R v Wakefield, 2016 ABQB 354

Court of Queen’s Bench of Alberta Citation: R v Wakefield, 2016 ABQB 354 Date: 20160628 Docket: 130130263Q3 Registry: Lethbridge Between: Her Majesty the Queen Crown - and - Addison Nickoles Wakefield and Michael Stanley Charles Mitchell Accused _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice D.K. Miller _______________________________________________________ Introduction [ 1 ] On June 19, 2015, Addison Wakefield and Michael Mitchell were convicted of second degree murder in the death of George Span.

The Criminal Code mandates a sentence of life imprisonment with no parole eligibility for a minimum period of ten years, or a maximum period of twenty-five years. The question now before the Court is the appropriate period of parole ineligibility for each offender. [ 2 ] The Crown seeks a period of parole ineligibility of 17 to 20 years for both offenders. Defence counsel proposes a parole ineligibility period for Mr. Mitchell of 12 to 15 years, and counsel for Mr. Wakefield states that 13 to 16 years would be appropriate given Mr. Wakefield’s circumstances.

The Facts

A) Circumstances of the Offence [ 3 ] Mr. Mitchell was a drug user. Mr. Wakefield was a drug user and drug dealer. Mr. Span was also involved in the drug culture. Sometime after 8:30 pm on January 13, 2014, Mr. Wakefield and Mr. Mitchell arrived at Mr. Span’s residence. They had previously agreed to a plan to either rob or intimate Mr. Span. They first sent Crystal Taypotat, now deceased, to make contact with Mr. Span, and as she departed, they walked up the driveway, armed and masked. A physical confrontation started between Mr. Mitchell and Mr. Span, and Mr. Wakefield then became involved. Mr. Wakefield and Mr.

Mitchell were the co-perpetrators in killing Mr. Span. [ 4 ] The cause of death was multiple stab wounds. The medical examiner described four that were significant, and concluded that these wounds caused Mr. Span to lose vast amounts of blood in a short amount of time. He testified that Mr. Span would have bled to death in a matter of minutes after receiving these wounds. While the exact time of death was unascertainable, Mr. Span passed away in the late hours of January 13, 2014.

B) Circumstances of the Offender – Michael Mitchell [ 5 ] As Mr. Mitchell is Aboriginal, a Gladue report was prepared in preparation for his sentencing hearing. He is of Cree descent and registered on the Cowessess First Nation in Saskatchewan. Mr. Mitchell has reviewed his adoption records and therefore has some limited information about his biological parents, but he was adopted when he was three years of age and had no relationship with them. His birth certificate did not list a biological father, and he does not know his biological grandparents.

This deplorable situation of a family spread asunder continues with respect to Mr. Mitchell’s biological siblings; he had an older brother and an older sister, but they were adopted at the same time and he knows nothing of their existence. [ 6 ] The adoption records also revealed that Mr. Mitchell and his two siblings were apprehended by child welfare services when Mr. Mitchell was under two. The file stated that his mother loved her children very much but struggled with substance abuse. This was important to Mr. Mitchell; he previously thought his mother just did not want him. [ 7 ] Mr.

Mitchell was adopted by a non-Aboriginal family. In that family was another boy, who was the biological son of both parents; and two girls, who, like Mr. Mitchell, were of First Nation background and adopted by the family. [ 8 ] After the adoption, most of Mr. Mitchell’s childhood was spent in Claresholm. He thought he was always in trouble, and reported his father beat him, but claimed a good relationship with his two sisters and his brother. He reported that his one sister still lives with his parents, and his other sister had been kicked out at 16, and last he heard, had moved to Montreal.

He expressed a desire to reconnect with her. Mr. Mitchell stated he still looked up to his brother, and tried to contact him after the senseless death of Mr. Span. Mr. Mitchell also referred to caring relationships with both sets of his adoptive grandparents. However, he stated he had not seen any of them since he was about 15 years old. [ 9 ] The only people the author of this Gladue report spoke with were Mr. Mitchell and his friend, Jim Lindemann. Mr. Mitchell had informed the author that he had no family or people with whom he had close relationships to provide information. This was in

part confirmed by Mr. Lindemann, who stated that he had spoken with Mr. Mitchell’s parents and they adamantly stated they wanted nothing to do with Mr. Mitchell or his children. [ 10 ] In childhood, Mr. Mitchell recalls being in a lot of fights and felt as though he was constantly picked on. He was the only Aboriginal child in his school and he felt this caused him problems. Whether at home or in school, Mr. Mitchell felt he never belonged. Whatever the source of the problem, Mr. Mitchell addressed it by learning to box.

He could then defend himself, but then he felt used because other kids would ask him to beat up others, and he was even used by drug dealers as an enforcer in exchange for marijuana and alcohol. His recollection was that this was occurring by the time he was 14. [ 11 ] School was always difficult, and Mr. Mitchell was failed in grade nine. He left school in grade 11 and has never pursued further education. [ 12 ] He wasn’t caught when he committed his first break and enter, and they became a regular occurrence by the time he was 15. At 16 Mr.

Mitchell ended up in remand, but there he found people who accepted him. When he was released he started selling drugs and, as he put it, “collecting” for a trafficker. [ 13 ] He left home for good at 16 or 17 years of age. At that time he was using acid, mushrooms, cocaine, marijuana and alcohol on a regular basis. It was at this time that contact with his entire adopted family ceased. [ 14 ] Other than his relationship with Mr. Lindemann, Mr. Mitchell referred to only one other relationship of significance; a six- year common law relationship which ended when Mr.

