R. v. Kematch, 2021 BCPC 213

Citation: R. v. Kematch 2021 BCPC 213 Date: 20210804 File No: 254097-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. CHRISTOPHER AIDEN KEMATCH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.I.S. SUTHERLAND Counsel for the Crown: B. McCabe Counsel for the Defendant: T.E. La Liberte, Q.C. Place of Hearing: Vancouver , B.C. Date of Hearing: August 4, 2021 Date of Judgment: August 4, 2021 [ 1 ] THE COURT : The accused, Christopher Kematch, and Dakota Wildeman-McNeil were friends until a couple of months

leading up to March 15, 2019. That day, Mr. Kematch instigated a physical confrontation with Mr. Wildeman-McNeil. He brought a knife with him with brass knuckles for a handle. Mr. Wildeman-McNeil was unarmed. Mr. Wildeman-McNeil suffered a fatal stab wound during the altercation. Mr. Kematch has pled guilty to the manslaughter of Mr. Wildeman-McNeil. He is now before me for sentencing. [ 2 ] Crown counsel submits that a sentence of four years' jail is appropriate. He characterizes the circumstances of the offence as midway between near accident and near murder. The defence argues for a conditional sentence order.

They stress the admitted fact that the fatal blow was mistakenly made with the knife blade instead of the brass knuckles which reduces Mr. Kematch's moral culpability for the offence. Combined with an emphasis on Mr. Kematch's Indigenous background, the defence argues a conditional sentence order is the most appropriate sentence. [ 3 ] The issues before the court are, firstly, whether a conditional sentence order is appropriate and, secondly, if not, what is the appropriate length of sentence?

I will now turn to the circumstances of the offence which were contained in an Agreed Statement of Facts. [ 4 ] In the month leading up to the fatal altercation, Mr. Wildeman-McNeil's girlfriend, Ms. Carrier, complained to Mr. Kematch about Mr. Wildeman-McNeil's treatment of her. She invited Mr. Kematch to "go after him." Three days before the offence date, in an exchange with Mr. Kematch, Ms. Carrier offered to set up Mr. Wildeman-McNeil. [ 5 ] On the offence date of March 15, 2019, Mr. Kematch and Mr.

Wildeman-McNeil exchanged immature, antagonistic, and threatening Facebook Messenger messages challenging each other to an altercation. Around 9:15 p.m. that day, Mr. Wildeman-McNeil and Ms. Carrier were walking near the intersection of Keefer Street and Jackson Avenue in the Downtown Eastside of Vancouver. Mr. Kematch was with two other people and they were also walking in the area. Mr. Kematch heard the voices of Mr. Wildeman-McNeil and Ms. Carrier nearby. He handed off a backpack that he was wearing to the two people he was with and then ran in the direction of Mr. Wildeman-McNeil and Ms. Carrier. Mr.

Kematch had with him a large bladed knife that had a handle which doubled as brass knuckles. Mr. Kematch ran up behind Mr. Wildeman-McNeil and struck him in the back of the head with an object. [ 6 ] After being struck, Mr. Wildeman-McNeil turned to face Mr. Kematch. Angry words were exchanged between them. While the altercation was still verbal, Ms. Carrier attempted to get between them, but was kicked in the stomach by Mr. Kematch and knocked to the ground. Mr. Wildeman-McNeil told Mr. Kematch several times to drop the knife, but Mr. Kematch did not. After Mr.

Kematch refused to drop the knife, a fight between the two men broke out. The fight was physically instigated by Mr. Kematch who was motivated by previous negative interactions that he and Mr. Wildeman-McNeil had had in the past including the Facebook Messenger messages that were exchanged within minutes of the altercation. [ 7 ] During the fight, Mr. Kematch and Mr. Wildeman-McNeil became engaged in a grapple of some sort in the middle of the intersection and Mr. Kematch attempted to hit Mr. Wildeman-McNeil in his right-side temple with the brass-knuckled handle of the knife. When he swung the weapon towards Mr.

