R v Gyasi, 2023 ABKB 370

Court of King’s Bench of Alberta Citation: R v Gyasi, 2023 ABKB 370 Date: 20230622 Docket: 210179768Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Aston Osei Gyasi Accused _______________________________________________________ Reasons for Decision of the Honourable Justice John T. Henderson _______________________________________________________ I.

INTRODUCTION [ 1 ] Aston Osei Gyasi (the Offender) was charged with one count of First-Degree murder in relation to the death of Peter Boakye (the Victim) on February 17, 2021. [ 2 ] The Offender appeared before me on June 2, 2023 and maintained his plea of not guilty to the charge on the Indictment, but offered a plea to manslaughter contrary to s 236 of the Criminal Code of Canada RSC 1985, c C-46 ( Criminal Code ), which was accepted by the Crown and the Court. [ 3 ] These are my reasons for the sentence that I impose arising from the Offender’s guilty plea to manslaughter.

II. THE PARTIES’ POSITIONS [ 4 ] The Crown submits that a fit and proper sentence is a period of incarceration of 10 years, after taking into consideration the unique circumstances of the Offender and applying the purposes and principles of sentencing set out in the Criminal Code .

Defence counsel submits that a fit and proper sentence is a period of incarceration of three to five years. [ 5 ] Both the Crown and the Defence agree that the Offender should be given credit for pre-disposition custody although they disagree as to the amount of credit that should be given. [ 6 ] The significant difference between the sentencing positions of the Crown and the Defence is explained almost entirely by their respective submissions as to the way in which the Offender’s then undiagnosed and untreated schizophrenia should impact the determination of the sentence. [ 7 ] The Crown and the Defence agree that at the time of this offence, the Offender’s actions and intent were impacted by symptoms associated with schizophrenia.

They agree that at the time of the offence the Offender was operating under the genuinely held but delusional and factually incorrect believe that the Victim had been involved in an incident during which the Offender’s daughter sustained a serious eye injury. This was explained by the report of the forensic psychologist Dr Liam Ennis (Dr Ennis): Mr. Gyasi’s schizophrenia is marked by paranoid delusions focused on the victim of the index offence, and Mr. Gyasi’s belief that Mr. Boakye harmed his daughter and enlisted the services of numerous unspecified others to kill him.

His paranoid delusions are accompanied by visual hallucinations. [ 8 ] The Crown and the Defence agree that at all material times and despite his undiagnosed mental health condition, the Offender understood the nature and consequences of his actions, including that they were morally wrong. III. CIRCUMSTANCES OF THE OFFENCE [ 9 ] The circumstances of the offence are set out in an Agreed Statement of Facts that has been executed by the Offender, Defence counsel, and the Crown.

I will summarise the pertinent facts. [ 10 ] The Offender and the Victim were known to each other, both men having met years earlier when the Offender lived in Edmonton. [ 11 ] On February 17, 2021, at approximately 8:23 AM, the Offender went to the Victim’s residence in Edmonton where the Victim lived with his wife and 8-year-old daughter. Approximately 8 minutes before the Offender’s arrival, the Victim’s wife and daughter left the home to walk to the daughter’s nearby school.

When they left the residence, the Victim was alone, awake, and uninjured. [ 12 ] The Offender entered the residence, although the circumstances in which he gained entry are unknown. Once inside the residence, a confrontation occurred between the Offender and the Victim. During the confrontation, the Offender used a knife to assault the Victim, causing a blood letting injury.

When and from where the knife was obtained by the Offender is not known and the Crown concedes that it cannot exclude the possibility that the Offender obtained the knife from inside the Victim’s residence. [ 13 ] After being injured, the Victim fled his home through his fenced backyard and into the yard of his next-door neighbour where he proceeded to bang on his neighbour’s window. The neighbour pulled back the curtains and was shocked to see the Victim outside her home bleeding. The neighbour then saw the Offender come though her back gate carrying a big knife.

She watched as the Offender approached the Victim from behind and assault him further. Being terrified, the neighbour grabbed her two children and sought refuge in the basement of her home and called her husband. [ 14 ] Shortly thereafter, another witness saw the Offender running from the area carrying a large knife. That witness asked the Offender what happened.