Mitchell went to jail and his partner met someone else. At the time this relationship commenced, Mr. Mitchell’s partner had a daughter, and then they had another together. Mr. Mitchell considers both girls his children, and loves them. He thinks things could have worked out differently if he and his partner had not been drug addicts. He admits to abusing alcohol starting at the age of 12, and using many other drugs since the age of 14. Alcohol, marijuana, cocaine, and crack have been abused continuously for many years. [ 15 ] Mr. Lindemann and his wife were foster parents to both girls, and adopted them in 2009.

Mr. Mitchell states that he has a good relationship with the Lindemanns and they never keep his daughters from him. Mr. Lindemann also stated that he has a good, positive relationship with Mr. Mitchell, and sees him once or twice a week. He confirmed that both girls view Mr. Mitchell as their father, and that Mr. Mitchell has always had contact with them, either through visits or letters from Mr. Mitchell.

[ 16 ] Mr. Mitchell has a very limited employment history. He has worked as a labourer, roofer, framer, and for a security company. [ 17 ] At the time this report was prepared he was 40 years of age. [ 18 ] Mr. Mitchell is currently incarcerated. He is given medication, and believes it is for bi-polar disorder. He has thought about and attempted suicide in the past, but states he no longer does because he thinks about his girls and does not want them to ever know their father did such a thing. He is proud to be First Nation and regrets that his culture is lost to him.

Conversely, the Lindemanns are teaching his daughter about her culture and he is happy and proud about this. [ 19 ] Mr. Mitchell attended a healing circle and smudges regularly with an elder. He has been a Buddhist for about eight years and believes that over the last three, he has become more passive as he has gained a greater understanding of pacifism. [ 20 ] Multiple drug, property and violent offences are included in Mr. Mitchell’s criminal record. He accepts responsibility for his role in Mr. Span’s death but finds it hard to believe that he actually took a life. He feels that Mr.

Lindemann and the workers that he has encountered in the justice system have been fair and are willing to give him chances. He wants to take advantage of his time in jail, to educate and better himself. Mr. Lindemann is encouraging Mr. Mitchell to do this, and states he will continue to provide emotional support and advice when Mr. Mitchell is released. Mr.

Mitchell’s immediate plans are to take advantage of any programs that exist in the facility where he is eventually placed; learn Cree; and complete grade 12. [ 21 ] The author of the Gladue report concluded by acknowledging that sentencing options are limited because Mr. Mitchell faces a mandatory lengthy imprisonment term.

However, it was suggested that he have the opportunity while incarcerated to participate in life skills training for the period after incarceration; to participate in Alcoholics Anonymous, Narcotics Anonymous, and Aboriginal programs; and to complete grade 12. [ 22 ] The Southern Alberta Forensic Psychiatry Centre also conducted a psychiatric and psychological assessment to be used in ascertaining a fit incarceration period for Mr. Mitchell. It recites much of the same personal history given in the Gladue report, however, contains an added dimension because Mr.

Mitchell’s brother from his adopted family, Matthew, spoke with one of the social workers who assisted in preparing this report. [ 23 ] Matthew confirms much of Mr. Mitchell’s account. He states that Mr. Mitchell had behavioural problems which began around age 11: fire-setting, lying, aggression; theft from family members; truancy; and a failure to accept responsibility for his actions. Anger and the number of physical altercations escalated with Mr. Mitchell’s increased drug use. Matthew stated that their parents attempted to speak to Mr. Mitchell about his risk of becoming addicted, and that Mr.

Mitchell also received the support of family friends, including staying at their homes. Sadly, this support ended with those friends becoming victims of Mr. Mitchell’s theft. [ 24 ] Mr. Mitchell stated he had not had contact with family members for decades, but Matthew disputed this, saying he had spoken with Mr. Mitchell a number of times over the years. He stated that Mr. Mitchell would primarily reach out when he was in custody, stating he was ready to make changes. But once released, he would continue his criminal behaviour. [ 25 ] There is additional information about Mr.

Mitchell’s employment and relationship history in this assessment. Mr. Mitchell stated his longest term of employment was six months, and the shortest three weeks. He thought he was very skillful at construction and referred to himself as a good worker. [ 26 ] This report states that around March of 2013, Mr. Mitchell started living with a female, but this ended when he became involved with his current girlfriend, Tammy Schuler. Neither woman is mentioned in the Gladue report. [ 27 ] Mr. Mitchell stated he and Ms. Schuler have been friends for ten years and lived together for four, and that Ms.

Schuler was currently planning their wedding for his time in the Edmonton penitentiary, where they expect he will be incarcerated. Ms. Schuler said they were considering whether to become engaged, but regardless, she was looking forward to visiting Mr. Mitchell face-to-face if he was in Edmonton. She described Mr. Mitchell as a “sweetheart” and denied he had ever been violent in their relationship. She confirmed he had attended Cocaine Anonymous during his last ten months of community living, although she also stated that while they were in contact they were not together during most of the ten months. Mr.

Mitchell stated he had about five months of abstinence, with several relapses, during that ten-month period. [ 28 ] The descriptions of drug and alcohol abuse, rehabilitation programs, and relapses after treatment are not significantly different than those described by Mr. Mitchell in the Gladue report. He did state that when out of custody he felt anxious, and that alcohol and street drugs helped him cope with this. [ 29 ] Mr. Mitchell’s mental health was also reviewed. He reported depressive episodes and suicidal attempts, as in the Gladue report.

