R v Heavenfire, 2023 ABKB 538

Court of King’s Bench of Alberta Citation: R v Heavenfire, 2023 ABKB 538 Date: 20230925 Docket: 191354315Q1 Registry: Calgary Between: His Majesty the King Crown - and - Rylen Davis Heavenfire Accused _______________________________________________________ Reasons for Decision (Sentencing) of the Honourable Justice M.H. Hollins _______________________________________________________ [ 1 ] On the evening of October 25, 2019, Rylen Heavenfire shot his brother, Randen Heavenfire in the face with a shotgun, killing him. All those present, including Rylen, had been drinking heavily that day.

There was some sort of argument between the brothers and Rylen fired the shotgun he was carrying. He did not intend to kill Randen, hence the manslaughter charge as opposed to murder. [ 2 ] On September 19, 2022, a jury found Mr. Heavenfire guilty of manslaughter in the death of his brother. After submissions on the fact-finding process and my oral reasons for decision thereon, the Court heard further submissions on the appropriate sentence for Mr. Heavenfire on June 23 of this year. Accordingly, just more than one year after conviction, these are the reasons for my decision in

the sentencing of Mr. Heavenfire. [ 3 ]

Section 236 of the Criminal Code says that a person convicted of manslaughter involving a firearm is subject to a mandatory minimum sentence of 4 years’ imprisonment up to life imprisonment. The defence submits that the minimum 4 year sentence is appropriate in this case while the Crown argues that a 6 year sentence is appropriate.

General Principles [ 4 ] The overarching principles of sentencing are found in s.718 of the Criminal Code which states: “The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by unlawful conduct; (

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

c) To separate offenders from society, where necessary; (

d) To assist in rehabilitating offenders; (

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

f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.” [ 5 ] Denunciation is the communication, via the sentence imposed, of society’s abhorrence for the crime committed. Deterrence is the discouragement of this offender and any other potential offenders from committing similar crimes ; R v Moriarty , 2016 ABPC 25 at para.60. [ 6 ] In crafting a sentence, I must be mindful of the fundamental principle of proportionality; namely that the sentence passed must be proportionate to the gravity of the offence and the responsibility of the offender.

Section 718.2 of the Criminal Code further directs me to consider relevant aggravating and mitigating factors of the offence and of the offender, as well as other principles, including consistency in sentencing. [ 7 ] Although the seriousness of this crime and the use of a firearm means that a term of incarceration is necessary to a proportionate sentence, the sentence should not be so lengthy as to crush any hopes of rehabilitation on release; Moriarty, supra at para.69 [ 8 ] I will review the circumstances of the offence and the circumstances of the offender.

I will then address the aggravating and mitigating factors that are relevant to Mr. Heavenfire’s sentence and finally, look at other cases to see if any guidance is available, keeping in mind that each case must be determined on its individual facts. Circumstances of the Offence [ 9 ] I suspect that most, if not all, manslaughter cases could be described as tragic. There is no more apt description for this case. [ 10 ] Rylen and Randen were brothers who were living together with their grandparents, Donna and Jerrald Rowan in the Rowan’s house on Tsuu T’ina reserve.

From the evidence available, Rylen and Randen got along well. On October 25, 2019, Rylen, Randen and Randen’s girlfriend Gabrielle DeLoof had been playing games and drinking at the Rowan home. In the late afternoon, they went to a close-by relative’s house and then into the liquor store in Bragg Creek to get more alcohol.

They drank some more outside the store and eventually, Rylen, Randen, their uncle Ian Heavenfire and Gabrielle left the liquor store to walk back to the Rowan home through the bush. [ 11 ] Although not a lot of thought appeared to go into this, a decision had been made to take their guns with them when they left the Rowan home in case they wanted to go hunting later. Rylen loaded three rounds of ammunition into the shotgun, which he carried. Randen carried a rifle. Although the firearms were not being handled or carried safely, things were okay until their walk home. At some point, the brothers began to argue.

The argument as described made very little sense so was presumably affected if not precipitated by the fact that they were both intoxicated. [ 12 ] Randen yelled at his brother something like “Go ahead and shoot me then” or “what are you going to do, shoot me?” while Rylen was holding the shotgun at his midsection with the muzzle pointed at Randen. Rylen fired the shotgun, hitting Randen in the face at close range, killing him. No one knew what to do. Ian Heavenfire left the scene.

