R. v. Kanate, 2011 ONCJ 770

COURT FILE No.: 112592 DATE: 2011·12·05 Citation: R. v. Kanate , 2011 ONCJ 770 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — PATRICK ISACC DALLAS KANATE Before Justice D. DiGiuseppe Heard on October 20, 2011, November 14, 2011 Reasons released on December 5, 2011 Dan Mitchell/Gordon Fillmore .................................................................................... for the Crown Gilbert Labine .............................................................. for the accused Patrick Isaac Dallas Kanate REASONS FOR SENTENCE DiGiuseppe J.: A.

OVERVIEW [ 1 ] Patrick Kanate pled guilty to a charge of manslaughter by unlawfully causing the death of Keegan Williams on September 14, 2010. Mr. Kanate originally was charged with second degree murder. The plea to manslaughter came during the course of the preliminary hearing. [ 2 ] The matter was adjourned for the preparation of a Gladue report, a Pre-Sentence Report and submissions with respect to sentence. The victim impact statement of the victim’s mother, Ida Williams, was read in court and sentencing submissions were made on November 14, 2011.

The matter was adjourned to today’s date for the imposition of sentence. B. CIRCUMSTANCES OF THE OFFENCE [ 3 ] An Agreed Statement of Facts was filed with the court. The statement included a 17 paragraph outline of the circumstances of the offence. Additionally, with the consent of the parties, all of the evidence heard and exhibits tendered during the preliminary hearing with respect to the second degree murder charge were applied to these proceedings. I will provide a brief

summary of the facts upon which the plea was based. [ 4 ] Mr. Kanate and Mr. Williams were cousins, both originally from Round Lake First Nation. Mr. Kanate was residing with his mother Tina Kanate, his sister Charlotte Kanate and his sister’s infant son Gabriel Kanate at 316 South High Street in the City of Thunder Bay. Mr. Williams resided in Round Lake. Jack Walentynski, a witness to the events of September 14, 2010, resided in an apartment on the second floor of the Kanate residence. [ 5 ] Mr. Williams had come to Thunder Bay several days prior to September 14, 2010 and had been staying with Mr.

Kanate and his family. By September 13, 2010, he was staying with with a friend, Pathew Quequish. On that date Mr. Williams went to the Kanate residence and began drinking with Mr. Kanate. Mr. Kanate’s mother had returned to Round Lake in August. Mr. Kanate’s sister

was at the hospital with her son who was running a fever. Later that evening, Mr. Kanate and Mr. Williams were joined by their cousin Franklin Johnup. Mr. Williams was asleep when Mr. Johnup arrived. Mr. Kanate and Mr. Johnup shared a bottle of whiskey. When Mr. Williams awoke, the three went for a walk looking for places to break into. [ 6 ] The three men eventually returned to the Kanate residence. An argument ensued over the sharing of alcohol. At approximately 2:00 a.m. Mr. Kanate ordered Mr. Williams and Mr. Johnup out of his residence.

He followed the two men out of his residence and to the intersection of Markland and South High Streets nearby. A confrontation ensued. From his apartment window, Mr. Walentynski observed Mr. Williams produce a knife and confront Mr. Kanate. Mr. Kanate took the knife and stabbed Mr. Williams in his left arm above the elbow. Mr. Kanate left the scene. [ 7 ] Mr. Johnup attempted to assist Mr. Williams, who was bleeding profusely from the knife wound. An ambulance was called from a nearby convenience store. Police and paramedics responded at approximately 2:50 a.m. Upon their arrival, Mr.

Williams had lost a significant amount of blood and was unresponsive. He was transported by ambulance to hospital. Upon arrival, Mr. Williams was close to death. Despite efforts by medical personnel to resuscitate him, he died shortly thereafter. The cause of death was exsanguination due to transection of the left brachial artery as a consequence of a stab wound to the left arm. Mr. Williams bled to death from a relatively small knife wound. C. CIRCUMSTANCES OF THE OFFENDER [ 8 ] Mr. Kanate is 20 years of age. He is an Aboriginal man born in Sioux Lookout Ontario and a member of Round Lake First Nation.