He also stated that a family doctor had him on Epival, and without it, his mood was up and down. Medical records from the Calgary Remand Centre showed that in February of 2012 he was diagnosed with “mixed episode in context of bipolar disorder”. The same psychiatrist saw Mr. Mitchell about one year later, after he was charged for Mr. Span’s death. At that time the doctor considered Mr. Mitchell to be in a manic episode, in the context of the prior history of bipolar disorder, polysubstance dependence and antisocial personality disorder. In 2015 and 2106, after conviction for Mr. Span’s murder, Mr.

Mitchell has continued to receive psychiatric treatment while incarcerated. [ 30 ] As previously indicated, Mr. Mitchell’s criminal record is significant. His youth record commenced with convictions for break and enter and theft, and his adult record contains these and multiple other property offences. Most troubling are the violent offences. As an adult, he has convictions for two charges of assault causing bodily harm; two charges of aggravated assault; two charges of assault with a weapon; and three charges of assault.

Also of note are convictions for three counts of possession of a weapon; two counts of robbery; and one count of forcible entry. [ 31 ] Mr. Mitchell has committed offences while on release, and has one conviction for failing to comply with a recognizance, and five convictions for failing to comply with probation.

[ 32 ] Prior to the offence for which he is now being sentenced, Mr. Mitchell was released from a three-year sentence. He was out of incarceration for only ten months before he committed this murder. [ 33 ] Mr. Mitchell stated he was heavily abusing cocaine and alcohol in the time leading up to Mr. Span’s murder, and that evening, had consumed about 26 ounces of alcohol in addition to cocaine. He accepted when Mr. Wakefield asked him to assist in a drug collection because Mr. Span had spoken to him “disrespectfully” the week before when the topic of Mr. Mitchell’s drug debt arose. Mr. Mitchell went to Mr.

Span’s door, and the two argued. Mr. Span attempted to close the door and Mr. Mitchell slammed it with his shoulder until it opened. Mr. Span threw a lamp at his head. Mr. Mitchell could then remember nothing until arriving at his home. He also claimed he was unaware that Mr. Span had died until two days later when he learned it from the news. He stated he was very remorseful. [ 34 ] During Mr. Mitchell’s time in the unit he was observed to be fully oriented and focussed. He maintained eye contact, spoke openly and fluently, and did not exhibit any memory problems.

His mood was stable, and he did not present as highly anxious or clinically depressed. He cooperated and followed routine well. [ 35 ] Dr. Metelitsa characterized Mr. Mitchell’s condition as, “alcohol and polysubstance use disorder coupled with history of anxiety and drug-induced mood fluctuations”. Mr. Mitchell also has antisocial personality disorder. [ 36 ] As part of the assessment to reaching these conclusions, Dr. Metelitsa administered the Historical Clinical Risk Management- 20 (“HCR-20”), which is to test for the likelihood of re-offending.

The long history of violence and antisocial behaviours, and problems with substance abuse, relationships and employment, all indicate risk. The histories of victimization as both child and adult, and the failure of supervision, were also concerning. [ 37 ] Dr. Metelitsa found that Mr. Mitchell had limited insight into his need for treatment and was likely to encounter problems with compliance and responsiveness to treatment and supervision. His significant history of drug and alcohol abuse led to impairment in functioning, and his coping skills and minimal social supports also caused concern with Mr.

Mitchell’s ability to cope with stressful life events. [ 38 ] Mr. Mitchell had a higher level of motivation for treatment than others seen by Dr. Metelitsa in this treatment setting, and Mr. Mitchell himself stated that he intended to seek treatment for his addictions. Dr. Metelitsa thought Mr. Mitchell showed “sincere remorse”. These factors, coupled with Mr. Mitchell’s current relationship and stated enjoyment of work, were viewed as positive signs. But overall, Dr. Metelitsa opined that Mr. Mitchell’s risk of re-offending was moderate to high. [ 39 ] Looking ahead, Dr.

Metelitsa considered treatment for polysubstance abuse, therapeutic intervention to develop coping and problem solving skills, and psychiatric management to be important considerations.

C) Circumstances of the Offender – Addison Wakefield [ 40 ] Mr. Wakefield was also assessed at the Southern Alberta Forensic Psychiatry Centre. His assessment was completed by a different psychiatrist, Dr. Smith. When the assessment was conducted Mr. Wakefield was 23 years of age. [ 41 ] At the time of his birth Mr. Wakefield’s parents were married, but the father’s abuse of the mother led Ms. Wakefield to leave her husband about one year after Mr. Wakefield was born. All support from and contact with his father ended when Mr. Wakefield was about two, after a serious injury to Mr.

Wakefield while he was in his father’s care. Mr. Wakefield suffered the near-amputation of four of his fingers. This was treated with several surgical interventions and initially caused Mr. Wakefield some difficulty with physical tasks. [ 42 ] Mr. Wakefield has two siblings on his mother’s side (each have different fathers than he) and two or three on his father’s. On his mother’s side, the eldest child, a daughter, was given up for adoption, and Mr. Wakefield’s mother raised her two sons in Ontario. Mr.

Wakefield described his mother as caring and working to make sure the family was provided for, but others described her as impulsive, occasionally making poor choices, and abusive of drugs and alcohol. [ 43 ] When Mr. Wakefield was seven the family moved to Cochrane. When he was ten the family went on a vacation to Costa Rica, and Mr. Wakefield’s mother stayed there with a man she met while the children were sent to live with an aunt in Ontario. Mr. Wakefield then seemed to bounce back and forth between Ontario and Costa Rica from the ages of ten to 13. When interviewed, Mr.