Rylen lay down beside Randen’s body for quite awhile, possibly asleep or passed out, before Gabrielle could convince him that they needed to go to Donna Rowan and tell her. [ 13 ] Rylen was arrested later that night. He gave statements to the police the next day which were videotaped and played at the trial. In these statements, he seemed to be struggling to understand exactly what happened. He did not deny shooting Randen but resisted the truth of the fact that he had done so.

He hypothesized that the gun may have gone off because Randen tried to grab it or because it fell on the ground, but those things were found to have not happened. Rylen was holding the gun with it pointed at Randen when the shot was fired.

Circumstances of the Offender [ 14 ] Both a Gladue report and a Forensic Assessment and Outpatient Services (FAOS) report were provided to the Court to assist in understanding Rylen’s circumstances. [ 15 ] Rylen was 20 years old at the time of this incident. He was, as mentioned, living with Donna Rowan, who has raised him from a young child. I note that Donna was generally referred to as his grandmother but is listed in the Gladue report provided to this Court as his great aunt. In any event, it is clear that Rylen has considered Donna and her husband, Jerrald Rowan, to be his parents.

He has been with them since he was a baby. [ 16 ] His biological parents appear to have had little to no involvement with his upbringing. His father lives in Morley in the Stoney Nakoda Nation, although Rylen has had no historical relationship with him. His mother still resides on Tsuu T’ina but has similarly little involvement with Rylen. Rylen believes he was raised by Donna and Jerrald because of his mother’s alcohol abuse.

Notwithstanding his positive experiences growing up in the Rowan home, Rylen occasionally expresses some negative feelings of rejection and abandonment. [ 17 ] Donna is from his mother’s side of the family, part of the Tsuu T’ina First Nation. Jerrald, who sadly passed away in December of last year, was from the Cree nation and had lived in Pigeon Lake, Alberta on the Maskwacis First Nation. Jerrald was a residential school survivor, who had suffered abuse during his time there. [ 18 ] Donna and Jerrald provided Rylen with a stable and supportive home. Rylen finished high school.

He has no prior criminal convictions. At the time of this offence, he was employed with the Redwood Meadows Golf Course and had aspirations of developing his own business opportunities on Tsuu T’ina, most notably a lumber-cutting business. He helped with the maintenance of the family property and has continued to be productive on Tsuu T’ina while awaiting sentence. [ 19 ] Rylen has a five-year old daughter and has been in a relationship with her mother, Felicity, on and off, for the last six years.

Felicity describes Rylen as a pretty good dad, who loves Rylie and her half-sibling and is very hands on with them. [ 20 ] Both Donna and Jerrald also provided Rylen with exposure to his First Nation heritage and facilitated his involvement in many community and cultural activities including pow wows, dances, wakes, sweats and more. Indeed, Rylan has continued to be deeply connected with his community in the four years since the offence. [ 21 ] Rylen reports no physical or mental problems and no has no history of substance abuse.

Although it appears that alcohol was a factor in one prior altercation between him and Felicity, all sources agree that Rylen was not big drinker. He says that he had not tried alcohol until he was 17 years old and that he consumed it infrequently, perhaps resulting in a low tolerance for it. [ 22 ] The deceased, Randen, was Rylen’s brother. However, he had only moved in with Rylen and the Rowans some months prior to the offence. Rylen says that he and his brother got along well and had no problems.

They were planning, according to Rylen, to pursue the wood-cutting business together. [ 23 ] Rylen presents as a good candidate for rehabilitation. The FAOS report identifies him as low risk to repeat criminal behaviour and I agree with that assessment. Rylen has repeatedly expressed his genuine remorse for his role in Randen’s death and has never tried to deflect blame onto any other person or circumstances.

As the FAOS report concluded, but for this event, Rylen “is an individual who would have been unlikely to ever have found himself before the Courts.” Aggravating Circumstances [ 24 ] Although the abuse of a family member in the course of an offence is an aggravating circumstance under s.718.2 (a)(ii), neither counsel raised this. I expect that is because of the lack of intent in manslaughter generally but specifically in this case as well. [ 25 ] The use of a firearm is an aggravating circumstance but is also the reason for the 4-year minimum sentence.

I can take the weapon into account while still ensuring, as noted by Mr. Wojick, that I do not effectively punish Mr. Heavenfire twice for the same aggravating factor. [ 26 ] There were no other aggravating circumstances raised. Mitigating Circumstances [ 27 ] There are a number of mitigating circumstances, beginning with the youthfulness of the offender. As mentioned, Mr. Heavenfire was only 20 years old at the time of the offence.