A pre-sentence report and a Gladue report were prepared and filed with the court. These reports set out Mr. Kanate’s personal history as well as that of his family. Mr. Kanate is the youngest of two children born to Tinea and Richard Kanate. The reports describe a family environment of alcohol and drug abuse. According to the offender, his father verbally abused him, and on one occasion while intoxicated, pointed a firearm at him. [ 9 ] Both parents experienced a difficult upbringing. Richard Kanate attended residential school for two years. Tinea Kanate was physically abused by her parents as a young child.

These negative experiences undoubtedly contributed to their alcohol and drug problems, and the physical violence between them. [ 10 ] Mr. Kanate began using drugs and alcohol at age 12. By the time he reached high school, he says he was addicted and began selling marihuana to support his habit. He attended high school briefly, earning two credits. Mr. Kanate acknowledged that he has a problem with alcohol and drugs, and is prepared to address these abuse issues through counselling. [ 11 ] A psychiatric report from Dr. Sheppard dated November 24, 2010 was filed.

That report was prepared to address the issues of fitness to stand trial and criminal responsibility. While Dr. Sheppard concluded that Mr. Kanate was fit to stand trial and that he suffered from no mental illness that would absolve him of criminal responsibility, psychometric testing provided the following information; at page three of Dr. Sheppard’s report: “Mr. Kanate is of average intelligence, probably low in the Average range. His non-verbal skills are somewhat better developed than his verbal skills. Psychometric testing confirmed the absence of major mental illness.

There are, however, indications of personality dysfunction in this young man, characterized by primarily depressive cognitions, feelings of inadequacy, hopelessness, alienation, and frustration. His self-image appears to be negative. There are indications of social detachment, and feelings of alienation from and disappointment in his family. There are also indications of a reasonably high level of bitterness and underlying anger;” [ 12 ] Mr. Kanate’s comments with respect to the offence, as set out in the pre-sentence report, are troubling. The probation officer reports that Mr.

Kanate “believes his actions have raised his status with his family,” and he feels more respected by his family members after taking Mr. Williams’ life. He goes on to acknowledge, however, that he is grieving the loss of his cousin. Indeed, in the Gladue report, Mr. Kanate expressed his remorse as follows, at page 11: “My intention was not to kill him. I hurt lots. My first week in jail I cried myself to sleep because I killed my cousin. I feel sorry for what I did.” [ 13 ] Mr. Kanate also expressed his remorse in court during the sentencing hearing.

Addressing his aunt, Ida Williams, he stated: “Sorry for everything I did to you. I can’t change anything. Sorry I made your life miserable.” [ 14 ] Mr. Kanate’s criminal record includes a conviction for assault causing bodily harm as a youth from 2008 and charges of mischief and breaches of recognizance from April 12, 2011. The victim of the assault was Mr. Kanate’s father. [ 15 ] Mr. Kanate has spent nine months in pre-trial custody. After his arrest on September 14, 2010, he was released on January 7, 2011 on a recognizance with a number of conditions. He was arrested in April 2011 on new charges.

He disposed of these charges on April 12, 2011. He was sentenced to a term of imprisonment that expired June 23, 2011. [ 16 ] The pre-sentence report concludes with the following assessment at page 7: “The subject presents with a number of criminogenic factors seen to elevate the risk of recidivism. He has limited work history and

typically meets his financial needs largely by illegitimate means, namely drug dealing. He has limited ties to conventional settings, school or employment for example. He has strong ties to the criminal element, although he denies being an organized gang member. He has shown disregard for court ordered release conditions placed on him. The subject appears to have difficulty controlling explosive and unpredictable outbursts of anger. Alcohol induced blackouts and memory loss may make recall and reflection more difficult.

