R. v. Jacobish, 2022 NLSC 23

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Jacobish , 2022 NLSC 23 Date : February 21, 2022 Docket : 202108G0038 Her Majesty The Queen v. Etienne Jacobish Before: Justice Stacy Ryan Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: February 15, 2022 Date of Oral Judgment: February 18, 2022

Summary: Offender was sentenced to life imprisonment without eligibility for parole until he has served 12 years of his sentence. Appearances:

Jennifer E. Standen & Appearing on behalf of the Crown Brandon G.W. Gillespie Jason A. Edwards Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v. Parsons, 2007 NLTD 108; R. v. Ipeelee,2012 SCC 13; R. v. Blundon, 2011 NLTD(G) 19; R. v. Neville, 2015 SCC 49; R. v. Parsons, 2007 NLTD 108; R. v. Pope, 2019 NLSC173; R. v. Anthony-Cook, 2016 SCC 43 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT RYan, J.: INTRODUCTION [1] On January 3, 2021, Etienne Jacobish shot Charlie Rich in the head, neck and back as he was walking down the road in hishome community of Natuashish, NL. There was no apparent reason for the shooting other than Etienne Rich suspected Charlie Rich hadstolen items from his home. [2] Etienne Jacobish appears before the Court having pleaded guilty to committing second degree murder, contrary to section235(1) of the Criminal Code. R.S.C. 1985, c.

C-46. [3] An Agreed Statement of Facts, several witness statements, video footage, photographs and a death certificate has been filed todispense with formal proof thereof and for consideration on sentencing. THE FACTS AS AGREED [4] I will summarize the pertinent facts outlined in the Agreed Statement of Facts. [5] Charlie Rich, the victim and Etienne Jacobish, the Offender, were both young Innu males living in the community ofNatuashish, NL. They knew each other. Etienne Jacobish suspected Charlie Rich of stealing from his home. [6] On January 3, 2021 at approximately 3:37 p.m., Cst.

Rumbolt with the Royal Canadian Mounted Police (RCMP) was leavingthe community clinic when he saw an individual laying in the roadway. A volunteer member of the local fire department was waving forthe police to come that way.

[ 7 ] Cst. Rumbolt arrived on the scene. Visible injuries were noted on Charlie Rich’s face and a decision was made to transport Charlie Rich to the clinic. Cst. Rumbolt then notified Cst. Cumby that he believed Charlie Rich had been struck by a vehicle. [ 8 ] As Cst. Rumbolt was transporting Charlie Rich to the clinic, Etienne Jacobish knocked on the detachment door and when he was asked if the reason for his attendance at the RCMP station was important as they were responding to an emergency Etienne Jacobish said “yes, it is important…it was me, I shot him.” [ 9 ] Cst.

Cumby was not aware that the person laying in the road was shot. She asked Etienne Jacobish “the person on the road was shot?” Etienne Jacobish replied “yes I shot him, it was me here,” and he put his hands behind his back. Etienne Jacobish then said “lock me up, lock me up, I feel bad, I was scared.”A video of this interaction has been filed with the court. [ 10 ] An investigation revealed several eyewitnesses to the shooting. It was determined that Etienne Jacobish was standing on the deck of his home when he shot Charlie Rich.

The deck was approximately 40 feet from the roadway where Charlie Rich was found. [ 11 ] Etienne Jacobish revealed to the police the location of the firearm, it was a 12 gauge shotgun and was located inside his house leaning against the door frame. [ 12 ] Four empty casings were found on the deck of Etienne Jacobish’s home. [ 13 ] Charlie Rich was declared deceased at 4:25 p.m. An autopsy noted he died from gunshot wounds to the head, neck and back. [ 14 ] Video footage of the incident was captured by way of security camera from another home in the community.

The home was some distance away but the entrance to Etienne Jacobish’s home is visible in the footage. It shows a person walking down the road and stopping in front of Etienne Jacobish’s home. A person comes out of the home and stands on the deck. The person walking drops out of sight, a skidoo traveling in the area changes direction and speeds away. The person on the deck re-enters the house and vehicles arrive at the scene. The RCMP arrive approximately four minutes after the person walking drops out of sight.

ISSUE [ 15 ] The only issue I must decide is whether or not I should accept the joint submission of Crown and Defence counsel that Etienne Jacobish must serve 12 years in prison before becoming eligible to apply for parole. THE LAW [ 16 ] We are dealing with several provisions of the Criminal Code , R.S.C. 1985, c. C-46 . [ 17 ] Section 235(1) of the Criminal Code , R.S.C. 1985, c. C-46 states: 235

(1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

[ 18 ]

Section 745 (

c) of the Criminal Code states: 745 Subject to

section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be . . . (

c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to

section 745.4; and [ 19 ]

Section 745.4 states: 745.4 Subject to

section 745.5, at the time of the sentencing under

section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to

section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. [ 20 ]

