R v Applegarth, 2024 ABKB 54

Court of King’s Bench of Alberta Citation: R v Applegarth, 2024 ABKB 54 Date: 20240131 Docket: 201158391Q1 Registry: Wetaskiwin Between: His Majesty the King - and - Ryan Jake Applegarth _______________________________________________________ Reasons for Sentence of the Honourable Justice Eleanor J. Funk _______________________________________________________ I. Introduction [ 1 ] On January 26, 2024, I gave an oral

summary of these Reasons in Court. These complete, filed, Reasons were later delivered to Counsel. These written Reasons are the official decision of the Court. [ 2 ] On May 5, 2023, I found Mr. Applegarth guilty of second-degree murder in relation to the death of Chantelle Firingstoney.

The matter of sentencing is now before me. Because a conviction for second-degree murder carries an automatic life sentence, the only issue for me to decide is the period for which Mr. Applegarth will be ineligible for parole. II. Facts [ 3 ] On November 5, 2020, shortly before 9 p.m., Ms. Firingstoney was unresponsive in the home she shared with her common- law partner, Mr. Applegarth. [ 4 ] Around 9 p.m., Mr. Applegarth rang his neighbour’s doorbell and asked if she could call an ambulance; he said that his girlfriend had been assaulted and was not responding. [ 5 ] The neighbour called 911.

At one point, she gave the phone to Mr. Applegarth, who told the 911 operator that he thought his girlfriend had passed out and was not waking up; he said nothing to the 911 operator about his girlfriend being assaulted. [ 6 ] Emergency Medical Responders attended at the home. They noticed injuries to Ms. Firingstoney’s head and chest. EMTs treated her for about 45 minutes but were unable to revive her. [ 7 ] An autopsy the next day revealed Ms. Firingstoney suffered multiple blunt force traumatic injuries to her head, face, neck, torso, and extremities.

She had a total of 12 broken ribs, with rib fractures on both sides of her body. Her liver was lacerated and there was 1400 ml of blood in her abdominal cavity. The Medical Examiner concluded the cause of death was by two mechanisms: loss of blood together with the resulting loss of oxygen flowing to her organs. [ 8 ] Ms. Firingstoney had been drinking alcohol at a friend’s residence until about one hour before Mr. Applegarth asked the neighbour to call 911. She was heavily intoxicated.

There was no evidence that she sustained her injuries at her friend’s house nor anywhere between leaving her friend’s house and returning home. [ 9 ] In convicting Mr. Applegarth, I found the only reasonable inference was that Ms. Firingstoney received these injuries after she returned home. Because she and Mr. Applegarth were the only adults present in the home at the time, I further found the only reasonable inference was that Mr. Applegarth inflicted these injuries. [ 10 ] From the extent of the injuries on Ms. Firingstoney’s body, along with the evidence that Mr.

Applegarth’s assault on her likely took place in more than one area of the residence, I was satisfied beyond a reasonable doubt that Mr. Applegarth intended to cause her bodily harm and was reckless as to whether death ensued. On that basis, I found him guilty of second-degree murder. [1] III. The Positions of the Parties A. The Crown Position [ 11 ] The Crown seeks a period of parole ineligibility of 16-18 years. [ 12 ] The Crown additionally seeks a mandatory lifetime weapons prohibition ( CC 109) and a mandatory DNA order ( CC 487.051). B.

The Defence Position [ 13 ] The Defence seeks a period of parole ineligibility of 12-14 years. [ 14 ] The ancillary orders are not contested. IV. Principles of Sentencing for Second Degree Murder [ 15 ] A conviction for second degree murder carries an automatic life sentence with no eligibility for parole for at least 10 years from the date of arrest.

Section 745 of the Criminal Code permits sentencing courts to impose a period of parole ineligibility of up to 25 years: CC 745(c). [ 16 ] When considering whether to impose a period of parole ineligibility beyond the 10-year minimum, I must take into account the character of the offender, the nature of the offence, and the circumstances surrounding its commission: CC 745.4. [ 17 ] These three factors must be interpreted through the lens of the principles of sentencing, articulated in

section 718 of the Criminal Code . The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions. [ 18 ] This general purpose is further interpreted through the six sentencing objectives listed within

section 718. These are: (

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.

[19] In R v Shropshire, (SCC), [1995] 4 SCR 227, the Supreme Court provided detailed guidance on theapplication of the principles governing determining the appropriate period of parole ineligibility for offenders convicted of second-degree murder. By permitting a sliding scale for parole ineligibility, Parliament recognized that, encompassed within the category ofsecond-degree murder, there is a broad range of seriousness reflecting varying degrees of moral culpability. [20] The fundamental principle of sentencing is proportionality: CC 718.1.

