R v Taylor, 2023 ABKB 175

Court of King’s Bench of Alberta Citation: R v Taylor, 2023 ABKB 175 Date: 20230324 Docket: 200853216Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Darrell David Taylor Accused _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M. Hayes-Richards _______________________________________________________ [ 1 ] I gave an oral version of this decision from the bench on March 23, 2023. Counsel requested a written version. In this written version I have added proper citations and made slight corrections to language.

Otherwise, this written decision is a near- verbatim rendition of the oral reasons. The oral version delivered in court remains the official version. I. Introduction [ 2 ] On January 11, 2023, I accepted Mr. Taylor’s plea of guilty to manslaughter for the death of Russell William Storoschuk.

Sentencing was adjourned for the preparation of reports. A sentencing hearing was held on March 21, 2023. I reserved for two days to consider the parties’ positions and determine a fit and proportionate sentence for this crime. [ 3 ] Sentencing for manslaughter is a difficult task because manslaughter covers a wide range of factual situations ranging from near-accident to near-murder.

It is even more difficult when the offender is Indigenous, there are Gladue factors at play, and there are psychological assessments confirming the offender has cognitive deficits that affect his decision making. [ 4 ] Prior to the sentencing hearing, I was provided with a Gladue Report that was prepared in 2021, a Neuropsychological Assessment Report from Nelson Psychological Services (Assessment Report), and an Assessment and Diagnostic Services

Summary Report and Recommendations from the Northwest Central Alberta FASD Network (FASD Report). I also reviewed the large number of cases provided by both Crown and Defence. A Gladue Report ordered by the Court on January 11, 2023, had not yet been completed but Mr. Taylor chose to proceed with the sentencing based on the 2021 Gladue Report. II.

Circumstances of the offence [ 5 ] An Agreed Statement of Facts (ASF) was entered at the time of the guilty plea setting out the circumstances of the offence. [ 6 ] On August 22, 2020, the deceased, Russell William Storoschuk, was drinking at a pub until approximately 1:40 am. He was 68 years old. Mr. Storoschuk left the pub, went into a bus shelter in front of the Italian Bakery at 118 Avenue and 42 Street, and fell asleep. [ 7 ] Around 4:08 am, the accused, Mr. Taylor, was riding by the bus shelter on a mountain bike. A witness described him as “out of it” and “hyped up”, and said Mr.

Taylor was acting erratically and circled around the bus shelter. A verbal altercation ensued between Mr. Taylor and Mr. Storoschuk in which they were yelling at each other. Mr. Taylor dismounted his bike and approached Mr. Storoschuk. Mr. Taylor sucker punched Mr. Storoschuk with his right fist on the left side of Mr. Storoschuk’s head, which knocked Mr. Storoschuk to the ground. Mr. Taylor then started kicking Mr. Storoschuk’s head while he was on the ground. [ 8 ] Mr. Taylor kicked Mr.

Storoschuk’s head two more times and stomped on his head with his right leg approximately eight to thirteen times. [ 9 ] Following the assault, Mr. Taylor started running around and yelling incoherently. He changed his clothing and rode away on his bike. [ 10 ] Edmonton police arrived by 4:19 am. Mr. Storoschuck was lying on the pavement, unconscious and incontinent. There was a circular pool of blood to the right of his head and a pool of blood under the right side of his face. Blood was also draining from his mouth. Mr. Storoschuck’s face was not identifiable from the assault. [ 11 ] Mr.

Storoschuk was transported to hospital but succumbed to his injuries at 2:02 pm that afternoon. An autopsy found the cause of death was blunt head trauma. [ 12 ] Mr. Taylor was identified through surveillance videos and information received by police. He was arrested on August 29, 2020, and provided a video recorded statement wherein he identified himself as the person in the video footage outside the Italian Bakery when the assault took place. III. Circumstances of the accused [ 13 ] Mr. Taylor was 23 years old at the time of this offence and is now 26 years old. He was born and raised in Edmonton, Alberta.

