R v Powder, 2018 ABQB 1028

Court of Queen’s Bench of Alberta Citation: R v Powder, 2018 ABQB 1028 Date: 20181217 Docket: 160818902Q1 Registry: Ft. McMurray Between: Her Majesty the Queen Crown - and - Trevor Harley Powder Accused _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction and Overview [ 1 ] Trevor Harley Powder (“the Accused”) was convicted of second degree murder by a jury in Fort McMurray on September 14, 2018, in relation to the death of Tyler McDermid.

The charge in the Indictment alleged the offence of first degree murder. [ 2 ] His sentencing hearing took place in Fort McMurray on November 28, 2018, at the conclusion of which he was sentenced to life imprisonment. Following the receipt of the jury recommendations pursuant to s 745 of the Criminal Code , and after hearing the submissions of both the Crown and the Defence, and after having received the three victim impact statements, and reviewing the content of the Gladue Report, I fixed the period of parole ineligibility at 12 years. A firearms prohibition order, as well as a DNA order were also made.

[ 3 ] At the time of the sentencing hearing, I indicated that I would provide written reasons for my decision on the period of parole ineligibility. These are my reasons for decision. Facts [ 4 ] The parties agree that the following facts should govern the determination of the Accused’s period of parole ineligibility:

a) The Accused was living in Conklin, Alberta and was working as a labourer. On August 10, 2015 after finishing his shift, the Accused met up with Lily Bone and Joanne Quintal. This group is joined by Mario Lemay and they attended at Mr. Lemay’s trailer parked on the lot in Conklin.

b) While at the trailer, the group consumed liquor after which a dispute resulted in an argument between the Accused and Mr. Lemay. When Mr. Lemay asked the Accused to leave his trailer, the Accused struck Mr. Lemay and he then fled.

c) The Accused walked a short distance to the residence of Edward Alby (“Alby”), who was sitting outside by a fire. Alby’s nephew Codie Deranger (“Deranger”) and Mikey Quintal were also in attendance. Alby, Deranger and Quintal had all consumed liquor and marihuana. According to Alby, the Accused walked out of the bush. He joined them and appeared intoxicated. Because Alby did not know the Accused well he asked him to leave. He did not offer the Accused any liquor or marihuana.

d) Deranger had been drinking most of the day, including beer and vodka. He says the Accused came stumbling out of the bush with a bottle of R & R in his hand, a brand of whiskey. He struck up a conversation with the Accused which resulted in a plan being developed to attend a nearby residence occupied by Taylor Olson (“Olson”) and Tyler McDermid (“McDermid”). Initially, the plan was to kick in the door and scare the occupants with a loaded rifle and to steal cocaine and money. Just a few days previous, the Accused had been at the targeted house visiting Olson and McDermid and was knowledgeable of their situation. Also, Olson sold the Accused cocaine every pay day.

e) Deranger obtained a 30-30 lever action rifle and 3 cartridges. Deranger had purchased the rifle from his cousin. He gave the rifle and the cartridges to the Accused. The Accused and Deranger then walked to the home occupied by Olson and McDermid. The Accused was unable to load the rifle and gave it to Deranger. Deranger loaded the rifle and then returned it to the Accused as they made their way to the house.

f) The Accused took up position beside a tree on the property in front of the house. He waited for upwards of 20 minutes by a tree contemplating what to do. The Accused pointed the rifle in the direction of the residence and was, according to his evidence pointing at “shadow figures he saw in the window”. When they first arrived at the property, Deranger had gone in a separate direction. He eventually returned to where the Accused with situated and asked him “what are we going to do next”. At that moment, a gunshot went off from the rifle.

g) The Accused picked up Deranger from the ground and told him to run back to his uncle’s. The Accused actioned the lever, ejecting the expended cartridge, and loaded another cartridge in the chamber. He then pointed the rifle in the direction of the window where he saw a shadow of a person.

h) Olson, who was in the residence with McDermid in the early morning of August 11, 2015, heard dogs barking, after which he saw McDermid pacing within the house thinking someone was on the property to steal his dirt bike. Olson and Deranger had been watching TV and had consumed some marihuana. At one point, McDermid entered a bedroom to the immediate left of the front door to the house when Olson heard what he though was a gunshot. He went to the bedroom and found McDermid lying on the ground. He checked him but found him cold to the touch and assumed he was dead.

He then wandered around the house for a time before returning to the same bedroom. He looked out the window and saw a male figure standing close to a tree holding a rifle shoulder height pointed in his direction. He ducked down and turned the breaker off, immediately cutting the lights to the home. He called his father for help and waited. The Accused ultimately fled with the rifle that he subsequently concealed on a trail in Conklin.

i) Police arrived shortly after the shooting. The Accused was interviewed within about a week of the shooting and denied any involvement. The Accused was subsequently arrested about a year later. In an interview which took place after his arrest, the Accused provided an inculpatory statement admitting to the shooting and took police to the location of the rifle. When located, the lever of the rifle was in an open position and there was a cartridge in the chamber.

j) An autopsy was conducted on Tyler McDermid wherein it was determined that he died of a single gunshot wound to the head. [ 5 ] The Accused’s trial before a jury took place in Fort McMurray from September 4-14, 2018.

The jury returned a verdict of guilty to the included offence of second degree murder. [ 6 ] Following the return of their verdict, the jury was directed, pursuant to s 745.2 of the Criminal Code , to retire to consider whether or not they wished to make any recommendations as to the period of imprisonment that the Accused should be required to serve before being eligible to apply for parole. [ 7 ] Four members of the jury made no recommendation. Seven other members of the jury recommended that the period of parole ineligibility be set at 10 years.

One member of the jury recommended that the period of parole ineligibility be set at 12 years. [ 8 ] At the request of the Defence, a Gladue Report was ordered for the purposes of the sentencing hearing set for November 28, 2018, in Fort McMurray. This report was received by the Court on November 9, 2018. Sentencing Principles Relating to Second Degree Murder

[ 9 ] Sentencing an individual convicted of second degree murder is governed by ss 745(c), 745.2, and 745.4 of the Criminal Code . These provisions provide as follows: 745. Subject to

section 745.1, this sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be… (

c) in respect of a person who has been convicted of second-degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least 10 years of the sentence or such greater number of years, not being more than 25 years, as has been substituted therefor pursuant to

section 745.4… 745.2. Subject to

section 745.3, or a jury finds an accused guilty of second-degree murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question: You have found the accused guilty of second-degree murder and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendations with respect to the number of years that the accused must serve before the accused is eligible for release on parole?

