R v Auger, 2023 ABCJ 245

In the Alberta Court of Justice Citation: R v Auger, 2023 ABCJ 245 Date: 20231120 Docket: 210498010P1 Registry: High Prairie Between: His Majesty the King Crown - and - Tara Rita Auger Defendant Reasons for Sentence of the Honourable Justice S.P. Hinkley [ 1 ] Russell Lamouche died after being stabbed by his ex-common law partner, the Defendant, on May 19 th , 2021. She pled guilty to the offence of manslaughter for this act. [ 2 ] The events of that May evening left 6 children without their father and will further serve to separate them from their mother for an extended period.

There is nothing this Court can do to repair that damage, nor anything it can do to fill the hole the loss of this person will create in the lives of their family, friends, and community, as demonstrated by the moving Victim Impact Statements. Issue [ 3 ] This Court is to determine a fit and appropriate sentence for this offender, in the factual matrix of both the offence as it occurred and the offender as she was when she committed it. Procedural History [ 4 ] The Defendant was arrested on May 19 th , 2021, for the offence of murder in the 2 nd degree.

She was held in remand through various court appearances until released on strict bail conditions on July 25 th , 2022, totalling 432 days in custody. [ 5 ] There were several administrative Court appearances in 2021 on the matter. [ 6 ] On December 6, 2021, a preliminary inquiry was scheduled to be held between November 16 th and 18 th , 2022. [ 7 ] On November 15 th , 2022, the preliminary inquiry was adjourned with a waiver of any allegations of delay pursuant to R. v. Jordan, 2016 SCC 27 and the Charter .

[8] On January 16th, 2023, a consent committal to the offence of manslaughter was entered by the Defendant with the consent ofthe Crown. With the offence now one where this court could assume jurisdiction, the Defendant with the consent of the Crown entered a re-election to the jurisdiction of this Court with a waiver of any procedural irregularity.

The matter was then adjourned to February 23rd,2023, with another waiver of delay. [9] The matter was adjourned a number of times until May 8th, 2023, when a guilty plea to the offence of manslaughter wasentered. [10] On May 29th, 2023, a sentencing date of August 31st, 2023 was set. A Gladue report and Pre-Sentence report were ordered forthat date, and deadlines for the agreed statement of fact and submissions from counsel were set. [11] Sentencing did not proceed in full on August 31st, for reasons outlined below.

Several procedural and administrative steps were taken on the August 31st date, deadlines were set for further written submissions, and Victim Impact Statements were read andmarked as exhibits at that time. [12] A sentencing hearing was convened and held on November 16th and 17th, 2023. At the conclusion of the hearing, I passedsentence on the Defendant orally with written reasons to follow. These are the promised reasons. Disputed facts [13] When the August 31st sentence date arrived, several issues presented themselves.

The Gladue and Pre-Sentence reportsarrived very close to the sentence date, the Gladue report less than 24 hours before same. Victim Impact Statements were filed on theproposed date of sentence. The Crown gave notice, upon receipt of the pre-sentence and Gladue reports, of their intention to requestcertain parts of said reports be struck before their admission for consideration on sentence.

As the reports arrived very close to thesentence date, there was insufficient time for Defence to subpoena witnesses and prepare them for viva voce testimony in a sentencinghearing. [14] On the August 31st date, Defence gave notice of certain assessment and treatment reports they wished to rely on in theirsubmissions on of sentence, which the Crown wished time to review and consider their position on. [15] After hearing from counsel on the matter, a two-day sentencing hearing pursuant to s 723 of the Criminal Code was set forNovember 16 and 17, 2023 to ensure all outstanding factual issues were resolved before the Court passed sentence.

The Agreed Statement of Fact [16] At the outset, I note all the facts in the Agreed Statement of Fact, pursuant to s 655 of the Criminal Code, are to be acceptedas proven beyond a reasonable doubt. There are several utterances from the Defendant contained within the Agreed Statement of Fact,some contradictory to one another. [17] Drafting an Agreed Statement of Fact in this manner can cause issues, especially where counsel is silent as to what I am tomake of these statements.

This was the case in R v Fucile, 2020 ABCA 189, where similar ambiguities led to error in how the trial Judgeused those parts of the Agreed Statement of Fact. [18] Following the guidance of Fucile, supra I tasked counsel at the start of the sentencing hearing with clarifying what use I wasto make of these utterances. Counsel have agreed I am to take any utterances by the Defendant contained in the Agreed Statement of Factas proof only of the fact such an utterance was made.

Any potential truth contained within those utterances remains within the purviewof the Court to find as a fact or not. [19] I pause here to review what is of the most assistance to the Court in drafting an Agreed Statement of Fact. What wassubmitted in this case was 7 pages long and contained 48 numbered paragraphs.

Included therein were various investigative steps takenby the RCMP, the contradictory utterances of the Defendant, and a great deal of material not directly relevant to either admissions by theDefendant surrounding the elements of the offence or factors to consider on sentence. [20] This is to be avoided. [21] Instead, as summarised by Alberta Court of Appeal, “the best practice for counsel drafting an agreed statement of facts is tostate precisely the facts that are being admitted.