His mother is a member of the Goodfish Lake First Nation who suffered from addictions around the time of his birth. Mr. Taylor was born in withdrawal and shortly thereafter removed from his mother’s care. Mr. Taylor was adopted when he was 22 months old by Patsy and Floyd Taylor but taken from their home when he was 9 years old due to allegations of abuse against the Taylors. It is important to note that those allegations where never substantiated, and Mr. Taylor has maintained contact with Patsy and Floyd and accepts them as his parents. [ 14 ] Upon adoption, Mr. Taylor lost his treaty status.

He reconnected with his birth mother when he was 13 years old, around the same time his birth father, whom he had never met, was murdered. Mr. Taylor’s maternal grandparents attended residential school. [ 15 ] Mr. Taylor has a number of siblings, but was raised with only one of them, his sister. Both children were adopted by the Taylors and lived with the Taylors until they were removed from the home when Mr. Taylor was 9 years old. After that they lived together in foster homes and occasionally as adults. [ 16 ] Mr. Taylor reports life was good for him until he was removed from the Taylor’s home. Mr.

Taylor was treated well by Patsy and Floyd and enjoyed living in their home. He enjoyed attending church, living in the country, and attending functions with relatives. He went on family trips to Disneyland and Idaho, and was involved in many family activities like movies, fairs, swimming, and skating. He was a talented baseball player and had friends in his neighbourhood. [ 17 ] Mr. Taylor was negatively impacted by his removal from their home and his placement in foster care and group homes. These were not pleasant experiences for him.

He was placed into programs to address his anger and difficult behaviours, and he admits to creating a lot of behaviour problems in some of the group homes. Mr. Taylor often ran away from these group homes and sometimes lived on the street. [ 18 ] He went back into the Taylor’s care for a year when he was 12, but his behaviour was too difficult for the Taylors to manage.

When he was 16 years old he was set up with his own place through a Supported Independent Living program, but it did not work well for him and he returned to group homes or lived in and out of the EYOC. When he turned 18, he was put on an agreement with child welfare where he received funding until he was 24 years old so that he could have his own place. [ 19 ] Mr. Taylor’s family describes him as quick to anger . He was on different medications growing up until he decided to stop taking them.

He was angry as a child and in turn moved to different group homes, ran away, and rebelled in order to do what he wanted. [ 20 ] Mr. Taylor started using alcohol and drugs when he was approximately 14 years old. He began smoking marijuana daily and started using crystal meth at 16. He quickly became addicted. By 2019, he was drinking heavily almost daily and still using crystal meth. Mr. Taylor’s sister says that drugs changed him and that he presented as angry at the world and didn’t care about anything while using. He has never seen a counsellor or attended for addictions treatment. Mr.

Taylor acknowledges his misuse of drugs and alcohol has negatively affected his life and notes that all his offences have occurred while intoxicated. [ 21 ] Mr. Taylor has a grade 10 education. He tried to return to school when he was 18 and living with Patsy and Floyd Taylor in Lethbridge but was unable to conform to his parents’ rules. Ms. Taylor confirms that his behaviours were too tough for them and that his moods would shift like crazy. Mr. Taylor has limited work experience but expresses a desire to become a chef. [ 22 ] Mr.

Taylor believes in traditional Indigenous ways and is also accepting of other religions. He has attended sweat lodges and completed an 8 month program in EYOC to “get into culture”. He did well in a traditional healing program called the Warrior Program. [ 23 ] Mr. Taylor’s criminal record begins in 2011 and continues until June 2021, with entries in almost every year. He has numerous convictions in youth court between 2011 and 2014, including 3 entries for assault, and 3 for aggravated assault.

His adult record commences in 2015 and includes 4 entries for assault, although two of those convictions post-date the offence date here. It appears that his longest sentence of incarceration as an adult is 9 months. Mr. Taylor has already spent 937 days in pre-trial custody on the current matter. The remainder of his convictions as an adult are mostly failures to comply. [ 24 ] Mr. Taylor was assessed on December 13, 2022, by two psychologists from Nelson Psychological Services. An Assessment Report was issued January 18, 2023, and filed as an exhibit in these proceedings.

The Assessment Report sheds significant insight into Mr. Taylor’s background, medical history, and diagnoses a number of disorders. The purpose of the Assessment Report was to help delineate Mr. Taylor’s strengths and weaknesses, assist in the diagnostic process, and determine necessary supports to assist him. The FASD Report also sets out recommendations to assist Mr. Taylor in the future. [ 25 ] I do not intend to review these reports in length. The Assessment Report is a comprehensive review of Mr. Taylor’s background, medical history, and testing results. Mr.

