) Ms. D. Sahulka, ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. P. Smith v. - and -, 2017 MBPC 62

Citation No. 2017 MBPC 62 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. D. Sahulka, ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. P. Smith and - and - ) Mr. R. Amy, ) for the Accused VANESSA LOUISE NEPINAK AND ) CANDICE NORA NEPINAK ) ) Sentence delivered Accused. ) December 6, 2017 _____ POLLACK, P.J. (Orally) So two sisters, Vanessa Nepinak and Candice Nepinak are guilty of manslaughter in the death of Cynthia Huntinghawk and assault causing bodily harm to the deceased’s sister, Charlotte Huntinghawk. The victims had a step-brother, Russell Spence, who at the material time was in a relationship with Vanessa.

The offenders have known the victims virtually all of their adult lives and the backgrounds of all are punctuated with Gladue factors. On January 12th of 2016, Charlotte and Cynthia were residing in a rooming house in Winnipeg. The group gathered in Cynthia’s room and they were consuming intoxicants like hand sanitizer, hairspray and mouthwash. Vanessa was there because she had come to visit a friend. Cynthia did not want Vanessa to stay and Vanessa moved to Charlotte’s suite. Charlotte did not want her there either and Vanessa was forcibly removed by a group that included Charlotte and Cynthia.

She was beaten and dragged down the stairs and thrown out. The apparent motive for wanting Vanessa out of the house was the false accusation that she carried the human immunodeficiency virus. Vanessa was heard to say to Charlotte and Cynthia: “Fuck you, I’m going to fucking do you guys”. Vanessa then took a five-minute walk to the residence where Candice was living. With both eyes blackened, it was obvious to Candice that she had suffered a beating. In a plan to seek vengeance they decided that each of them would beat one of the Huntinghawk sisters. Together they walked to the rooming house.

Vanessa was aware of Candice’s habit of carrying a knife. Candice had been drinking at home and was no less intoxicated than her sister. The women arrived at the rooming house and kicked in the front door. They found Charlotte and assaulted her, dragged her down the stairs. But Charlotte managed to get away from them and ran out of the building. Then Vanessa and Candice found Cynthia unconscious in a chair. They pulled her out of the chair by her hair and dragged her down the stairs as well. Using what the prosecutor described as a small kitchen knife, Candice began stabbing Cynthia about the head.

Cynthia said nothing because she remained unconscious. Vanessa and Candice left the building and saw Charlotte across the street making a 911 call. A recording of the call indicates that she saw them coming and told the operator. There she was assaulted again. Police arrived shortly and arrested Vanessa in front of the rooming house. Candice walked back to her home and she was arrested there. Now, it cannot be said that Charlotte recovered from the events of that evening. She told a victim services worker that she was on anti-depressant medication as a result of the incident.

She said: “I have permanent scars on my arm and back and still have a lump on my head. I have pain and headaches all the time from being dragged down the stairs. I have sleep problems and nightmares, flashbacks and have to take medication to help me sleep.” Her victim impact statement includes the important recollection that the Huntinghawk sisters spent time in foster homes and, in her words: “They tried to separate us but we always find each other.” Cynthia suffered multiple abrasions and bruises as well as six stab wounds to the right side of her face.

The stab wounds were described by the pathologist as: Relatively minor in that they did not involve any major vascular structure.

And the trauma to her head was not: Of a severity that they would be life threatening in and of themselves. And as the pathologist continued: Acute alcohol intoxication is known to potentiate the effects of blunt head trauma. Many case reports exist of intoxicated individuals dying as a result of relatively minor head trauma. Cynthia’s blood alcohol concentration was 231 milligrams percent at the time of her death. That both Vanessa and Candice were intoxicated was clear to police at the outset. The agreed statement of facts included the statement: “Both showed visible signs of being highly intoxicated.

Police were unable to revive Candice in her intoxicated state and had to leave her sleeping on the floor of the police station until she could wake up with some lucidity.” Why the sisters were originally charged with murder was not explained to me. But it is, it is clear that they were always prepared to admit causing Cynthia’s death by an unlawful act. And their guilty pleas to manslaughter as well as assault causing bodily harm to Charlotte were timely guilty pleas.