There is no need to provide the evidence that supports those facts; indeed, doing so cangive rise to confusion.”[1] [22] This guidance is rooted in the understanding of what an agreed statement of fact is meant to capture, articulated by theSupreme Court of Canada in Castellani v. R., …An accused cannot admit a fact alleged against him until the allegation has been made. When recourse is proposed to be had to s. 562(the precursor to s. 655) it is for the Crown, not for the defence, to state the fact or facts which it alleges against the accused and of whichit seeks admission.

The accused, of course, is under no obligation to admit the fact so alleged but his choice is to admit it or to decline todo so… (clarification on prior

section added) [23] Where counsel utilize s 655 of the Criminal Code, concrete facts should be simply and clearly delineated so the Defendant isaware of what allegation they are admitting to, and the Court has an unambiguous admission upon which to rely.

Evidence Reviewed [ 24 ] In reviewing the evidence, I have applied s 724(3) of the Criminal Code as to the requisite standards of proof to be met . 724

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (

a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial; (

b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (

c) either party may cross-examine any witness called by the other party; (

d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. [ 25 ] During the hearing, the Defendant was placed on the stand and examined on several issues, including her prior relationship with the victim, her time on remand during COVID, her history around alcohol abuse and finally her understanding of her FASD diagnosis. Defence also formally tendered a

summary of CFS interventions with the family up to 2016, a FASD Diagnostic Team Report and a detailed FASD evaluation of the Defendant’s task orientated functioning for the Court’s consideration. No expert evidence was called on the matter of the FASD diagnosis. [ 26 ] The Crown cross examined the Defendant at the sentencing hearing and called no other evidence. Conclusions and Findings of Fact for the Purpose of Sentence [ 27 ] During examination and cross examination, I found the Defendant to be both credible and reasonably reliable as a witness.

She appeared to be doing her best to recall with accuracy and referenced using note taking at the time of relevant events to crystallize her memory. I did not detect any attempt to gloss over or minimize events which would cast her in a negative light. Some question remains around the interaction of alcohol with her memory, but overall, she was a witness who presented in a straightforward and forthright manner. Where she has testified to her understanding of her personal history, her time in remand, and the overall timbre of her relationship with the victim, I accept it. [ 28 ] I have reviewed the

summary of CFS interventions with the family. [ 29 ] I have also reviewed at length the FASD Diagnostic Team Report and the detailed evaluation of the Defendant’s functioning.

In the absence of expert evidence, I have taken from the reports their normal and common sense meaning where evaluations are made, and conclusions reached. [ 30 ] After reviewing and evaluating all the evidence before me at the sentencing hearing, including the Agreed Statement of Fact, I make the following factual findings with respect to passing sentence on this matter. [ 31 ] I find as a fact the Defendant has had a long-standing issue with alcoholism, which has led to conflict with the law. [ 32 ] I find as a fact the Defendant has entered treatment for alcoholism on multiple occasions. [ 33 ] I find as a fact the relationship between the Defendant and the victim was characterized by alcohol consumption and mutual abuse, both physical and emotional.

Where the reports authored disagree with this finding, I substitute this finding. [ 34 ] I have no evidence before me the Defendant suffers from PTSD. I do not find this mitigating fact to be proven to the standard required of the Defendant.

Where such a diagnosis is mentioned in the reports, I disregard it. [ 35 ] I find as a fact the Defendant has had exposure to the factors effecting Indigenous peoples outlined in Gladue, inclusive of intergenerational trauma, reduced educational achievement, addictions (alcoholism), paucity of resources, interventions by child enforcement authorities and exposure to abuse. [ 36 ] On the issue of COVID lockdowns and conditions in remand, I find as a fact the Defendant was placed in 23.5-to-24-hour lockdown at the Edmonton Remand Center for 10 weeks of her time in custody while remanded. [ 37 ] On the issue of FASD and any potential impact on the Defendant, I find the reports tendered by Defence do not disclose any substantial impairment to the Defendant by FASD, either by way of cognitive defects or mental health issues for the following reasons. (

a) The reports themselves identify the Defendant as having an IQ in the average range, albeit at the lower end of average. (

b) The reports themselves identify the evidence between any CNS damage from potential prenatal alcohol exposure to the Defendant as “not strong”, but instead state there is a “suggestion” of same. (

c) The reports identify the Defendant as performing better than the mean standard used in the testing.