Taylor was ultimately diagnosed with a Neurodevelopmental Disorder, possibly associated with prenatal alcohol exposure, as well as substance use and head injuries. This includes a mild intellectual disability and ADHD. A Major Depressive Disorder that is recurrent. A Substance Use Disorder, involving alcohol, cannabis, and stimulant use, although it was found to be in remission in his controlled environment at ERC.

The assessors also query a Bipolar II Disorder. [ 26 ] The FASD Report notes that he has severely impaired math skills, impaired working memory, limited planning ability, impulsivity in problem solving, poor coping skills under stress, is easily influenced and has severe mood regulation issues and emotional volatility. The FASD assessment makes numerous recommendations for best practice mentoring and assistance for the future. [ 27 ] The Assessment Report notes that Mr. Taylor presents as a cooperative young man, but he is highly vulnerable and has struggled for years.

It indicates that every effort must be made to support Mr. Taylor as he would like to gain stability in his life. Given his learning issues, history of trauma, mental health and substance use issues, he cannot be expected to independently obtain and maintain competitive employment. He requires stable financial support to assist him in moving forward in his life and increasing his independence. [ 28 ] Because of his deficits, Mr. Taylor requires external supports and controls in order to effectively engage in treatment and manage day to day living.

The Report recommends both a trustee to help manage finances, and an advocate to help Mr. Taylor maneuver other daily life stresses, such as finding a place to live and getting treatment for his addictions. To that end, Mr. Taylor has maintained sobriety while incarcerated however this is due to the external controls that exist by virtue of his incarceration. [ 29 ] Although Mr. Taylor has been placed on probation in the past, other than the Gladue Report completed in 2021, it does not appear that his mental capacity has ever been assessed to the degree undertaken in the assessment reports now before the court.

I find these reports extremely helpful both in helping to understand how Mr. Taylor ended up before the Court today, and what has to happen to help him to not return. IV. Positions of the Crown and Defence [ 30 ] The Crown seeks a sentence of 6 - 8 years jail less credit for time in remand on a 1:1.5 basis.

The Crown says that a sentence of 8 – 10 years is appropriate but suggests 6 – 8 years because of mitigating factors which include a guilty plea in the face of substantial litigation risk for the Crown. [ 31 ] The Crown contends that this offence is either on the second highest or highest rung of the LaBerge ladder, in that Mr.

Taylor’s actions were likely to cause life threatening injuries or alternatively, he was reckless or wilfully blind to whether they would cause that level of injury: R v LaBerge , 1995 ABCA 196 . [ 32 ] The Defence seeks a sentence in the range of 4 years jail, less credit for pre-trial custody, and supplemented by 2 years of probation with conditions that will help to put into place the recommendations set out in the Assessment and FASD Reports. Mr. Taylor is also seeking enhanced credit for the time he has been on remand during the Covid-19 Pandemic. The Crown acknowledges that Mr.

Taylor has spent a significant portion of his time in remand under Covid restrictions and that it is well known that there were enhanced

lock up procedures and less programming available. He submits I can consider this as a mitigating factor. [33] The Defence urges this court to take into consideration the intergenerational trauma Mr. Taylor has suffered because of hisIndigenous status, including the many Gladue factors that are present for Mr. Taylor. Despite the circumstances and hurdles Mr. Taylorhas faced, he has support within the community, and in particular from two FASD workers, who counsel referred to as the two Barbs.These workers were in court for the guilty plea and sentencing hearing to show their support for Mr. Taylor.

One of them currentlyworks at the Bissell Centre and the other started with Mr. Taylor at the Bissell Centre and still maintains contact with him. Both FASDworkers feel that Mr. Taylor is someone they can work with. As counsel for Mr. Taylor put it, he has positive attributes that are movingin the right direction and although his deficits are not going to disappear, there are programs that can help Mr. Taylor learn, adapt, andmove forward. [34] Mr. Taylor has a plan upon his release. He is working on getting identity documents and housing with the help of his FASDworkers.