You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining whether I should substitute for the ten-year period, which the law would otherwise require the accused did serve before the accused is eligible to be considered for release on parole, a number of years that is more than 10 but not more than 25. 745.4. Subject to

section 745.5, at the time of the sentencing under

section 745 of an offender who was convicted of second-degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence, the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to

section 745.2, by order, substitute for ten years a number of years of imprisonments (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. [ 10 ] The principles of sentencing are set out in some detail in s 718 of the Criminal Code . The

section reads as follows: s. 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance 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;

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 and the community. [ 11 ] It is a fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 12 ] I would note that s 718.2 is applicable in this instance: s. 718.2 A court that imposes this sentence shall also take into consideration the following principles:

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 13 ] These principles guide and direct courts in what is for most judges, myself included, one of the most difficult judicial tasks: crafting a fit and proper sentence for an offence and an offender. [ 14 ] In R v Shropshire , [1975] 4 SCR 227 , the Supreme Court set out the principles that are to guide trial judges in determining the period of parole ineligibility on a second degree murder conviction. Iacobucci J, for the Court, stated at para 20 that the process to be followed under s 744 is a “very fact-sensitive process”, requiring a consideration of (

a) the character of the offender, (

b) the nature of the offence, and (

c) the circumstances surrounding the commission of the offence. [ 15 ] The Court explained that the objective of s 744 is “to give the trial judge an element of discretion in sentencing to reflect the fact that within second degree murder there is both a range of seriousness and varying degrees of moral culpability” (at para 33). At para 31, the Court explained the rationale for a sliding scale of parole ineligibility:

Section 742 (

b) of the Criminal Code provides that a person sentenced to life imprisonment for second degree murder shall not be eligible for parole “until he has served at least ten years of his sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to

section 744 .” In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25 years, the latter being equal to that prescribed for first degree murder. [ 16 ] The decision in Shropshire also clarified the principles governing the increase in the period of parole ineligibility above the minimum 10 year period. At para 29, the Court stated:

…as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that,according to the criteria enumerated in s 744, the offender should wait a longer period before having his suitability to be released into thegeneral public assessed.

To this end, an extension of the period of parole ineligibility should not be “unusual”, although it may well bethat, in the median number of cases, a period of 10 years might still be awarded. [17] The Court went on to confirm that deterrence is a well-established sentencing objective in the context of determining theappropriate period of parole ineligibility, referring to its earlier decision in R v Lyons, (SCC), [1987] 2 SCR 309, whereLaForest J held (at para 329): In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary accordingto the nature of the crime and the circumstances of the offender.

No one would suggest that any of these functional considerations shouldbe excluded from the legitimate purview of legislative or judicial decisions regarding sentencing. [18] Finally, as pointed out by the Crown during the sentencing hearing, the fixing of the period of parole ineligibility is part of thepunishment for second-degree murder and, accordingly, forms an important element of sentencing policy. [19] The offence of second-degree murder carries a mandatory life sentence. The only issue to be determined at the sentencinghearing is the period of parole ineligibility that must be served by the Accused.

The Position of the Crown [20] The Crown submits that the period of parole ineligibility should be set between 16 and 20 years. In addition, the Crown seeksa 10 years firearms prohibition order, pursuant to s 109(2) of the Criminal Code, and a DNA order pursuant to s. 487.051 of the CriminalCode. The Crown relies on the decision of Wakeling JA in R v Ryan, 2015 ABCA 286, as well as the decisions in R v Shropshire,[1975] 4 SCR 227, R v Stimpson, 2011 ABCA 59, R v Berry, 2017 ONCA 17, R v Vuozzo, 2010 ABQB 664, R v Wakefield, 2016ABQB 354, and R v BTQ, 2018 ABQB 521.

The Position of the Defence [21] The Defence says that the period of parole ineligibility should be set at 12 years given the various mitigating and aggravatingcircumstances that exist in this case. The Defence relies on a series of decisions, including R v Yliruusi, 2011 BCSC 268, R v Chretien,2009 CarswellOnt 3611, R v Sheepway, 2018 YKSC 26, R v Reierson, 2007 BCSC 541, and R v Bariteau, 2010 QCCS 1620. TheDefence also provided the court with a chart setting out a variety of other cases dealing with the issue of parole ineligibility in relation toconvictions for second-degree murder.

The Defence conceded that a firearms prohibition order and a DNA order are mandatory in thisinstance. Victim Impact Statements [22] During the course of the sentencing hearing held on November 28, 2018, the Crown read into the record victim impactstatements prepared by Tiffany Fillatre, the sister of Tyler McDermid, Alicia Hoy, the mother of Mr. McDermid’s child, and KerryMcDermid, the father of Tyler McDermid. Mr. McDermid also attended the sentencing hearing. [23] All of these impact statements contained expressions a profound grief and loss over the senseless death of Tyler McDermid.

Iextend my thanks to all of the members of Mr. McDermid’s family for sharing with us the impact that this crime has had on their lives. Itis very clear to me that, notwithstanding the passage of nearly 3 1/2 years since this tragic event, the members of his family are filledwith deep sadness and anger that the person they loved has been taken away from them as a result of the act of Mr. Powder. [24] These descriptions of the impact of this crime on the loved ones of Tyler McDermid will serve, I hope, as a very powerful andenduring message to you, Mr.

Powder, of the consequences of your actions on the lives of so many. You will have to live with thisknowledge for the rest of your life. Personal Circumstances of the Accused [25] The Accused is currently 24 years of age. He was 21 years of age at the time of the offence. He has a common-law wife,Ashleigh Desjarlais, with whom he has two young children aged 3 years and 1 year. His youngest child was born while he was incustody awaiting trial on this matter. He has never met this child. He is also the stepfather to Ms. Desjarlais’ two children from aprevious relationship.

The Accused enjoys strong family support, as more fully described in the Gladue Report. I note that a number ofhis relatives, including his mother and grandmother were present during much of the trial and during the sentencing hearing. [26] The Defence filed a series of letters prepared by relatives of the Accused attesting to his good character. These letters aremarked as Exhibit #S-2.

Letters were prepared by Wanda Whitford, the Accused’s mother, Ryan Powder, the Accused’s sister, YvonneMcCallum, the Accused’s grandmother, Tannis Robillard, the Accused’s aunt, Tammy Pruden, also an aunt of the Accused, and ShawnPruden, the Accused’s uncle. These letters illustrate the strong support that the Accused enjoys amongst the members of his extendedfamily. Of note, this support comes with a deep understanding of the challenges that Mr. Powder has faced in his life and issues he mustconfront to turn his life around and move forward in a positive way.