(

d) The reports state the Defendant “should not have difficulties managing her daily life”. (

e) The in-depth reports indicate of a potential 141 symptoms indicating the need for further FASD testing, 1 was present in the Defendant. [ 38 ] I find as a fact while the Defendant may be suffering from some mental health issues, these were not significant to her actions in committing this offence. [ 39 ] I further find as a fact the actions of the Defendant on the date of the offence were occasioned by self-induced intoxication, and not by an underlying mental health condition. [ 40 ] On the facts surrounding the offence in question, I find the following, based on the sentencing hearing and the Agreed Statement of Fact. (

a) The Defendant had been drinking for a period of days before and during the offence and was substantially intoxicated during its commission. (

b) The Defendant had been aggressive and angry with other persons immediately before encountering the victim. (

c) At the time of their interaction, the Victim was also substantially intoxicated. (

d) At the time of her interaction with the victim, the Defendant was aware he had been charged with inappropriate physical contact with their daughter. (

e) At some time between 7:00pm and 7:39pm, the Defendant stabbed the victim once in the chest with a steak knife, to a depth of 9cm. (

f) This wound was fatal within a minute. (

g) The Defendant took no personal action to seek treatment for the victim. (

h) The Defendant confessed to stabbing the victim to more than one person in a period of under an hour. (

i) The Defendant had bruises on her arms and a scratch on her arm at the time of her arrest. No other injuries were present. Specifically, no evidence of any injuries in or around the neck of the Defendant were observed. (

j) Based on the evidence which I accept as proven to the requisite standard, I find there was an argument at the relevant time which escalated to a physical conflict between the Defendant and the victim. (

k) I find on the totality of the evidence this conflict was mutual in nature. (

l) I do not find as proven to the requisite standard the victim choked the Defendant. (

m) I find this conflict ended immediately upon the Defendant stabbing the victim, whereupon the Defendant exited the home. The Presentence and Gladue Reports [ 41 ] Both a Pre-Sentence and Gladue report were authored to assist the Court in crafting a sentence. Both are quite thorough and give this Court a clear picture of the Defendant as she was at the time the offence was committed. As outlined above, I have only considered factual allegations in those reports which have either been agreed to by counsel or I have found to be proven to the requisite standard.

Where mention of a fact is made within these reasons, it is with this understanding. The Defendant [ 42 ] The Defendant is a 41 year old Indigenous person, a member of the Whitefish Lake First Nation. She was raised in various locations between Gift Lake, Atikimeg and Grande Prairie. She was placed in foster care for a 6 month period in her middle teens while Court proceedings for a cousin charged with an offence against her proceeded through the Court system. [ 43 ] Describing her upbringing, the Defendant articulates alcohol abuse from both parents and anger issues from her mother being present in her home.

She would on occasion stay with her paternal grandmother to find safety from them. She also disclosed corporal punishment and emotionally abusive behaviour from her mother during her childhood. Her parents remain married as of the date of sentence. [ 44 ] The Defendant notes the loss of her maternal grandmother at the age of 15 was devastating for her, as she felt she had lost a support she could always count on.

Since that time, she has lost several other family members, but has not yet undertaken counselling to deal with the grief. [ 45 ] The Defendant left school at the age of 17, with effectively a grade 8 education. She bore a child from a relationship when she was approximately 22. The Defendant’s parents became the guardians of this child when she was under 1 year old. [ 46 ] The Defendant began seeing the victim in this case when she was 25. Over the course of 12 years, she bore 6 children with the victim, ranging in current age from 14 to 4 years of age.

[ 47 ] Alcohol abuse permeated both the life of the Defendant, starting at the age of 17, and was central within her relationship with the victim, who also abused alcohol. This caused the intervention of Child Protective Services regarding their children on several occasions, most significantly around 2013 when they were apprehended. [ 48 ] As a result of the interventions of Child Protective Services, the Defendant and victim had a period of sobriety from 2013 until 2016.

By that period, their children had been returned to their care. [ 49 ] In 2016, the children were again apprehended owing to concerns around alcohol abuse and domestic violence. The Court has no information about what happened with the children between 2016 and the date of the offence. [ 50 ] The parties continued abusing alcohol, culminating in the end of their relationship in 2020. At the time of the offence, the parties were separated. [ 51 ] As of the date of sentence only two of the Defendant’s children are in her full-time care.

The rest are in the care of other family members under the terms of various permanent guardianship orders. [ 52 ] The Defendant has held various jobs over the course of her life, including as a gas jockey and cashier. She is not currently employed and is supported by Alberta Works payments. [ 53 ] Over the last number of years, the Defendant has undertaken substantial counselling and treatment for alcohol abuse, including 3 residential treatment programs. The last was completed in October of this year. She is aware of the negative influence alcohol abuse has had in her and her children’s lives.

She also has received life coaching and assistance from a worker with the McKenzie network since 2010. [ 54 ] The Defendant has a limited prior criminal record. For the purposes of this sentencing the most relevant conviction is for violence against the same victim from 2012, wherein she was convicted of assault causing bodily harm. [ 55 ] The Defendant has expressed remorse for the offence.

Position of the Crown [ 56 ] The Crown categorizes this offence as falling into the third and most serious category of manslaughter articulated in R v Laberge , 1995 ABCA 196 , and urges the Court to consider denunciation and deterrence as the primary sentencing considerations. [ 57 ] The Crown highlights the offence happening in the victim’s own home, the prior domestic violence conviction, and the knowledge the Defendant ought to have had regarding her disposition while intoxicated as the primary factors for the Court to consider. [ 58 ] The Crown seeks a sentence of 6 to 8 years of custody, with credit for pre-trial custody at a rate of 1.5 to 1.