He is in the process of applying for AISH, which should be quickly approved given the Assessment and FASD Reports. Hewould like to attend a residential treatment facility, either the Indian and Metis Rehabilitation Centre in Bonnyville or Poundmaker’sLodge to help him maintain his sobriety but also to deal with his past trauma. Eventually, he would like to become a chef.

Therecommendations in the Assessment and FASD Reports will assist him in that they recommend how to modify his education needs forhis abilities and cognitive realities. [35] Defence counsel submits that this offence falls in the middle category of LaBerge and points to Judge Cochard’s comments inR v Adams, 2022 ABPC 245 to the effect that LaBerge doesn’t stand on an island outside of Gladue and outside of the offender’s mentalfaculties. He submits Mr. Taylor’s moral culpability needs to be viewed in light of his psychological and neurological realities. V. The law A. Pre-trial custody [36] Mr.

Taylor has been in custody since August 29, 2020. The Crown agrees that Mr. Taylor should be given credit at a rate of1.5:1 for the time he has spent in pre-trial custody. Mr.

Taylor’s counsel argues that he should be given enhanced credit because Mr.Taylor has been in custody during the Covid-19 pandemic. [37] Section 719(3) of the Criminal Code provides that a court “may take into account any time spent in custody by the person as aresult of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.” [38] Section 719(3.1) provides that “if the circumstances justify it, the maximum is one and one-half days for each day spent incustody.” [39] No evidence was led as to the conditions of Mr.

Taylor’s custody during the pandemic, although I understand that is becausethe report obtained by Mr. Taylor’s counsel did not set out his periods of 23 hour lock up. I was not told whether Mr. Taylor contractedCovid-19 while on remand. Mr. Taylor’s counsel told me that Covid protocols were already in place when Mr. Taylor went into custodyon August 29, 2020 and that they ended March 10, 2022. This means Mr. Taylor spent 559 days under Covid protocols while in remand.I have been asked to consider a notional 2:1 for those 559 days but encapsulated within the mitigating circumstances. [40] I accept that Mr.

Taylor would have spent time in lockdown due to Covid protocols and that the already limited programmingat the ERC would have been further reduced. I accept that while on remand, there have been restrictions placed on Mr. Taylor that rise tothe level of mitigating circumstances that justify a reduction in the sentence that would otherwise be appropriate: R v Gordey, 2020ABQB 425 at para. 71. I decline to put a specific number on that mitigation but will consider it as part of the overall mitigatingcircumstances when determining a fit and proportionate sentence. B. Sentencing Principles [41]

Section 718 of the Criminal Code, RSC 1985, c C-46 (Criminal Code) says that the fundamental purpose of sentencing is toprotect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions thatmeet the objectives of denunciation, deterrence, separation, rehabilitation, reparation and to promote a sense of responsibility in theoffender. [42] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [43]

Section 718.2(

e) requires the court to take particular attention to the circumstances of Aboriginal offenders in passingsentence. The decision of the Supreme Court of Canada in R v Gladue, (SCC), [1999] 1 SCR 688 lists the factors that ajudge must consider when sentencing an aboriginal offender. These are: (

i) The unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offenderbefore the Courts; (ii) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because ofhis or her particular Aboriginal heritage or connection. [44] The central purpose of the Gladue analysis is to achieve proportionality: R v Swampy, 2017 ABCA 134 at para. 25. Systemicand background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moralblameworthiness.

The Court must bear in mind the generational effects of the collective experiences of Aboriginal peoples. In somecircumstances, there might be factors that affect the degree of responsibility of the offender. R v Ipeelee, 2012 SCC 13 at para. 73

[ 45 ] I accept that Mr. Taylor has suffered intergenerational trauma because of his Indigenous status. Mr. Taylor was born in withdrawal and placed into care almost immediately. His birth mother had addictions issues and could not care for him. His maternal grandparents went to residential schools. He has several siblings but only grew up with one sister who was adopted by the same family and lived with him until they were removed from their adoptive parents’ home. Because of his adoption, Mr. Taylor lost his status with his first nation and has had limited connection with his heritage.