A proportionate sentence is one that is informed by therelevant aggravating and mitigating factors: CC 718.2(a). Sentences should strive to be similar to other sentences imposed on similaroffenders for similar offences committed in similar circumstances: CC 718.2(b).

Sentences should be imposed in a restrained manner: CC718.2(d). [21] Of importance here, is the principle that all available sanctions, other than imprisonment, that are reasonable in thecircumstances and consistent with the harm done be considered for all offenders, with particular attention to the circumstances ofAboriginal offenders: CC 718.2(e). [22] The purpose of CC 718.2(e), as it relates to Indigenous offenders, is to respond to the acute disproportionate incarceration ofIndigenous people in Canada.

Sentencing courts should strive to apply principles of restorative justice alongside, or in place of, othermore traditional sentencing principles when determining the appropriate sentence to impose: R v Gladue, (SCC),[1999] 1 SCR 688. [23] When sentencing Indigenous offenders, sentencing courts must consider the unique systemic or background factors whichmay have played a

part in bringing the offender before the courts, and the types of sentencing procedures and sanctions which may beappropriate in the circumstances because of the offender’s particular Indigenous heritage or connection: R v Ipeelee, 2012 SCC 13 atpara 59; Gladue, at para 66. [24] Sentencing courts must take notice of matters such as the history of colonialism, displacement, and residential schools andhow that history continues to translate into lower education, lower income, higher unemployment, higher rates of substance abuse andsuicide, and higher rates of incarceration. [25] Judges may also take judicial notice of the broad systemic and background factors affecting Indigenous people, generally.Additional case-specific information will come from counsel and from Gladue reports: Ipeellee, at paras 59-60; Gladue at paras 83-84. [26]

Section 718.2(

e) should not be taken as requiring an automatic sentence reduction simply because an offender is Indigenous.Instead, these systemic and other background factors provide context within which sentencing courts are better able to understand andevaluate the case-specific information presented by counsel and in Gladue reports.

This information is relevant in the context ofsentencing as it may shed light on an offender’s moral blameworthiness: Ipeellee, at paras 60, 73; Gladue, at para 88. [27] The practical reality is the more violent and serious the offence, the more likely it is that the terms of imprisonment forIndigenous and non-Indigenous offenders will be close, if not the same: Gladue, at para 79. [28] Important here as well are CC 718.04, 718.2(a)(ii), and 718.201.

These sections mandate sentencing courts to give primaryconsideration to the objectives of denunciation and deterrence when imposing sentences for offences that involved the abuse of avulnerable person – including because the person is Aboriginal and female. [29] Specifically aggravating is evidence that the offender abused his or her intimate partner in committing the offence.

Whenimposing a sentence in respect of an offence that involved the abuse of an intimate partner, sentencing courts must consider the increasedvulnerability of female victims, with particular attention to the circumstances of Aboriginal female victims. [30] The intersection of these sentencing principles are drawn into tension in situations such as the present case, where both theoffender and the victim are Indigenous. The Alberta Court of Appeal attempted to grapple with this tension in R v AD, 2019 ABCA 396. [31] The Court noted the fundamental purpose of sentencing is to protect society.

It further noted the “clear and overwhelmingevidence” that Indigenous women are disproportionately at risk of being victims of violence, including spousal violence. This realityshould inform the sentencing process “if there is to be any hope” of achieving the fundamental purpose of sentencing and meeting theobjectives set out in CC 718: AD at paras 25-26. [32] The status of victims as Indigenous females does not trump or negate the duty of sentencing courts to also pay attention to theparticular circumstances of Indigenous offenders.

Instead, it requires sentencing courts, when considering the circumstances ofIndigenous offenders, to not discount the lives of or harms done to Indigenous victims, families, and communities: AD, at para 27; R vWhitehead, 2016 SKCA 165 at para 83. [33] In the end, sentencing is, at its core, a highly individualized process. In every case, the offence committed, the personalcircumstances of the offender who committed it, and the impacts on the victims and community who suffered its effects are unique.