In support of this range, the Crown relies upon R . v. Laberge , 1995 ABCA 196 , R v Drescher , 2022 NWTSC 15 , R v A.D., 2019 ABCA 396 , R v Phillips, 2023 ABCA 210 , and R v Swampy, 2017 ABCA 134 . [ 59 ] The Crown also seeks ancillary orders for DNA, a

section 109 firearms prohibition, an order under s 743.21 prohibiting the Defendant from communication with certain people during her term of incarceration, and forfeiture of any items seized, subject to any family members of the victim advancing a claim for them.

Position of Defence [ 60 ] Defence categorizes this offence as falling within the second category of manslaughter articulated in Laberge , supra . [ 61 ] Defence seeks a sentence of 3 years custody with credit for pre-trial custody at a rate of 2 to 1, creating a net sentence of just over seven months custody to be followed by 3 years of probation with terms of supervision and attending for and completing assessments, counselling and treatment. [ 62 ] Defence urges the Court to review the larger sentencing principles, with the understanding there are a vast range of sentences available for this offence.

Defence asks the Court to blend deterrence with rehabilitation and consideration of the long term goals of reintegrating this Defendant into society by ensuring her underlying issues are treated and monitored. [ 63 ] In support of this position, Defence points the Court to the particular Gladue and mental health factors present and affecting the moral blameworthiness of the Defendant, and points the Court to R v Holmes , 2018 ABQB 916 , R. v. Lacasse, 2015 SCC 64 , R. v. Ramsay, 2012 ABCA 257 , R. v. Resler, 2011 ABCA 167 , R v Shevchenko, 2018 ABCA 31 , R. v. Quash, 2009 YKTC 54 , a

summary of recent manslaughter sentences in R v Larson, 2017 ABQB 79 and R v Bilodeau, 2022 ABQB 576 with respect to the pre-trial custody argument. [ 64 ] Defence has exhorted the Court to pay particular attention to the intersection between Gladue and the moral blameworthiness of the Defendant. [ 65 ] In their materials, Defence also pointed the Court to the paper The Relevance of Fetal Alcohol Spectrum Disorder in Canadian Criminal Law from Investigation to Sentencing, and to the 34 th recommendation of the Truth and Reconciliation Commission of Canada: Calls to Action 2015 . [ 66 ] Defence took no position on ancillary orders.

The Law on Sentence [ 67 ] Sentencing is a highly individualized process, focussed on crafting a proportional sentence for the unique offender and fact scenario before the Court. [ 68 ] To that end, while sometimes of some limited assistance, the exercise of comparing cases both within and without jurisdictions for similar-type offences is of limited utility, and has been discouraged by the Alberta Court of Appeal in R v Holloway , 2014 ABCA 87 . para [50] The process of case comparison has been said in other decisions of this Court to be often unavailing. We agree.

It is usually the case that distinctions can be found between one case and another. About the best one can do with this sort of research is to attempt to ensure that a reasonable and fair cross-section of comparator cases that are truly comparable is assembled or considered, and to be satisfied from the material that there is a fair way to draw an inference as to a pattern or range that those cases identifies or supports.

As noted above, the difficulty in doing this is not a reason to skip past the process of seeking a proportionate sentence and moving directly to manufacture a number that seems to the judge’s subjective impression to fit the case somehow. [ 69 ] Taken together with the guidance of the Supreme Court of Canada on the use of sentencing ranges in R v Parranto , 2021 SCC 46 , my task is crafting a proportional sentence individualized for this offence and offender, applying the factors in s 718 of the Criminal Code and the relevant jurisprudential guidance.

The Law on Manslaughter Applied to the Facts [ 70 ] Manslaughter is an offence with no minimum sentence, covering a wide range of factual circumstances. The Alberta Court of Appeal in R. v.

Laberge , supra outlined a framework for sentencing judges to assist in arriving at a fit and appropriate sentence. [ 71 ] There are three categories within this framework to consider on both an objective and subjective manner when assessing the unlawful act which caused the death in question: 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. [2] [ 72 ] The process of assessing culpability for manslaughter was summarized late in 2020 by the Court of Appeal in R v Roberts , 2020 ABCA 434 , citing R v Ferguson , 2006 ABCA 261 with approval, as follows; para 40 In assessing moral culpability for manslaughter, both the objective features of manslaughter mens rea and any subjective features that are present play a role.

This was explained in Ferguson at paras 60-61 : An assessment of moral culpability [in a manslaughter case] involves a consideration of the particular circumstances of the case including: the nature, quality and gravity of the act; the method and manner by which the act was committed; the offender’s awareness of the risk; and what should have been in the offender’s mind, had he or she acted reasonably. One begins the analysis by classifying culpability on the basis of subjective and objective intent.

The lowest level of moral blameworthiness is simply the mens rea the crown must prove: that a reasonable person would know the unlawful act would subject Varley [the victim] to the risk of bodily harm. A more culpable level would be that Ferguson [the accused] knew the conduct would put Varley [the victim] at risk of, or cause, bodily injury. Thus, subjectively, the more Ferguson’s “intention” or “awareness” approached the point at which he knew or was wilfully blind or reckless to the fact the unlawful act would not only put Varley at risk of death, but would actually cause death, the higher the culpability.