Wakefield’s mother stated she probably allowed Mr. Wakefield to make too many decisions about where he would live. [ 44 ] At 13 Mr. Wakefield lived in Calgary with family friends for about one year, then returned to Costa Rica. He then moved back in with the female family friend, who had divorced and moved to Magrath. He lived there for about two years with brief sojourns back to Costa Rica. Mr. Wakefield then ended up back in Calgary, this time with the male partner of the family friends who had divorced. He lived and worked with this man for about two years, at which point he was legally an adult. [ 45 ] Mr.

Wakefield moved back to Magrath with a different friend. He was there only two months before incarcerated on a manslaughter conviction. [ 46 ] Mr. Wakefield described himself as a social person who made friends easily. He denied behavioural disturbances, and this was confirmed by others, who also described him as a happy and social child. Mr. Wakefield admitted that around the age of 14 he snuck out to meet friends, and he was in about two fights as a teenager. [ 47 ] While in grade ten Mr. Wakefield quit school.

He denied any behavioural problems and described himself as slightly below average in scholastic performance. Others referred to him as “disinterested”, and slow to learn certain things. His employment history is similarly lacklustre. Mr. Wakefield claims to have started odd jobs when he was eight, and to have had a total of four or five. The longest was laying floors with the male family friend in Calgary.

[ 48 ] Mr. Wakefield has mainly supported himself by selling drugs. He initially denied any substance use, but then admitted to regular use of alcohol starting at age 15 and continuing to the present. He first used marijuana at 14, and his use gradually increased until, by the age of 16, he was using one joint per day. This too continues to the present save and except for one six-month abstinence period. He admits he likely has a mild addiction to marijuana. Mr.

Wakefield noted trying other types of drugs but states he only tried most a handful of times, and uses nothing else on a regular basis. [ 49 ] Despite being involved in trafficking, Mr. Wakefield’s first criminal charge was for manslaughter when he was 18 years of age. He was convicted and sentenced to four years, but spent just over three years in custody when the calculation for pre-custody credit was included. According to Mr. Wakefield, the altercation arose when Mr. Wakefield and some friends, who were drinking and smoking marijuana, were accosted by two strangers. Mr. Wakefield and his friends ran away.

Later in the evening they were leaving a home, and were concerned they had to walk past the same strangers, so Mr. Wakefield asked for and took a steak knife from the home. They ran into the same strangers and began fighting almost immediately, and Mr. Wakefield stabbed one of the strangers while they attacked his friend with a shovel. [ 50 ] Mr. Wakefield was released from jail on the manslaughter conviction in the fall of 2011. At that time he was 20 years of age. He chose to stay in Lethbridge, and couch-surfed. He applied for welfare and partied a lot, resuming his marijuana use.

In February of 2012 he obtained a job at Maple Leaf Foods but was fired in April due to absenteeism. He said he failed to get to work because he had to walk, and he didn’t feel like it. Mr. Wakefield then resumed trafficking drugs. His girlfriend moved in with him in June. In August Mr. Wakefield learned she was pregnant. [ 51 ] Due to the fact he was about to be a father, Mr. Wakefield decided to quit trafficking, and started to look for a different source of income around November of 2012. He said that he worked in “under the table” construction positions. [ 52 ] The only relationship of significance which Mr.

Wakefield reported was the one with the mother of this child. He stated it lasted about three and a half years and ended after she started to use fentanyl, crack cocaine, and needles. They had a son, who is now in the custody of the maternal grandmother. Mr. Wakefield states that he has a good relationship with her, and in addition, also with his own mother, maternal grandmother, and a maternal aunt. He maintains frequent telephone contact with all these people, as well as several friends and his son. [ 53 ] Mr. Wakefield met Mr. Mitchell while Mr. Wakefield was serving his time on the manslaughter charge.

He felt that he owed Mr. Mitchell because while the two were in jail, Mr. Mitchell took Mr. Wakefield under his wing and protected him. However, Mr. Mitchell did not hold the same esteem in Mr. Wakefield’s eyes when they were out of jail, as Mr. Wakefield watched Mr. Mitchell struggle with the effects of drug addiction. Despite this, he drove him places and tried to help him out. Others observed this as well, stating that Mr. Wakefield appeared to be in Mr. Mitchell’s debt, and went to great lengths to support him. [ 54 ] As he attempted to leave trafficking in the fall of 2012, Mr.

Wakefield also decided to cut Mr. Mitchell out of his life. But this did not occur. [ 55 ] Mr. Wakefield provided a very detailed scenario as to how he ended up involved in Mr. Span’s death the evening of January 13, 2013. He claimed that a few days prior, Mr. Mitchell contacted him and asked for a ride into Lethbridge in order to pick up some money Mr. Mitchell was owed. Fortuitously, the previous day Mr. Wakefield’s long-time friend Jessie Bennett had called him and stated he would be willing to do anything to pay off the drug debt he owed Mr. Wakefield. Mr. Wakefield denied that he had intimidated Mr.

Bennett, stating Mr. Bennett contacted him of his own volition. He claimed, however, that he had connected Mr. Bennett and Mr. Mitchell, telling Mr. Bennett to go pick up Mr. Mitchell. His understanding was that this occurred. [ 56 ] The next day Mr. Wakefield claimed that Mr. Mitchell again contacted him, wanting to connect with Mr. Bennett. Mr. Bennett’s truck was not working, and so Mr. Wakefield reluctantly ended up driving. He had also picked up Mr. Bennett, who had a knife with him. Mr. Wakefield stated this was nothing out of the ordinary.