Wildeman-McNeil's right-side temple, he mistakenly swung the knife with the sharp end of the blade pointing towards Mr. Wildeman-McNeil as opposed to the butt end of the knife containing the brass knuckles. As a result, the sharp end of the blade punctured Mr. Wildeman-McNeil's right ear and ruptured an artery inflicting the fatal injury. [ 8 ] After stabbing Mr. Wildeman-McNeil, Mr. Kematch fled the scene throwing the knife away. At the time of the incident, Mr. Kematch was under the influence of alcohol. Two days later, on March 17, 2019, Mr.

Kematch turned himself in to the police. [ 9 ] Dakota Wildeman-McNeil was almost 20 years old. He was a young man. His family is devastated by his loss. Their pain is deep, constant, and permanent. They are a close family, but a close family that has been torn apart with each member feeling some combination of emptiness, loneliness, guilt, lost opportunity, trauma, anxiety, and struggling with emotions from anger and fear to helplessness. They have questions that will forever be unanswered and are grieving for themselves and his young son, Noah, who will grow up without his father. In

summary, they have a permanent sorrow that I acknowledge. No sentence that this court imposes, long or short, sadly, will provide them with the relief that they need. [ 10 ] Turning to Mr. Kematch, Mr. Kematch's background was placed before the court through submissions of counsel, the preparation of a presentence report and a Gladue report. Mr. Kematch is 20 years of age. His mother is described in the Gladue report as an urban Aboriginal woman who self-identifies as Cree. Mr. Kematch has three siblings, all born to different fathers. [ 11 ] When Mr.

Kematch was one-year-old, his father left and did not return, and did not undertake any parental role for Mr. Kematch. Mr. Kematch lived with his mother until he was still very young, approximately three years old, when he was placed in foster care due to concerns of neglect. From approximately, by his recollection, age five, it appears uncontested in any event that his early years and youth, were defined by parental substance misuse, poverty, violence, instability, and fear. His mother struggled with substance abuse addiction and, to Mr. Kematch, was emotionally unavailable to him. His mother, according to Mr.

Kematch, was often verbally and physically abusive to him, as were many of her boyfriends. The verbal and physical abuse continued in his time in foster care. [ 12 ] He did not have any role models growing up. Nevertheless, he attended high school and did relatively well until he was expelled in grade 12 for fighting. He is still a couple of courses short of receiving his high school diploma. He has worked in various jobs including clean-up at various construction sites. He has worked as a landscape labourer and, after the commission of this offence, has worked doing cement finishing.

He is no longer employed due to the uncertainty of his future with respect to his sentence today. However, his employer has extended an offer for him to return to work if he were to receive a conditional sentence. He has future aspirations of completing his high schooling and pursuing a career in culinary arts or as a certified power engineer. [ 13 ] To give an idea of where Mr. Kematch was in the months leading up to the offence, in January of 2019, so approximately two months before the commission of the offence, he was kicked out of his family home by his mother following a dispute with his brother.

He was homeless, sleeping in stairwells, and getting food from the Union Gospel Church and also taking food, when he could, from grocery stores. He did enter the BladeRunners Program in February 2019, a month before the offence, and obtained several vocational certificates, among them, first aid, fall protection, workplace hazardous material information systems, and forklift operator. Then came March of 2019 and his altercation with Dakota Wildeman-McNeil.

[ 14 ] Mr. Kematch began experimenting with marihuana and alcohol at the age of 12. By the age of 14, he was trying hard drugs and, by 17, he was using ecstasy on a daily basis and, at age 18, was addicted to polysubstances including illicit prescription medications, for example, Valium and Percocet. Since his release from custody on the charge before the court, he has remained drug-free. [ 15 ] Mr. Kematch has expressed an interest in attending Indigenous spiritually-based programs in order to assist him in his rehabilitation. I will come back to Mr.