Therole of the sentencing court is to craft a sentence that is proportionate to the gravity of the offence and the moral culpability of theoffender: CC 718.1. V. Analysis A. The Nature and Circumstances of the Offence [34] Ms. Firingstoney’s death was the tragic product of domestic violence. There is no evidence of how this dispute started norwhat enraged Mr. Applegarth to the point of embarking on this prolonged attack. No dispute could have justified Ms. Firingstoney losingher life. [35] Ms. Firingstoney sustained injuries throughout multiple areas of her body. Some of her injuries were most likely inflicted

while she was laying down. The extent of her injuries indicates this was a gratuitous act of violence. [ 36 ] Ms. Firingstoney was Mr. Applegarth’s domestic partner at the time of her death. She was killed inside of the home that they shared. Five young children were present in the home at the time; four of those children were Ms. Firingstoney’s. [ 37 ] Ms. Firingstoney was highly intoxicated by alcohol. I have no doubt this rendered her less able, if not unable, to defend herself or try to escape from Mr. Applegarth’s repeated blows. [ 38 ] To his credit, Mr.

Applegarth sought the assistance of the neighbour, in asking her to call 911, once Ms. Firingstoney was no longer responsive. B. Character of the Offender [ 39 ] Mr. Applegarth is a 31-year-old Indigenous man. He is a Treaty member of the Samson Cree Nation. The considerations that I must apply in relation to his Indigenous status are not mitigating. They may, however, serve to inform his degree of moral culpability. [ 40 ] Mr. Applegarth has a lengthy criminal record, which includes other offences of violence. He has spent time in custody, both in young offender centers and in federal penitentiaries.

He was on bail for a previous homicide when he murdered Ms. Firingstoney. [ 41 ] I have been provided with a copy of a Gladue report that was prepared in relation to Mr. Applegarth’s manslaughter sentencing in 2022, together with an updated Addendum to that report. [ 42 ] Mr. Applegarth was born in 1992, in Wetaskiwin. His mother, Geraldine Applegarth, is a member of the Samson Cree Nation; his father, Kirby Yellow Old Woman, was a member of the Siksika First Nation. [ 43 ] Mr. Applegarth reported that his father was not around much in his childhood. He recalled some instances of domestic violence by his father.

He knows little about his father’s background nor of his Blackfoot community. [ 44 ] His mother confirmed there were instances of physical violence in the home, but that verbal abuse was more prevalent. She reported that she separated from her husband because of his alcohol use. She further reported that Mr. Applegarth’s father passed away in 2010, from diabetic-related complications. [ 45 ] Mr. Applegarth is not aware of any impacts of residential school, on either side of his family.

He additionally did not report any issues surrounding abuse, poverty, grief and loss, disconnection from culture, community, or spirituality. [ 46 ] His mother reported she attended residential school in Southern Alberta and described it as a positive time in her life. She was aware of her husband also attending residential school but reported nothing else about his experience there. [ 47 ] Mr. Applegarth was largely raised by his mother, in a single-parent household. For a portion of his childhood, he was also in government care, in at least one group home setting.

He reported that experience as being unpleasant and confusing. [ 48 ] His mother confirmed that four of her five children were removed from her care, including Mr. Applegarth, due to her substance abuse issues. She was able to seek treatment and be reunited with her children. [ 49 ] Mr. Applegarth has two biological brothers and one sister. Both of his brothers are deceased. [ 50 ] Mr. Applegarth has two children, one of whom lives with his mother. His second child is one that he shared with Ms. Firingstoney. That child is currently in foster care. Mr.

Applegarth’s mother visits this child regularly and hopes to obtain guardianship of her. [ 51 ] Growing up, Mr. Applegarth resided both on and off the Samson Reserve. He reported that he spent more of his life in Wetaskiwin. He received his high school diploma while serving an earlier penitentiary sentence. He has a sporadic work history, with no advanced training or education. He reported no gang memberships or affiliations. [ 52 ] Mr. Applegarth has not been diagnosed with any mental, emotional, or physical health issues. He reported no issues concerning addictions. [ 53 ] During his current incarceration, Mr.

Applegarth reported he has attended some sweats and hopes to engage in further cultural programs. [ 54 ] Overall, the Gladue report portrays the impacts of Mr. Applegarth’s background as resulting in a lack of connection to community and possible institutionalization, stemming from his long criminal history. [ 55 ] I have no doubt that Mr. Applegarth’s life experiences, both on and off the Samson Reserve, have left him with a sense of displacement.

