R v Kootenay, 2023 ABKB 540

Court of King’s Bench of Alberta Citation: R v Kootenay, 2023 ABKB 540 Date: 20230925 Docket: 210864286Q1 Registry: Calgary Between: His Majesty the King Crown - and - Tyriq Kootenay Accused _______________________________________________________ Sentencing Judgment of the Honourable Justice M.H. Hollins _______________________________________________________ [ 1 ] This is an extremely distressing case for all involved, particularly for the family members and friends of the victim, Tanayah Kootenay and her father, the offender, Mr. Tyriq Kootenay. [ 2 ] Tanayah died at the hands of her father on August 23, 2021.

She was 6 months old. Following an evening of drinking and consuming drugs, Mr. Kootenay argued and physically fought with his friends and his common law spouse, Brenna Hunter. At some point after those individuals left the house, Mr. Kootenay assaulted and killed Tanayah. Her body was found two days later after police returned to the home when Tanayah could not be located.

[ 3 ] Mr. Kootenay pleaded guilty to manslaughter on August 31, 2023. The Crown seeks a sentence of 10 years imprisonment. The defence argues that an 8-year term of imprisonment is appropriate. General Principles [ 4 ] The overarching principles of sentencing are found in s.718 of the Criminal Code which states: “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.” [ 5 ] Denunciation is the communication, via the sentence imposed, of society’s abhorrence for the crime committed. Deterrence is the discouragement of this offender and any other potential offenders from committing similar crimes ; R v Moriarty , 2016 ABPC 25 at para.60. [ 6 ] Where the victim is a child (s.718.01) or an otherwise vulnerable person, including a female Aboriginal victim (s.718.04), denunciation and deterrence are paramount.

Because members of these groups are more often victimized and have less ability to protect themselves, it is all the more important that we make clear our societal condemnation of crimes against people like Tanayah and impose sentences that reflect a commitment to better protect them against such egregious violence. [ 7 ] In crafting a sentence, I must be mindful of the fundamental principle of proportionality; namely that the sentence passed must be proportionate to the gravity of the offence and the responsibility of the offender.

Section 718.2 of the Criminal Code further directs me to consider relevant aggravating and mitigating factors of the offence and of the offender, as well as other principles, including consistency in sentencing. [ 8 ] Although the seriousness of this crime means that a term of incarceration is necessary to a proportionate sentence, the sentence should not be so lengthy so as to crush any hopes of rehabilitation on release; Moriarty, supra at para.69 [ 9 ] I will review the circumstances of the offence and the circumstances of the offender.

I will then address the aggravating and mitigating factors that are relevant to Mr. Kootenay’s sentence and finally, look at other cases to see if any guidance is available, keeping in mind that each case must be determined on its individual facts. Circumstances of the Offence [ 10 ] The circumstances of this case could not be more heartbreaking. Brenna Hunter and Tyriq Kootenay were domestic partners and had two children together. In August of 2021, Tanayah was 6 months old and her sister, Tyenna, was 18 months old.

They lived together on the Stoney First Nation in Morley, Alberta. [ 11 ] On August 23, 2021, the adults had been drinking from sometime in the afternoon into the evening. Mr. Kootenay later said that he had also been consuming methamphetamine and fentanyl that day. There were two other adults present, Lionel Labelle and Barry Labelle. At some point in the evening, Mr. Kootenay got into a physical altercation with them. [ 12 ] Ms. Hunter told police that Mr.

Kootenay had also been physical with her that evening, choking her when they had an argument about the children and later hitting her with a piece of wood during his fight with the Labelles. Ms. Hunter left the residence when the Labelles did. She went to a neighbour for help and the police were called. [ 13 ] When the police arrived, Ms. Hunter, who was extremely intoxicated and incoherent, was sent to the hospital and the officers went to the home. Although Mr. Kootenay was there with both children, he did not answer the door. Although Mr.

Kootenay later told police that Tanayah was alive at that time, it is unclear whether that was the case. In any event, no one appears to have understood the jeopardy these children were in at the time. [ 14 ] The next morning, Ms. Hunter went back to the house, accompanied by a friend, to get the children. Mr. Kootenay first told her that Child & Family Services had removed the children, but that was not true. Ms. Hunter found Tyenna inside but could not find Tanayah. She left with Tyenna and some clothes, including a sleeper that she had found under the master bed. Yet a day later, Ms.