The Offender replied that something bad had happened to his daughter and continued running away. [ 15 ] At some point, the Victim left his neighbour’s backyard and collapsed on a nearby sidewalk where he was found by his wife as she returned from dropping their daughter off at school. The Victim was in medical distress. The Victim appeared to have serious injuries to both arms, which were bleeding profusely. He also had a small wound on his face. The Victim’s wife and other witnesses attempted to render medial aid and called 911. When the ambulance arrived, the Victim was non-responsive.

He was transported to hospital where he was pronounced deceased. [ 16 ] An autopsy was conducted on February 18, 2021. The autopsy report identified the following injuries: • a gaping chop wound to the right upper forearm, horizontally oriented and measuring 24 x 8 cm in length. The wound transected the skin, soft tissues, median nerve, radial artery, and radial vein with a depth of approximately 5 cm. • a gaping chop wound of the left medial hand, horizontally oriented and measuring 5 x 2 cm in length.

The wound transected the skin, soft tissues, and the base of the fifth metacarpal bone with an approximate depth of 5 cm. • eight additional superficial incised wounds to the left hand, right elbow, and right side of the face. [ 17 ] The medical examiner concluded that the cause of the Victim’s death was severe blood loss from the chop wound to the right forearm, which severed both the main artery and the adjacent vein. [ 18 ] On February 20, 2021, police arrested the Offender. At the time of his arrest, the Offender was wearing what appeared to be

the same jacket and shoes that he had been wearing at the time of the offence and which had what appeared to be visible bloodstains onthem. A subsequent search resulted in the seizure of a red knife and a pair of bloodstained pants that appeared to be consistent with thepants worn by the Offender at the time of the offence. [19] During a post arrest interview, the Offender expressed no remorse for the death of the Victim. IV. CIRCUMSTANCES OF THE OFFENDER [20] The Offender was born in Ghana, Africa on August 15, 1986, and is now 36 years old. He has one older sister and five halfsiblings.

In 2000, at age 14, the Offender left Ghana and moved to Chicago with his mother and his sister. Shortly after the Offender wasenrolled in school in Chicago he was criminally charged with battery and suspended from school. The Offender ultimately dropped out ofschool in Grade 11. The Offender remained in Chicago until age 19. [21] In 2005, when the Offender was 19, his mother took him back to Ghana. The Offender lived there with his father and halfsiblings for 2 years. [22] In 2007, the Offender left Ghana and returned to North America.

At that time, he was ineligible to return to the United States.Therefore, he moved to Toronto and lived with his sister who was there to attend college. They lived together in Toronto until 2011when the Offender’s sister returned to Chicago after she finished college. During the time that they lived together, the Offender enteredinto a relationship with a woman, and had a child who was born in 2009.

The child currently lives with her mother and her new partner.The Offender has very limited contact with the child. [23] After 2011, the Offender lived with a friend in Toronto and did some casual work for a temp agency. He later left Toronto andmoved to Fort McMurray to work in the drywalling business. This was short lived, and he lost the employment because of a dispute overthe wages he was being paid. [24] The Offender appears to have lived in Edmonton from approximately 2014 to 2018. In 2019, the Offender returned to FortMcMurray. By late 2019, the Offender was unemployed and homeless.

He returned to Toronto in 2020 at or about the time of the onsetof COVID. [25] The Offender has an extensive criminal record in Canada that began in Toronto in 2008. The record shows a persistent patternof offending from 2008 to 2020. There are numerous convictions for assaults, threats, weapons offences, drug offences, andadministration of justice offences including breaches of recognizance and breach of probation. The Offender has received numerouscustodial sentences. V. LEGAL PRINCIPLES IN SENTENCING A.

Objectives of Sentencing [26] Pursuant to s 718 of the Criminal Code, the fundamental purpose of sentencing is to protect society and to contribute, alongwith crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing justsanctions 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 the 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 offender; (

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

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [27] The primary sentencing objectives in cases of manslaughter are deterrence and denunciation. However, the relativeimportance of deterrence and denunciation is attenuated when sentencing mentally ill offenders.