Similarly, the more Ferguson’s conduct approached the point that he ought to have known (objectively) that life-threatening injuries would result, the more culpable he is. [ 73 ] On the facts before me, the Defendant stabbed the victim in the chest with a knife, to a depth of 9cm. [ 74 ] Objectively reviewed, this is an unlawful act which would at least put the victim at risk of life-threatening injuries, if not cause them. On the question of objective intent, I find the gravity of this offence is high. [ 75 ] This does not conclude my assessment of this offence by this offender.

I must now move to consider the subjective features present during the offence to come to a proper assessment of the overall moral culpability of this Defendant within the Laberge framework. [ 76 ] The subjective fault component at this stage is influenced by the following factors. (

a) The Defendant was substantially intoxicated and noted to be aggressive with others immediately before the offence. This was a pattern of behaviour the Defendant was aware of the potential for violence in. (

b) The Defendant has a prior record for violence against this victim. (

c) The Defendant stabbed the victim once only, and thereafter left his residence. There is no indication of wanton, repeated, or gratuitous violence. (

d) The Defendant was immediately aware of what she had done after the offence and was able to articulate she had both

stabbed and potentially killed the victim. [77] Subjectively reviewed, I find on a review of the combination of factors above the Defendant at least should have known heractions would place the victim at risk of life-threatening injury. [78] In conclusion, using the guidance provided by Laberge in categorizing this manslaughter by this Defendant, I find the overallgravity of the offence very high, and the Defendant’s moral blameworthiness high.

Overall, while not at very top of the “near murder”classification of the offence, it falls much closer to “near murder” than to “near accident”, and thus within the third tier of the Labergeanalysis. [79] I am aware of the significant Gladue factors affecting this Defendant. These will be considered separately in coming to a finalanalysis of the overall moral culpability of the Defendant for this offence.

A Fit and Proper Sentence, Proportional to the Gravity of theOffence and Moral Culpability of the Offender Aggravating Factors [80] This was offence committed against the former intimate partner of the Defendant, in his own home. [81] After committing the offence, the Defendant took no affirmative steps to seek aid or assistance for the victim. The findings ofthe Medical Examiner contained in the Agreed Statement of Fact note this would have been unlikely to make a difference to theoutcome, but the Defendant had no way of knowing this at the time.

It was, on the facts admitted, third parties who contacted the RCMPto seek aid for the victim. No call to either the RCMP or for urgent medical care was made by the Defendant. Mitigating Factors [82] The Defendant entered a guilty plea and cooperated to the best of their ability with the authorities investigating the offence,including giving a statement admitting her culpability. While the guilty plea was not early in the process, it was promptly tendered uponthe manslaughter offence being made available to her and is therefore mitigating.

The Preliminary Inquiry was waived, substantial Courtresources were saved, and no witnesses were required to testify. [83] The Defendant has expressed genuine remorse, and articulated insight into the effects of this offence on her children and thefamily of the victim.

Gladue [84] Of particular importance to this sentencing for this offender, the intersection of Gladue factors and the offending behaviourmust be meaningfully considered and incorporated into any sentence this Court passes. [85] The guidance of the Supreme Court of Canada in Gladue, and following cases (particularly R v AD, 2019 ABCA 396) isinstructive. para [19] A sentencing judge is required to consider the circumstances of the Aboriginal offender (Criminal Code, s 718.2(e)).

Thesecircumstances, often referred to as Gladue factors, include the “unique systemic and background factors” of the offender that may haveplayed a

part in the offender’s conduct (R v Laboucane, 2016 ABCA 176 at para 56, [2016] 12 WWR 34, citing R v Wells, 2000 SCC 10, [2000] 1 SCR 207 at para 38, 182 DLR (4th) 257 and R v Ipeelee, 2012 SCC 13 at para 73, [2012] 1 SCR 433). Considerationof these circumstances may shed light on the offender’s moral culpability (R v Swampy, 2017 ABCA 134 at para 25, [2017] 12 WWR765), although there need not be a causal link between the offender’s circumstances and the offence committed (Ipeelee at paras 81-83; Laboucane at paras 63-64).

A sentencing judge must explain whether the Gladue factors are relevant to determining a fit sentenceinsofar as they affect the offender’s moral culpability (Laboucane at para 64, quoting from R v Napaesis, 2014 ABCA 308 at paras 8 and13, 580 AR 380). [86] Gladue is not an automatic, race-based sentence discount.

This statement is incorrect in law and perpetuates profoundignorance as to what Gladue factors are meant to address. [87] A sentence which properly incorporates Gladue principles will be proportional because it will have properly understood andfactored in the background of the Defendant in accurately weighing their personal moral culpability for the offence committed. [88] The Alberta Court of Appeal in R v Matchee, 2019 ABCA 251 guided sentencing judges in this respect. One way of understanding s 718.2(

e) and Gladue is as a partial remedy for the systemic discrimination suffered by aboriginal peoplewhich has led to their overrepresentation in the criminal justice system. The remedy requires sentencing judges to recognize thesesystemic factors and that they can play a

part in offending behaviour. The sentencing judge is required to consider the individualcircumstances of the aboriginal offender in this context, with a view to achieving a sentence that is commensurate with the offender’smoral blameworthiness. This approach ensures that systemic factors do not unconsciously lead to further discrimination insentencing: Ipeelee at paras 67-69.[3] [89] Merely reciting a knowledge of these factors during sentencing fails to address the fundamental reason for them.