He grew up in foster care and group homes and has been diagnosed with FASD, ODD, OCD, and ADHD. He began misusing alcohol and drugs in his early teens, dropped out of school after grade 10, and has had significant involvement in the criminal justice system even though he is still a relatively young man. [ 46 ] I have no difficulty concluding that Mr. Taylor’s moral blameworthiness is reduced as a result of his background factors. [ 47 ] Moral blameworthiness is assessed not only by reference to the offender’s mental state, but also with reference to the nature of the unlawful act itself.

In R v LaBerge , 1995 ABCA 196 at para 9 , the Alberta Court of Appeal set three categories of unlawful acts for purposes of helping assess the moral blameworthiness of an offender who commits manslaughter.

These are: 1) those which are likely to put the victim at risk of, or cause, bodily injury; 2) those which are likely to put the victim at risk of, or cause, serious bodily injury; and 3) those which are likely to put the victim at risk of, or cause life-threatening injuries. [ 48 ] Within each of these categories of objective mens rea exist, in turn, sub-categories of increasing culpability where the offender also subjectively knows of the risks, or, worse still, the likelihood of harm associated with that category: R v Naslund , 2022 ABCA 6 at para 160 referencing LaBerge at para 17 .

By determining what rung on the moral culpability ladder the offender reached when he committed the prohibited act, the categorization helps to ensure the sentence imposed fits the degree of moral fault for the harm done: Naslund para 160, LaBerge para 6. It should be remembered though that the “ LaBerge categories do not attempt to provide an exhaustive measurement of an offender’s moral blameworthiness”: Naslund at para 163 .

LaBerge warned that its categories “should not be treated as if they represented gradually escalating degrees of moral culpability as one moves from one to the other because while fault increases as one moves up the objective and subjective intent scale, other factors can also affect an offender’s moral culpability”: Naslund at para 164 citing LaBerge at para 17 .

The Court must also have regard to those personal characteristics of the offender which would mitigate or aggravate culpability in order to complete the moral blameworthiness picture: Naslund at para 164 , citing LaBerge at para 10 . [ 49 ] As stated in Naslund at para 165 , this means “that an offender is not locked into a specific sentencing range on the basis solely of a LaBerge category and irrespective of their personal characteristics.

To do so would succumb to the dangers of categorization described in R v SJB , 2013 ABCA 153 at para 19 , where this Court warned about judges “too readily adopt[ing] convenient pigeon holes in assessing moral blameworthiness” when that concept “does not lend itself to hard and fast categories” and “cannot be assessed according to a grid.”” [ 50 ] In this case, Mr. Taylor sucker punched the deceased after a verbal altercation where the two were yelling at each other. There is no evidence before me as to what was said or what precipitated the verbal altercation. They appear to have been unknown to each other.

While the victim was down on the ground, Mr. Taylor kicked his head at least three times, and stomped his head between 8 and 13 times. [ 51 ] Viewed objectively, this unlawful act was likely to put the victim at risk of, or cause serious bodily injury and puts this manslaughter on the second rung of the LaBerge ladder of moral blameworthiness. The question is then whether Mr. Taylor knew that the unlawful act would likely subject the victim to the risk of serious bodily injury, or if knowing of the probable consequences of the act, did he proceed recklessly in the face of the risk? If Mr.

Taylor knew the act would likely cause serious bodily injury or was wilfully blind to this possibility, his moral blameworthiness rises. The repeated stomping of a person’s head while they lie defenceless on the ground, is

an act Mr. Taylor must have known would cause serious bodily injury, raising his moral blameworthiness toward the top of the second rung of the LaBerge ladder. But the inquiry does not end there. [ 52 ] Mr. Taylor was intoxicated at the time. He was described by a witness as “out of it” and “hyped up” and said to be acting erratically. I have very little information before me to explain Mr. Taylor’s life circumstances at the time of the offence. But it would appear from the background reports that I do have that he was living on his own in Edmonton and addicted to methamphetamine.

The Assessment Report gives insight into his inability to make good decisions, and by all accounts, including from family, Mr. Taylor was quick to anger and impulsive. His learning issues, attention deficits, and poor executive functioning, as well as mood regulation issues and substance use made his life very challenging. [ 53 ] His actions appear impulsive although I am mindful of the ABCA’s comments in LaBerge that impulsivity does not automatically mean that it falls at the lower end of the manslaughter scale. The fact that

an act was committed in a spontaneous fit of anger does not automatically lead to the conclusion that no subjective intent existed in the offender’s mind. The relevant inquiry is even though the act might have been spontaneous as opposed to planned, was the unlawful act of a kind and quality and the other circumstances such that the offender falls, on either an objective or subjective basis, or both, within one of the increased culpability levels: LaBerge para 21 . While the actions of Mr.