Being raised in a single-parent home, and in government care; the loss of family members; and the loss of custody of his own children, I am sure, have had additional impacts on him. [ 56 ] The ways that Gladue factors may operate to reduce the moral blameworthiness of Indigenous offenders have been thoroughly canvassed by this Court in R v Soosay , 2021 ABQB 507 , and by the Court of Appeal in R v Laboucane , 2016 ABCA 176 and R v Okimaw , 2016 ABCA 246 . In Soosay , at para 143 , the Court wrote: The offender’s lived experience affects his responsibility, specifically his decision-making.

If an offender has been exposed to anti-social behaviour, if the exposure was broad and long, the offender may have learned a repertoire of only anti-social behaviours and little else. The offender’s practical possibilities of action or horizons of action may be limited. Further, chronic exposure to bad decision-making by others and lack of reinforcement for good decision-making make it easier for an offender to make bad decisions or make decisions

without consideration of consequences. [ 57 ] When viewed through this lens, it is difficult to identify how Mr. Applegarth’s background, or life experiences, brings him to where he is today, being sentenced for the murder of Chantelle Firingstoney. [ 58 ] When re-framed within the principles of sentencing, to the extent that Mr. Applegarth’s Gladue factors serve to reduce his moral blameworthiness, any such reduction is largely offset by the gravity of this offence. C. The Gravity of the Offence [ 59 ] I convicted Mr. Applegarth of second-degree murder.

A conviction for this offence speaks to its gravity. [ 60 ] Mr. Applegarth and Ms. Firingstoney were domestic partners. The assault took place inside of Ms. Firingstoney’s home, with five young children present. Four of those children were hers. [ 61 ] Mr. Applegarth’s attack on Ms. Firingstoney can only be described as a gratuitous act of violence, including while Ms. Firingstoney was on the ground and unable, or less able, to defend herself. [ 62 ] Mr. Applegarth and Ms. Firingstoney lived in the town of Ponoka, just outside of Maskwacis.

His actions reflect the dangers that Indigenous women disproportionately face, even inside the sanctity of their own homes. D. Victim Impact Statements [ 63 ] Through victim impact statements, the offender and the Court are provided with additional information regarding the gravity of the offence through its impact on the victims and on the community. [ 64 ] I received seven victim and community impact statements through the course of this sentencing proceeding. Individually and collectively they speak to the tremendous harm that Mr. Applegarth’s actions have caused both within Ms.

Firingstoney’s immediate circle of family and friends, and also within the broader community. [ 65 ] I have heard of the deep loss and profound sorrow experienced by Ms. Firingstoney’s mother (now also deceased), by other family members, by the Indigenous women in the community, and by the community as a whole.

I thank those who have participated in this sentencing through their preparation of victim impact statements. [ 66 ] This family, and this community, joins the long list of Indigenous families and communities that have become all too familiar with the pain and suffering of losing loved ones to senseless violence. It is a tragedy for them, and an indelible stain on our Canadian society. [ 67 ] Ms. Firingstoney was a daughter, a sister, a cousin, a mother, and a friend.

She is yet one more Cree woman who will not grow old or be able to raise her children. [ 68 ] Nothing that happens inside of this courtroom can bring her back nor heal the wound that is left by her absence. I can only hope that the conviction of the person who killed her, and the sentence he receives today, will bring them a sense of justice and peace. E. Moral Responsibility of the Offender [ 69 ] As with the gravity of this offence, Mr. Applegarth’s moral culpability is high. I have already reviewed and considered his Gladue factors. [ 70 ] At trial, I found there was no indication that Mr.

Applegarth was intoxicated or that his ability to understand and appreciate the consequences of his actions was impaired in any way. [ 71 ] I additionally found that, through his prolonged attack on Ms. Firingstoney, Mr. Applegarth intended to cause her bodily harm and did not care if she died, until it was too late. [2] F. Aggravating Factors [ 72 ] There are several aggravating factors. Most have already been mentioned in earlier parts of these Reasons. [ 73 ] Mr. Applegarth has a lengthy criminal record, including previous offences of violence. [ 74 ] Ms. Firingstoney was Mr. Applegarth’s domestic partner.

There is evidence from the trial that he had previously assaulted her. [ 75 ] Mr. Applegarth killed Ms. Firingstoney inside of their home, with her children present. At least one of those children is now in foster care. All of them will grow up without their mother. [ 76 ] Mr. Applegarth’s prolonged attack on Ms. Firingstoney can only be described as a gratuitous act of violence. [ 77 ] Mr. Applegarth was on bail in relation to a previous homicide charge when he killed Ms. Firingstoney; she was his surety on that Release Order. [ 78 ] These facts suggest that Mr.

