R. v. Onalik, 2022 NLSC 137

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Onalik , 2022 NLSC 137 Date : September 07, 2022 Docket : 202108G0073 Her Majesty The Queen v. Daniel Onalik Before: Justice Stacy Ryan Reasons for Judgment Given Orally Place of Hearing: Hopedale, Newfoundland and Labrador Dates of Hearing: August 30 and 31, 2022 Date of Oral Judgment: August 31, 2022

Appearances: Richard L. Deveau Appearing on behalf of the Crown Jonathan D. Regan and Appearing on behalf of the Accused Jason A. Edwards Authorities Cited: CASES CONSIDERED: Denis-Damée v. R., 2018 QCCA 1251; R. v. Abel, 2012 NLTD(G) 27; R. v. Ash, 2017 NLTD(G) 139; R. v.Barton, 2021 ABQB 603; R. v. Beardy, 2009 MBPC 54; R. v. Fan, 2019 ONSC 6403; R. v. Gladue, (SCC), [1999] 1S.C.R. 688; R. v. Halverson, 2020 BCSC 1095; R. v. Hester, 2019 QCCA 858; R. v. Ipeelee, 2012 SCC 13.R. v. Laberge, 1995 ABCA196; R. v. Lampe, 2007 NLTD 116; R. v. Larche, 2013 MBPC 54; R. v. Machiskinic, 2004 SKQB 358; R. v.

Makpah, 2015 NUCJ 34; R.v. McKay, 2020 MBQB 106; R. v. McLaughlin-Thibault, 2021 QCCS 3227; R. v. Nerysoo, 2020 NWTCA 8; R. v. Okimaw, 2016 ABCA246; R. v. Pike, 2017 NLTD(G) 95; R. v. Spotted Eagle, 2021 ABCA 26; R. v. Thibeault, 2022 QCCS 194; R. v. Thomas, 2016 ONSC7944; R. v. Vallée, 2017 QCCA 666; STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT GIVEN ORALLY Ryan, J.: INTRODUCTION [1] On February 28, 2022, Daniel Onalik appeared at the Supreme Court in Happy Valley-Goose Bay, Newfoundland andLabrador (“NL”), and entered a guilty plea to manslaughter in the death of Johnny Onalik. [2] A sentencing hearing was scheduled for June, 2022, and could not proceed as I had COVID-19. [3] The sentencing hearing took place on August 30, 2022 in Hopedale, Nunatsiavut, NL. [4] The issue is what an appropriate sentence is for Mr. Onalik.

BACKGROUND [5] Daniel Onalik was charged with second degree murder in the death of Johnny Onalik. [6] On September 21, 2021, a not guilty plea was entered and the matter was set for a pre-trial conference on October 18, 2021.

[ 7 ] On October 18, 2021, a jury trial was scheduled for May 30, 2022 to June 17, 2022. A further pre-trial conference was scheduled for November 22, 2021. [ 8 ] On November 22, 2021, the pre-trial conference was adjourned to December 10, 2021. [ 9 ] On December 10, 2021, a two day voir dire was scheduled for April 11, 2022 and April 12, 2022 and a date of February 28, 2022 was set for status on the ongoing proceedings. [ 10 ] On February 28, 2022, Mr. Onalik entered a guilty plea to manslaughter under

section 236 of the Criminal Code .

Section 606 of the Criminal Code was canvassed. A pre-sentence report and victim impact statements were requested. [ 11 ] On that same date, Mr. Onalik requested to be sentenced in the community of Hopedale, NL.

The sentencing hearing was scheduled for June 9, 2022 in the aforesaid. [ 12 ] The sentencing hearing was scheduled for June 9, 2022 in the community of Hopedale. [ 13 ] A further case management date was scheduled for April 8, 2022. [ 14 ] On April 8, 2022, counsel for the Defence indicated an intention to file a Gladue report for the hearing, travel dates were confirmed. [ 15 ] A pre-trial conference was scheduled for May 27, 2022, to confirm the sentencing was ready to proceed in June, 2022. [ 16 ] Unfortunately, in June, 2022, we could not travel due to COVID-19.