This principle applies even if there islittle prospect of complete cure and rehabilitation: R v Ayorech, 2012 ABCA 82 [Ayorech]at para 11, citing R v Hiltermann, (AB CA), [1993] AJ No 609 (ABCA) at paras 4 – 8. [28] In this case, deterrence and denunciation continue to be objectives, but they are of lesser importance. Separation from societyand rehabilitation take on greater importance as objectives. B.

Proportionality [29] The fundamental principle of sentencing requires that the sentence be proportionate to the gravity of the offence and thedegree of responsibility of the offender: s 718.1 of the Criminal Code. [30] “Gravity of the offence” focuses on what an offender did wrong and includes the harm or likely harm to both the victim and tosociety and its values.

[31] In this case, the gravity of the offence is very high. Actions that result in death are, by definition, catastrophic harm to theVictim. The victim impact statements show the profound harm that the offence has had on the Victim’s family members.

The harm toboth the Victim and to society and its values is therefore at the highest possible level. [32] "Degree of responsibility of the offender" focuses on the moral blameworthiness of an offender and the extent to which anoffender actually intended the consequences of his actions. [33] In assessing the Offender’s degree of responsibility, it is necessary to consider any specific aspects of the Offender’s conductor background that tend to increase or decrease his personal responsibility for the offence. [34] The Offender’s moral blameworthiness must be assessed in accordance with the Court of Appeal’s directions in R v LaBerge,1995 ABCA 196 [LaBerge].

In that case, the Court emphasised the important distinction between the mens rea that must be proven toestablish the offence of manslaughter and the fault in terms of an offender’s overall moral blameworthiness for the offence. Theseconcepts are different. An offender may have the basic level of mens rea to support the offence, but a much more detailed analysis isrequired to determine where along the moral culpability ladder the offender should be situated. This involves a consideration of both theobjective and the subjective fault components.

An evaluation of an offender’s moral blameworthiness is therefore not limited to only anassessment of an offender’s mental state. The evaluation will also be influenced by other factors. In the case of unlawful actmanslaughter, the most important of these factors will be what the unlawful act itself involved.

The nature and quality of the unlawfulact itself, the method by which it was committed, and the manner in which it was committed in terms of the degree of planning anddeliberation are all relevant to this inquiry: LaBerge at para 8. [35] There are three broad categories to consider when assessing the unlawful act: LaBerge at para 9. 1) Unlawful acts which are likely to put the victim at risk of, or cause, bodily injury; 2) Unlawful acts which are likely to put the victim at risk of, or cause, serious bodily injury; 3) Unlawful acts which are likely to put the victim at risk of, or cause, life-threatening injuries. [36] In this case, I conclude that the circumstances of the offence fit within the second category.

The Offender used a large knife tostrike at the arms and hands of the Victim. The force with which such strikes were made caused serious chop wounds as described by themedical examiner. Such strikes would reasonably be expected to cause serious bodily injury. [37] The Crown submits that the Offender’s injuries fit within the third category. I disagree. While it is true that the ultimateoutcome was death, this can be said of all cases of manslaughter. The test is not what the ultimate outcome was, but what couldreasonably be expected. In this case I conclude that serious bodily injury could be reasonably expected.

For this reason, thecircumstances of this case best fit within the second category. This informs the objective component of the moral blameworthinessladder. [38] Situating the offence within the second category does not end the analysis of the Offender’s moral blameworthiness. Acombined assessment of the objective and the subjective fault components must be used to determine the Offender’s overall moralblameworthiness. It is therefore necessary to consider the potential for the Offender’s subjective fault.

This requires an assessment ofwhether the Offender’s personal characteristics and circumstances would either mitigate or aggravate his blameworthiness. In otherwords, the more the Offender’s “intention” or “awareness” at the time of the offence approaches the point that he knew or was wilfullyblind to the fact that the assault on the Victim was likely to put him at risk of serious bodily injury, the greater the degree of his moralblameworthiness. [39] There is little evidence of any planning or deliberation to kill the Victim.

There is no evidence that the Offender took a knifeor other weapon with him to the Victim’s home. However, it is apparent that some planning took place at least to the extent that theOffender planned to travel to the Victim’s home and to engage in some type of confrontation. There is also no evidence that theOffender’s actions were spontaneous or impulsive.