I am certain that family support will be an important factor in Mr.Powder’s reintegration back into the community upon his ultimate release from custody.

Criminal Record [27] The Accused has a short criminal record. On November 8, 2012, as a youth, he was convicted of aggravated assault andplaced on probation for a period of 12 months. He also has a conviction entered on November 1, 2016 for the offence of assault with aweapon. He pled guilty on that date to a charge relating to a stabbing incident that took place on August 13, 2014. His only otherconviction involved a breach of recognizance entered on May 20, 2017, with an offence date of February 27, 2016. [28] Both of these adult convictions were entered after Mr.

Powder was arrested and awaiting trial for this offence. The stabbingincident took place before the murder of Tyler McDermid, while the breach of recognizance occurred in the period of time betweenMcDermid’s death and the Accused’s arrest in July 2015. Gladue Report [29] A Gladue Report was prepared by Brenda Joy Sinclair, Gladue Report Writer, in November 2018, following the Accused’sconviction at trial (Exhibit #S-4). With the agreement of both counsel, I have considered this Report in conjunction with this sentencingprocess.

This report was extremely valuable in providing a very detailed examination of the Accused’s personal circumstances and, inparticular, the intergenerational impact of domestic violence and drug and alcohol abuse on the Accused and the other members of hisimmediate family. [30] This Gladue Report was filed with the Court in conjunction with s 718.2(2)(

e) of the Criminal Code, which reads: A court that imposes a sentence shall also take into consideration the following principle: (

e) 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. [31] It is a guiding sentencing principle recognized by the Supreme Court in R v Gladue, (SCC), [1999] 1 SCR688, that aboriginal people face racism and systemic discrimination inside and outside the criminal justice system.

The Supreme Court inGladue sought to make the sentencing process more meaningful and relevant to the accused, the victim and to the community. [32] Tilleman J discussed the scope and significance of a Gladue analysis in BTQ. At paras 69-70, he stated: Nevertheless, the Crown has argued that there are no factors in Mr. Q’s background which explain or excuse his offences. I agree.However, a Gladue analysis is still important and it is more than simply looking into an offender’s past for an excuse.

A Gladue analysismust take an in-depth look at the Aboriginal heritage and the unique circumstances of the offender to provide the necessary context foran appropriate sentence: R v Peele, 2012 SCC 13. A causal link between the offences and the Gladue factors is not required: Ipeelee atpara 83. The central purpose of the Gladue analysis is to achieve a sentence that is proportionate to the gravity of the offence and the offender’sdegree of responsibility: R v Swampy, 2017 ABCA 134.

There are two steps to the analysis: (1) consider whether Gladue factors arerelevant to the offender’s culpability, and (2) identify appropriate sentencing sanctions from the circumstances of the offender: R vOkimaw, 2016 ABCA 246 at paras 87-90. [33] In BTQ, Tilleman J found that the accused’s childhood had unfolded in the context of intergenerational traumas suffered bymembers of his family, at least three generations of which had attended Residential Schools. He described this experience in thefollowing terms (at para 71): These schools removed children from their homes and destroyed the family unit.

Parents did not have the opportunity to raise theirchildren, and in turn, children did not have the opportunity to learn from their parents. Relationships were damaged and cultural identitieswere lost. Children often returned to broken families with a poor education and stories of abuse. The adverse effects of the ResidentialSchools continue to be felt today by Mr. Q, his family and his community. [34] Tilleman J went on to find that multiple intergenerational traumas experienced by Mr. Q and the members of his family hadthe effect of reducing Mr.

Q’s moral culpability, an aspect of the proportionality analysis inherent in the sentencing process. Relying onthe Court of Appeal’s decision in Swampy (at para 37), he concluded that this reduced moral culpability had a “reductive effect upon thedetermination of a fit and proper sentence”. [35] The Accused self-identifies as a Metis person, though is not affiliated with any representative Metis political organization.Both of his biological parents, Jason McCullum and Wanda Whitford, also self-identify as Metis persons. Mr. McCallum lives in hisfamily’s residence in Conklin, Alberta, while Ms.

Whitford lives in Good Fish Lake First Nation with her husband and two children ofthat relationship, aged 16 and 15 years. [36] The Accused is one of two children born as a result of the common law relationship between Mr. McCallum and Ms.Whitford. The Accused has a younger sister, Ryan Powder, who resides in Cold Lake, Alberta. [37] In her interviews with the author of the Gladue Report, Wanda Whitford described the impact on the Accused ofintergenerational trauma within the family. She stated (at p 4): There was alcoholism, domestic violence, and poverty, racism and discrimination.

Our dad was given up at birth to his grandparents andour mom lived in a home with alcoholism. Each generation became early parents, my parents, me and Trevor’s dad and then Trevor atsixteen (16) as well. None of us was equipped to be teenaged parents. Trevor’s dad and I had a very bad relationship. I experienced

physical trauma and emotional, mental and verbal abuse from him. [ 38 ] The Accused’s paternal grandmother, Yvonne McCallum confirmed this situation. At p 4 of the Gladue Report, she indicated that: My son, Trevor’s father, did not contribute anything, because he himself was a hard case. He is schizophrenic and is still getting treatment for that. My son, Jason is forty (40) and I am his legal guardian…My son became a dad when he was sixteen (16) and Trevor’s mom was sixteen (16) too.

They had the two (2) kids when they were young. [ 39 ] The Accused spent the first two years of his life living with his biological parents. When his parents separated, he spent the next three years living with his paternal grandparents in Conklin, Alberta. He experienced alcohol abuse and violence while living with his parents. He later learned that his parents fought and his father consumed drugs during this period of his life. When he was approximately 5 years of age, he returned to live with his mother and her new partner, Steven Whitford, in Fort McMurray.

According to the Accused, there was domestic violence in the home whenever they consumed alcohol or drugs. [ 40 ] The family moved to Good Fish Lake First Nation, Steven Whitford’s home community when he lost his job in Fort McMurray. They lived in a one bedroom, mice infested home where the Accused mother and step-father continued to drink and do crack cocaine. Domestic violence within the relationship caused the Accused’s mother and Steven Whitford to temporarily separate on a number of occasions during this period.

The Accused and his sister returned to live with grandparents in Conklin during these periods of domestic turmoil. After two years, the family reunited in Good Fish Lake First Nation, but the family continued to experience a lifestyle marked by poverty, parental drug consumption, and violence related to addictions and an overall unhealthy environment. [ 41 ] This period of the Accused’s life is described by Yvonne McCallum as “not very stable”. According to McCallum “Trevor’s mom was living with her father, and he would kick her and the kids out. They had no home” (at p 5).