It can be assumed that a lack of experience and maturity may have played a role in his consumption of alcohol and the carelessness with which he handled a loaded shotgun, the two major contributors to the shooting. [ 28 ] The Gladue report very fairly reports that Mr. Heavenfire had a stable family home with Donna and Jerrald Rowan, with many positive family and community connections.

However, there remain less obvious impacts from the systemic and generational racism that impacted Rylen, through his adoptive father’s experiences at residential school, his familial relationship with alcohol and the fractured nuclear family unit, which dynamic was never really addressed in Rylen’s life. These things must be considered if the sentence is to be truly proportional to Rylen’s moral blameworthiness; R v Swampy , 2017 ABCA 134 at para29. [ 29 ] Mr.

Heavenfire is also a first-time offender with no criminal record, strong connections to and support from his First Nations community and excellent chances for rehabilitation. While the conviction was registered following a trial – as was Mr. Heavenfire’s

constitutional right to have – Crown counsel was forthright in recognizing a number of concessions made by the defence which shortenedthe trial and narrowed the issues for the jury. [30] In addition to Rylen’s genuine remorse, I will echo Crown’s comments as well about Mr. Heavenfire’s unfailingly respectfulcommunication in and with the court, as well as his almost perfect compliance, for the last 4 years, with the conditions of his release.

Sentence for Manslaughter [31] The sentence for unlawful act manslaughter can vary considerably depending on the circumstances of the death of the victim.As our Court of Appeal said in R v Laberge, (1995), 1995 ABCA 196 , 165 AR 375, that is largely because the moral culpabilityof the offender in a manslaughter case can be fixed at any point on a long spectrum, depending on a number of factors. From para. 6 ofthat decision: All unlawful act manslaughter cases have two common requirements: conduct which has caused the death of another; and fault short ofintention to kill.

However, despite these common elements, the offence of unlawful act manslaughter covers a wide range of casesextending from those which may be classified as near accident at the one extreme and near murder at the other: R. v.Cascoe, [1970] 2 AllE.R. 833 (C.A.); R. v. Eneas, [1994] B.C.J. No. 262 (B.C.C.A.). Different degrees of moral culpability attach to each along a continuumwithin that spectrum.

It is precisely because a sentence for manslaughter can range from a suspended sentence up to life imprisonmentthat the court must determine for sentencing purposes what rung on the moral culpability ladder the offender reached when he committedthe prohibited act.

The purpose of this exercise is to ensure that the sentence imposed fits the degree of moral fault of the offender for theharm done. [32] Assessing mens rea in a manslaughter case involves an objective analysis (what should have been in the offender’s mind atthe time of the offence) and a subjective analysis (what was in the offender’s mind at the time of the offence, if we can know). For boththe objective and subjective, the Laberge court then gave three levels of knowledge underpinning moral culpability. They are knowledge(objective and/or subjective) that the offender’s conduct would: (

a) likely subject the victim to bodily harm; (

b) likely subject the victim to serious bodily injury; or (

c) likely subject the victim to life-threatening injuries.

Laberge, at paras.13-17. [33] Factors which may inform that classification include: (1) the degree of deliberation or its converse, the degree of spontaneityof the act, (2) the physical act itself, including the degree of force and whether a weapon was used, (3) the level of violence, includinggratuitous violence and, where appropriate, as reflected in the victim’s injuries; and (4) the element of chance in the resulting death. [34] The defence argued that this offence fell between the first and second levels and the Crown argued that this was closer to“near murder” than “near accident” which I take to be the third, most serious level, or alternatively between the second and third. [35] Both sides agree that the act was impulsive and spontaneous.

However, I found as a fact that this was not purely accidental.Rylen was holding the gun and aiming it at his brother while they argued. Rylen pulled the trigger.

Particularly given his level ofintoxication, that was an action without much if any thought, but the act itself was not an accident. [36] In argument, defence conflated the fact that Rylen did not intend to kill or even to hurt his brother with this being an accident.Randen’s death was accidental in that Rylen did not intend to kill him but Rylen purposefully pulled the trigger, even if he had little to nosubjective appreciation for the immediate and irrevocable consequences of doing so. [37] Defence counsel argued vigorously that we have no evidence of any subjective intent at all in this case, although he concededthat there was clear objective foreseeability – indeed as an element of the offence of unlawful act manslaughter, the jury has to haveaccepted as much.

Rylen should have realized that his actions were likely to cause something between harm and life-threatening injuries,even though he did not. [38] As the Court of Appeal says in Laberge, however, moral blameworthiness may still be properly assigned in an objective mensrea case: Despite the fact that the Crown need not prove that an offender knew or intended that his conduct would put his victim at risk of injury inorder to ground a conviction for manslaughter, whether this additional level of subjective intent has been established is important inassessing the offender’s blameworthiness for sentencing purposes.