The hearing was rescheduled to August 30, 2022. [ 17 ] The sentencing hearing was held on August 30, 2022. The matter was adjourned to August 31, 2022 to give my decision before the court left the community. FACTS [ 18 ] An agreed statement of facts were presented to the court and read into the record by the Crown. The facts can be summarized as follows.

[ 19 ] On May 11, 2020, the Royal Canadian Mounted Police (“RCMP”) received a report that Johnny Onalik had been killed. [ 20 ] Hopedale RCMP were flagged down by a civilian, advising there was a fight at 7 Water Street; the victim’s house. [ 21 ] Upon arrival, the RCMP could hear yelling coming from the house.

The police were informed that Daniel Onalik had beaten up the victim and had left the house. [ 22 ] Martha Onalik, the victim’s sister, said she heard a ‘ruckus’ in the victim’s bedroom followed by Daniel Onalik leaving and he was heard to say “There, he got what he deserved.” [ 23 ] Officers went into the bedroom and located the victim lying on the floor. He was covered in blood, unconscious, and part of his body resting on an air mattress. He was unresponsive and breathing with difficulty.

Both his eyes were swollen shut and officers noted a substantial laceration on the bottom of his chin, which was bleeding profusely. They also observed blood smeared on the wall. [ 24 ] An ambulance was called to the scene and two other officers were called to assist.

As the victim was being carried out of the house, Daniel Onalik approached the police officer and asked “Did I kill my uncle?” [ 25 ] Another police officer was approached by Daniel Onalik and he said “I did it, I did it.” He held out his hands inviting police to hand cuff him and repeats “I did this to Johnny, I did this to Johnny.” There was blood on his hands and he was intoxicated. [ 26 ] Daniel Onalik was arrested for aggravated assault.

He was informed of his rights to counsel, police caution and taken to the detachment. [ 27 ] The victim was assessed at the clinic; he was in poor condition and neurological damage was suspected. A decision was made to medevac him to St. John’s, NL. Upon arriving in St. John’s, his major injuries were noted to be a spinal fracture, a rib fracture, a collapsed lung, a brain bleed and a facial fracture. He was placed in a medically induced coma. [ 28 ] He remained in a coma until July 23, 2020. This is the day he died. [ 29 ] On July 25, 2020, an autopsy was completed.

The cause of death was blunt force trauma having occurred while being assaulted on May 11, 2020.

[ 30 ] Daniel Onalik provided information to the police through a cautioned statement taken on May 12, 2020. [ 31 ] He said the following: • He was 18 years old and living at 7 Water Street in Hopedale with his grandmother, mother, stepfather, aunt, and his uncle, the victim. • On May 11, 2020, everyone in the house was drinking. They had liquor arrive that day which was twelve 26 ounce bottles of rum. They began drinking at noon. • Daniel Onalik was in his room drinking rum shots. • He heard arguing between the other members of the household. When he came out of his room, so did the victim.

Daniel said he was angry as a result of the ongoing fighting. • The other residents and the victim were yelling. The victim struck Daniel in the face; it is not known why. A fight ensued between Daniel and the victim but Daniel could not recall why they were fighting. • Daniel has gotten into fights before while under the influence of alcohol and he fought with the victim on previous occasions. • Either during this fight, or shortly after, Daniel Onalik brought the victim to the ground. Daniel kicked the victim in the face more than once. He stomped on his head with the heel of his foot.

He had only socks on his feet when he did this. • While the victim was lying face down, Daniel Onalik took hold of the victims head with his two hands and started smashing his face into the ground. • Daniel Onalik said the victim could not say anything while he was on the ground because he was knocked out. • Daniel Onalik told the police the victim did not hurt him that day. He said had he not been drunk, he would not have done this. • Daniel Onalik said if the victim was there, he would apologize.