Kematch's Aboriginal background a little later in these Reasons. [ 16 ] A question was raised by Crown counsel with respect to an absence of support for Mr. Kematch, family support, in particular, but given his history, in my view, it is not his fault that he does not have much family support. He still has some support through his girlfriend and her mother and there are formal community supports that he is likely eligible for. [ 17 ] No psychological report and no professional assessment has been done to assess Mr.

Kematch's risk of future violence nor were any character letters submitted from which to draw inferences of his normative behaviour. However, his absence of a criminal record suggests that he has lived a relatively prosocial life up to this point and, if I have not stated it clearly, again, Mr. Kematch has no criminal record. In terms of his compliance while on bail, to put it in the words of Crown counsel, it has not been perfect, but he has done what has been asked of him. [ 18 ] I now wish to make some general comments about the complexity of the task of sentencing Mr. Kematch for manslaughter.

A court must consider an offender's personal circumstances, which is why I have gone into some detail about Mr. Kematch's background. As well, the circumstances of the offence that he has committed, which is why, again, I have gone through in some detail the offence. As well, the court needs to consider the purposes and principles of sentencing in s. 718 to 718.2 of the Criminal Code .

I will list some of those purposes and principles now, again, to give a sense of the complexity of the task. [ 19 ] The overall purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions. That is in s. 718 of the Criminal Code . The just sanctions are to have one or more of these objectives: denunciation of the conduct, in other words, expressing society's condemnation of the conduct; deterrence, so a sentence that deters the general public from committing similar offences.

Potential offenders must know that the commission of this type of offence will be met with harsh sanctions and law-abiding citizens must know that the court will treat offenders accordingly. There also has to be specific deterrence, deterrence to Mr. Kematch specifically, from committing any sort of similar offence. [ 20 ] Other objectives include separation of the offender from society, where necessary; rehabilitation of the offender; reparations; and the promotion of a sense of responsibility in offenders; and the acknowledgment of the harm that they have done not only to a victim, but to the community. [ 21 ]

Section 718.1 of the Criminal Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. That is the ultimate goal, achieving a proportionate sentence, but the purposes and principles continue.

Section 718.2 requires that a sentence should be increased or reduced to take into account any relevant aggravating and mitigating circumstances, and I will outline the aggravating and mitigating circumstances shortly. [ 22 ] As well, the court must consider sentences imposed on other offenders: … a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances … This lends some predictability to the law and fairness. [ 23 ]

Section 718.2 (

d) of the Criminal Code provides that an offender -- and this falls under the principle of restraint: … an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances… [ 24 ] In this regard, now referring to s. 718.2 (

e) of the Criminal Code , a sentencing judge must pay particular attention to the special circumstances of Aboriginal offenders, and I will get into more of that shortly, but in particular, the court must ask itself how an Indigenous offender's background may have contributed to the commission of the offence. [ 25 ] In addition to those principles, the tragic consequences here requires that Mr. Kematch's sentence have an element of retribution. The concept of retribution is explained in the case of R. v.

M.(C.A.) at paragraph 80 as follows: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. [ 26 ] Returning back to the considerations a court must have, it is those purposes, principles and objectives of sentencing combined with the offender's personal circumstances and the circumstances of the offence from which to assess their moral blameworthiness for the commission of the offence.

It is this assessment that will guide the court to arrive at, coming back to the point I made earlier, a proportionate sentence, one that is proportionate to the gravity of the offence and the offender's degree of responsibility. This process is individual to each case and each offender.

The purposes and principles of sentencing take into account the needs of the community and the needs of the offender and, in the end, the sentence must balance these needs, giving weight to some more than others depending on all the circumstances in the individual case. [ 27 ] Returning to the concept of moral blameworthiness, in a case called R. v. Bridle 2007 BCSC 1302 , Mr. Justice Barrow spoke of moral blameworthiness in the specific context of manslaughter offences with the broad range of sentence in the Criminal Code that is available from a suspended sentence to life imprisonment as context.