A pattern seems to be emerging in this area as evidenced by his charge for youth violence under similar circumstances. Additionally, he appears to have little insight into his offending behaviour and presents as somewhat guarded with emotions noting that it was “hard to share”. Nonetheless, he assured the writer that he did feel grief at the loss of his cousin by his own hand. Perhaps his lack of maturity and insight keeps him from appreciating the seriousness and permanent consequences of his actions.

The subject will likely continue to have high risk potential for recidivism until he has some recognition of problems facing him. He denies having anger management deficits. He recognizes the need to abstain from alcohol absolutely, but readily admits he plans to smoke marijuana for its perceived benefits. He believes that he is psychologically well and does not require any mental health assistance.” D. IMPACT ON THE VICTIM [ 17 ] Ida Williams, the mother of the victim, filed a victim impact statement and read that statement in court. The death of her son has left a significant void in her life.

She suffers from depression and elevated levels of stress. She has frequent panic attacks. Ms. Williams says her life has lost purpose, and she feels vulnerable and weak. She feels rejected by her family. She concludes her statement in a telling and profound fashion, describing herself as emotionally helpless, hopeless, worthless, and a failure as a mother, sister and aunt. E. POSITION OF THE CROWN AND DEFENCE [ 18 ] The Crown and defence jointly submit that a penitentiary sentence of between 6 and 10 years, less 9 months credit for pre-sentence custody, is a fit sentence in these circumstances.

Counsel agree that a DNA order and a lifetime firearms prohibition pursuant to

section 109 of the Criminal Code be imposed. [ 19 ] The Crown seeks a jail sentence at the high end of the proposed range. The Crown has identified a number of circumstances that I should consider as aggravating, including the following: 1. Mr. Kanate has a record for violence, the assault on his father, where a weapon was used; 2. Mr. Kanate breached his release conditions and as such ought not to be considered a good candidate for a rehabilitative sentence; 3. the pre-sentence report is not positive; 4. violence is a common thread through Mr.

Kanate’s life, and he doesn’t appear to have insight into this problem; and 5. a weapon was used. Given Mr. Kanate’s reluctance to acknowledge an anger problem, the sentencing objective of specific deterrence is of particular importance, and ought to be the paramount sentencing objective. [ 20 ] While defence counsel agrees with the sentence range proposed, he urges the court to impose a sentence at the lowest end of the range. Counsel asks the court to consider Mr. Kanate’s upbringing and the abuse he was exposed to as a youth, particularly living in a household rampant with alcohol and drug abuse.

Counsel also asks the court to place into context Mr. Kanate’s assault on his father, and note that there was verbal abuse and a firearm incident that that may have contributed to Mr. Kanate’s conduct. [ 21 ] It is also noted that Mr. Kanate stabbed Mr. Williams once in a part of his body that would not normally result in death. The act lacked premeditation. Further, Mr. Kanate’s high level of intoxication was a contributing factor. Mr. Kanate’s plea ought to be taken into account as an indication of remorse. His expressions of remorse in the Gladue Report, the pre-sentence report and in court

during the sentencing hearing demonstrate an acknowledgment of the harm he has done and his acceptance of responsibility. F. REASONS 1. Purpose and Principles of Sentencing [22] The purpose and principles of sentencing are set out in

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

a) to denounce unlawful conduct; (

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 acknowledgment of the harm done to victims and to the community.” [23]

Section 718.1 of the Criminal Code requires that sentences imposed be proportionate to the gravity of the offence and thedegree of responsibility of the offender.

Section 718.2 of the Criminal Code requires the court to consider any aggravating andmitigating circumstances, paying particular attention to the circumstances of aboriginal offenders. 2. Sentencing of Aboriginal Offenders [24] The Supreme Court of Canada in R. v. Gladue, (SCC), [1999] S.C.J. 19 considered in detail sentencingprinciples, including those principles involved in sentencing aboriginal offenders.