Taylor may have been spontaneous and not planned, they were nevertheless very serious and involved repeated stomping of the victim’s head while he was defenceless. [ 54 ] At the time of the offence, Mr. Taylor had an untreated addiction to methamphetamine. There is no evidence before me to confirm that he was high on methamphetamine at the time of the offence, but the ASF suggests he was highly intoxicated on some substance, whether that be alcohol or drugs. [ 55 ] Mr. Taylor has prior convictions for aggravated assault involving kicking or stabbing people while intoxicated when he was a youth.

He was aware of his propensity for violence and erratic behaviour while highly intoxicated yet had never gone to or sought addictions treatment. Given the Assessment and FASD Reports, it is questionable whether Mr. Taylor had the cognitive capacity to understand this connection, or the personal ability to do anything about it, without the assistance that has been outlined in these reports.

[56] Mr. Taylor’s untreated addiction does not mitigate sentence on its own. However, Mr. Taylor’s situation is complex. As notedby the Court of Appeal in R v Roberts, 2020 ABCA 434 at para. 44: Assessing the personal circumstances of an offender can be a complex, difficult task, where for example, substance-induced psychosis islayered with underlying mental illness or cognitive deficits, or both.

Our criminal justice system assesses offenders suffering from amental illness such as schizophrenia or from cognitive deficits flowing from, for example, fetal alcohols spectrum disorder, through alens of reduced moral culpability. Mitigation on sentence is adjusted for the magnitude of the illness or deficit. Commensurately, thegreater the mitigating effect, the more the objectives of denunciation and deterrence are attenuated. [57] At the time of the offence, Mr. Taylor had an untreated addiction. He is sober now, but this is likely because of externalcontrols created by virtue of being on remand.

All of this must be considered in the context of Mr. Taylor’s Gladue factors. Thiscombination of factors reduces his moral culpability and mitigates sentence. [58] In addition to Mr. Taylor’s Gladue factors and his diminished mental capacity, Mr. Taylor’s guilty plea must be considered asmitigating. I give great weight to his plea given the comments by the Crown about the litigation risk involved in these proceedings. Mr.Taylor has pleaded guilty in the face of triable issues as to his identity, including the admissibility of his statement to police.

He hastaken responsibility for his actions and expressed his remorse to the Court and to those affected by his actions. His expression of remorseappeared genuine to the Court. [59] There are a number of aggravating factors. I find the aggravating factors are as follows: • This killing was a brutal attack, involving the stomping of the head of a defenceless person; • This killing appears to have been a random attack of a stranger after a verbal altercation; • This killing occurred while Mr. Taylor was intoxicated, and he knew he was prone to violent behaviours while intoxicated. • Mr.

Taylor has a substantial related criminal record for violence; [60] While I do not intend to conduct a comparative analysis of all the cases referenced by counsel, I note that they are all fact-dependent and dependent on the individual circumstances of each offender. The Court is tasked with noting the similarities anddifferences in each case, keeping in mind the guiding principles of sentencing.

I note cases were provided where offenders received 3 to5 year sentences even though a knife was used in an attack: R v Gladue, (SCC), 1999 1 SCR 688, R v Poucette,1999ABCA 305; R v Beachamp, 2002 ABCA 60, and R v Friday, 2012 ABQB 371. At the other end of the spectrum, offenders received lifesentences where no weapon was used but the beating was viscous, prolonged and there were few mitigating factors: R v Gray, 2012ABQB 725, upheld 2013 ABCA 237. Each counsel pointed out that the other’s cases differ from this case and both are correct.