Applegarth is incapable (or unwilling) of controlling his anger. They demonstrate the depths of rage and violence to which he is capable of sinking. They further demonstrate his lack of regard or respect for the risks, harms, and consequences to others, including while bound by Court orders.

[ 79 ] The most fundamental purpose of the sentence that I impose today is protection of the community. Mr. Applegarth has demonstrated the extreme danger that he poses when left at large in the community. G. Mitigating Factors [ 80 ] There are no mitigating factors. H. Parity [ 81 ] As stated, today Mr. Applegarth will receive a life sentence. The question for me to answer is how much of that sentence he should be required to serve before being eligible for parole.

One of the principles of sentencing requires that the sentence I impose today be similar to sentences imposed for similar offences. [ 82 ] Both Crown and Defence have provided me with a number of sentencing authorities in support of their respective positions. I have reviewed all of them. While all cases are factually unique, the following are most instructive in terms of having similar factors to those engaged here: [ 83 ] R v Bobocel , 2014 ABQB 570 . The accused waived his preliminary hearing and pleaded guilty to second-degree murder in relation to the death of his common-law partner.

The accused struck the victim on the head three times with a hammer, while she was in bed. He then tried to conceal his crime, first by turning over the mattress to hide the blood stain. He then attempted to dispose of her body in a wood chipper; finally, he burned his vehicle. [ 84 ] Mr. Bobocel had a dated and unrelated criminal record. Pre-sentence and psychological reports revealed he suffered from some mental health issues and was of borderline intelligence. He was of Metis heritage. The Court concluded Mr.

Bobocel’s Gladue factors were not relevant in these circumstances. [ 85 ] The Court imposed a period of parole ineligibility of 15 years. In so doing, the sentencing court noted, if not for the guilty plea, this period likely would have been 18-20 years. [ 86 ] In R v Candaele , 2022 ABKB 605 , the accused was convicted at trial of second-degree murder in relation to the death of his domestic partner. The accused ran the victim over with a loaded U-Haul vehicle. [ 87 ] The accused had a criminal record, including previous convictions for domestic violence.

He was bound by a probation order that included a no-contact condition when he committed this murder. The Court noted his specific Gladue factors and concluded the serious nature of the offence operated to reduce the mitigating impact of those factors. [ 88 ] The Court imposed a period of parole ineligibility of 16 years. [ 89 ] In R v Clifford , 2023 ABKB 67 , the accused was convicted of second-degree murder in relation to the stabbing death of his estranged wife. The trial evidence revealed the accused had engaged in harassing behaviours prior to murdering his wife.

He had breached court orders that included no-contact and no-go conditions. On the night of her death, the accused had entered, and hid in, her home. He stabbed her 17 times. [ 90 ] The accused’s criminal record was unrelated and was not considered for the purposes of sentencing. There were no Gladue factors. [ 91 ] Crown and Defence jointly sought a period of parole ineligibility of 16 years.

In accepting this position, the sentencing court found as aggravating: the domestic nature of the offence; its brutal and callous nature; the culmination of the offender’s stalking behaviour; the permanent harm done to the offender’s children; and the fact the offence was committed while he was bound by a Court order. The Court paid particular attention to the fact this offence was committed in the context of intimate partner violence. VI. Conclusion [ 92 ] Having considered all of these factors, I am satisfied that an enhanced period of parole ineligibility is required.

For these reasons, I impose a life sentence without eligibility for parole for 18 years. [ 93 ] In addition, there will be a mandatory s 109 lifetime weapons prohibition. [ 94 ] Mr. Applegarth will also provide a sample of his DNA, pursuant to CC 487.051. [ 95 ] Mr. Applegarth will be serving a long custodial sentence and is otherwise of limited financial means. He is not required to pay any victim fine surcharge: CC 737(2.1). [ 96 ] Finally, and pursuant to CC 743.2, a copy of these Reasons, together with Mr. Applegarth’s Gladue reports will be forwarded to Corrections Canada. [ 97 ] Mr.

Applegarth, I suspect there is much more to your history and your personal circumstances than what was revealed in your two Gladue reports. I sincerely hope that you take advantage of whatever programs and assistance that might be available to you during your incarceration. Good luck to you. [ 98 ] I thank Counsel for their helpful submissions. Heard on the 26 th day of January, 2024.

Dated at the City of Wetaskiwin, Alberta, this 31st day of January, 2024. Eleanor J. Funk J.C.K.B.A. Appearances: Jeffrey Rudiak, KC for the Crown Ken Sockett, KC, Sockett Law for the Accused