Similarly, the Accused’s sister, Ryan Power described this period of their life in the following terms: There was more trauma and abuse after my mom met our step-dad. They had a pretty rocky “on and off” relationship. We were not very close with him and we moved a lot. Our mom had two (2) more kids, who were younger than us. Growing up and moving so much was mentally and emotionally abusive.

We had to leave our friends all the time and our mom and our step-dad had a drug problem…(p 5-6). [ 42 ] The Accused described growing up in circumstances of physical abuse by his mother, and emotional abuse at the hands of his step-father. According to the Accused, his step-father never accepted him and his sister, leaving him feeling unwanted when they were sent away during Christmas and summer vacations. As a result of domestic abuse within the home, the Accused, along with his mother and sister frequently stayed in women’s shelters.

Of this period of his life, the Accused told the author of the Gladue Report “I just felt we had no mothering, we were poor and no one wanted us and it was degrading to be in the shelter”. [ 43 ] Wanda Whitford confirmed that this was a difficult period for the Accused. She stated: [M]y son Trevor experienced abuse and neglect in my home, from my life doing drugs and drinking. It hurt him to be moved around from place to place; Fort McMurray, Conklin, Good Fish Lake, Lac La Biche and Edmonton, we moved lots.

His life was not stable from the time he was little (p 6). [ 44 ] Ryan Power related that: Trevor experienced verbal abuse and some physical abuse from the step-dad and we ended up moving again. When we got older, we were in school and working part-time jobs, our mom and stepdad would harass us for money. They would wake us up at night, when we had school the next day; they always would be bothering us for money for their drugs (p 6). [ 45 ] The Accused dropped out of school in Grade 10. He conceded that he had an attitude problem when he was a teenager in terms of showing up for school.

He also maintained that he had learning difficulties with mathematics. He stated that his poor attendance was due to the constant moving that was going on within his family. “It really sucked. I was never really in the same school from one year to the next. I finally just gave up at school” (p 8). [ 46 ] When he was 17, the Accused had a summer job with Mag Energy. He described this as “an awesome opportunity”, but that he “messed up”. Further, “I was supposed to graduate and they would take me on as an engineering student, but I dropped out.” Thereafter, he worked for two years for his aunt, Tanis Pruden.

Together with Ashleigh Desjarlais, he also lived with his aunt Tanis and her family. However, he was terminated from his employment and asked to leave his aunt’s residence as a result of his drug addiction. The Accused then went to work part-time for Arctic Daylighting, a hydro-vacuuming company owned by his uncle Ernie. He was well- paid and able to obtain his own place with Ashleigh Desjarlais. However, he acknowledges that we went back to drugs and lost everything again.

According to the Accused, “I never had trouble getting a job, only trouble keeping it” (p 9). [ 47 ] The Accused acknowledges that he is both a drug addict and an alcoholic. He first consumed alcohol at the age of 15, and was consuming alcohol on a daily basis by the time he was 17. He was drinking right up to the time of his arrest in July 2015. He began smoking weed when we was 12 years of age and was smoking it every day by the time he was 14 years of age. He progressed to cocaine when he was 17, and crack cocaine by the time he reached the age of 21 years.

He has never attended any form of treatment for his addictions prior to his imprisonment relative to this murder charge. [ 48 ] The Accused described the impact of drugs and alcohol on his life (at p 9): It wrecked my life. I was dependent on cocaine. I lost my jobs, my homes, it wrecked my family relationships. My wife and I were always unhappy and struggling, and my kids only got the bare necessities. They did not get spoiled and now they do not have a dad that is home with them. [ 49 ] Since incarcerated in July 2015, the Accused reports that he was doing drugs for the first year, but then “snapped out of it”

when he went to Boot Camp. As of the date of the Gladue Report, the Accused reported that he had been sober for 13 months. He runs a weekly men’s healing circle within the Edmonton Remand Centre. He is also actively involved in other programs available through the Remand Centre. His plan is to attend all of the courses that he can. He realizes that he will be in jail for a long time, but “when I am released, I will be sober and clean and ready to live my life in sobriety” (p 10). He is currently attending AA and NA meetings, as well as a weekly smudge and prayer circles supported by Elders.

Once the sentencing process is completed, he plans to access mental health supports, including counselling. He also plans to seek access to traditional healing programs through his uncle in Fort McKay, Norman Powder. [ 50 ] The Accused reported to the author of the Gladue Report that he wanted to kill himself following the incident involving the shooting of Tyler McDermid. The Accused gave evidence during the course of the trial that he loaded the gun and put it under his chin after fleeing the scene.

His trial evidence, consistent with what he told the author of the Gladue Report, was that he did not follow through as he was not sure if McDermid was dead or alive and that he, the Accused needed to stay alive for his children. [ 51 ] The Accused reported that “I never meant for anyone to die and it affects me still” (p 10). He confirmed that he had offered to plead guilty to manslaughter but refused to plead to the offence of murder because “I believe in my heart I had no plan to hurt this person”.

He also confirmed his trial testimony that it was an accident and that “I was drunk and high and I wanted more drugs, but I never planned to kill anyone for the drugs. It was an accident”. He went on to state “I am very remorseful. I was not angry. I had no vendetta. I hardly knew him. It was just a very terrible accident”. He further stated: I am sorry for what happened. I think about it all the time. I took a young man’s life. He should not have died at my hands and I feel really terrible that that happened. If I could go back to that day, I would do different.

But because I cannot, I will get help and counselling and work on myself and become a better person, because, that is all I can do. (p 12-13) [ 52 ] Of his relationship with his biological parents, the Accused reported his “sadness about the fact that his mother was absent”. He described her as not being there for him when he was young and that she was not around for him to talk to as “she would just yell and holler at me. I had no one to go to for guidance and advice”.

As regards his biological father, the Accused reported that he did not know his dad. “When he was normal, he always seemed too busy and then he went psycho and I never had him as a dad after that” (p 11). [ 53 ] The Accused told the author of the Gladue Report that “trauma is generational in my family” and that he is interested in trauma counselling so that “I will get a better idea of why my parents were the way they were” (p 11). [ 54 ] As a child, the Accused learned traditional bush skills from his grandmother, Yvonne McCallum.

He indicated that he is interested in learning more, including smudging and the sweat lodge. He also suggested that he wants to learn to pray the “native way”, and “I would like to learn to be an oskapewis (Elder’s ceremonial helper) and help the Elder with healing ceremonies” (p 11). His mother, Wanda Whitford, also referred to the fact that the Metis people have lost their way through the loss of their language and culture.