Section 718.2(

e) of the Criminal Code requires a courtto consider the circumstances of aboriginal offenders and was enacted in part because of the problem of the disproportionateincarceration of aboriginal offenders. The Court in Gladue concluded that

section 718.2(

e) of the Criminal Code affirmed existingsentencing principles, and was remedial in nature. These principles were reaffirmed by the Supreme Court of Canada in R. v. Wells 2000SCC 10 , [2000] 1 S.C.R. 207 and by the Ontario Court of Appeal in R. v. Kakekagamick, (ON CA), [2006]O.J. No. 3346.

Indeed, in Kakekagamick, the court noted that there was an obligation on the sentencing court, Crown and defencecounsel to ensure that all relevant information with respect to the offender’s aboriginal status be before the court, and be taken intoaccount in determining a fit sentence. [25] The duty of a sentencing judge to impose a fit sentence has not changed. Rather, sentencing of aboriginal offendersrequires a consideration of their unique circumstances, including systemic and background factors that may have played a

part inbringing the offender before the courts. While it is important to consider the particular circumstances of Aboriginal offenders and theprinciple of restorative justice, the sentencing objectives of denunciation and deterrence must still be given due consideration, especiallyfor serious offences. The balance sought to be struck with respect to these sentencing objectives is described in Gladue at paragraph 78and 79: “In describing the effect of s. 718.2(

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders mustalways be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such asdeterrence, denunciation and separation … Clearly there are some serious offences and some offenders for which and for whomseparation, denunciation, and deterrence are fundamentally relevant ...

Generally, the more violent and serious the offence the morelikely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same,even taking into account their different concepts of sentencing.” [26] The pre-sentence report, and more particularly the Gladue report, identify the intergenerational impact that substanceabuse has had on Mr. Kanate. There is evidence that Richard Kanate’s character was, to some extent, forged by his and his parent’s

experience in residential schools. Tinea Kanate was physically abused by her parents. These experiences contributed to creating theenvironment within which Mr. Kanate was raised. Notwithstanding the positive aspects of his upbringing, it is not surprising that Mr.Kanate’s behaviour, including substance abuse and violence, reflects the environment he was exposed to as a child. 3. Analysis [27] There is no statutory minimum penalty for manslaughter. The maximum penalty is life imprisonment. Counsel haveprovided a number of cases to assist the court in arriving at a fit sentence.

The sentences imposed in these cases vary, and in somecircumstances widely. That broad range of sentence reflects the reality that manslaughter occurs within a wide variety of circumstances,from near accident to near murder (as per Blishen, J. in R. v. Tabbara, [2009] O.J. No. 4397).

Given this broad range, and mindful thatthe circumstances of each offender are different, flexibility is essential to allow a sentencing judge to craft a fit sentence, one that takesthese unique circumstances into account and strikes a meaningful balance among the various sentencing objectives. [28] The cases submitted by Crown counsel fall within the joint submission range. Many involve, quite typically, the abuse ofalcohol and the use of a weapon. In R. v. Charlie [1987] Y.J. No. 35, the accused and the deceased were friends and had been drinkingtogether. For reasons that are unclear in the case reports, Mr.

Charlie stabbed his friend with a knife, causing his death. Mr. Charlie had asignificant drinking problem and a criminal record for petty crimes. He was extremely remorseful. The court imposed a sentence of 5years imprisonment less pre-sentence custody. [29] Similarly in R. v. Francis [2007] N.S.J. No. 277, the accused, in an intoxicated state and in response to some teasing fromthe deceased beforehand, struck the victim in the neck with a glass, severing his jugular artery and causing his death. The offender was a39 year old aboriginal male with a severe alcohol problem. He had no record of violence.

In that case, the court categorized thecircumstances of the offence as closer to murder than accident. A sentence of 7 years imprisonment less pre-sentence custody wasimposed. [30] The cases submitted by defence counsel fall outside the joint submission range. The sentences imposed in those caseswere all within a reformatory range. Defence counsel’s submission however, is that those cases are similar to the case at bar, includingthe mitigating factors. Accordingly, these ought to be persuasive in placing this case at the lower end of the proposed range. [31] For example, in R. v.