Hunter went to the police after realizing that the sleeper had blood on it. Late on August 25, 2021, the police went back and searched the home. They found Tanayah’s body in a suitcase in the basement, wrapped in a blanket. [ 15 ] Tanayah’s injuries were extensive. The top of her head was caved in and her face was badly bruised. Her autopsy revealed numerous blunt force injuries, contusions and abrasions to her face, head, neck and torso. Her skull was fractured, her arms and ribs were broken. There was also a large bite mark on her back.

It is almost impossible to understand how so many injuries could be found on such

a small little body. [ 16 ] Although Mr. Kootenay later said that he had no recollection of what had happened, he did admit to police that he had thrown Tanayah against the wall, consistent with investigators’ discovery of a dent in the bedroom wall accompanied by blood which was confirmed to be Tanayah’s. Mr. Kootenay also admitted biting her. The forensic analysis showed the bite marks to be consistent with his dental impression. My sense was that his admissions were not necessarily his own memories but reflected his acceptance of what the evidence was clearly showing had happened. [ 17 ] Mr.

Kootenay told police that when he woke up, Tanayah was in the bed beside him but was not breathing. He changed her sleeper, wrapped her in a blanket and put her in the suitcase he put in the basement. [ 18 ] It is difficult to imagine more egregious circumstances in which a human being could die. Circumstances of the Offender [ 19 ] Mr. Kootenay is a member of the Stoney Nakoda First Nation. He will turn 24 years old next month. An extensive Gladue report was provided to the Court. Mr.

Kootenay himself was the only source of information for that report as neither of his parents nor any of his siblings responded to the author’s repeated inquiries even though almost all of them reside on the same reserve and Mr. Kootenay reports that he is close to them. [ 20 ] His parents did provide information for the preparation of the pre-sentence report, most of which corroborated Mr. Kootenay’s history as reviewed below. [ 21 ] Mr. Kootenay was raised by his paternal grandmother, Evangeline, after his parents separated when he was just a toddler.

Evangeline was a residential school survivor, although she never spoke about her experiences there to Mr. Kootenay. She spoke her native Sioux language to him in their home and taught Tyriq and his brother traditional Sioux practices. She took Tyriq and his brother fishing and to sweats, pow wows and other First Nation cultural events. She did not drink alcohol and ensured that Mr. Kootenay attended school and played hockey. His life with his grandmother was relatively safe and structured. [ 22 ] Unfortunately, Mr. Kootenay’s grandmother passed away when he was only 16 years old.

As he himself describes, things went downhill quickly. Alone, angry and scared, he stopped going to school, began drinking and using drugs and running with a different crowd. His first serious girlfriend died from an overdose while Mr. Kootenay was still a young teenager. He began a relationship with Brenna Hunter soon after. As mentioned, they had two children together. Mr. Kootenay says their relationship was also marked with drug and alcohol abuse and was not a healthy relationship. [ 23 ] He also immediately found himself in trouble with the law.

His first conviction, for robbery, was in 2014, just after he turned 16. This was followed by another robbery conviction about one year later and then a string of breach of release conditions. From his youth record to his adult record, it is a constant stream of new convictions, including for weapons offences, proceeds of crime, uttering threats, assault and assault causing bodily harm. Mr. Kootenay has been in custody in relation to this offence since August of 2021, which is his longest period of detention but it is obvious that he has been in custody intermittently but steadily since 2014.

And when he is not in custody, he has breached his release conditions with regularity. [ 24 ] While in custody for the last 2 years, Mr. Kootenay has been sober for the first significant period of time since his grandmother died. This has allowed, or perhaps forced, Mr. Kootenay to try and come to grips with Tanayah’s death and his responsibility for her death. He reports suicidal thoughts, beginning after his detention for this offence. Certainly, it is difficult to imagine how Mr.

Kootenay could ever process what he has done, take responsibility for it and still forgive himself and move forward without some professional help. [ 25 ] He has limited foresight into how to move forward or what his life might look like after release but this is understandable, given his life over the last 10 years and the lengthy sentence he is now facing. His rehabilitation will be difficult, with limited support from his family, no work or financial history and few connections outside the drug-using community in which he has been living all his adult life. Mitigating Factors [ 26 ] Mr.