She hopes that part of her son’s sentence can be served in an environment that reinforces these aspects of Metis culture. [ 55 ] The Accused, as well as members of his family, described his love of outdoor activities and his athletic abilities as a younger man, including his prowess at skate boarding. Ashleigh Desjarlais reported that: [H]e really wanted to a be a pro skate boarder when he was younger. It got taken away from him because the family moved to a place that had nothing there to support his skate boarding. He was extremely good at skate boarding; it is sad he lost that dream.

He could have been someone famous today (p 12). [ 56 ] The Accused spoke at some length to the author of the Gladue Report about his plans for the future. He spoke of his desire to go home to his wife and children in Cold Lake, Alberta, as well as his plan to remain sober. He plans to go back to school to finish his grade 12 and then obtain a degree focusing on psychology, trauma and intergenerational trauma. He would like to return to employment as a hydro vacuum driver, possibly owning his own truck. He also wants “to be able to talk to kids who went through what I went through.

I want to help guide them into a positive life. My sister Ryan, who went through all the things I went through and she has achieved an education and a home and everything. I just stopped caring. She never stopped caring for herself and she did good. I want to care about my life and do good for others (p 13). [ 57 ] The Accused also told the author of the Gladue Report about his remorse for what happened to Tyler McDermid (at p 14): I am sorry. This is not the type of person that I am. While I am in jail, I will continue to work on myself and become a better person and contribute to society.

I know I that I need to do my time, for what I did. I know what I did was wrong. I want you to know that I am not a danger to society. I am not a violent man and I will continue to work on my addiction problem. To be honest, I feel that since my sobriety in here, I am back to my normal self. The person I was on drugs and drinking, was not me, it was the addiction. I am grateful and happy to be sober and able to think right again. I am grateful to get my priority straight, which is to return home to my wife and kids.

I wrote the family an apology letter; how sorry I was that his daughter is growing up without a father. [ 58 ] According to Wanda Whitford, “[H]e told me he is sorry and he was glad that he got caught, because he was feeling so bad about what happened. He is sorry for taking someone’s life, and loved one away from their family. He is feeling he has let us all down, because we all had high hopes for him” (p 14).

His grandmother, Yvonne McCallum, expressed similar views: I want to say, at the time this happened, Trevor started to fall into drugs and alcohol; he had just lost his two grandfathers that he was fond of and had spent lots of time with him. He went through a lot of trauma from their passing so close to each other.

His actions, I believe, were from the effects of bad judgment, alcohol, drugs and sorrow. (p 14) [ 59 ] The Gladue Report concludes that the Accused suffers from generational trauma that remains unaddressed, as well as grief and loss concerns, childhood alcohol and drug addiction issues, charge-related suicide ideations. It also refers to witnessed and experienced family and community alcoholism, violence, abuse, poverty and drugs (p 15). The Report also refers to intergenerational effects flowing from the family’s Residential School experiences, though I would note that no such experiences are reported by any of

the Accused’s family members. Other Parole Ineligibility Decisions [ 60 ] Both the Crown and the Defence filed a number of decisions of other courts regarding the determination of an appropriate period of parole ineligibility. While these other parole ineligibility decisions are helpful, I agree with the observations of Yamauchi J in R v Jiang , 2011 ABQB 182 , (at para 43 ), that it is not the role of the court to “dissect” sentencing authorities in an effort to find the perfect “fit”.

The sentencing process is not a mechanical process, but rather the delicate balancing of sentencing principles, the unique circumstances of both the case and the offender, and the application of relevant mitigating and aggravating circumstances. Yamauchi J went on to cite the decision of the British Columbia Court of Appeal in R v Chinneck , 2005 BCCA 346 , wherein the Court made the following observations: Although the cases cited by the appellant are relevant in a general sense, each case must be assessed on its particular facts.

It is not useful to list and compare between cases the discrete aggravating and mitigating factors and to assign a sentence based on the presence or absence of one or more of them. To do so lends an unrealistic and unwarranted air of objective measurement to the process. That is not a proper approach. The sentencing judge in this case considered all of the relevant sentencing factors, aggravating and mitigating. He was entitled to weigh them and to give such weight to them in exercising his discretion as he saw fit. We may not interfere unless the sentence he imposed is demonstrably unfit.

In this context, the appellant must demonstrate that the sentence is a marked departure from sentences imposed in generally comparable cases. [ 61 ] As previously indicated, the Crown relies on a series of decisions in support of its contention that the period of parole ineligibility in this instance should be fixed somewhere between 16 and 20 years. First, the Crown refers to the 2015 decision of the Court of Appeal in Ryan , and suggests that the circumstances in that case are very similar to those in the within matter.

In Ryan , the accused was a drug addict who supported himself and his addiction by selling drugs. The victim was employed by the accused to sell drugs. After loaning the deceased his vehicle, and providing him with drugs to sell, the accused learned that the deceased was bragging around the community of Fort McMurray that he had stolen the accused’s truck and drugs. This angered the accused who arranged for the deceased to come to an apartment and then to a trailer where the accused retrieved a rifle and shot him in the head.

The accused then disposed of the body in the bush before attempting to set on fire the vehicle in which the shooting had taken place. He then reported the truck as having been stolen. [ 62 ] Initially charged with first degree murder, the accused was convicted at trial of second degree murder. The trial judge set the period of parole ineligibility at 13 years. On appeal, three separate sets of reasons were prepared. O’Farrell JA, dissenting, would have upheld the trial judge’s decision to fix the period of parole ineligibility at 13 years.

Picard and Wakeling JJA agreed that the period of parole ineligibility should be increased to 17 years, but wrote separate opinions. [ 63 ] Picard JA specifically declined to adopt what she described as an effort “to reform sentencing practice in this area” (at para 48). Further, she expressed her disagreement with the proposed five year categories proposed by Wakeling JA in his decision concurring in the result, as well as his

interpretation of the decision in Shropshire (see paras 50, 52, 53, 54). To the extent that the Crown appears to be relying on the decision of Wakeling JA and, specifically, the five year categories that he proposed, I must respectfully say that I do not believe that this represents the majority view of the Court in Ryan . As such, the decision is not binding on me and I respectfully decline to follow it. In my view, the reasons of Picard JA sets out the appropriate approach to the

interpretation and application of s 745.4 of the Criminal Code . [ 64 ] In Berry , a 2012 decision of the Ontario Court of Appeal, the accused was charged with first degree murder, but convicted of second degree murder following trial. The period of parole ineligibility was set at 17 years. The accused was 20 years of age and was acquainted with the deceased through the drug trade. Following a dispute over money during which the deceased held a gun to the neck of the accused, the accused returned to the apartment of the deceased and shot him five times while he stood in the doorway.