Justice Barrow stated at paragraph 9 of his decision:

It is an offence that, perhaps more than most, can be committed with varying degrees of moral culpability. It is an offence than can becommitted in circumstances that approach murder at the high end of the continuum and in circumstances that approach accident at theother end of the continuum. The sentences that have been imposed for the offence reflect the wide range of moral blameworthinesswithin which it may be committed. In determining the appropriate sentence, it is necessary to plot on the continuum of moralblameworthiness where the offender lies. [28] Now I wish to return to the principle of restraint stated in s. 718.2(

e) of the Criminal Code with particular attention given toAboriginal offenders when applying this principle. The Supreme Court of Canada has provided guidance with respect to the applicationof this principle in two well-known decisions, R. v. Gladue, (SCC), [1999] 1 SCR 688 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433. The principle and the

section provides that, when an offender is identified as Indigenous, it is necessary,when arriving at a fit and proper sentence, for the court to consider, firstly, the unique systemic or background factors that brought theoffender before the court and, secondly, the types of sentences that may be appropriate because of the offender's Aboriginal heritage orconnection. [29] In Gladue, the court addressed the problem of over-incarceration of Aboriginal persons in Canada and the over-representation ofAboriginal Canadians in prison.

So the court needs to consider what combination of systemic and/or background factors contributed tothis particular offender coming before the courts for this particular offence. How has the offender who is being sentenced been affectedfor, by example, substance abuse in their community, poverty, overt racism, or family or community breakdown? [30] In Ipeelee, the court made clear that sentencing judges must take judicial notice of historical factors affecting IndigenousPeoples.

These matters on their own do not necessarily justify a different sentence for Aboriginal offenders, but they provide thenecessary context for understanding and evaluating the case-specific information presented. Furthermore, as stated in Ipeelee, anoffender does not need to establish any sort of causal link between their background factors and the offence before the court before theyare entitled to have those matters considered by the sentencing judge. [31] In

summary, s. 718.2(

e) requires the sentencing judge to give attention to the unique background and systemic factors that mayhave played a

part in bringing, in this case, Mr. Kematch before the court. [32] Now, returning to Mr. Kematch's Aboriginal background, his mother was apprehended by the Ministry at birth and thereafter hadlimited contact with her extended biological family until she became an adult. She was raised primarily with non-Aboriginal fosterplacements and was the subject of abuse herself and unaddressed trauma that largely defined her immersion in the drug subculture andinvolvement in criminal behaviour and limited parenting capacity. [33] Mr. Kematch was alienated from his family and the Indigenous community.

Because of the dysfunctional nature of his family, helost much of his continuing connection to the people and traditional culture and values which may otherwise have helped define hisIndigenous identity as an adult. [34] Mr. Kematch's maternal grandparents, extended family, and community of support were survivors of the Indian residentialschool system and other discriminatory policies imposed by the Canadian Government.

His mother observed that, as a result, their familyhistory included familial fragmentation, a lack of parenting, addiction, and other forms of abuse. [35] To summarize, a number of the adverse factors that affect Aboriginal people in general are present in Mr.

Kematch's life,including early and ongoing exposure to parental neglect, violence, chronic substance abuse, and criminality; childhood abuse; Mr.Kematch's pattern of substance use as a coping mechanism; his early introduction to substance use; a break in his educationalachievement; lack of positive role models; and a dislocation from traditional family supports that has resulted in a loss of cultural identityand connection to the Cree community. [36] Turning now to the sentencing objectives that require particular emphasis and bearing in mind the background as I have justnoted with respect to Mr.