As isoften the case, no two fact situations and no two offenders are identical. [61] Of the cases provided, I find R v Valente, 2012 ABQB 151, R v Wesley, 2017 ABPC 206, R v Spotted Eagle, 2020 ABPC 70,upheld 2012 ABCA 26, R v Guitar, 2001 ABCA 58, R v Perteet, 2019 ABQB 773, and R v Taylor, 1998 ABCA 354, most helpful aseach involves victims who were beaten to death. The sentences in these cases range from 3.5 years in Wesley to 10 years in SpottedEagle and Guitar. Most of the cases fall within the 4 to 6.5 year range. [62] Of note are Perteet and Taylor.

In Perteet, a 63 year old offender with a lengthy criminal record, including 13 assault typeconvictions and a difficult upbringing, beat his victim to death by punching him and kneeing him in the face and head. The victim waselderly, frail and smaller than the accused. Perteet pleaded guilty, showed remorse and had physical and mental health problems,including significant anger management issues. Justice Gill found the matter fell at the mid level of the LaBerge scale and that a range of5-8 years was appropriate. He ultimately sentenced the offender to 6.5 years.

In Taylor, the offender decided to teach the deceased alesson and punched him in the face 9 times, and then while on the ground bleeding and pleading, kicked him about 10 times in the head,ribs and stomach, then jumped in the air and landed both knees on the deceased’s rib cage. The sentence was 6 years. The Alberta Courtof Appeal dismissed the Crown’s appeal despite finding it hard to imagine a more senseless, gratuitous, violent, systematic and lengthyattack. [63] Both parties agree that Mr. Taylor’s Gladue factors play a significant role in this case.

Although objectively this offence is atthe high middle range of the LaBerge scale in terms of moral culpability, Mr. Taylor’s background factors attenuate his moralculpability. I find that his Indigenous background resulted in cognitive difficulties that made it difficult for him growing up. His descentinto substance abuse likely flowed from his background and his truly unfortunate removal from the home of his adoptive parents. [64] I am aware that the primary sentencing principles in play here are denunciation and deterrence and that a penitentiarysentence is required.

But I am also cognizant that part of protecting society from Mr. Taylor in the future is recognizing what is requiredto help rehabilitate Mr. Taylor. For the first time, Mr. Taylor has been assessed by a team that is prepared to assist him moving forward.He has a plan in place and people who wish to help him who have full knowledge of what is required for him to succeed. VI. Determination of a fit and proper sentence [65] This offence was objectively in the high middle range of moral culpability and attracts a sentence in the range of 5-8 years.Mr.

Taylor’s moral culpability is attenuated because of his Gladue factors and mental capacity. [66] In considering the aggravating and mitigating factors, including the restrictions on Mr. Taylor while in Remand during theCovid-19 pandemic, and in considering that I intend to add a period of probation to Mr. Taylor’s sentence to assist in his rehabilitationand ability to access programs and assistance in the community, I find that a fit and proper sentence in this case is 52 months which Iequate to 1580 days. I would give Mr.

Taylor credit for pre-trial custody of 937 days enhanced at the rate of 1.5:1, resulting in total pre-

trial custody of 1406 days. In the result, Mr. Taylor is required to serve a further sentence of 174 days. [ 67 ] Following Mr. Taylor’s release from imprisonment, he will be bound by the terms of a probation order for a period of 2 years. The terms of the probation order are as follows:

a) Keep the peace and be of good behaviour;

b) Attend court as and when required;

c) Report to a probation officer within 72 hours of release from custody by phone at 780 427-4712 and thereafter as directed;

d) Live at a residence approved by your probation officer;

e) Maintain contact with Native Counselling Services and ask for their help in obtaining placement in a residential treatment facility, preferable directly upon release;

f) Attend any assessment, treatment and counselling as required by your probation officer, including addictions counselling and attending a residential treatment facility as soon as possible and preferably at Indian and Metis Rehabilitation Centre in Bonnyville or Poundmaker’s Lodge. [ 68 ] I impose a mandatory firearms prohibition order pursuant to

section 109 of the Criminal Code for life. Manslaughter is a primary designated DNA offence, therefore Mr. Taylor is also required to provide a sample of his DNA for inclusion in the DNA databank prior to his release from custody. Heard on the 21 st day of March, 2023 Dated at the City of Edmonton, Alberta this 23 rd day of March 2023. M. Hayes-Richards J.C.K.B.A. Appearances: Nathan Benron for the Crown Steve J. Fix for the Accused