The accused fled the scene, discarding the firearm in a sewer. He was not apprehended by the police until approximately one and one half years after the incident. He had a record of violence as both an adult and a youth. In fixing the period of parole ineligibility, the trial judge observed that the circumstances of the offence came close to first-degree murder. [ 65 ] In Vuozzo , a 2010 decision of Hughes J (as she then was), the accused was also convicted of second degree murder following trial. Though he was only 19 years of age at the time of the offence, he had acquired a significant criminal record.

The accused was aware that the deceased was trafficking in marihuana and decided to break into the deceased’s residence and steal the marihuana. Armed with a machete, the accused concealed his identity and, along with an accomplice, broke into the deceased’s residence. When the deceased refused to turn over the marihuana, an altercation ensued during which the accused stabbed the unarmed deceased multiple times with the machete. The trial judge found that the accused demonstrated no remorse at the time of his confession during the course of a Mr. Big operation.

The period of parole ineligibility was set at 15 years, though the trial judge indicated that she would have set the period at a greater number but for his age. [ 66 ] In Wakefield , a 2016 decision of Miller J, the circumstances also involved an attempt to rob an individual known to be a drug dealer. The accused was a drug dealer and his accomplice, Mitchell, was a drug user. The accused and Mitchell, both youth offenders, armed themselves with a weapon and donned masks to disguise their identity before attending the residence of the deceased.

They had previously devised a plan to either rob or intimidate the accused. A physical confrontation took place at which point the accused and Mitchell inflicted multiple stab wounds to the victim that led to his death. Both offenders had lengthy criminal records for violence, including a conviction for manslaughter for Wakefield. A Gladue Report was prepared in relation to Mitchell.

Parole ineligibility was set at 18 years for Wakefield and 15 years for Mitchell. [ 67 ] In support of its contention that the period of parole ineligibility should be set at 12 years, the Defence also relies on a number of authorities. [ 68 ] In Shropshire , the accused entered a guilty plea to the offence of second degree murder. In that instance the accused and the

deceased were known to each other through the drug trade. The offence took place at the home of the accused during a marihuana transaction. Without warning, the accused shot the deceased three times in the chest as the drug transaction was about to conclude. The accused then chased after an associate of the deceased as he drove away from the scene, with the accused shouting “Hacksaw told me to do it” – Hacksaw being the nickname of another individual known to the parties. The accused surrendered to the police two days after the shooting.

While he expressed remorse for the killing, he was unable or unwilling to explain his actions, and no motive for the shooting was ever identified. The accused was 23 years of age, married with two children. He enjoyed the support of his parents and his wife. The trial judge found that he had spent much of his life involved in criminal activities, having a criminal record for both drug offences and offences involving violence. The period of parole ineligibility was fixed at 12 years.

On appeal, the British Columbia Court of Appeal reduced this to 10 years, but the decision of the trial judge was restored on further appeal to the Supreme Court. [ 69 ] The Defence also relies on the decision of the British Columbia Supreme Court in Yliruusi , a 2011 decision in which the period of parole ineligibility was set at 10 years. In that instance, the accused was 30 years of age and had spent much of his youth and adulthood addicted to drugs. He had an extensive criminal record dating back to when he was 17 years of age.

The deceased was an individual well-known to the accused who has supplied drugs to the accused over the years in return for sexual favours. The accused stabbed the deceased once with a knife that he had in his possession for general safety reasons unrelated to the exchange with the deceased. The trial judge found that the accused was remorseful for what was described as “a very clumsy and foolish plot”. The accused was found to have a supportive family. [ 70 ] In Chretien , a 2009 decision of the Ontario Superior Court of Justice, the period of parole ineligibility was set at 12 years.

In that instance, the 36 year old accused with a lengthy criminal record spontaneously killed the deceased with a Maglite flashlight that he obtained after breaking into the residence of the deceased. The deceased, a known drug dealer, was asleep prior to the unlawful entry by the accused and an accomplice. The trial judge found that the accused had a general reputation for being helpful in the community and that he expressed remorse for this spontaneous killing.

He was found to have been under the influence of crack cocaine at the time of the incident. [ 71 ] In Sheepway , Gower J of the Yukon Supreme Court fixed the period of parole ineligibility at 13 years following the accused’s conviction at trial for second degree murder. At the same time, the accused was sentenced for a series of robberies that took place following the killing, all of which were committed to support the accused’s addiction to marihuana and crack cocaine. [ 72 ] The accused was addicted to crack cocaine for a number of months leading up to the murder.

Following an argument with his wife, and without access to money, the accused convinced the deceased, his crack cocaine supplier, to front him a bag of crack on credit. His initial plan was to get high and then commit suicide with a shotgun he had in his truck. Wanting more crack cocaine before killing himself, the accused then arranged to meet the deceased in a remote location. Following a struggle prompted by the accused pointing the shotgun at the deceased, the shotgun was discharged accidently.

The accused then fired two shots into the back of the deceased’s truck, striking and killing the deceased as the deceased attempted to flee the scene. The accused departed the scene, but subsequently returned to retrieve a number of expended shotgun shells, as well as five baggies of crack cocaine that he found on the ground. He then loaded the body of the deceased into the back of his truck before disposing of the body in a nearby remote location. He then drove to a car wash where he washed away the deceased’s blood in the back of the truck. He also consumed more of the found crack cocaine.

He confessed to the killing some nine months later in a telephone conversation with his wife in which he again threatened suicide. [ 73 ] The accused was 40 years of age at the time of sentencing. He moved to Whitehorse at the age of 21 years and had a steady record of employment as a fish and wildlife technician, a correctional officer and, up until the time of the offence, as a Canada Post rural mail carrier. He was married with two children and had strong family support. He began using marihuana at the age of 12 or 13 years, and it became a central feature of his daily life by the time he reached adulthood.

At the time of the murder, he was consuming 3-5 grams of crack cocaine on a daily basis, an addiction that had commenced several years earlier. [ 74 ] The trial judge found that the accused was remorseful, but rejected the accused’s contention that he accepted responsibility for the death but did not intend to kill the deceased. [ 75 ] In Riersen, a 2007 decision of the British Columbia Supreme Court, the accused was also involved in the drug world. He was 49 years of age and had a dated, unrelated criminal record that did not involve any offences of violence.