While the confrontation began in the Victim’s home, there is little to no evidence asto how the confrontation developed. [40] The subjective fault component is heavily influenced by the acknowledgment that the Offender was operating under thegenuinely held but delusional and factually incorrect belief that the Victim had been involved in an incident during which the Offender’sdaughter sustained a serious eye injury. This is what motivated the Offender to attend at the Victim’s home. [41] Mental health issues have an important role to play in the proportionality analysis.

Mental health issues can be a mitigatingfactor: R v Adam, 2019 ABCA 225 at para 17.

Consideration must be given to an offender’s mental health where it is established to becompromised, and to consider the role it may have played in the offence: R v Shevchenko, 2018 ABCA 31 [Shevchenko] at para 25.Where an offender is found to be criminally responsible but suffering from a mental illness, a more lenient disposition reflective of theoffender’s diminished responsibility is called for: R v Tremblay, 2006 ABCA 252 at para 7, citing R v Taylor (1975) (ON CA), 24 CCC (2d) 551 (Ont CA), R v Moreau (1992) 76 CCC 93e) 181, and R v HMT, [2004] AJ No 1228 (QB). [42] Mental health issues must be given proper, independent consideration, particularly where the effects of that mental illness arerelevant to the offence or the offender in their rational proportionality sense: R v Costello, 2019 ABCA 104 at para 8.

It is thereforeimportant to consider the extent and manifestation of the illness and link it to the degree of moral blameworthiness: Shevchenko at para28. [43] Mental disorders, particularly schizophrenia, can significantly mitigate a sentence, even if the evidence does not disclose thatthe mental illness was the direct cause of the offence or that it was carried out during a period of delusions, hallucinations, or such. It issufficient that the mental illness contributed to the commission of the offence: Ayorech at para 10, citing R v Resler, 2011 ABCA 167[Resler] and R v Belcourt, 2010 ABCA 319 [Belcourt].

[44] The gravity of the offence is not lessened by the personal circumstances of the offender. A mental disorder diminishes thedegree of responsibility of the offender. Impaired reasoning, delusional disorders, and like mental conditions distinguish those afflictedfrom the ordinary offender who is fully accountable for his or her conduct: Ayorech at para 12, citing Resler at paras 9 – 10, Belcourt atparas 7 – 8, and R v Muldoon, 2006 ABCA 321 at paras 9 – 10. [45] The Offender was assessed by Dr Ennis who provided his opinion in a report dated May 11, 2023. The report expresses theopinion that: (

a) The Offender suffers from schizophrenia. Generally, schizophrenia is characterized by abnormalities in one or more of thefollowing five domains: (

i) Delusions; (ii) Hallucinations; (iii) Disorganized thinking (speech); (iv) Grossly disorganized or abnormal motor behavior (including catatonia); and (

v) Negative symptoms. The Offender’s schizophrenia is marked by paranoid delusions focused on the Victim and the Offender’s belief that the Victim harmedthe Offender’s daughter and enlisted the service of numerous unspecified others to kill the Offender. The Offender’s paranoid delusionsare accompanied by visual hallucinations in which the Offender saw the Victim and the Victim’s henchmen following, monitoring, orapproaching the Offender in various public and private contexts. (

b) The Offender was experiencing acute paranoid symptoms for at least 14 months prior to committing the index offence. (

c) Although the Offender abuses cannabis and prescription medications and had consumed intoxicants in the hours prior to theindex offence, his drug use is unrelated to his psychotic symptoms and had a negligible contribution to the commission of the indexoffence. (

d) The Offender’s clinical presentation has remained consistent over time. He continues to demonstrate poor reality testing anda lack of insight into his mental illness and subsequent need for treatment. He continues to suffer from acute paranoia during his currentdetention.

Mental health professionals at whatever correctional facility the Offender is housed at should be made aware of the Offender’spoor mental health so that he can begin receiving pharmacotherapy for his psychotic symptoms. [46] Dr Ennis’s opinion is supported by the facts outlined in the Agreed Statement of Facts and by the contents of medical recordsfrom the Offender’s attendance at hospital in Fort McMurray on four occasions in December 2019 and two occasions in January 2020,which was more than 14 months prior to the attack on the Victim.