He said “I almost killed my uncle.” [ 32 ] DNA findings indicate the blood on Daniel Onalik’s socks matched the victim’s blood. [ 33 ] The police were called to this home on two different occasions on this date. The prior reports were of Daniel Onalik assaulting the victim. He was not acting in self-defense.

[ 34 ] It is accepted that he did not intend to kill the victim. [ 35 ] It is also accepted that he did not subjectively appreciate at the time that his actions were going to cause the victim bodily harm to a degree that was likely to cause death. [ 36 ] Based on the facts and Daniel Onalik’s guilty plea, I am satisfied that a conviction for manslaughter can be registered. [ 37 ] While Mr.

Onalik did not have the intent to kill his uncle, the act of stomping on his head and smashing his face into the ground, viewed objectively, subjected Johnny Onalik to a risk of bodily harm that was neither trivial nor transitory ( R. v. Pike , 2017 NLTD(G) 95, paragraph 18).

THE SENTENCING HEARING [ 38 ] As indicated earlier, the sentencing hearing took place in the community of Hopedale, located in Nunatsiavut, NL. [ 39 ] Daniel Onalik had made the request to be sentenced in his community and the Crown did not object to the request. [ 40 ] I, too, was satisfied to comply with the request as I think it is important for the following reason. [ 41 ] When a crime of this nature is committed on the Northern Coast of Labrador, the offender is removed from the community almost immediately. The process that follows is far removed from the community in which the crime occurs.

By travelling to the community to conduct the sentencing hearing, the community has a chance to participate in the sentencing hearing. They can attend court to show support for the offender, the victim and/or the family members. They have the opportunity to see that justice is being done. [ 42 ] The Crown and Defence did a thorough, and more than capable, presentation of their submissions.

I thank you for your professionalism and respect shown to the community; the victim’s family; and the offender, Daniel Onalik. [ 43 ] The Crown and Defence submitted a large number of cases to assist me in determining an appropriate sentence. I have reviewed them all. A Gladue report has also been submitted to the court for my consideration. I will outline their positions. [ 44 ] The Crown seeks a period of incarceration for Daniel Onalik in the range of eight years less time served. The Crown also seeks ancillary orders in the nature of a DNA order and a firearms prohibition.

The Crown is not opposed to a waiver of the victim fine surcharge.

[ 45 ] The Crown suggests Gladue and Ipeelee principles should be applied throughout this case. The position that the Crown has presented to the court was a result of a review and application of Gladue principles; the application of the principles of sentencing such as denunciation and deterrence, both general and specific; proportionality, parity, and a solid review of the circumstances of the offence and the offender. [ 46 ] Defence seeks a 44 month period of incarceration less time served.

There was no objection to the DNA order (mandatory) or the firearms prohibition. [ 47 ] Defence suggest that this sentencing should be viewed through a Gladue lens. The principles of sentencing apply, but the way in which we arrive at this position involves the appropriate use and application of Gladue principles. APPLICABLE LAW [ 48 ] In determining a fit and appropriate sentence for Daniel Onalik, I must consider, firstly,

section 718 of the Criminal Code , R.S.C., 1985, c. C-46 , which provides the purpose and principles of sentencing. Purpose 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. [ 49 ]

Section 718.1 of the Criminal Code s tates a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 50 ]

Section 718.2 of the Criminal Code states a court that imposes a sentence shall also take into account the following principles:

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 offence or the offender, and, without limiting the generality of the foregoing, … (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, … (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, … shall be deemed to be aggravating circumstances; (

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

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 to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 51 ] I will examine these principles. Denunciation [ 52 ] Denunciation is warranted here. I need to denounce the unlawful conduct and the harm done to Johnny Onalik, and the harm

done to the community of Hopedale through the loss of Johnny Onalik. When a death through unlawful conduct occurs in a community the size of Hopedale, its impact can be felt throughout. Even more so, when the offender is related to the person he has killed. The effect on the family can be debilitating and, in fact, an entry from the Gladue report indicates the family is not coping well with what has happened. Deterrence [ 53 ] Using this principle and through imposition of a just sentence, I must send a message to Mr.