The accused obtained a shotgun and shot the deceased twice following a dispute. The deceased was a drug dealer. The accused had a long history of drug addiction, having abused both alcohol and drugs since his childhood and, indeed, was on a crack binge at the time of the offence. He attended rehab on a number of occasions, but had never overcome his addiction.

In fixing the period of parole ineligibility at 10 years, the trial judge found that the offence was out of character and that the accused had good prospects for rehabilitation. [ 76 ] Finally, the Defence relies on a 2010 decision of the Quebec Superior Court in Bariteau , where the 23 year old accused shot the victim during a drug transaction. He entered a plea of guilty to the offence of second degree murder. He was found to be remorseful. The period of parole ineligibility was set at 12 years.

Aggravating Circumstances [ 77 ] The Crown suggests that the aggravating circumstances in this case are the Accused’s criminal record, and the fact that some degree of planning was involved in the events leading up to the shooting of Tyler McDermid. [ 78 ] I agree that the Accused’s criminal record is a somewhat aggravating factor, particularly in that it includes a prior conviction for violence.

While the Accused’s convictions for assault with a weapon and breach of recognizance are relevant to the sentencing process, I take into consideration that one relates to an incident that occurred prior to the date of this offence, while the second took place after the shooting, but prior to the Accused’s arrest in July 2015 As such, I do not place the same emphasis on these convictions as the one set forth on the Accused’s youth record. [ 79 ] I also accept that the circumstances disclose some degree of planning on the part of the Accused and his accomplice, Cody

Deranger. The plan was, however, hatched at time when both Mr. Powder and Mr. Deranger were impaired to a considerable degree as a result of the consumption of both alcohol and marihuana. Nevertheless, a rather crude plan to obtain a weapon and ammunition and to use the gun to rob Olson and McDermid of drugs and money was devised as the Accused and Deranger made their way to the Olson residence. As such, this was not a situation of a spontaneous reaction to an external event.

Rather, the Accused and Deranger devised a plan to commit an unlawful act, albeit a plan that was never actually executed. [ 80 ] There was no communication between the Accused and Deranger as to the details of the plan, though the time spent retrieving the gun and making his way to the Olson residence obviously provided the Accused with some opportunity to reflect on the planned robbery. In their evidence before the jury, neither the Accused nor Deranger provided any details as to how the robbery was to unfold.

I am satisfied that the Accused instigated the plan, driven by a desire to obtain crack cocaine at a time when he had no money to make a purchase. Deranger’s evidence was that at no point was there any discussion about using the gun to kill anyone. In my view, this evidence is consistent with the jury’s verdict on the charged offence of first-degree murder. The jury were clearly not satisfied beyond a reasonable doubt that the murder was both planned and deliberate so as to amount to first-degree murder. [ 81 ] The pair stopped by a tree located some distance away from the rear of the Olson residence.

There is no evidence as to how the robbery plan was to unfold from that point forward, as evidenced by Deranger’s question to the Accused at one point as to what was to happen next. [ 82 ] The Accused spent approximately 20 minutes in the vicinity of the tree contemplating what to do. He acknowledged that the gun was pointed at the rear window of the residence and at shadow figures he saw in the window. The Accused was familiar with both the layout of the residence from having stayed there with Olson and McDermid prior to the date of the shooting.

As previously indicated, he stopped by a tree located on the opposite side of the house to where the living room was located. Mitigating Circumstances [ 83 ] I accept the contention that the Accused’s youth is a mitigating circumstance in this instance. I also find that his repeated expressions of remorse for what happened is also a mitigating circumstances. These expressions of remorse were first made following his confession to Sgt.

Breitkreuz in July 2016, through the letters he wrote to the members of the McDermid family and to members of his own family, during his testimony before his trial, and in the discussions he had with family members and the author of the Gladue Report before and after his trial. [ 84 ] The Accused has, in my view, taken significant steps during his pre-trial incarceration to turn his life around. Of particular note, he has been sober and drug free for the past 13 months.

He has also taken on a leadership role in terms of a men’s healing group at the Edmonton Remand Centre and through his continued participation in Boot Camp. As more fully set out in the portion of these reasons dealing with the Gladue Report, Mr. Powder has taken advantage of the various programs that are available within the institution. I am satisfied that he has sincerely committed to a detailed plan to turn his life around and move forward. [ 85 ] I would also note that the Accused’s acceptance of responsibility for the death of Tyler McDermid is not a new phenomenon.

At least as far back as his bail hearing on January 25, 2018, he has offered to plead guilty to the offence of manslaughter. This offer was rejected by the Crown; hence the requirement of a trial. While this represents some degree of acceptance of responsibility, I would note that Mr. Powder told the author of the Gladue Report that he had no plan to hurt McDermid. In convicting the Accused of second-degree murder, the jury clearly rejected the Accused’s evidence that the gun discharged accidently.

As such, the Accused’s apparent unwillingness to accept full responsibility for the murder of Tyler McDermid reduces to some limited extend the weight I place on this mitigating circumstance. This aspect of the case is very similar to the circumstances in Sheepway , discussed above.

Analysis [ 86 ] The determination of the period of parole ineligibility in this case is governed by s 745.4 of the Criminal Code , which directs that this issue should be determined having regard to the character of the offender, the nature of the offence, the circumstances surrounding the commission of the offence, and the recommendations, if any, made by the jury. [ 87 ] It is a fundamental principle of sentencing that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: s. 718.1 Criminal Code . (

i) Gravity of the Offence [ 88 ] The offence of murder is one of the most serious criminal offences known in law. In Canada, Parliament has directed that a conviction for either first or second degree murder should carry an automatic sentence of life imprisonment. The imposition of a mandatory life sentence for the intentional taking of a human life clearly reflects Parliament’s views as to the gravity of this offence. The offence of manslaughter, while not subject to an automatic life sentence, carries a possible maximum sentence of life imprisonment.

These very significant sanctions reflect our society’s values surrounding the sanctity of life. (ii) The Accused’s Degree of Responsibility and Gladue Analysis [ 89 ] In R v Arcand , 2010 ABCA 363 , the Court of Appeal provided the following guidance on the proper approach to the assessment of the degree of responsibility of the offender: The “degree of responsibility of the offender” as used in s 718.1 certainly includes the mens rea level of intent, recklessness or wilful blindness associated with the actus reus of the crime committed. For this assessment, courts are able to draw extensively on criminal

justice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moral culpability. However, the reference in s. 718.1 is not simply to the “mens rea degree of responsibility of the offender” at the time of commission of the crime. Parliament evidently intended “degree of responsibility of the offender” to include other factors affecting culpability.