[90] Recent guidance confirms these considerations apply regardless of what the offence is. After the Supreme Court of Canada’sdecision in Parranto, supra, the Alberta Court of Appeal in R v Ledesma, pronounced as follows. To be sure, Parranto is not authority for any proposition that if the crime is serious, the mere fact that there are relevant Gladue factorsbecomes irrelevant. Rather, Parranto underscores that even for very serious crimes the lens through which a fit sentence is perceivedincludes setting for a vision of the Gladue factors. Nevertheless, it is also well established by the cases that s 718.2(

e) of the CriminalCode does not create an automatic discount for indigenous offenders unrelated to principles such as proportionality. Such Gladue factorsas exist must still be “salient” to the ascertainment of a fit sentence. Further, on issues of fact, the trial judge’s assessment is notsubstituted for on appeal: compare R v B(AW), 2018 ABCA 159 at para 35, 71 Alta LR (7th) 90, leave denied 2019) SCCA No 129 (QL)(SCC No 38604).[4] [91] The issue of how Gladue factors intersect with the assessment of moral culpability in manslaughter cases has been recentlyand definitively settled by our Court of Appeal.

In R v Phillips, 2023 ABCA 210 an Indigenous female offender killed her boyfriend witha knife in a substance-fuelled psychotic episode. The Court of Appeal intervened based on an inadequate consideration of Gladue factorsin crafting a sentence.

In reassessing the moral culpability of the Defendant through the lens of Gladue, the court re-emphasised therequirement to incorporate Gladue principles in weighting the moral blameworthiness of Indigenous Defendants. para [23] While Laberge is an instructive starting point when sentencing for manslaughter, the Laberge categories do not attempt toprovide an exhaustive measurement of an offender’s moral blameworthiness, nor does it suggest that an offender deserves a punishmentat the high end of the sentencing range simply because the offender’s actions fall objectively within the highest category: R vNaslund, 2022 ABCA 6 at para 163, 409 C.C.C. (3d) 1; R v Shyback, 2018 ABCA 331 at para 13, 366 CCC (3d) 197; R vCampbell, 2022 ABCA 410 at para 31-33, [2022] AJ No 1544 (QL) [Campbell].

In Campbell, “the assessment of moralblameworthiness in a manslaughter case includes a consideration of both the accused’s mental state and the nature of the unlawful act. . .While there may be three rough categories of ‘unlawful acts’, that does not mean that there are three equivalent categories ofmanslaughter for sentencing purposes.” [24] As this Court found in Swampy at para 21, this is where the Laberge analysis intersects with the Gladue analysis.

In sentencing, if the assessment of moral culpability at the core of the proportionality analysis is flawed by failure to consider themitigating effect of Gladue factors on moral culpability, this amounts to an error in principle, amenable to review underthe Lacasse principles.

As the Supreme Court stated in Ipeelee at paragraph 87, “application of Gladue principles is required in everycase involving an Aboriginal offender . . . and a failure to do so constitutes an error justifying appellate intervention.”[5] [92] It is incumbent on this Court to ensure a full and thorough exploration of Gladue factors and their impact on the moralculpability of this Defendant for this offence. [93] The contradiction between rote articulation of Gladue principles and the continuing over-incarceration of Indigenous peopleswas most recently highlighted in R v Natomagan; For decades, while the justice system has been exhorted to reduce the over-incarceration of Indigenous people, that over-incarcerationhas increased.

In its 1999 judgment in R v Gladue, (SCC), [1999] 1 SCR 688, 171 DLR (4th), the Supreme Court citedstudies showing that Indigenous people made up a little over 10% of Canada’s prison population while representing only 2% of thepopulation at large: at paras 47, 60. It described this over-representation as an “acute problem”: at para 50. In 2001, 17.59 % of federallyincarcerated inmates were Indigenous. That percentage rose steadily over the next two decades while the non-Indigenous incarceratedpopulation fell.

In 2011, only 4.3% of Canada’s population was Indigenous, but 26.4% of dangerous offenders were Indigenous. In 2020,when Indigenous people represented 5% of Canada’s population, Indigenous offenders made up 30% of federally incarcerated inmates.In 2021, almost 50% of female inmates were Indigenous…[6] [94] To meaningfully apply both s 718.2 (

d) and (

e) of the Code, there must be substantial consideration of the repercussions of theabove facts to Indigenous Peoples who appear before the Court. Gladue Factors for this Defendant [95] I have had the advantage of a thorough Gladue report.

After considering the findings of fact I have made after the sentencehearing, I have drawn several conclusions regarding the impact of Gladue factors on this offender. [96] As outlined in my findings of fact, I confirm the Defendant has had exposure and has been affected by the factors effectingIndigenous peoples outlined in Gladue, inclusive of intergenerational trauma, reduced educational achievement, addictions (alcoholism),paucity of resources, interventions by child enforcement authorities and exposure to multiple types of abuse during her formative years. [97] I find there is a direct relation between the Gladue factors present in the life of this offender as an Indigenous person and herdescent into lifelong alcohol addiction, which was the catalyst for the offence.