However, he also claimed he was not aware of who was carrying a knife the night of the offence. [ 57 ] Eventually Mr. Wakefield drove himself, Mr. Bennett, Mr. Mitchell and Ms. Taypotat to Mr. Span’s home. Mr. Wakefield denied any previous discussion about harm or intimidation, maintaining that he understood that Mr. Span was going to pay Mr. Mitchell for a debt when they arrived. [ 58 ] According to Mr. Wakefield, Ms. Taypotat and Mr. Mitchell walked to the door and the other two followed behind. Ms. Taypotat left, and there was arguing. He then saw Mr. Span trying to close the door. Mr.

Mitchell managed to get his foot in the door, and then Mr. Wakefield and Mr. Bennett approached. They saw Mr. Span on top of Mr. Mitchell and dragged him off. Mr. Span then ran into the home from the “shoe room”, and said he was calling the police. Mr. Wakefield went to leave, but after he saw Mr. Mitchell go in, and then saw Mr. Span throw a lamp at him and attack him, he went to Mr. Mitchell’s aid. Mr. Wakefield’s story then became inconsistent with respect to how much he was able to see in the dim light of the home. [ 59 ] Mr. Wakefield stated that he was trying to pull Mr.

Span off but he lost his grip, and then noticed his hands were wet with a sticky warm fluid which he thought was blood. He denied having seen a knife throughout the encounter. He then ran out of the house. He was driving away when Mr. Mitchell came “nonchalantly” out of the house, and Mr. Wakefield stopped and allowed him to get in. Mr. Mitchell was mad that the others did not “have his back”. He also reported that Mr. Mitchell had told him that Mr. Span was standing when Mr. Mitchell had left. [ 60 ] In the vehicle, Mr. Wakefield said both Mr. Mitchell and Mr.

Bennett threw something out, even though he had said not to. Upon arriving in Raymond, he washed off the blood and eventually disposed of his clothes. He gave details of how he tried to help Mr. Mitchell get out of Lethbridge, even though he is upset that once caught, Mr. Mitchell “tried to flip it all” on Mr. Wakefield. [ 61 ] Mr. Wakefield continues to see himself as a victim and described his conviction as “complete bullshit”. He has shown no remorse for Mr. Span, and appears only to regret helping Mr. Mitchell and obstructing the investigation.

His regret is focussed on the impact the conviction has had on him.

[62] During his stay in the forensic unit Mr. Wakefield was generally pleasant, cooperative, and compliant. There was one incidentwith a peer regarding use of the phone, and he was placed in seclusion. Mr. Wakefield claimed the staff misrepresented his behaviour. [63] Upon assessment, Dr. Smith concluded that Mr. Wakefield does not suffer from “any acute mental disturbance of mood,anxiety, or psychosis”. He does have antisocial personality traits and a marijuana use disorder. Dr. Smith opined that Mr.

Wakefield’sdifficulties could stem from the maternal history of substance abuse and family dysfunction, characterized by parental neglect andabandonment, and frequent moves. Mr. Wakefield also demonstrated tendencies of entitlement, minimization, and externalization ofresponsibility. This undercuts his insight into his risk for future violence, and could negate any motivation for him to change. His lack ofremorse also calls into question motivation for change. [64] Like Mr. Mitchell, Mr. Wakefield was administered the HCR-20, a test for the likelihood of re-offending. Historical factorswhich cause concern are Mr.

Wakefield’s childhood trauma from parental neglect; his problems with violence (indicated by theinvolvement in manslaughter and murder); his antisocial behaviour; and his involvement in drug use and trafficking. His level of personalsupport also contributes to the risk, for while he has some positive support he is vulnerable to the influence of antisocial associates.Overall, the result of this test indicated a high risk of violent re-offending. [65] On the positive side, Dr. Smith noted that Mr. Wakefield demonstrated good social skills, superficial charm, and an ability torelate well to others. Mr.

Wakefield maintained appropriate behaviour in a secure setting, and generally had a positive attitude,willingness to engage in programming, and appropriate future plans. However, this was not enough to overcome Dr. Smith’s assessmentthat Mr. Wakefield is a high risk for violent recidivism. In that respect, he suggested Mr. Wakefield needed therapeutic counselling,violence prevention programming, substance abstinence (monitored by frequent testing and assisted with by programming), andeducational and/or vocational training.

He also recommended that probation or parole follow release; that there ought to be a weaponsprohibition; and that a reassessment of the risk for violent recidivism needed to be completed before Mr. Wakefield’s release.

D) Impact on the Community [66] The loss of George Span through the criminal acts of Mr. Mitchell and Mr. Wakefield has obviously had a devastating impacton his family. Through the testimony at the trial and through the Victim Impact Statements it is clear that George Span had a largenetwork of friends that he helped regularly.

He was a person who could fix things and make things work. [67] In her statement to the Court, George Span’s only daughter, Amy Span, who was very close to him, has recited the impact of his death since she heard of it on January 14th, 2013: Not only was George a father, but also a son, brother, uncle, nephew, cousin and friend. I’ve struggled with the lack of Canada’s justicesystem that have put the accused back on the streets when they should be doing time for previous matters. Not only was my fathermurdered, but they also murdered a part of each family member. We will never get that back.

I made a promise to my father the day I laid him to rest. I promised that I’d fight to make sure these men would pay for what they’vedone. I’ve sat and watched the accused wink, waive, smile and glare at my family, showing no remorse. Now I pass that promise ontothe Justice system. Help my family, and the community. And as you may be a father, son or grandfather. I hope you understand when webeg of you to put the accused away, and keep our streets safe.