One can only imagine how agonizing and exhausting it would have been for Charlotte to testify and for her family to wait to see if a judge would hold Candice and Vanessa responsible. The prosecution seek a sentence of eight to 10 years for each offender for manslaughter and a concurrent sentence of one year for assault causing bodily harm. In making that submission, they submit that this range follows the same reasoning as judgments like R. v. Crane in this court in, in March of 2003. And Abraham and Starr in the Court of Queen’s Bench in 2014.

Before citing those cases, they referred me to the Csincsa decision in 1993 released by our Court of Appeal 12 days after the Supreme Court of Canada’s Gladue decision. On behalf of that panel, Justice Philp wrote, at paragraph 17: “Alcohol or drugs and culpable homicide are frequent companions. Intoxication which negates the capacity to form the intent to kill will reduce murder to manslaughter.

Nevertheless, drunken killings have attracted heavy sentences particularly where the offences are committed in a brutal fashion.” Next paragraph: “Self-induced or voluntary intoxication, however, is not a factor that will be taken into account on sentencing because the accused has already benefited from his intoxication by the reduction of the offence from murder to manslaughter.” It’s my opinion that this dicta should not necessarily apply to sentencing where the Gladue factors are as prominent as they are here.

The defence have provided examples of manslaughter sentencings in a lower range but with some factors in common with this case, including intoxication and provocation. And using the pre-sentence reports, they have been able to show that the Gladue factors are overwhelming. Indeed prosecution counsel elaborated upon that evidence in her own submission, making the interesting observation that the Huntinghawk sisters were affected in a similar way by antecedents.

The forty pages of pre-sentence report writing contain a virtual index of the social and health effects of residential schools, vivid domestic violence and untreated addiction over the generations. One sibling tried to hang himself, another is one of the missing indigenous women. Yet another was in the same remand centre as the offenders. Vanessa’s four children are under permanent guardianship, three of them since birth. One of Candice’s children is in care and the other lives with its father in a different community.

Both offenders admit to being drug addicts when they became mothers with substance addiction having begun at an early age. The right of an aboriginal offender to a Gladue report is facilitated in Manitoba by the judge ticking off a box on a pre-sentence report requisition to alert the probation officer that a Gladue component should be included. Every pre-sentence report contains a risk assessment based upon the application of the Manitoba Corrections Level of Service Case Management Inventory. Both probation officers rated the offender about whom they wrote as a high risk to reoffend.

Based upon these factors, companions, social patterns, leisure, recreation, family, marital and criminal history. In the case of Candice, the probation officer added: Attitude, orientation and education employment. These risk factors are followed by these remarkably similar statements by different probation officers: Although not identified as a significant criminogenic risk factor, the writer would suggest Candice’s history of substance abuse is an area

which may need to be addressed for the purposes of case management. In the other report: Although not identified as a significant criminogenic risk factor, the writer would suggest Vanessa’s history of serious substance abuse such as, frequent use of solvents, is an area which may need to be addressed for the purposes of case management. The comments about community supervision by different probation officers are also remarkably similar.

Here is Candice’s: Given Candice’s high risk to reoffend, history of violent offending, current violent offending and repeated history of non-compliance during community supervision, it is this writer’s assessment the subject is not a suitable candidate for community supervision and cannot be safely supervised in the community at this time.

From Vanessa’s report: Given Vanessa’s high risk to reoffend, current violent offending and history of non-compliance of court ordered conditions and judicial sanctions, it is this writer’s assessment the subject is not a suitable candidate for community supervision and cannot be safely supervised in the community at this time. Perhaps there is some criminological reason to deny that substance abuse leads to crime. But more importantly, it seems to me, that the risk factors enumerated reflect, in the case of each offender, the offender’s Gladue factors.

Having lost her partner, Russell Spence, while in custody, companions in Vanessa’s case means no close friends and a peer group that she describes as criminally involved. Candice has one close friend, but any others are homeless and in her words, “Not doing well”. Their family history included violence in the home, substance abuse and conflict among siblings. Although, Vanessa’s relationship with Russell goes back to their teenage years, his occupation appears to have been crime. And his presence does not seem to have deterred her substance abuse.

Prior to her incarceration, Candice was in one of several of her past abusive relationships. Other Gladue factors in the offender’s lives yield similar analysis as risk factors. A cynic might say that the application of LS/CMI to Indigenous offenders in Manitoba means that offenders with prominent Gladue factors will inevitably be, be classified in a higher risk category. That would be contrary to what Justice Labelle wrote for the majority in the Ipeelee decision. In amplifying the court’s ruling in Gladue , at paragraph 59: “The court held therefore, that

section 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.” Referring to Gladue at paragraph 93. Continuing: “It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence of Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders.” Referring to Gladue at paragraph 37.