This attenuates her personal moral culpability for it. Thisfinding considers prior treatment attempts, and their failure to assist the Defendant in maintaining her sobriety and confirms how deeplyentrenched they are. [98] I find there is a direct relation between the Gladue factors present in this offender’s history and her dysfunctional andmutually abusive domestic relationship with the victim.

This was another catalyst for this offence and further attenuates her moralculpability for it. [99] The result of the two findings above is the logical conclusion the Defendant found herself in the position to commit theoffence in question substantially because of her Indigenous lived experience, which must substantially factor into her moral culpabilityfor it.

[ 100 ] With the history the Court has articulated concerning the children of this relationship, it is likely this legacy of intergenerational trauma has already been passed down to the children of this relationship. This is the devastating effect of the tragic cycle of Gladue factors on Indigenous Peoples of Canada . Mental Health and FASD Impact on Sentence [ 101 ] Counsel for the Defendant has pointed to an FASD diagnosis as a factor requiring a more rehabilitative focussed sentence, and pointed to R . v.

Shevchenko , 2018 ABCA 31 and several other non-binding authorities in support this position. [ 102 ] The Alberta Court of Appeal in R v Gerbrandt , 2021 ABCA 346 had occasion to consider the context of Shevchenko in relation to persons who may have profound cognitive challenges and gave guidance to sentencing judges.

Para [83] …It is error in principle to conclude that an offender’s reduced capacity in matters having no significant relationship to the offender’s degree of responsibility should nonetheless be considered as mitigation as to the offender’s degree of responsibility. [84] The respondent’s personal degree of responsibility for the crime under s 718.1 of the Code is connected to her capacities relevant to its commission. Even when the capacities are relevant they may not rise to the level of mitigation, and in any event on this record, they could not justify absolution.

Also, even if relevant, the ability of the offender to accord her conduct with social norms despite capacity limits is apparent, and that reality necessarily reduces the pertinence of the intellectual limits the tests suggested.

Finally, sometimes the relevance of such individual characteristics in actuality underlines that the objective of public protection is what needs to be paramount amongst the objections in s 718 of the Code . [ 103 ] As with every aspect of sentencing, what is required here is an analysis of whether, and to what degree, any mental disorder impacted this offender’s degree of responsibility for this offence committed in these factual circumstances. [ 104 ] I have found as a fact any mental health issue this Defendant may have did not have a material impact on her actions on the date of the offence.

I have further found as a fact, consistent with the reports tendered by the Defendant, no material deficit in her cognitive abilities. [ 105 ] With this finding, I conclude there is no material impact from either the Defendant’s mental health or cognitive abilities on her moral responsibility for the offence in question. I therefore decline to give any mitigating effect to same. Voluntary Intoxication [ 106 ] In their written materials, Defence points to the voluntary intoxication of the Defendant as a potential mitigating factor on sentence.

This position is incorrect in law, recently confirmed by the Alberta Court of Appeal in R. v Miller , 2018 ABCA 356 , para 18 . In a sentencing for manslaughter, voluntary intoxication does not diminish an offender’s degree of responsibility.

Provocation [ 107 ] In their written submissions Defence has pointed to the choking of the Defendant immediately before the fatal stab was inflicted as being a mitigating factor. [ 108 ] Any meaningful assessment of this position requires a review of the findings of fact of what happened before the offence took place. [ 109 ] I have found a choking did not take place before the victim was stabbed. With this finding, this line of legal reasoning becomes moot.

Victim Impact Statements [ 110 ] The Court has received and reviewed six victim impact statements. [ 111 ] Each one speaks to the irreparable loss uniquely suffered by each author because of this act. They speak of parents who have lost a son but continue to wait for him to come home. They express the loss of children who miss their father in the present and what he would be in their future. They speak of a brother’s love and providing for his extended family. Each of them speaks of a void which can never be filled in the lives of those left behind.

This Court has heard their words and hopes the finality of the process today will give them some closure. Credit for time in Remand [ 112 ] Defence has requested 2 for 1 credit for the total time in remand on behalf of the Defendant, asserting incarceration was during the COVID-19 pandemic, and therefore unusually harsh. [ 113 ] The Crown requests the Court credit the Defendant 1.5 to 1 credit for time in remand. [ 114 ] The very recent R v Biever , 2023 ABCA 138 , outlines the correct approach for the Court to take in assessing allegations of unusually harsh conditions due to COVID-19.

Para [29] While it is not necessarily an error to express the recognition of particularly harsh pre-sentence custody conditions as

enhanced credit, it is preferable to consider such conditions as a mitigating factor to be considered in determining the appropriate sentence at the outset: see R v Taylor , 2023 ABKB 175 at para 40 . As with any mitigating factor contested, a bare allegation is insufficient. There must be evidence as to the particular conditions existing and how they affected the individual being sentenced.