If not done now, consider who’s [sic] family will be next. [68] The deceased’s former spouse, who was on friendly terms with him at the time of his death, has reported her loss and her lossin observing their daughter’s anguish. After initially reporting her hatred to the two accused at the time the conviction was entered, shemore recently varied her position in an updated Victim Impact Statement: Now we fast forward to June 2016. I can attest that the pain and trauma of this crime has not subsided. Every day I wake up tattered andtorn with heartache. I’ve searched and reached in my soul for forgiveness.

Even uttering that word has been difficult. I don’t forgive the crime and I don’t forgive for you. I forgive for me. Because like chains shackling me to the past, I will no longerpollute my heart with bitterness, fear, distrust or anger.

I forgive because that is just another way of holding on, and you don’t belong inmy life anymore. [69] While the reports from family members do not dictate or effect the sentence which is prescribed by the Criminal Code, or theperiod of parole ineligibility, which is for the Court to determine, it is vital to our system of justice that the relatives of the victims ofserious crime have a voice in the proceedings.

Positions of Crown and Defence [70] The only contentious issue on sentencing is the period of parole ineligibility. [71] For both offenders, the Crown seeks life imprisonment with a parole ineligibility period of 17 to 20 years. The Crown has alsosubmitted that each offender should be compelled to provide a DNA sample, and should be subject to lifetime prohibitions of weaponsand firearms. [72] In addition to the statutory factors which must be considered, the Crown also argues that deterrence and denunciation play arole in determining the parole ineligibility period: R v Shropshire, (SCC), [1995] 4 SCR 227.

When the offender whocommits murder exhibits traits of dangerousness, the period is extended for the purpose of public protection and denunciation: R v Ryan,2015 ABCA 286.

[73] Following Ryan, and s745.4 of the Criminal Code, the Crown urges this Court to consider the following factors: -that by its very nature, second degree murder is a very serious offence -that Mr. Span was targeted -that the attack on Mr. Span involved retaliation, revenge, or enforcement -that Mr. Span’s murder was committed in the context of a criminal enterprise, dealing drugs -that there were preparatory steps leading to the murder -that the murder was committed during the commission of other crimes -that Mr.

Span was attacked in his own home -that two individuals were attacking one [74] The Crown reviewed the particular circumstances of each offender. It highlighted the psychiatrists’ diagnoses, andemphasized Dr. Metelitsa’s conclusion that Mr. Mitchell has a moderate to high risk of re-offending, and Dr. Smith’s finding that Mr.Wakefield is a high risk for violent recidivism. [75] The Crown acknowledges that some of Mr. Mitchell’s difficulties are related to his Aboriginal heritage, and that thisinformation must be recognized on sentencing. However, the Crown also pointed out that there is little to suggest Mr.

Mitchell’s riskscould be managed effectively within the community in the near future. Rather, the assessments show long-standing patterns of seriousdrug and alcohol abuse with little control over the effects of this abuse; a 30-year history of violence and other antisocial behaviours;limited insight into the need for treatment; and a history of substance abuse relapse and non-compliance with probation. [76] Further exemplifying this pattern is Mr. Mitchell’s criminal record, which contains multiple convictions for violent offencesand breaches of supervision.

One of the assault convictions relates to an assault committed the week before the murder on the samevictim, Mr. Span. [77] While the Crown states that once Mr. Mitchell was adopted he had a supportive and loving family, the Gladue reportindicates that he was the victim of beatings from his adoptive father and was subject to racism even within his own adopted family. [78] Similarly, for Mr. Wakefield, the Crown argues that his past history fails to inspire confidence that he could be managed inthe community or that his violent behaviours are likely to change.

The Crown notes his history of underemployment and use oftrafficking to maintain a living; his use of alcohol and other substances; his tendency to blame institutions or others for his problems, andan inability to accept responsibility for his actions; his lack of remorse; and concerns expressed regarding his lack of motivation tochange. Mr. Wakefield’s previous, and recent, conviction for manslaughter is argued to demonstrate that he is not an inexperienced ornaïve criminal, further exemplifying his risk. [79] Counsel for Mr. Mitchell proposes a parole ineligibility period of 12 to 15 years.

Like the Crown, defence counsel agrees thatR v Shropshire is a guiding case, and that denunciation and future dangerousness are important sentencing considerations. However,defence counsel also emphasizes that R v Shropshire sets ten years of parole ineligibility as the norm, and that this can only be ousted bya specific finding of the sentencing judge that the offender should have to wait a longer period before being released. [80] Defence counsel for Mr.

Mitchell acknowledged that certain circumstances can be aggravating, and noted the followingfactors from R v Roberts, 2001 ABQB 520: –a finding that the killing took place in the course of another serious crime –where the killing follows a history of assaultive or abusive conduct, or occurs in the course of a prolonged attack (torture) –where the killing is intended to obstruct justice -where the killing is of a particularly vulnerable member of society –where the killing is committed by a person who represents an ongoing danger to members of the community –where the killing was particularly brutal or shocking [81] If aggravating factors are not present, however, Roberts also states that parole ineligibility is better left determined by theNational Parole Board. [82] Counsel for Mr.

Mitchell also argued that the same general principles for sentencing continue to apply when the issue is theperiod of parole ineligibility. This means that the Court must determine any aggravating or mitigating factors. Then the Court must findan individualized sentence that takes into account the circumstances of both the offence and the offender, and is proportional, by payingparticular attention to the sentencing principles enunciated in s718 and s718.2 of the Criminal Code.