That is because our criminal justice system is based on the premisethat, all other things being equal, the more an offender’s “intention” or “awareness” approaches the point that he knew or was wilfullyblind to the fact that his unlawful act was not only likely to put the victim at risk of death, but indeed to cause death, the more culpablehe is.

Similarly, even absent proof of subjective mens rea, the more that the offender’s conduct, on an objective basis, approaches thepoint where it can be said that he ought to have known, had he proceeded reasonably, that his unlawful act would be likely to cause life-threatening injuries as opposed to simply putting the victim at risk of bodily injury, the more culpable he is. In other words, theoffender’s moral blameworthiness and in turn the gravity of the offence are functions of the degree of fault.

Laberge, at para.14 [39] Rylen Heavenfire should have realized that pointing a loaded gun at his brother, at close range, in the middle of an argumentwhen they were both highly intoxicated was an action that was likely to result in serious bodily harm to Randen. In other words, I wouldput this in the high end of the second range of the Laberge levels on the grounds of the objective foreseeability.

[ 40 ] However, looking at the list of other factors in Laberge – degree of force, choice of weapon, degree of brutality, gratuitous violence, degree of planning or deliberation – none of these are present. Rylen did not plan or intend to kill his brother. He fired the gun on purpose but, given his extreme intoxication, could not have subjectively appreciated the consequence of doing so. There was no gratuitous violence, only instant (if drunken) remorse. And in terms of choice of weapon, I accept that the brothers took their loaded guns with them thinking that they might do some hunting later.

That decision, to load and carry firearms while drinking all day and walking around in the bush, was the precipitating and fateful decision. [ 41 ] Defence relied on a recent case from the BC Court of Appeal, R v Penner . Although it dealt primarily with yet another unsuccessful challenge to the mandatory minimum sentence for manslaughter with a firearm, the following passage is relevant to this case, even though ours involved no such constitutional challenge: The four-year mandatory minimum captures conduct that warrants general deterrence and strong denunciation.

The careless use of a firearm poses grave risk to the public. Parliament is entitled to enact mandatory minimum sentences that signal that a disregard for the life and safety of others in handling firearms is “simply not acceptable”: Hilbach at para. 71, quoting Morrisey at para. 47 (emphasis in the original); Morrisey at para. 54.

In Hilbach , Martin J. observed that in this context, courts have emphasized the need for denunciation and deterrence “ . . . both to convey our society’s abhorrence of gun violence and to communicate to potential offenders that a significant sentence accompanies the use of a gun to commit violence”: at para. 73. R v Penner , 2023 BCCA 191 at para.90 [ 42 ] Thus the “choice of weapon” criteria is indeed captured in s.236 (

a) as meeting the objectives of sentencing, subject, of course, to all the other factors that go into determining a fit sentence for any offender. [ 43 ] I want to address one other factor to be considered – namely the impact of this crime on this family and this community. Donna Rowan, who is suffering her own health challenges, did not provide a victim impact statement because she “had no words” to describe how this has changed her life. That itself must be an understatement. Rylen and Randen were both her great nephews but her children, in effect; one killed by the other.

She has, to some extent, lost them both. [ 44 ] Donna has advised the court of her current health challenges and how much Rylen has done to help her through a terrible hospitalization and a long and ongoing recovery. That sounds typical of Rylen, who is described by everyone as someone with a big heart. I can understand how much Donna wishes to keep Rylen with her but we must respect Randen’s life as well.

Unfortunately, no one can return Randen to Donna or to Rylen. [ 45 ] All I can do is impose a sentence that fulfills the requirements of denunciation and deterrence and hope that Rylen can come out the other end of this still supported by and engaged with his family and community and willing to be the son, the father and community member that he shows every possibility of being. I also hope that, perhaps, by finally beginning to serve his sentence, he will experience some measure of healing in that penance. [ 46 ] I find that a sentence of four years imprisonment is a fit sentence.

There is no appreciable time in custody to subtract. In addition, there are ancillary orders not opposed by the defence, namely a DNA order, a 10-year weapons ban and lifetime restricted weapons ban under s.109 of the Criminal Code and a forfeiture previously signed. Heard on the 23 rd day of June, 2023. Dated at the City of Calgary, Alberta this 25 th day of September, 2023. M.H. Hollins J.C.K.B.A. Appearances: Mr. Vince Pingitore for the Crown Mr. Stephen Wojcik for the Accused