Kematch's connection to his Aboriginal community, his Aboriginal antecedents as well, in my view, consistentwith the caselaw, the sentencing objectives that require emphasis here are denunciation, deterrence both general and specific given Mr.Kematch's unique background, as well as rehabilitation given his youth and positive rehabilitative prospects. [37] In terms of balancing these objectives, it must not be forgotten that encouraging respect for the law and the protection of thecommunity and society is the end game.

The court must consider whether any adverse effects of a denunciatory and deterrent-basedpunishment on the rehabilitation of the offender can be justified bearing in mind this end goal. Having mentioned the objectives thatrequire emphasis, consideration still has to be given to all of the objectives and principles of sentencing, that I have already mentioned. [38] As I mentioned earlier when discussing the principles of sentencing, s. 718.2(

b) of the Criminal Code states as a sentencingprinciple that similar offenders should receive similar sentences when those offences are committed in similar circumstances or, statedmore concisely, the: … sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances … [39] In R. v. Pop 2013 BCCA 160, the British Columbia Court of Appeal and, in particular, Madam Justice Bennett writing for thecourt, spoke of a general range of sentence for a young Aboriginal person with no criminal record who commits manslaughter.

She statedat paragraph 25: A number of cases were cited to the sentencing judge and to this Court to establish a range of sentence for a young Aboriginal offenderwith no prior record who committed manslaughter in aggravating circumstances. While each case will depend on its uniquecircumstances, the range appears to be generally between three and eight years’ imprisonment with sentences of one and ten years at theouter ends.

As noted, sentences in manslaughter cases are very fact specific. [40] This statement of the range is instructive as it relates to the parity principle in s. 718.2(b), although the court is not bound toimpose a sentence within that range for Mr. Kematch. Rather, the court has a wide discretion. However, that wide discretion has its

limits. It is fettered in part by this parity principle that I have just discussed and general ranges of sentences. But it must be remembered that while the court must pay heed to these ranges, they are guidelines rather than hard and fast rules. [ 41 ] Where in this range or whether Mr. Kematch's sentence falls outside of this range is influenced by the aggravating and the mitigating circumstances which I will turn to now. [ 42 ] In terms of aggravating circumstances, the confrontation leading to Mr. Wildeman-McNeil's death was not purely spontaneous. There had been what I will call loose preplanning.

As noted earlier, in the days before, Ms. Carrier had offered to set up Mr. Wildeman- McNeil and invited Mr. Kematch to go after him, which is what he ultimately did. Minutes prior to the altercation, insults and challenges were exchanged between them, Mr. Wildeman-McNeil and Mr. Kematch, via Facebook Messenger. Then, hearing Mr. Wildeman- McNeil's voice, Mr. Kematch sought him out, bringing a particularly sinister dual-purpose weapon, this long-bladed knife with a brass- knuckled handle. He then instigates the physical confrontation by hitting Mr. Wildeman-McNeil in the head from behind with an object.

This was not an impulsive or reactive confrontation. It was not near self-defence or provoked, either. Mr. Kematch challenged Mr. Wildeman-McNeil to a fight, sought him out, and instigated the fight that led to the fatal blow. The confrontation itself was no accident even if the fatal blow was. [ 43 ] Secondly, Mr. Kematch brought and used a weapon when accosting Mr. Wildeman-McNeil. I have already characterized the long-bladed knife with brass-knuckled handle as sinister in nature. It appears in the design that that description is accurate. This is what Mr. Kematch had on him in preparation for fighting Mr.

Wildeman-McNeil. Mr. Wildeman-McNeil did not have a weapon. He was particularly vulnerable. The playing field was not even, the fight was not fair, and this would have been apparent to Mr. Kematch when he was repeatedly asked or told to drop the knife, yet he still refused. [ 44 ] Thirdly, I appreciate that Mr. Kematch mistakenly swung the knife blade at Mr. Wildeman-McNeil's temple instead of hitting him with the brass-knuckled part when the fatal blow was inflicted. I have factored that mistake into my decision, but it can hardly be a surprise.