Section 718.2(

e) expressly statesthat the circumstances of Aboriginal offenders must be taken into account. As Mr. Mitchell is Aboriginal, this means his sentence mustbe fashioned in accordance with the Gladue and Ipeelee principles. [83] Seven cases were supplied, which, in the argument of Mr. Mitchell’s counsel, are of assistance in determining the appropriateperiod of parole ineligibility for his client. Those cases were R v Baumgartner, 2013 ABQB 761; R v Bramley, 2014 ABQB 179; R vBell, 2013 BCCA 463; R v Evans, 2004 BCCA 318; R v Strong, (1990), 1990 ABCA 327 , 60 CCC (3d) 516 (ABCA); R v

Vuozzo, 2010 ABQB 664; and R v Atkinson, (1995), 1995 ABCA 65 , 165 AR 83 (ABCA). In most of these cases the period ofparole ineligibility imposed was 15 years, although there were a few lower at 12 or 13 years. Defence counsel’s summaries of these casesfocused on the circumstances of the offence, with little information about the particular circumstances of the offenders. [84] Mr. Wakefield’s counsel argues that 13 to 16 years of parole ineligibility is appropriate for Mr. Wakefield, and adopts thesentencing principles articulated by counsel for Mr. Mitchell.

He asks that the Court be guided by the parity principle, and that theineligibility period be imposed in accordance with R v Ryan, as referred to by the Crown, and R v Cheddesingh, 2004 SCC 16. Legal Parameters and Case Law [85]

Section 745.4 sets out factors that a Court is to consider when determining a period of parole ineligibility.

The relevant factorsto this case are, “the character of the offender, the nature of the offence and the circumstances surrounding its commission.” The sectiongoes on to state that the judge may “substitute for 10 years a number of years of imprisonment (being more than 10 but not more than 25)without eligibility for parole, as the judge deems fit in the circumstances.” In other words a conviction for second degree murdermandates imprisonment for life with parole eligibility after 10 years or whatever longer period of time is deemed fit to a maximum of 25years. [86] The legal parameters for sentencing start with what Parliament has fixed in s718 and s718.2 of the Criminal Code.

In terms ofthe factors and principles of sentencing an individual on a charge of second degree murder, Iacobucci J., speaking for the entire SupremeCourt in R v Shropshire, (SCC), [1995] 4 SCR 227 at para 29, states: ... as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination by the trial judgethat, according to the criteria enumerated in [then] s744, the offender should wait a longer period before having his suitability to bereleased into the general public assessed.

To this end, an extension of the period of parole ineligibility would not be “unusual,” althoughit may well be that, in the median number of cases, a period of 10 years might still be awarded. [87] Factors that operate to warrant an increase in parole ineligibility beyond the statutory 10 year minimum include a finding thatthe death ensued as a result of another serious crime, following a history of abusive behaviour, where the killing occurred in the course ofan attack such as a torture, was intended to obstruct justice or where the accused has a serious criminal history in where the killing isparticularly brutal or shocking.

While this list of factors is not exhaustive, it is of assistance to the Court in guiding its decision (R vRoberts, 2001 ABQB 520). [88] Absent these factors some have suggested simply leaving the issue to the National Parole Board. This Court is not sure howthe overarching duty of a sentencing judge can be achieved by abdicating our responsibility to the National Parole Board. Accordingly Iam not of that view. Mitigating and Aggravating Factors [89] Mr. Mitchell has a significant criminal history, including drug and alcohol abuse, that has led to convictions for several violentoffences.

Specifically he has 12 previous convictions under sections 266, 267, 268, and 344, and six weapons related offences. One weekprior to the events that took place that caused the death of George Span Mr. Mitchell assaulted Mr. Span and was convicted of thatoffence. There is no question that Mr. Mitchell struggles to take advantage of any rehabilitative advantages that may be offered to himand has a lifelong pattern of criminal activity. [90] Michael Mitchell is Aboriginal and he is caught between two cultures.

Having been born into an Aboriginal family he wasadopted out at the age of three and had difficulties in his adoptive home notwithstanding the love and attention that was directed his way.Section 718.2(3) of the Criminal Code mandates that the Court must consider all available sanctions other than imprisonment that arereasonable in the circumstances and particular attention must be paid to the circumstances of Aboriginal offenders. Mr.

Mitchell’sGladue report discloses that his Aboriginal heritage, not unlike those of many others, has resulted in the adverse effects of “colonialism,displacement and residential schools” in Canada. [91] While Mr. Wakefield’s criminal record is not as lengthy as Mr. Mitchell’s it is significant in that at the time he caused thedeath of George Span he had only been out of jail for less than a year for a manslaughter that he committed while he was 18 years of age.In spite of his youth he has significant criminal experience. He displays no remorse for the death of George Span.

He persists in shiftingblame on others and he has few positive contributions to society when he was out of custody but rather focused on consuming andtrafficking in illicit drugs. [92] By its very nature second degree murder is a serious offence. This is particularly the case when a victim cannot considerhimself safe in his own home. This was a murder committed in the course of another crime and George Span was specifically targeted.The circumstances were retaliation, revenge, and enforcement, resulting in the context of a criminal enterprise dealing in drugs.

Thedeath was perpetrated by two individuals on one victim in the victim’s own residence. Decision – Period of Parole Ineligibility [93] The principles of denunciation and deterrence, both specific and general, are primary sentencing principles. The period ofparole ineligibility is clearly part of the sentencing process and the principles of denunciation and deterrence play a role in assessing theperiod of parole ineligibility.