A few paragraphs later, at paragraph 74, Justice Labelle continued: “The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.” These offenders have criminal records clearly set out in the prosecutions sentencing material.

Although she was guilty of assaulting a peace officer in 2000, Vanessa’s recent criminal record indicates a struggle for survival on the street by a helpless addict, without causing particular harm to others. Interestingly, in 2014, she was involved with a program called Transition, Education and Resources for Females while on probation for theft. T.E.R.F. workers reported that she had indicated an interest in upgrading her education, had done some school work at home and there were plans for her to return to school.

Candice’s record is troublesome. In the past 10 years, she has been convicted about 40 times. And her convictions included: Assaulting a peace officer, breaking and entering, and common assaults. Just eight months before her arrest, she was convicted of assault causing bodily harm and released on probation after serving the equivalent of one year in custody. And indeed, while on remand for this sentencing, she was convicted of a breach of that probation order.

So having opined that the Manitoba Court of Appeal’s reasoning about intoxication and manslaughter offences should not necessarily apply to this case, I’m left with trying to give affect to Justice Labelle’s directions, to consider whether there are alternative sanctions proportionate to the gravity of the two offences and the degree of responsibility of Candice and Vanessa. Regardless of their states of intoxication, the offenders decided to avenge the beating received by Vanessa and the bodily harm that she indeed suffered and executed -- I will read that again.

The offenders decided to avenge the beating received by, by Vanessa and the bodily harm that she indeed suffered and executed that decision as planned. They beat Charlotte until she could escape. After beating the helpless Cynthia, they set upon Charlotte again as she was calling for help. Having decided that a sentence including community supervision is inapplicable, I am left with no different or alternative sanctions to penitentiary, to effectively achieve the objectives of sentencing. It is clear that community supervision is out of the question at this time, regardless of the 23 months of pre-trial custody.

The application of enhanced credit is not opposed by the prosecution and therefore, the offenders can be taken to have served approximately 35 months. If my sentence was to include community service at a later time it could not exceed two years, less one day, yielding an aggregate sentence of imprisonment for less than five years. A sentence of less than five years would, in my opinion, fail to satisfy several sentencing purposes.

Denunciation, deterrence, the necessity for separation of the offenders would not be served by such a sentence, even in the case of Candice’s lesser record and certainly in the case of Vanessa’s last convictions. Candice is 33 years of age and her criminal record is full of warning signs about violent offending, like what happened on January 12th of 2016. Vanessa is 37 years of age with a less concerning record, although I note that she received what was an unsuccessful conditional sentence in 2000 for assaulting two police officers.

In my opinion, the slight distinction in sentencing to reflect the differences in their criminal records and the introduction of an edged weapon by Candice, is called for. In assessing the appropriate length of these sentences, I consider the significant differences in the life of each offender in a lengthy penitentiary term. There’s no such institution in Manitoba and the offenders will not only be living separate, but away from their homes and peers and lifestyles described in their pre-sentence report.

Perhaps the corrections authorities will accept the recommendation by one of the probation officers that the Okimaw Ohci Healing Lodge is a suitable institution. Neither has had the opportunity over a period of years, in sobriety and without concern for food, clothing and shelter to access rehabilitation opportunities. And having considered the pre-sentence reports and the submission of counsel, I do not think that rehabilitation, during and after the sentences that I’m about to impose, is hopeless. Please stand.

Candice Nepinak is sentenced to a term of seven years for manslaughter and a concurrent term of two years for assault causing bodily harm. Vanessa Nepinak is sentenced to a term of six years for manslaughter and a concurrent term of one year for assault causing bodily harm. Each has been in detention since December 12th, 2016 and the application for enhanced credit is unopposed. Having served just over 23 months, credit for time served is rounded up to 35 months. Therefore, Candice’s sentence going forward is four years and one month. Vanessa’s sentence going forward is three years and one month.

Manslaughter is a primary designated offence and each offender must provide a sample of her DNA on demand to a qualified peace officer for entry in the national database. Pursuant to Criminal Code

Section 109, I am making an order prohibiting each offender from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for 10 years following release from imprisonment. The Criminal Code requires me to impose a victim fund surcharge of $200 on each count for a total of $400 for each offender. Those amounts must be paid within one year following release from imprisonment. That will be all. _____