Kootenay lost the only stable and supportive influence in his life when he was 16, at an age where he could not reasonably be expected to simply fend for himself. He had no ability to process that loss nor any support to transition through what is a difficult time for all people, from childhood to adulthood. Looking at his rapid descent into alcohol and drug abuse, surrounded by other substance addicted people and entrenched in repeat criminal behaviour, it is a relatively straight line from Evangeline’s death to Tanayah’s death. [ 27 ]

Section 718.2 (

e) of the Criminal Code says that I am to consider the particular circumstances of Aboriginal offenders. I consider myself legally and morally bound to take into account Mr. Kootenay’s disadvantages that led him into the drug-fueled state in which he committed this crime against his own daughter. I agree with the Crown that Mr. Kootenay bears some level of responsibility for becoming so intoxicated on that day. However, to pretend that Mr. Kootenay had all the same opportunities to choose a sober life as I would have, for example, ignores the realities that I am bound to consider.

As our Court of Appeal has said, “There can be no sound proportionality analysis in the case of an Aboriginal offender without considering the impact of the offender’s Aboriginal heritage on his moral culpability”; R v Swampy , 2017 ABCA 251 at para.36. 23 This is not to say that a hard life results in some virtually automatic discount or reduction in sentence. But we must include these facts in any assessment of a fit sentence where they impact, most often, the degree to which we hold an offender responsible for his

actions. As the Supreme Court of Canada has said: To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and howthat history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substanceabuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarilyjustify a different sentence for Aboriginal offenders.

Rather, they provide the necessary context for understanding and evaluating thecase-specific information presented by counsel; R v Ipeelee, 2012 SCC 13 at para.60. [28] However, the mitigation of his moral culpability or blameworthiness must also be balanced against the serious and violentnature of this crime; Ipeelee at para.79. That is not to say that R v Gladue, (SCC), [1999] 1 SCR 688 does not apply tothis and other serious crimes – it does. But Mr.

Kootenay’s sentence must be proportionate to the offender and to the offence and mustaddress the primary objectives of sentencing, including deterrence and denunciation; see also R v Swampy, 2017 ABCA 251 at para.25.This is particularly so where there are statutory directions designed to recognize the vulnerability of a victim like Tanayah, as mentionedearlier. [29] Another mitigating factor is Mr. Kootenay’s age. He was 20 at the time of this offence, so although he was an adult, he wasstill a young adult.

As the lack of adult support in his life was canvassed already and because his lifestyle, particularly his involvement incrime prior to this offence, had been of a distinctly “adult” nature, I do not place much weight on that mitigating factor. [30] However, Mr. Kootenay did plead guilty to this charge and that is significantly mitigating. By doing so, he not only took legalresponsibility for causing Tanayah’s death, he spared Brenna Hunter the pain of testifying at trial about these events.

As traumatic as thiscrime was, it is also not insignificant that the police and other first responders were spared having to revisit their involvement withdiscovering and investigating Tanayah’s death. Aggravating Factors [31] There are a number of things set out in the Criminal Code as aggravating factors, which would operate to lengthen theappropriate sentence within the applicable range.

Section 718.2 lists the following, all of which apply here, as aggravating factors: thatthe victim was a member of the offender’s family, that she was a child and that the offender abused a position of trust in relation to hisdaughter. [32] Tanayah was an infant, completely and utterly dependent on her caregivers, Ms. Hunter and Mr. Kootenay. Notwithstandingtheir own volatile relationship, Tanayah should have been safe in the care of her own father that evening when her mother was absent.

Aslimited as his choices may have been, given his level of intoxication, he still had more choices available to him than did Tanayah, whohad no choices, no ability to defend herself or even to comprehend what was happening, much less why. [33] In addition, Tanayah was even more vulnerable as an aboriginal girl.

Her death obviously forever impacts her mother, BrennaHunter (who provided a short but painfully compelling victim impact statement) and her grandparents and other members of the family.The lack of safety and security for Tanayah, resulting in the victimization of an infant member of this indigenous community hurts thatlarger community as well. It breeds fear, anger and perhaps resignation within a community that needs freedom from stories that end asthis one did. [34] Lastly, Mr. Kootenay’s criminal record is aggravating. As mentioned, Mr. Kootenay was no stranger to the criminal justicesystem.