Section 746 states: 746 In calculating the period of imprisonment served for the purposes of

section 745 , 745.1, 745.4, 745.5 or 745.6, there shall be included any time spent in custody between (

a) in the case of a sentence of imprisonment for life after July 25, 1976, the day on which the person was arrested and taken into custody in respect of the offence for which that person was sentenced to imprisonment for life and the day the sentence was imposed; or [ 21 ]

Section 718 states: 718 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. . . . 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. . . . 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, . . . (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [22]

Section 745.4 sets out factors to be considered when deciding the number of years to serve in prison prior to eligibility forparole. The leading case dealing with this issue is R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at paragraph 20. Factorsto be considered are: (1) the character of the offender; (2) the nature of the offence; and (3) the circumstances surrounding the commission of the offence; [23] Counsel have referred me to R. v. Parsons, 2007 NLTD 108, wherein Thompson J reviewed the considerations set out in R. v.Doyle, 2004 NLCA 63.

[ 24 ] In terms of character of the offender, I ought to consider: 22 . . . (

a) Character of the Offender (

i) general background; (ii) previous criminal record and lifestyle; (iii) medical and psychiatric history; (iv) capacity for future dangerousness; (

v) attitude, including remorse and victim empathy; (vi) motivation; (vii) mitigating circumstances, such as the entry of a guilty plea, and cooperation with the investigation. (

b) Nature of the Offence (

i) nature of the crime, (ii) victim impact, (

c) Circumstances surrounding the commission of the offence (

i) the manner in which the death was caused, including the infliction of any gratuitous, excessive or sadistic violence, (ii) explanation by the offender, or any lack of explanation, (iii) planning and deliberation, (iv) influence, if any, of alcohol or drugs.

CHARACTER OF THE OFFENDER [ 25 ] Etienne Jacobish is a relatively young man, he is 34 years old. He is a member of the Mushuau Innu Band and was raised in Davis Inlet, then Natuashish after the community of Davis Inlet was relocated. His background as it relates to his Indigenous status will be referenced later in this judgment. [ 26 ] Etienne Jacobish has a criminal record, the record is aggravating as he has prior firearms offences. He, at the time of this offence, was subject to a firearms prohibition. He has other convictions on his record but the firearms convictions are related.

In total he has a nine-page criminal record with convictions ranging from 2001 to 2017. [ 27 ] I have been advised that he has some medical and psychiatric history. He was a gas sniffer at a young age and was sent to a treatment program outside his community and province when he was 13 years of age. As a result of his solvent abuse, he has suffered from suicidal ideations but no attempts were made.

This history shall also form part of the Gladue consideration. [ 28 ] I have not been presented with any evidence that assesses his capacity for future dangerousness, however, he has firearms convictions from 2014 and now a second degree murder conviction involving a firearm. It is logical to conclude that if Etienne Jacobish should possess firearms in the future, it would make for a dangerous situation. [ 29 ] The attitude of Etienne Jacobish has been mitigating. He immediately turned himself in to the RCMP after the murder of Mr. Rich. He assisted the police in locating the weapon.

He was apologetic and asked the police to “lock him up.” He has shown remorse immediately after the incident and has continued to show remorse as evidenced by his guilty pleas and his apology letter. His apology letter states his sorrow for the family’s grief, his regret for his actions and his request for the family’s forgiveness. [ 30 ] As indicated earlier, there appears to be no motivation for this murder other than Etienne Jacobish suspected Charlie Rich was stealing from him. It was a senseless act. [ 31 ] A victim impact statement was filed by Mary Agathe Rich, Charlie’s sister, and her family.

It evidences her distress and grief at the loss of her brother, understandably so. She said she misses her brother, cries for him and has lost work and sleep from thinking about what happened to him. [ 32 ] I would like to say to Mary Agathe Rich that I understand no sentence handed down today will take away the grief you and your family must be feeling at the loss of your brother. I am hopeful that after today, all parties can begin to move forward and heal. CIRCUMSTANCES SURROUNDING THE COMMISSION OF THE OFFENCE [ 33 ] The Crown described the circumstances surrounding the offence as “brazen.” I agree.

It was committed during daylight hours at a time when other members of the community were going about their business. There was no consideration for any members of the

community on that day. GLADUE CONSIDERATIONS [ 34 ] In addition to the sentencing principles of

section 718, I must also consider

section 718.2(

e) I must consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community… with particular attention to the circumstances of Aboriginal offenders. [ 35 ] Counsel have referred me to R. v. Ipeelee , 2012 SCC 13 . At paragraph 87, Lebel J states: 87 The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention. [ 36 ] Alternatives to incarceration cannot be considered pursuant to this

section as a second degree murder conviction carries a sentence of life imprisonment, however consideration of Gladue factors can be applied in deciding the parole eligibility. [ 37 ] A “ Gladue report” was filed with the Court for the purposes of the sentencing hearing. It was clear the Crown and defence both took into account the Gladue principles in arriving at their joint submission on sentence.