These might relate, for example, to the offender’s personal circumstances, mental capacity or motive for committing the crime (para 58). [ 90 ] As described in Arcand , this aspect of the proportionality principle involves an analysis of those factors that impact on an accused’s degree or responsibility or moral blameworthiness for the offence. In my view, this includes the possible impact of Gladue factors, other circumstances relating to this offender, as well as intent of the Accused in committing this offence. a.

Gladue Factors [ 91 ] Earlier in these reasons I outlined in some detail the content of the Gladue Report that was prepared in relation to the Accused. I must now consider whether any of the Gladue factors are relevant to the Accused’s moral culpability and, if relevant, how they inform the determination of the appropriate sentencing sanctions in this instance. [ 92 ] There is no evidence that any of the members of the Accused’s immediate family, including his parents and grandparents, attended Residential Schools.

His mother, Wanda Whitford, advised the author of the Gladue Report that “we do not know the history of our family, in Residential School, especially our uncle Vincent’s family from Fort Chipewyan. I do not know Trevor’s dad’s family’s history either” (at p 4). [ 93 ] In R v Stimson , 2011 ABCA 59 , the Court of Appeal found that the failure to link factors/conditions affecting members of an Indigenous community to an offender amounts to an error in law (para 23). As in Stimson , there is nothing before me linking the affect of Residential Schools to Mr.

Powder or, indeed, to the members of his extended family. [ 94 ] While there is no evidence in this instance of intergenerational trauma flowing from the attendance at Residential Schools, I am satisfied that other forms of intergenerational trauma, including domestic violence and drug and alcohol abuse, and poverty have had a profound impact on familial relationships within the family of the Accused. Of particular note, I would observe that the Accused was largely abandoned by both of his parent, albeit for different reasons.

In the case of his father, the abandonment was largely the result of his separation from the Accused’s mother and significant underlying mental health issues. In the case of his mother, I am satisfied that the abandonment resulted from drug and alcohol abuse, a troubled relationship with a new partner that tended to exclude the Accused and his sister from that new family unit and, general neglect. [ 95 ] I also find that multiple generations within the Accused’s extended family have taken on parental responsibilities at a very young age when they were still virtually children themselves.

Combined with drug and alcohol abuse and domestic violence, this has created a situation of intergenerational trauma experienced by members of Mr. Powder’s extended family. This trauma was compounded, in my view, in the case of the Accused by significant neglect. [ 96 ] In BTQ , Tilleman J concluded that multiple intergenerational traumas experienced by Mr. Q and the members of his family had the effect of reducing Mr. Q’s moral culpability, an aspect of the proportionality analysis inherent in the sentencing process.

Relying on the Court of Appeal’s decision in Swampy (at para 37 ), he concluded that this reduced moral culpability had a “reductive effect upon the determination of a fit and proper sentence”. I fully agree with Tilleman J’s careful approach to the incorporation of an offender’s Gladue factors into the sentencing process. In my view, this approach reflects a proper application of Gladue and Ipeelee . [ 97 ] I accept the Crown’s contention that the Supreme Court’s decision in Gladue does not support an automatic reduction in sentence on account of the fact that the offender is Indigenous.

To the contrary, the Court in Gladue (at para 88 ) rejected the notion that s 718.2(e) “requires an automatic reduction in sentence for an aboriginal offender”. At para 28 of Stimson , the court noted: Even where the Gladue factors are present, the sentencing judge still has a duty to find a sentence that is fit considering all the circumstances surrounding the offence: R v Wilson , 2009 ABCA 257 . A consideration of Gladue factors cannot reduce this sentence to one-eighth of a two year sentence. [ 98 ] I would adopt this line of reasoning and reach a similar conclusion in this instance.

In my view, the multiple intergenerational traumas experienced by the Accused and the members of his family had the effect of reducing his moral culpability. Reduced moral culpability is, in my view, one aspect of the proportionality analysis. As noted above, this line of reasoning was applied by Tilleman J in BTQ . [ 99 ] Having found that Gladue factors are relevant to the Accused’s culpability, I must go on to consider appropriate sentencing sanctions. In this instance, the Accused has been convicted of second-degree murder, an offence carrying a mandatory life sentence.

The only appropriate sentencing sanction in this instance is incarceration for life, the sentence prescribed by law. However, I am satisfied that reduced moral culpability can find expression in the determination of the period of parole ineligibility that is to be imposed in this instance. b. Circumstances of the Accused [ 100 ] Earlier in these reasons I set out in some detail the personal circumstances of the Accused.

In assessing his moral blameworthiness, I take into consideration his youth, his limited criminal record, his expressions of remorse, and the significant steps that he has taken to turn his life around and move forward in a positive way. In my view, these are significant mitigating circumstances. c. The Mens Rea Element of the Offence [ 101 ] The jury’s verdict conclusively determined that the Accused intended to kill Tyler McDermid or intended to cause him bodily harm that he knew was likely to cause death and was reckless as to whether or not death ensues. At the same time, the jury was not

satisfied that the murder was planned and deliberate. I am satisfied that the Accused’s degree of responsibility for this offence is very high given his intend to kill or to cause bodily harm likely to cause death. The moral blameworthiness associated with the offence of murder, generally, is very high. Conclusion [ 102 ] I have carefully considered the submissions of both the Crown and the Defence. As such, I have taken into consideration the character of the offender, the nature of the offence, the circumstances surrounding the commission of the offence and the recommendation provided by the jury.

In the balancing exercise associated with crafting a fit and proper sentence, I have weighed the gravity of the offence and the degree of responsibility of the offender. [ 103 ] In my view, the circumstances of this case justify the fixing of a period of parole ineligibility that is more than 10 years.

However, given the age of the Accused, his expressions of remorse, the strong family support that he enjoys within his extended family, and the reduce moral culpability that I found relative to Gladue factors, I am not persuaded that the range of parole ineligibility proposed by the Crown of 16-20 years is appropriate in this instance. In my view, such a sentence would not be proportionate to the seriousness of the offence and the degree of responsibility of the Accused. [ 104 ] I sentence the Accused to life imprisonment for the murder of Tyler McDermid and fix the period of parole ineligibility at 12 years.

In addition, I make the ancillary orders requested by the Crown in relation to a 10 year firearms prohibition order, and the requirement for the Accused to provide a sample of his D NA. [ 105 ] A copy of these Reasons, together with a copy of the Gladue Report shall be attached to the warrant of committal and provided to the correctional authorities to hopefully assist in the administration of Mr. Powder’s sentence. Dated at the City of Calgary, Alberta this 17 th day of December, 2018. M. David Gates J.C.Q.B.A. Appearances: J. Sawa for the Crown D. Sprake for the Accused