Notwithstanding many convictions that resulted in interim release or probation, he took no advantage of those chances to changehis path and simply routinely breached his conditions or committed new crimes on release. While this must still be considered within theGladue lens, he can be taken to know that the increasing severity of his crimes might put his family, including Tanayah, at risk of harm. Sentence for Manslaughter [35] Under

section 236(

b) of the Criminal Code, the sentence for manslaughter can be anything from a suspended or conditionalsentence up to life imprisonment. The range of sentences for manslaughter can vary so widely because the offence encompasses so manykinds of criminal acts. As our Court of Appeal said in R v Laberge, (1995), 1995 ABCA 196 , 165 AR 375 at paragraph 6: All unlawful act manslaughter cases have two common requirements: conduct which has caused the death of another; and fault short ofintention to kill.

However, despite these common elements, the offence of unlawful act manslaughter covers a wide range of casesextending from those which may be classified as near accident at the one extreme and near murder at the other: R. v.Cascoe, [1970] 2 AllE.R. 833 (C.A.); R. v. Eneas, [1994] B.C.J. No. 262 (B.C.C.A.). Different degrees of moral culpability attach to each along a continuumwithin that spectrum.

It is precisely because a sentence for manslaughter can range from a suspended sentence up to life imprisonmentthat the court must determine for sentencing purposes what rung on the moral culpability ladder the offender reached when he committedthe prohibited act.

The purpose of this exercise is to ensure that the sentence imposed fits the degree of moral fault of the offender for theharm done. [36] Assessing mens rea involves an objective analysis (what should have been in the offender’s mind at the time of the offence)and a subjective analysis (what was in the offenders mind at the time of the offence, if we can know). For both the objective andsubjective, the Laberge court then gave three levels of knowledge underpinning moral culpability. They are knowledge (objective and/orsubjective) that the conduct would: (

a) likely subject the victim to bodily harm; (

b) likely subject the victim to serious bodily injury; or

(

c) likely subject the victim to life-threatening injuries.

Laberge, at paras.13-17. [37] Factors which may inform that classification include: (1) the degree of deliberation or its converse, the degree of spontaneityof the act, (2) the physical act itself, including the degree of force and whether a weapon was used, (3) the level of violence, includinggratuitous violence and, where appropriate, as reflected in the victim’s injuries; and (4) the element of chance in the resulting death. [38] In my view, it can only be a determination of whether the foreseeable likely harm to Tanyah was of serious bodily injuryversus life-threatening injuries, as defence conceded. [39] Objectively, it is plainly foreseeable that if you throw a 6-month old infant across a room headfirst into a wall, with enoughforce to dent the wall, you will likely cause serious bodily injury or life-threatening injuries.

Where the Crown and defence disagreedwas on the proper inferences to be drawn around Mr. Kootenay’s subjective knowledge about his actions and the likely consequences ofthem. [40] Specifically, the Crown points to Mr. Kootenay’s conduct through the day and particularly through the evening, when heargued and physically fought with all the other adults in the house, including Brenna Hunter. This, it is argued, displayed an angerbuilding over time, thus affording Mr. Kootenay opportunities to calm down or extract himself. [41] The Crown also points to Mr.

Kootenay’s attempts to avoid blame by refusing to answer the door for police, by lying toBrenna about the children being apprehended and of course, by concealing Tanayah’s body in a suitcase in the basement. Mr. Kootenaydoes not deny any of these actions and I agree that they evidence a guilty conscience and a level of awareness that is inconsistent withhim saying that he had little to no ability to comprehend or make deliberate decisions at that time. [42] The defence portrays Mr. Kootenay’s actions as more reckless than intentional, a culmination of his extreme intoxication andhis frustration with others.

I agree that there is nothing to suggest any protracted deliberation of the act of throwing Tanayah against thewall and that it was spontaneous. Although Tanayah also suffered multiple fractures of other bones in her body, in addition to the skullfracture, we do not know whether those were caused by the throwing against the wall or separate violent acts against her. However, wedo know that Mr.

Kootenay bit her hard enough to leave marks capable of matching to a dental impression, indicating at least oneseparate violent act apart from the fatal one. [43] The Court of Appeal in Laberge spoke to the fact that impulsive acts may still be highly morally culpable. The following areexcerpts from paragraphs 18-20. At this stage, I find it convenient to address an issue raised by this case. That is the argument that because Laberge’s act was impulsive,it should be treated as “near accident” and Laberge should be sentenced accordingly.