Onalik that will prevent him from committing future offences. [ 54 ] I must send a message to like-minded people that if they commit crimes of this nature, they will face a significant, but appropriate and just sentence. Separate offenders from society where necessary [ 55 ] Manslaughter is one of the most serious crimes under the Criminal Code . It involves the killing of another human being. Of course, the sentence depends on the circumstances of the offence, but in most cases, separation of offenders from society is necessary.

To assist in rehabilitating offenders [ 56 ] This is important given Daniel Onalik’s age, lack of a criminal record; indigenous status, and his circumstances as presented to the court. The objective of rehabilitation, as it relates to Daniel Onalik, is very attainable and I place significant weight on it. To provide reparations for harm done to the victims or the community [ 57 ] There is no sentence that can repair the harm done by Daniel Onalik.

His uncle is dead and this is a significant loss to Johnny Onalik’s family, the community, and Daniel Onalik himself. [1] [ 58 ] The type of reparation needed here ought to come from Daniel Onalik himself. Daniel Onalik should take whatever steps he needs to take to ameliorate the harm he has caused his family and his community. Some of the ways he can do this is by becoming a

productive member of his community, becoming a role model by living a healthy life, assisting others, and leading by example. To promote a sense of responsibility in offenders [ 59 ] There is no sentence that can be handed down by me that will promote a sense of responsibility in Daniel Onalik. He already feels the responsibility and has to live with it every day. He is aware of the harm he has caused. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender [ 60 ] The gravity of this offence is very severe. Again, it involved the taking of another life.

The only person involved is Daniel Onalik, so in this regard, his degree of responsibility is high. This must be assessed in light of Gladue principles and Daniel Onalik’s degree of moral culpability. I will refer to this later in my reasons. A sentence must be increased or reduced in accordance with aggravating or mitigating circumstances Aggravating Factors [ 61 ] Johnny Onalik was Daniel Onalik’s uncle. In committing this offence, he abused a family member.

This is a statutorily aggravating circumstance. [ 62 ] Daniel Onalik offered no assistance to his uncle, in fact, he uttered that “he got what he deserved”. [ 63 ] Crown counsel has asked that I consider Daniel Onalik’s level of self-induced intoxication as an aggravating factor. The Crown suggests that Daniel Onalik knew that if he drank, it would be possible that he would become violent. Given Daniel Onalik’s Indigenous status, the Crown’s position viewed in light of the Gladue principles, holds less significance.

I am unable to conclude that his self- induced intoxication should increase the sentence. [ 64 ] We know that Indigenous peoples and their communities suffer alcohol abuse as a result of colonialism and systemic issues they have historically faced. To treat alcohol use as an aggravating factor used to increase a sentence would impair the restorative justice objectives of the Gladue and

section 718.2(

e) of the Criminal Code . Mitigating Factors

[ 65 ] Significant weight ought to be attached to Mr. Onalik’s guilty plea in mitigation of sentence. [ 66 ] It is clear that Daniel Onalik feels remorse for what he has done; this is a positive step towards his rehabilitation. [ 67 ] Daniel Onalik’s young age increases the possibility of achieving the objective of rehabilitation. [ 68 ] Daniel Onalik’s supportive family will be very important as Daniel Onalik tries to find his place in the community upon his release. [ 69 ] Another factor in determining an appropriate sentence for Daniel Onalik is that he has no prior convictions or lack of criminal record.

By most accounts from the Gladue report submitted, this type of violent behavior can not usually be attributed to Daniel Onalik. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances [ 70 ] In this case, there are no less restrictive sanctions that are appropriate.

