively a gross 7.5 years of incarceration followed by three years of probation.

Inher factum, the respondent prepared a rough calculation of what a 12-year term of imprisonment would likely mean in terms of timespent in goal [sic] and time spent in the community while on parole (assuming a normal grant of parole). Although that calculation is not

exact, it shows that the sentence imposed is not dramatically different in terms of time the respondent will spend in jail under the 7.5years plus three years probation sentence imposed, when compared to the 12-year jail time sought by the Crown.

The time spent onsupervision is also not hugely different. [22] Turning to the PSR and the Gladue factors with regard to the present case, The Defence posits that: ... at paragraph 10 of Laberge the Court notes that “To complete the moral blameworthiness picture and to ensure that an offender isproperly situated in terms of sentencing vis a vis others convicted of the same offence, the court must also have regard to those personalcharacteristics of the offender which would mitigate or aggravate culpability” (Laberge, supra at para 10.) According to the SupremeCourt of Canada in Ipeelee, the moral culpability of Aboriginal offenders can be affected by systemic background factors. (Ipeelee, atpara 73).

Further, at paragraph 68 of Ipeelee the Supreme Court endorsed shorter custodial sentences tailored to assist an offender to takeresponsibility for their actions and reduce recidivism for Aboriginal offenders, even if others might receive higher custodial sentences(Ipeelee, at para 73). Gladue Report [23] This Court adjourned to await review of the PSR, case law, and the Gladue Report before making a final sentencing decision.The Gladue Report was prepared by Ms.

Joy Sinclair and confirmed a history of residential school experience within the maternal andpaternal families of the Accused, such that there were significant negative ramifications related to cultural assault suffered by this family.Ms. Sinclair also raised the multi-generational effects of alcoholism, abuse and violence with such intergenerational effects creating anunstable childhood of physical violence and sexual abuse for the Accused and his family.

She stated that with more connection to cultureand heritage, and hope for support from Elders in his community, the Accused will build a stable life going forward. The Law [24] The general aim of sentencing is the protection of individuals, institutions and values in Canadian society. R v Wilmott (1967), (ON CA), 1 CCC 171 (Ont CA) and this is generally codified in

section 718 of the Code. [25] After recent amendments,

Section 718 now provides: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society; where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [26] As stated by this Court many times, the objective of denunciation (s 718(a)) is to communicate society’s condemnation of aparticular offender’s conduct; a sentence with a denunciatory element represents a symbolic, collective statement that the offender’sconduct should be punished for encroaching society’s basic code of values as enshrined within the substantive criminal law.

One of themost precious of these values is life. [27] A denunciatory sentence is designed to express society’s abhorrence and absolute repudiation of certain crimes, and to affirmand validate society’s core values, such as respect for human life and special protection for those most vulnerable to abuse. Examples ofthe types of crimes which attract particularly denunciatory sentences are sexual or violent crimes against children. [28] The fundamental principle of sentencing is codified in

section 718.1 of the Code: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [29] This statement of law is the codification of the principle of retribution or proportional punishment; in other words “thepunishment must fit the crime” and this reflects upon the degree of responsibility of the offender: R v Cam, [1996] 1 SCR 50. [30] Other sentencing principles are codified in

section 718.2 of the Code. These now include: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing... (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances,including their health and financial situation...

shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;... (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders with particular attention to the circumstances of Aboriginal offenders . (Emphasis added). Analysis [ 31 ] Both counsel referred this Court to the Laberge decision. Laberge sets out an analysis for sentencing persons convicted of manslaughter. The different degrees of culpability for unlawful act manslaughter are reflected in the wide range of sentences available, from a suspended sentence up to life imprisonment.

The Court must determine the degree of moral culpability of the Accused. This is influenced by factors other than just the Accused's mental state. For unlawful act manslaughter, the Court must assess the nature and quality of the unlawful act, the method by which it was committed and the manner in which it was committed. [ 32 ] Unlawful acts fall into three broad groups: those which are likely to put the victim at risk of bodily injury, serious bodily injury, or life-threatening injuries. The Court must also consider aggravating and mitigating factors.

In assessing the degree of objective means rea, the court assumes that an accused was sufficiently aware to appreciate the risk of his conduct. While impulsiveness may be less blameworthy than planned or repeated conduct, simply because

an act was impulsive does not mean that it falls at the lower end of the manslaughter scale. [ 33 ] The Accused in the present case is being sentenced for child abuse resulting in death. There is a requirement that the sentence imposed reflects society's abhorrence of this crime, as well as its interest in promoting deterrence. Violent crimes against children, the most vulnerable members of society, requires a serious response from courts.

When a person who has a relationship of trust with a child abuses that child, it will be considered an aggravating factor. [ 34 ] Considering the evidence, the Accused’s conduct in this case places him at the serious end of blameworthiness for unlawful act manslaughter. The Accused either knew or ought to have known that the acts of kicking or slapping or causing FN to fall, with blood in her mouth, would likely cause serious bodily injury.

This was not a case where the perpetrator snapped on one outlying occasion. [ 35 ] The mitigating factors in this case are the guilty plea, disadvantaged social factors, and the remorse. For the guilty plea, it did come towards the end of trial, but there were triable issues and the medical examiner did not have to testify, so it does count.

The social factors focus on the Aboriginal or Gladue Report, they include the family upbringing of the Accused, and it discussed abuse of several types as well as disadvantages suffered by his parents inherited from their unfortunate history. [ 36 ] The Accused was remorseful, though he seemed to limit it by suggesting what he did was an accident or mistake. Further, it should be pointed out the post-offence conduct showed no concerns for a crying and by then, bleeding baby. He took her to the girls’ bedroom and put a blanket over her body, never checking her further.