Of course, all other things being equal, impulsivityis less blameworthy than planned or repeated conduct. But simply because

an act was impulsive does not mean that it falls at the lowerend of the manslaughter scale. ... The relevant inquiry is this: even though the act might have been spontaneous as opposed to planned, was the unlawful act of a kind andquality and the other circumstances such that the offender falls, on either an objective or subjective basis or both, within one of theincreased culpability levels that I have identified? It is true that generally the more “spontaneous” the act, the less likely that the offender subjectively foresaw all the consequences thatmight result.

But again, whether an offender intended the consequences of his act, or was wilfully blind to them, depends both on whatthe act involved as well as on other relevant circumstances. To take another example, if a person, in a fit of anger, grabs a gun and shootsit at the victim from a short distance, what will be objectively foreseeable by the offender, or for that matter subjectively foreseeable,will be something different from the case where the offender picks up a beer bottle and throws it across the room towards a group ofpeople.

In both cases, the response may have been impulsive, but there is a material difference in the quality of the two acts. All otherthings being equal, the former will attract a higher degree of moral fault than the latter. [44] In this case, it is not the choice of weapon that elevates the objective and subjective knowledge of the likely consequences, itis the degree of violence and the physical vulnerability of the victim. I agree with the Crown that the level of violence was so extremethat there was never much chance that Tanayah would survive this assault.

In addition, the multiple acts of violence, combined with Mr.Kootenay’s actions in concealing, for days, what he had done means that, notwithstanding his intoxication, he knew or should haveknown that what he did was likely to cause life-threatening injuries to his daughter. [45] I find Mr. Kootenay falls on the more serious end of the blameworthiness spectrum for the offence of manslaughter. [46] How does this compare with similar cases?

We must aim for consistency in sentencing while recognizing that every offenceand every offender are different and that each sentence must be proportional within its own factual rubric. [47] I begin with the range for sentence in the manslaughter death of a child of 8 to 12 years, with death at the hands of a caregiverbeing at the higher end of the range; R v SDC, 2013 ABCA 46 at para.49.

Of the many cases to which I was referred, I find R v Starrett,2022 ABKB 613 , 2022 ABQB 613 and R v Crier, 2020 ABQB 475 to be the most instructive. [48] In Starrett, the accused beat his 1-year old son to death, fracturing his skull. The accused called for emergency help but it wastoo late. He was sentenced to 7 years imprisonment following a trial. [49] In Crier, the accused was party to prolonged abuse of a 19-month old child in his and his partner’s joint care, ending with asevere beating which fractured that child’s skull as well. They attempted to dispose of the body to avoid arrest.

He was sentenced, after

trial and on the basis of a joint submission, to 9½ years. [ 50 ] In both cases, the accused was found to have high moral blameworthiness, with either subjective or objective knowledge of likely life-threatening injuries. I have made the same finding with respect to Mr. Kootenay. Like Crier , Mr. Kootenay went to some lengths to hide Tanayah’s body, even from her mother. Like Starett , this was not said to be a case of prolonged physical abuse but an isolated attack. Unlike both those cases, Mr. Kootenay entered a guilty plea. [ 51 ] If the range is toward the higher end of 8-12 years because of the fact that Mr.

Kootenay was, at that moment, his daughter’s only caregiver, then in view of my findings on the aggravating and mitigating circumstances of this case, including Mr. Kootenay’s background and his guilty plea but also including the horrific level of violence visited by him on his infant daughter, I find that a sentence of 9½ years is a fit sentence.

From this will be deducted 1,132 days of pre-trial custody. [ 52 ] The ancillary orders sought by the Crown are not opposed and are hereby granted, including a DNA Order, a 10-year weapons ban under s.109 of the Criminal Code and a s.743 no contact order covering Tyenna Kootenay and Brenna Hunter. Heard on the 31 st day of August, 2023. Dated at the City of Calgary, Alberta this 25 th day of September, 2023. M.H. Hollins J.C.K.B.A. Appearances: Geea Atanase and James D. Sawa for the Crown David Roper and B.Q.H. Der, KC for the Accused