The following entries are relevant: • On December 5, 2019, the Offender presented at hospital with symptoms of depression, anxiety, tension, hallucinations, delusions,paranoia, and obsessions/compulsions. The Offender self-reported that he was being followed by people from the Somalian communityand that one of them had a gun. • On December 29, 2019, the Offender presented at hospital with paranoia, delusions, auditory hallucinations, and sleepdisturbance. • On December 31, 2019, the Offender presented at hospital and self-reported suicidal ideation and visual and auditoryhallucinations.

The Offender told medical personnel that he was homeless, and that “his daughter was blinded by Peter using a pelletgun.” The Victim’s first name is Peter. • On January 3, 2020, the Offender presented at hospital with some paranoia and increased thoughts of suicide. [47] It is also significant to note that the Offender called his former partner two or three months prior to the stabbing and accusedher of letting Peter shoot their daughter in the eye.

Similar statements were made by the Offender to his former partner in the weeksleading up to the Victim’s stabbing and death. [48] The Crown and the Defence agree that the Offender’s actions and intent were impacted by his undiagnosed and untreatedmental health disorder at the time of the offence and that he was operating under the genuinely held but delusional and factually incorrectbelief that the Victim had been involved in an incident during which the Offender’s daughter had sustained a serious eye injury.

As aresult, the Offender’s schizophrenia and delusions as well as their connection to the offence are fully established on the record beforeme. [49] I therefore conclude that the Offender’s mental health condition played a significant

part in the events that resulted in theVictim’s death. This materially impacts the Offender’s subjective fault. When I consider both the objective and the subjective faultcomponents, I conclude that the Offender’s moral blameworthiness for this offence is significantly reduced. [50] Defence counsel submits that the Offender’s moral blameworthiness is also diminished by a consideration of the Offender’spersonal circumstances. More specifically, he submits that something in the nature of the analysis as outlined in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] is required in this case.

Defence counsel submits that I can consider that the Offenderspent his early years in Ghana, which has had significant challenges with violence and criminality, and also spent several years in SouthChicago, which has similar problems. Defence counsel submits that these factors should further reduce the Offender’s moralblameworthiness.

[ 51 ] On the record before me, I am not satisfied that the Gladue principles can be extended to The Offender’s personal circumstances. The Offender is not an Indigenous person and a traditional Gladue analysis cannot be undertaken. I cannot take judicial notice of the systemic and background factors affecting people from Ghana or South Chicago and use them in the same way that I am directed to use them in relation to Indigenous persons in Canada.

I would therefore decline to further reduce the Offender’s moral blameworthiness for Gladue -like factors. [ 52 ] In conclusion, on the proportionality analysis, I am satisfied that the gravity of the offence is very high, but that the Offender’s moral blameworthiness is significantly reduced because of his mental illness. C.

Aggravating and Mitigating Circumstances [ 53 ] The sentence that I impose must be increased or decreased to account for any relevant aggravating or mitigating circumstances relating to the offence or the Offender. [ 54 ] The only mitigating factors in this case are the guilty plea and the Offender’s remorse. [ 55 ] The Crown submits that the guilty plea is of little mitigating value because it is not an early guilty plea, and the Crown had a very strong case. These factors can and often do reduce the mitigating effect of a guilty plea.

However, the guilty plea in this case has real mitigation value for several reasons. Most importantly, the guilty plea spared the Victim’s wife from having to testify at trial, which would likely have been very traumatic for her. The guilty plea also demonstrates an acceptance of responsibility. Finally, the guilty plea has significantly reduced the Crown and Court resources that would have been required to deal with the case had it gone to trial. [ 56 ] The Crown submits that the Offender has no remorse as was evidenced by the statement made by the Offender post arrest.

However, when the Offender was asked to speak at the conclusion of the sentencing hearing, he read a statement in which he clearly expressed remorse. I am satisfied that this was a genuine statement of remorse, and this is mitigating. [ 57 ] Aggravating factors are present in this case and include the following: • The attack on the Victim took place in his own home where he was entitled to feel safe; • The attack on the Victim involved the use of a weapon, a large knife; • After the blood letting injury in the initial attack, the Victim fled his home and sought help at a neighbour’s home.