Further, the Alberta Court of Appeal in R v Ryan, 2015 ABCA 286, has clearly stated that if traits ofdangerousness are displayed by a convicted murderer then the parole ineligibility tends to be increased for the purposes of “publicprotection and denunciation.” The Court of Appeal in R v Ryan presented a fairly extensive list of factors for the sentencing Court to

consider: [57] That said, consistent with s 745.4 of the Code , the patterns observed in the cases are largely associated with (

a) the gravity of the specific crime; (

b) the degree of culpability and the individual responsibility of the offender (both case specific and linked to the offender’s “character” in the larger sense); and (

c) with the surrounding circumstances (such as the individual circumstances of the offender and the impact of the particular crime on the victim and on broader social norms and values). For example, factors that might result in an increase in the period of parole ineligibility include:

i) gratuitous violence; ii) targeting/luring of the victim; iii) additional degradation of the victim; iv) murder committed while on bail or probation;

v) murder committed in the presence of an innocent bystander/non-party; vi) abuse of power; vii) abuse of trust; viii) gang attack; ix) circumstances of domination or control;

x) circumstances of retaliation, revenge or enforcement; xi) murder motivated by hostility towards a minority/vulnerable group or members of it; xii) obstructing justice in service of the murder or cover-up; xiii) profit from the murder; xiv) murder motivated by race, religion or gender; xv) murder committed in the context of a criminal enterprise; xvi) preparatory steps leading to the murder; and xvii) murder committed in the course of committing other crimes. [ 94 ] In my view the arguments made by Counsel for Mr. Mitchell and case authorities cited by him are compelling.

This is particularly the case when one looks at the disadvantages experienced by Mr. Mitchell due to his Aboriginal heritage. While Mr. Mitchell has struggled to apply his pacifistic Buddhist beliefs and has a more optimistic view of his work ethic and work history these defects can be explained by serious addiction challenges. Further, upon hearing of the death of George Span two days later Mr. Mitchell expressed remorse. Dr. Metelitsa was also of the view that Mr. Mitchell expressed remorse.

He also acknowledges a serious problem of addiction he has in his life and appreciates his need to seriously deal with his polysubstance abuse. Mr. Mitchell did not try to blame anyone else for his problems. [ 95 ] Given his Aboriginal background and difficulties in living in two cultures, and his difficult life as a young person even in his adoptive home, Mr. Mitchell’s Aboriginal culture must be recognized. Mr. Mitchell never knew his biological father’s name, and does not recall his biological mother.

He was adopted into a Caucasian family home in southern Alberta and was given care and attention early on but was reminded repeatedly that his Aboriginal heritage was not respected. He displayed early characteristics of FASD and by the age of 16 reacts against and rejects the only people who had shown him love and care, his adopted family. By rejecting them he also rejected his siblings. He then proceeds on a life of substance abuse and crime and his participation in the death of George Span brings us here today. Mr. Mitchell’s Gladue report is most telling and helpful.

The most telling aspect of the report is Mr. Mitchell’s advice to the person who prepared the report when he said that: “he has no family members or close relationships that could provide collateral information.” He appears to have only one friend who has gone out of his way to spend time with him. Jim Lindemann appears to be his only friend and trusted person in Mr. Mitchell’s world. Mr. Mitchell’s problems are directly related to his Aboriginal heritage and the Court recognizes that fact. [ 96 ] Considering all of these factors, I find the 10 year minimum for parole eligibility must be increased. Given Mr.

Mitchell’s age, he will be well into his 50’s when he is first eligible for parole. In view of the circumstances of offence, the role he has played in it and his own personal circumstances a fit and proper period of parole ineligibility in my view is 15 years. Accordingly, Michael Stanley Charles Mitchell is sentenced to life imprisonment with no eligibility for parole for 15 years. [ 97 ] Mr. Wakefield is a young man and at 25 years of age, his criminal record is not as extensive as Mr. Mitchell’s.

However, his criminal record does reveal a conviction for manslaughter, the sentence for which he had just completed serving months before the death of George Span. Mr. Wakefield has displayed no remorse for the part he played in George Span’s death. He persistently has minimized his involvement and has tended to blame others. He has shown no inclination for further education or any desire to earn a living outside the drug culture. He is a high risk to re-offend. [ 98 ] I have reviewed the argument of Counsel for Mr. Wakefield.

I am not able to accede to his submissions in terms of the period of parole ineligibility. In my view Mr. Wakefield requires an increased level of parole ineligibility. Given his age and the fact that he

externalizes his responsibility onto others, combined with the questionable motivation to change, parole ineligibility for him must be substantially increased. Accordingly, Addison Nickoles Wakefield is sentenced to life imprisonment with no eligibility for parole for 18 years. Ancillary Orders [ 99 ] I direct that both offenders will provide a DNA sample pursuant to s487.051(1)(a). I also order that, pursuant to s109(1)(a), neither Addison Wakefield nor Michael Mitchell shall possess firearms or weapons for the duration of their lives.

In the case of both individuals I am directing that if at all possible, the authorities take the necessary steps to allow them to serve their time of incarceration in Alberta. Any statutory victim fine surcharge is assessed with no time to pay and time in default served concurrent to the present sentence. Heard on the 24 th day of June, 2016. Dated at the City of Lethbridge, Alberta this 24 th day of June, 2016. D.K. Miller J.C.Q.B.A. Appearances: For the Crown Erin E. Olsen and Clayton O. Giles For the Accused, Addison Nickoles Wakefield Mr. J.

Andre Ouellette For the Accused, Michael Stanley Charles Mitchell Mr. A. L. Fay