According to the medical examiner, FN’s injuries were extensive, including severe bruising and bleeding around her intestines and some amount of bleeding over her brain. Her death was not solely accidental trauma. [ 37 ] There are several aggravating factors, including a record attenuated only in part by the Accused’s numerous failures to comply after the present charge. Serious other aggravating factors include multiple strikes in a domestic situation on a toddler over several days; also, from a person in a position of trust.

Then, as stated above, he left her knowing or being wilfully blind to the fact she needed medical attention as she was bleeding. [ 38 ] The Court turns to

Section 718.2 (e) - a legislative

section dealing with the serious problem of over representation of Aboriginal people in the criminal justice system. The Court accepts it must apply this

section in determining a fit sentence for Aboriginal offenders, and that consideration of all available sanctions other than imprisonment is required, along with the particular circumstances of Aboriginal offenders. The Court places this

section within the context of the overall scheme of the Code and, in particular, the purposes and principles of sentencing set out in sections 718 to 718.2 and in Gladue . [ 39 ] The Court has reviewed information concerning: (

a) Background factors which may have played a

part in bringing the Accused before the courts; and (

b) The types of sentencing procedures and sanctions which may be reasonable in the circumstances and consistent with the harm done to the victim. [ 40 ] In addition to the PSR the Court can take judicial notice of the circumstances of Aboriginal people and their history and have regard to those matters in determining a proportional sentence; see Gladue and R v Ipeelee , 2012 SCC 13 . [ 41 ] During sentencing the Court asked for specific and additional information about the Accused including the combination of systemic or background factors which contributed to the Accused coming before the Court and what treatment may be available.

The Court has considered whether the offender been affected by substance and alcohol abuse in the community, or family or community breakdown and/or family violence. And whether imprisonment would effectively deter or denounce the crime and the sentencing options that would meet these objectives in the community at large and in the offender’s community. [ 42 ]

Section 718.2(

e) is not to be taken as a means of automatically reducing the prison sentence of Aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed. It is just that, if

there is no option except for jail, the length of the term must be carefully considered; see Gladue. [43] The Court understands its methodology for assessment of a fit sentence of an Aboriginal offender does not necessarilymandate a different result. The Court just has to see if this is a case where different people should be treated differently. A sentencealways has to be fit for the offence and the offender; see R v Wells, 2000 SCC 10 , [2000] 1 SCR 207 (“Wells”). In sentencingthe Accused, the Court is mindful of this principle. [44] In other words, the application of

section 718.2(

e) does not mean an Aboriginal offender must always be sentenced in amanner which gives greatest weight to the principles of “restorative justice” and less weight to goals such as “deterrence, denunciation,and separation”. The Court understands the more serious and violent the crime, the more likely it will be that the terms of imprisonmentwill be the same for similar offences and offenders, whether the offender is Aboriginal or non-Aboriginal; see Gladue, Wells and R vMorris, 2004 BCCA 305. [45] All Canadians, regardless of their cultural background, are entitled to the protection of the law.

All Canadians are subject tothe control of the law and the protection in affords. In this case it was a child that was repeatedly struck and kicked. She was vulnerable,and she was bruised and bloodied by a person in a position of care and control, on whom she was entitled to trust. [46] Necessary as it is, rarely does a judge get to be so immersed in an Aboriginal community such that he understands its culture.See e.g. the decisions of Justice Sissons in Noah Estate, Re, (NWT TC), [1961] NWTJ No 3, 36 WWR 577 and R vKogogolak (1959), (NWT TC), 28 WWR 376, 31 CR 12.

Still, the Court in the present case did read and contemplatethe Gladue factors, asked counsel for submissions and sought case specific information before sentencing.

The Court has spent days andnights considering the proper balance of statutory factors, including the difficult upbringing of the Accused present in his family ofphysical and drug or alcohol and the abuse in this family. [47] That said, being in the higher end of the second category in Laberge’s, a lesser sentence would not reflect the paramountcy ofdenunciation and deterrence and aggravating factors that an innocent and apparently developmentally delayed child was slapped andkicked (with boots at times) and eventually died with a blanket over her head and with no further checking on her status.

The Courtappreciates the child may have been clumsy or physically challenged.

Those circumstances do not mitigate her injuries as much as theyincrease the responsibility of a parent in overseeing her care. [48] In a different case where the Respondent was Aboriginal, R v CS, 2003 ABCA 325 (“R v CS”), the Alberta Court of Appealstated this principle which, in this Court’s opinion, applies equally to the death of any child, no matter their heritage: The trial judge correctly considered the fact that the respondent was of Aboriginal heritage, but little weight should have been given tothis factor as sexual assaults against children are no more acceptable in Aboriginal societies than in any other. [49] My colleague Eidsvik J followed this line of reasoning in R v Holloway (unreported, August 2007).

Conclusion [50] The Court understands the need to impose a sentence that is similar to sentences imposed on similar offenders. Taking intoaccount the moral blameworthiness considerations and the mitigating circumstances of his guilty plea and qualified remorse as indicatedin speaking to the Court and remorse in the Gladue Report, as well as the other principles of sentencing from the Code, I conclude a fitsentence in these circumstances before credit for pre-trial custody, is 7 years. Accounting for credits of 653 days, the sentence is 1902days.

The DNA Order and Weapons Prohibition Order will issue. [51] Consistent with the suggestion of the Alberta Court of Appeal in R v CS, and defence counsel’s suggested treatment andhealing options in Corrections Canada, I recommend the Accused be housed in an institution designed to facilitate rehabilitation ofAboriginal offenders; see R v CS at para 10. Heard on the 18th & 19th day of April, 2016. Dated at the City of Peace River, Alberta this 9th day of May 2016.

W.A. Tilleman J.C.Q.B.A. Appearances: Mark G. Mastel for the Crown Philip G.S. Lokken for the Accused