Tarbarra, supra, the accused’s act was spontaneous and impulsive and the results of the blow wereunintended. In R. v. Braune, 2006 ONCJ 50 , [2006] O.J. No. 679, one blow was delivered to the head of the victim, knockinghis head into a cement wall causing his death. There was no intention to cause death. In R. v. Whitteker, [2004] O.J. No. 1415, theaccused killed her husband with a single stab wound after a day-long drinking binge. In R. v. Gayle, [1993] O.J. No. 1614, the accusedwent to the victim’s house to collect a debt. The victim produced a knife.

The accused stabbed the deceased under the arm, causing hisdeath. These cases illustrate situations, much like Mr. Kanate’s, where one blow was delivered, with no intention to cause death. [32] While these cases are helpful to illustrate general sentencing principles, they are cases decided on their particular facts.While there may be some similarities to the matter before me, I am mindful that I must arrive at a fit sentence based on Mr. Kanate’scircumstances and the circumstances of this offence. [33] Given Mr. Kanate’s circumstances and the circumstances of this offence, what is a fit sentence?

On the spectrumidentified in the case law, I am satisfied that this case can be properly categorized in the middle of that spectrum, perhaps slightly closerto near accident than to near murder. There is no doubt that Mr. Kanate’s actions were intentional although the result was not. While itwas Mr. Williams who initially produced the knife, once Mr. Kanate had taken it away, there was no need for him to do anythingfurther. Mr. Kanate should have walked away. He did not. The results were tragic and deadly. [34] There are a number of mitigating factors in this case. Mr.

Kanate’s youth, his limited criminal record, albeit related, andhis guilty plea and expressions of remorse are all factors which stand in his favour. Of concern is the use of a weapon, and, perhaps mosttroubling, Mr. Kanate’s apparent reluctance to acknowledge his problem with anger and violence. This lack of insight contributes to therisk that Mr. Kanate will remain a danger to the public and may reoffend. As such, I agree that specific deterrence takes on an enhancedrole in the sentencing process. [35] The taking of a human life requires a deterrent and denunciatory sentence.

I am mindful that no sentence I impose canresurrect Ms. Williams’ son, lessen her anguish and grief or begin to repair the terrible harm visited upon her and her family. The impactof her son’s death has been profound, and the victim impact statement only begins to describe the extent of her loss. [36] Keegan Williams’ death at the hands of his cousin is particularly tragic. The circumstances surrounding this entire eventresonate within a community that continues to suffer the effects of addictions, violence and the loss of its young people; a premature andsenseless death for Mr.

Williams, and a significant penitentiary sentence for Mr. Kanate. [37] Denunciation and deterrence are the overarching sentencing objectives for crimes of this nature. Rehabilitation, whileimportant to the offender and to the public, will play a secondary role. However, the sentence I impose must still strike a balancebetween these sentencing objectives. It should not be of such a length as to be disproportionate to Mr. Kanate’s degree of responsibilitygiven his circumstances and the circumstances of the offence.

[ 38 ] The aggravating factors I have identified cry out for a significant jail term. On the other hand, the mitigating factors, particularly Mr. Kanate’s youth and plea of guilty, support a jail sentence at the lower end of the range proposed. Considering all of these factors, I am of the view that a fit sentence in these circumstances is a term of imprisonment of 7 years. I will credit Mr. Kanate 9 months for 9 months of pre-sentence custody. G.

DISPOSITION [ 39 ] Patrick Kanate will be sentenced to a term of imprisonment of 6 years and 3 months, in addition to 9 months of pre- sentence custody. [ 40 ] The following ancillary orders will issue: 1. Manslaughter is a primary designated offence. Mr. Kanate will be required to provide such samples of bodily substance as are reasonably necessary for the purposes of forensic DNA analysis. 2. Pursuant to

section 109 of the Criminal Code , Mr. Kanate will be prohibited from possessing any firearm, ammunition and explosive substance for life. Released: December 5, 2011 ___________________________ Signed: “Justice D. DiGiuseppe”