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 the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders Gladue Factors/Principles [ 71 ] We know

section 718.2 (

e) of the Criminal Code is to be considered in the context of all other principles when deciding an appropriate sentence. [ 72 ] Gladue and Ipeelee directs me to take into account the unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the courts, and the type of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

[ 73 ] I was provided with a Gladue report. This is the first Gladue report, to my knowledge, I have seen prepared for an offender in Labrador.

We often get pre-sentence reports with a Gladue perspective which I have also had the benefit of reading. [ 74 ] The Gladue report was extensive, thorough, and provided substantial information that has assisted me in arriving at an appropriate sentence for Daniel Onalik. [ 75 ] There is a disclaimer on the cover of the report that states public disclosure of the information contained within the report could trigger intense emotions for the offender and his relatives . [ 76 ] Both Crown and Defence have agreed to avoid detailing personal events in public such as the abuse and trauma that Daniel Onalik suffered and I will do the same. [ 77 ] Suffice it to say that Gladue factors certainly exist in Daniel Onalik’s life.

There is trauma; intergenerational trauma; intergenerational alcohol abuse; exposure to alcohol abuse; involvement in the foster care system; effects of suicide; deaths of family members, i.e., his grandparents, his father, cousins, friends, and a son who he has never met in person. [ 78 ] As both Crown and Defence have stated, the range for manslaughter can vary from suspended sentence to life imprisonment.

Where an offender falls in the range depends on the act; whether it was closer to near accident or closer to near murder. [ 79 ] The Crown has urged me to use the Laberge ladder in placing Daniel Onalik in the range for sentencing for this type of crime and in assessing his moral blameworthiness. I prefer to use the range of near accident to near murder. [ 80 ] I have assessed Daniel Onalik’s level of moral blameworthiness and conclude that the unlawful act of Daniel Onalik was not a near accident. The level of violence inflicted upon his uncle on that fateful night was extreme.

Even if there was minor provocation, that his uncle hit him in the face first, it did not justify the beating that Daniel Onalik subsequently inflicted on him. [ 81 ] The injuries sustained by Johnny Onalik were severe. A spinal fracture, a rib fracture, collapsed lung, brain bleed, and a facial fracture. This suggests a severe level of violence.

While it may have seemed spontaneous, the continuation of the beating while the victim was on the ground places Daniel Onalik nearer to the middle of the scale of near accident to near murder. [ 82 ] The cases the Crown and Defence have provided, range from two to 14 years. I will not review them all now but I have considered all of them. [ 83 ] Daniel Onalik, you have taken the life of your uncle. This is a serious crime and one for which you must make amends.

[ 84 ] You have deprived your community, your family, and yourself of this man’s knowledge of the land and his willingness to pass this knowledge onto others. This is a great loss. [ 85 ] You have suffered terrible trauma in your short life but as you stated “you survived”. [ 86 ] I urge you to learn from this mistake; take advantage of your family support, and live a healthy lifestyle. [ 87 ] Be the son, grandson, and member of the community you wish to be. Most importantly, be the father to your child that you wish to be. [ 88 ] You should never ever drink alcohol or use drugs again.

If you can kill someone, your beloved uncle, while using alcohol and/or drugs, you should never use these substances again in your lifetime. [ 89 ] Your counsellor feels you have leadership potential. Be a leader, be a role model. [ 90 ] I would like to thank the community of Hopedale and Nunatsiavut government for allowing us the use of their building and welcoming us into their community.

CONCLUSION AND DISPOSITION [ 91 ] Daniel Onalik, please stand. [ 92 ] Taking into account the purpose and principles of sentencing, Gladue factors, and case law submitted, I find an appropriate sentence is the imposition of a term of imprisonment of five years. Credit will be given for the time he has already served at 1.5:1. [ 93 ] There will be a DNA Order pursuant to

Section 487.051 of the Criminal Code . This authorizes the taking of the number of bodily substances that is reasonably required for the purpose of forensic DNA analysis. [ 94 ] The Crown’s request for the Firearms Prohibition is granted. [ 95 ] Victim fine surcharge is waived.

_____________________________ Stacy Ryan Justice