The Offender pursued the Victim to the neighbour’s home and continued the attack with the knife. • The Offender was on probation at the time of the offence. [ 58 ] The aggravating factors in this case far outweigh the mitigating factors. All other things being equal, this would tend to increase the sentence. D. Sentencing for Manslaughter [ 59 ] The sentencing options for the offence of manslaughter are very wide.

The sentences can be as low as a period of probation to as high as a life sentence. [ 60 ] The wide range of sentences is because the circumstances of the offence, when considered objectively can range from near accident to near murder. Moreover, the circumstances of the offenders can vary greatly. [ 61 ] Cases of manslaughter where a knife was the cause of the death also give rise to a wide range of sentences.

Generally, cases where a single stab wound caused the victim’s death give rise to somewhat lesser sentences than cases, such as the present case, where the knife is used to inflict multiple stabs or slashes. Other factors such as the relationship between the parties, whether there were multiple attackers, or a disparity of size, age, or sex can also be factors that influence the length of the sentence. [ 62 ] No two cases of manslaughter are ever the same and are so varied that sentencing based on similarities among cases is problematic: R v Pate-Miller, 2016 ABCA 296 at para 14 .

With that caveat, I will review several cases that provide some guidance in relation to the sentence that should be imposed in relation to the Offender. [ 63 ] In R v Holloway , 2014 ABCA 87 , the Court of Appeal dismissed an appeal from an 8-year sentence. The Indigenous offender and his two companions entered the victim’s residence without consent and began to beat the victim. The offender then went to the kitchen, got a butter knife, and stabbed victim once in the chest. The knife was never recovered.

The medical examiner opined that as the stab wound penetrated the breastbone and heart cavity, a “certain amount of force would have been required to penetrate the breastbone.” The majority made the following observations at para 51: The Crown may be correct that a range of 10 years or more has been emerging for cases that fit the most serious category within the LaBerge categorization. Factors such as group involvement, protracted brutality, use of weapons, vulnerable victim and so on have been influential. This is not to say that we are recognizing or adjudicating a starting point for such situations.

Rather we merely note that in a de facto way something of a range of that sort appears to be reflected in the present selection decisions of this Court and some from other jurisdictions. On the other hand, other panels of this Court have in their reasons referred to a range of eight to 12 years. [ 64 ] In R v Mitchell , 2019 ABCA 209 , the offender appealed his conviction for second-degree murder. At the appeal hearing the Crown consented to the conviction appeal and invited the Court to enter a conviction for manslaughter and to impose the sentence.

The Court accepted the parties’ a joint submission for 15 years gaol. The offender and three others set out to collect a drug debt. The offender and one of his companions forced open the door and both men were confronted by the victim. A fight ensued during which the offender

stabbed the victim in the leg. The offender fled. The victim died of blood loss from the stabbing. The parties agreed that the offender’s actions fell within the second level of the LaBerge framework (he knew that serious harm may befall the victim when agreeing to engage in the home invasion). The offender was a 43-year-old Indigenous man with a criminal record going back to 1994. Many Gladue factors were present.

A psychiatric assessment indicated that the offender suffered from polysubstance abuse, anxiety, depression, some bi-polar personality traits, anti-social personality traits, had been diagnosed with a major mood disorder, and had a history of victimization as a child and adult. He had a limited work history and usually working at menial labour when he is working. [ 65 ] In R v Martineau , 2021 ABCA 401 the Court dismissed an appeal of a 10-year sentence for a 31-year-old Indigenous offender who stabbed an innocent victim.

The offender was high on methamphetamine and was described as “out of it, confused, and not himself.” The offender was seen trying to put gloves on his feet and heard talking about Armageddon, war, and people being “after him.” The offender was staying at a homeless shelter. He stole a knife from another client and was asked to leave the shelter. He entered a liquor store and stood directly behind the victim whom he had never met. When the victim left the liquor store, the offender followed, walked up to the victim from behind, and stabbed him in the head and neck 27 times using the stolen knife.

The victim died from those injuries. The sentencing judge noted very significant Gladue factors and referred to a mental health assessment which diagnosed several mental health conditions including schizophrenia. The sentencing judge found that the appropriate sentencing range was eight to 12 years and would have imposed a 12-year sentence but for the Gladue factors and mental health diagnoses. [ 66 ] In R v Enright, 2017 ABQB 10 the Court imposed a 10-year sentence for an offender who stabbed the victim 14 times.