The report was dated, however, the information pertaining to Etienne Jacobish’s background information and history as well as the history of his community is helpful in considering Gladue factors. [ 38 ] Etienne Jacobish has a unique mixed ancestry. His father is a member of the Mushuau Innu Band (born in Davis Inlet and relocated to Natuashish). His mother is an Inuk woman from Hopedale. [ 39 ] English is Etienne Jacobish’s second language.

His mother tongue is innu aimun. [ 40 ] According to the Gladue report, the Mushuau Innu were a nomadic people and moved from inland Labrador and Quebec to the coastal waters of Davis Inlet and Voisey’s Bay. Forced settlement by the government caused significant problems within the Innu communities: addictions issues, family violence, lack of suitable housing, lack of ability to find/hunt for food for the family and loss of familial roles and responsibilities. [ 41 ] The Inuit people of Hopedale were also nomadic, traveling to hunting and fishing grounds in spring and summer.

Hopedale was established in 1782 with the arrival of the Moravians. As with the Innu, forced settlement by the government, the Inuit of Hopedale were plagued by contact with the Moravians, Europeans, and Hudson’s Bay Company resulting in similar significant problems as found in the community of Natuashish.

[ 42 ] Alcohol abuse, domestic violence and criminal activity had a significant presence in Etienne Jacobish’s childhood. [ 43 ] Etienne Jacobish became a father at the age of 16. He was involved with the mother of his children but the cycle of abuse continued and the relationship ended. [ 44 ] Etienne Jacobish began to sniff gas at an early age.

He has received treatment for his gas sniffing. [ 45 ] He was in foster care at various intervals during his childhood. [ 46 ] His life experience involves the presence of significant trauma, both personal and intergenerational. [ 47 ] All of these factors are helpful in understanding how Etienne Jacobish came before the Court today. The issues mentioned do not just disappear, they must be dealt with by Etienne Jacobish. CASE LAW [ 48 ] Counsel have filed a number of cases that deal with the length of imprisonment prior to parole eligibility. I will briefly summarize them. [ 49 ] R. v.

Blundon , 2011 NLTD(G) 19 – The offender pleaded guilty to second degree murder. It was a shooting. He did not cooperate with the investigation. He had no criminal record. Parole eligibility was set at 12 years. [ 50 ] R. v. Neville , 2015 SCC 49 – The offender was found guilty of second degree murder and attempted murder. The incident was a stabbing. He had a criminal record. Parole eligibility was set at 12 years. [ 51 ] R. v. Parsons , 2007 NLTD 108 – The offender pleaded guilty. The incident was a shooting . The victim was his wife. He had no criminal record. Parole eligibility set at 12 years. [ 52 ] R. v.

Pope , 2019 NLSC 173 – The offender was found guilty, by a jury, of second degree murder. The incident was a stabbing. He had no record. Parole eligibility was set at 10 years. JOINT SUBMISSION [ 53 ] The test to be applied in assessing a joint sentencing submission is discussed in Anthony-Cook at paragraphs 32 to 48 . Essentially, the question is whether the proposed sentence “would bring the administration of justice into disrepute or is otherwise contrary to the public interest” (at paragraph 32).

Moldaver J., for the court, explained: 33 In Druken , at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to

the public interest if, despite the public interest considerations that support imposing it, it is so "markedly out of line with theexpectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the properfunctioning of the criminal justice system". And, as stated by the same court in R. v. O. (B.J.), 2010 NLCA 19 (N.L.

C.A.) , atpara. 56, when assessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonablepublic to lose confidence in the institution of the courts". [54] A consideration of the purpose and principles of sentencing, case law, and Gladue principles satisfies me that the acceptance ofthe joint submission with respect to parole eligibility would not bring the admistration of justice into disrepute and is not contrary to thepublic interest. I accept the joint submission. CONCLUSION [55] Etienne Jacobish, you have committed a terrible act.

You took the life of another human being and did so for no apparentreason. You have experienced a difficult life so far, however, all is not lost. You are in the unique position of being a part of twobeautiful and meaningful cultures, the Innu and the Inuit. It is my hope that you serve your period of imprisonment with purpose, thatyou connect or reconnect with your culture. I would encourage you to avail of any counselling offered and upon your release you may bein a better position to deal with your past trauma. [56] Etienne Jacobish please stand.

Sentence [57] You have been found guilty of second degree murder in the homicide of Charlie Rich, and a conviction has been enteredagainst you. You are sentenced to a period of imprisonment for life without eligibility for parole until you have served 12 years ofyour sentence, to be calculated in accordance with

section 746(

a) of the Criminal Code from the date of your arrest. Weapons Prohibition [58] Pursuant to section 109(1)(

a) of the Criminal Code you are prohibited from having in your possession any firearm, crossbow,restricted or prohibited weapon or device, ammunition or explosive substance for life. DNA Order

[ 59 ] Pursuant to

section 487.05(1) of the Criminal Code , I am authorizing appropriate peace officers, or a person authorized under their directi on, to take from you any number of samples of bodily substances that are reasonably required for forensic DNA analysis and inclusion in the National DNA Data Bank of Canada under the conditions set out in the Criminal Code _____________________________ Stacy RYan Justice