The goal remains to craft a fit and proportionate sentence. [ 115 ] Defence’s position is to point to the existence of COVID conditions, as referenced in R v Bilodeau , supra, and has asked the court to take judicial notice of same and their effect on his client to allow enhanced credit at 2 days for every 1 spent in remand.

I find this position to have been superseded by more recent jurisprudence from the Alberta Court of Appeal in Biever , and instead apply their guidance. [ 116 ] I have found as a fact that 10 weeks, or 70 days of the 432 days served in remand by the Defendant are in fact unusually harsh, with almost total lockdowns and loss of privileges.

I have nothing more than “bare allegations” of hardship due to COVID-19 for any other part of the time the Defendant spent on remand. [ 117 ] The Court of Appeal in Biever , supra confirms this is insufficient for the purposes of assessing any additional credit to be given to the Defendant against her sentence, beyond the 70 days I have outlined above. The only credit given for time in remand will be the calculation of 1.5 days to every 1 day served. I will adjust the overall sentence accordingly for the mitigation of the 70 days of lockdown conditions I have found the Defendant endured.

Conclusions Laberge Analysis [ 118 ] This factual matrix places this offence within the third tier of the Laberge analysis, albeit not at the very top of that tier. Aggravating Factors [ 119 ] The Defendant has a related record for domestic violence against this victim. [ 120 ] The offence was committed against a prior domestic partner of the Defendant, the victim in their own home. [ 121 ] The Defendant did not seek any medical attention or intervention for the victim from either the RCMP or emergency medical personnel.

Mitigating Factors [ 122 ] The Defendant immediately confessed their involvement in the offence and pled guilty without necessity of any witness evidence being called. [ 123 ] The Defendant has demonstrated remorse. Gladue Factors [ 124 ] There are extensive and directly relevant Gladue factors which substantially attenuate the personal moral culpability of this offender. Mental Health/FASD [ 125 ] On the facts found by this Court, any potential mental health issues suffered by this Defendant had no direct bearing on their personal moral culpability for the offence.

Intoxication [ 126 ] The intoxication of the Defendant was self-induced and known by the Defendant to have negative effects on her. This does not diminish her responsibility for the offence. Provocation [ 127 ] This submission by Defence in their written materials has been rendered moot by the findings of fact made by this Court. COVID Lockdown [ 128 ] There are 10 weeks, or 70 days, of COVID lockdown time for this Court to consider as mitigating on the overall sentence to be passed on this Defendant.

Sentence [ 129 ] Reviewing and applying the guidelines in Laberge , supra , I find a fit and appropriate sentence on these facts for this offence

objectively would be 7 years in a Federal Penitentiary. [ 130 ] Reviewing and applying the individualized factors relevant to the moral culpability of the Defendant outlined above, I find the appropriate sentence for this offender on these facts to be 4 years and 10 months, or 1765 days.

This final calculation accounts for the aggravating factors articulated previously and gives substantial mitigation for the personal moral culpability of this Defendant lensed through their Gladue factors, as well as considering their COVID lockdown time, guilty plea, and remorse. [ 131 ] From the sentence above, I subtract a total of 648 days credit for time in custody, calculated as 432 days of actual time in remand multiplied by 1.5. [ 132 ] This leaves a sentence to serve of 1117 days to serve in a Federal Penitentiary.

Ancillary Orders [ 133 ] I order the Defendant provide forthwith samples of their DNA to the correctional authorities pursuant to

section 487.051 of the Criminal Code . [ 134 ] Under s 109 of the Criminal Code , I order the Defendant be prohibited from possessing any of the enumerated items therein for life. [ 135 ] Under s 743.21 of the Criminal Code , I prohibit the Defendant from communicating directly or indirectly with the following persons: Edna Carifelle, Jason Carifelle, Jennifer Carifelle, Vanessa Carifelle, Brenda Lamouche, Peter Lamouche, Maria Lamouche, Marlene Lamouche, Gordon Sawan, Jaylynn Carifelle, Jason Anderson, Darienne Cardinal, Tyson Anderson and Elizabeth Whitehead for the custodial period of her sentence, except through legal counsel, through a mutually agreed upon third party or pursuant to a valid order of a court made after this sentencing date. [ 136 ] Any items seized are forfeited forthwith to His Majesty the King, pursuant to

section 491 of the Criminal Code , subject to any interested persons with a right to the property presenting themselves within 90 days to the authorities to advance their claim. [ 137 ] The imposition of a victims of crime surcharge is waived in the totality of the circumstances. Final Remarks [ 138 ] The death of Russell Lamouche was a tragedy for his children, the families involved, the community, and the Defendant. The process to reach the end of the Court process has been long and complicated.

With the passing of sentence on the Defendant it is the hope of this Court all those affected will be able to take the next steps in their own grieving. [ 139 ] I wish to thank counsel for the thorough and professional way they presented their respective positions. Heard at the Town of High Prairie, Alberta the 31 st day of August 2023, and the 16 th and 17 th day of November 2023. Dated at the Town of High Prairie, Alberta this 20 th day of November 2023. S.P. Hinkley A Justice of the Alberta Court of Justice Appearances: Kelly Payne Adriene Shapka

for the Crown Richard Mirasty for the Defendant