The stab wounds were to the chest area and resulted in injury to the left lung, an incised wound of the heart, nicked esophagus, perforated diaphragm, and the injury to the spleen. The victim was unarmed, and the offender was a guest in the victim’s home. The offence was at the near murder level in terms of both act and subjective fault. The offender had a history of depressed mood, feelings of guilt, worthlessness or hopelessness and a hospital history of bizarre behavior, suicidal/homicidal ideation, paranoia, and depression.

The offender had a lengthy criminal record with three assault convictions, the last attracting a six-month jail sentence. The only mitigating factors were the offender’s guilty plea and remorse. From an objective perspective, the attack in Enright was more serious than the present case. However, several other similarities exist when compared to the present case. [ 67 ] In R v Rasberry , 2018 ABCA 128 , the Court upheld a sentence of seven years for an offender who used three different knives, stabbed the deceased 23 times, and slashed the victim multiple times, which resulted in death.

The offender and the victim had been at a social function at the offender’s home where large amounts of alcohol were consumed. The offender wanted to bring the party to an end and suggested that the victim leave. The victim became aggressive, pushed the offender, and threated anal intercourse against both the offender and his wife who was sleeping upstairs. A scuffle ensued during which the offender stabbed and slashed the victim. The offender called 911 and was cooperative with police. The offender was convicted of manslaughter in light of a successful provocation defence.

At the sentencing hearing, the Court concluded that if this were a case of manslaughter without provocation, the appropriate range of sentence would have been eight to 12 years. E. The Offender’s Sentence for Manslaughter [ 68 ] The Offender’s offence does not fall into the highest of the LaBerge categories. However, the circumstances are very concerning. This is particularly so because when the Victim fled the home after suffering the first injury, the Offender pursued the Victim and continued the assault with the knife, inflicting slash wounds that were horrific in nature.

Even though this offence does not meet the criteria to enter the highest LaBerge level, as in Mitchell , a very significant sentence is warranted. [ 69 ] Absent a consideration of the diminished moral blameworthiness arising from the diagnosis of schizophrenia and the delusions that afflicted the Offender, I would have concluded that the range of sentences for this type of offence would be eight to 12 years.

The aggravating factors far outweigh the mitigating factors, which would place this case toward the mid to high end of that range or approximately 10 to 11 years. [ 70 ] The sentence must be adjusted to reflect the Offender’s reduced level of moral blameworthiness. I conclude that a substantial reduction is warranted because the facts are clear that the Offender was acting on delusions that the Victim had inflicted harm to the Offender’s daughter. Dr Ennis’s report also suggests that the Offender had delusions that the Victim enlisted the services of numerous unspecified others to kill the Offender.

If the Offender had not been suffering from schizophrenia and delusions, it is highly unlikely that the Offender would have caused any harm to the Victim. [ 71 ] However, despite the delusions, the Offender understood the nature and consequences of his actions, including knowing that they were morally wrong. [ 72 ] The relevant sentencing objectives of denunciation, deterrence, separation from society, and rehabilitation must be balanced with the proportionality principle. This analysis is not capable of mathematical precision.

In this case, denunciation, separation from society, and rehabilitation are the primary sentencing objectives that must be reflected in the sentence imposed. I do not consider specific deterrence to be necessary for this Offender because the driving force of his offending conduct was his mental illness.

However, I take into account that the Offender’s actions were fueled by an untreated mental illness, the Offender’s mental illness still remains untreated, and the Offender remains a risk to the public as long as his mental illness remains untreated. [ 73 ] When I consider all these factors, I conclude that a fit and proper sentence is seven years gaol. That is the notional sentence that I impose. F.

Adjustment of Sentence for Harsh Remand Conditions [ 74 ] Defence counsel submits that an adjustment to the notional sentence is appropriate because of the harsh conditions that the Offender has experienced in pre-disposition custody since his arrest in February 2021. These conditions arise from the COVID pandemic which resulted in remand prisoners having severely restricted access to time out of cells, often as little as one to two hours per day. In the Offender’s case, even after the COVID restrictions were lifted, he was regularly in administrative segregation that kept him isolated from

other persons for extended periods of time. [ 75 ] The Crown opposes any reduction of the sentence for harsh pre-disposition custody conditions. The Crown submits that the Offender was the author of the circumstances that resulted in his remand conditions. The Crown notes that shortly after his placement in remand he was involved in an altercation that resulted in criminal charges against him.

He pleaded guilty to possession of a weapon dangerous in October 2021 and received a sentence of 150 days, satisfied by his pre-disposition custody. [ 76 ] The Crown further submits that the records from the custodial authorities show that the Offender was placed in administrative segregation due to other altercations or threats made against other prisoners. There were also times when the Offender requested that he be placed in segregation.

For these reasons the Crown submits that no adjustment to the sentence is warranted. [ 77 ] An offender is entitled to statutory credit of 1.5 days per one day in pre-disposition custody pursuant to s 719 of the Criminal Code and R v Summers , 2014 SCC 26 . Two routes are available to an offender who seeks greater credit for pre-disposition custody. The first route is to raise a Charter issue arguing that remand conditions amount cruel and unusual punishment such that they breach of s 12 of the Charter : see R v Prystay , 2019 ABQB 8 .

In the present case, the Offender chose not to pursue this route. [ 78 ] The second route to greater credit for pre-disposition custody due to harsh remand conditions is as described in R v Biever , 2023 ABCA 138 at para 22 – 24 : [22] Particularly harsh conditions on account of Covid-19 restrictions have sometimes been articulated as a “collateral consequence” that might result in a more lenient sentence: see R v Morgan , 2020 ONCA 279 at para 9 ; R v Kolola , 2021 NUCA 11 at para 18 ; R v Caribou , 2022 MBCA 95 at para 45 ; R v Mosquito , 2023 SKCA 29 at paras 89-93 . [23] Such conditions have also been addressed using the framework developed in R v Nasogaluak , 2010 SCC 6 [ Nasogaluak ] under which Charter breaches and other state misconduct are considered in sentencing: see Byron at paras 264-266.

Crown counsel below cited Nasogaluak as authority for ordering credit above the 1.5:1 statutory limit in s 719. [24] In our view, particularly harsh pre-sentence custody conditions are instead best expressed as providing potential mitigation to the overall sentence, a concept first developed by the Ontario Court of Appeal in R v Duncan , 2016 ONCA 754 [ Duncan ] at para 6 (“particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1)”). [ 79 ] I am satisfied that the notional sentence for the Offender should be adjusted for harsh remand conditions.

While these conditions were partially related to both the COVID restrictions and the Offender’s own conduct, at all times while in remand, the Offender was suffering from undiagnosed mental illnesses which no doubt made the remand time much more difficult for him than it would have been for other persons similarly situated. I would therefore reduce the sentence by one year, which equates to approximately ½ day for each day in custody. The sentence is therefore reduced from seven years to six years. G.

Credit for Pre-disposition Custody [ 80 ] The parties agree that as at the date of the sentencing hearing on June 2, 2023, the Offender had been in custody for 832 days from his arrest in February 2021. However, 100 of these days were used as credit for the 150-day sentence imposed in October 2021 for the weapons offence that arose while in custody. Thus, the Offender had 732 days available to apply to this sentence.

The parties agree that at 1.5:1 credit, the Offender should receive three years credit for this time. [ 81 ] Since the sentencing hearing on June 2, 2022, the Offender has been in custody for another 20 days. I also give him credit at 1.5:1 for this time for a further credit of one month. [ 82 ] Thus, the sentence of six years is reduced by three years and one month to a net sentence of two years and 11 months. VI.

CONCLUSION [ 83 ] The Offender is sentenced to a net sentence of two years and 11 months. [ 84 ] In addition, I also order the Offender to provide a sample of his DNA in accordance with s 487.051 of the Criminal Code . The Offender will also be subject to a mandatory lifetime firearms prohibition in accordance with s 109 of the Criminal Code . Finally, any interest that the Offender has in any of the items seized by police are forfeited in accordance with s 490.1 of the Criminal Code . Heard on the 2 nd day of June, 2023. Dated at the City of Edmonton, Alberta this 22 nd day of June, 2023. John T.

Henderson J.C.K.B.A.

Appearances: Susan D Hughson, KC for the Crown Kristofer Advent for the Accused