There was a physical fight with grabbling and attempted hitting to the head with this weapon in Mr. Kematch's hand. There was a high probability of the fight going horribly wrong. In fact, it would have surprising if something bad did not happen. The chance of this outcome was not entirely remote or close to impossible and, again, I acknowledge, in making those comments, that Mr. Kematch did not intend to stab Mr. Wildeman-McNeil or cause him harm that he knew could cause death. [ 45 ] Fourthly, Mr. Kematch fled the scene. It would have been clear to him once he stabbed Mr.

Wildeman-McNeil in the temple with enough force to cause a fatal injury that Mr. Wildeman-McNeil was medically in trouble, yet he left the scene without rendering any assistance. [ 46 ] Turning to the mitigating circumstances, Mr. Kematch is young and he is a first offender. He has no criminal record. He was just 18 at the time of the offence. He is 20 now. [ 47 ] He has pled guilty. By doing so, he is holding himself accountable for the offence and the death of Mr. Wildeman-McNeil. He is also saving witnesses and Mr. Wildeman-McNeil's family the emotional toll and anguish of reliving through a trial how Mr.

Wildeman- McNeil passed. He has also saved through his guilty plea the economic cost and resources of trial. [ 48 ] The third mitigating circumstance, and it is connected to Mr. Kematch's guilty plea, is that he is remorseful and he deeply regrets his actions. As he said in the presentence report, he feels like he has taken two lives, Mr. Wildeman-McNeil's and his own. He feels sad, lost, depressed, and very remorseful regarding the offence and he notes that he will have to live with that guilt for the rest of his life.

In the Gladue report, he speaks of the weight of responsibility for what he has done and that he "feels helpless in making things right for Dakota's family." I also note that Mr. Kematch immediately attempted to contact Mr. Wildeman-McNeil's family afterwards and he also turned himself in two days later. [ 49 ] Next, Mr. Kematch was intoxicated when he committed the offence. He claims to be drug-free since his release from custody after his arrest in March 2019. I know that the offence was fuelled by alcohol.

I am not sure what the status is of his alcohol consumption, but he has been drug-free in any event. [ 50 ] I also do consider him to have some support in the community. I have mentioned his girlfriend, and her mother. According to counsel for Mr. Kematch, Mr. Kematch's mother is coming back and there are resources in the community that he could eligible for. Since his release from custody, Mr. Kematch has not engaged in any treatment, counselling, or programming to address his challenges as far as I know.

However, he has expressed a willingness to do so, particularly Indigenous spiritually-based programs if available. [ 51 ] Then there is consideration of his background circumstances as an Aboriginal offender. As outlined in the Gladue report, his loss of connection to traditional family supports and cultural identity is noted and, growing up, his youth was defined by neglect, violence, abuse, poverty, instability, and fear, without any role models. In my view, this background contributed to Mr.

Kematch's offence through, to quote from the Gladue report, "maladaptive decision-making processes, values, and interpersonal communications which were internalized as being normal." [ 52 ] This background no doubt contributed to the choices that Mr. Kematch made from his communications with Dakota prior to the offence, his intoxication, his instigating the violence and bringing a weapon with him, which despite his lack of criminal record, these types of choices had been somewhat normalized. [ 53 ] Please stand up, Mr.

Kematch. [ 54 ] Considering the circumstances of the offence, your personal circumstances, the principles and objectives of sentencing, the sentence proportionate to the gravity of the offence and your degree of responsibility, in my view, is three years' jail. Given the sentence is greater than two years less a day, a conditional sentence order is not available. [ 55 ] I am prepared to deduct from that sentence any time spent in custody up to this point, but no figure has been provided to me. I would be grateful if counsel could provide that.

[ 56 ] In addition, there are some ancillary orders that I will make, as well.

Those ancillary orders are that, pursuant to s. 109(2) of the Criminal Code , you are prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, or explosive substance for a period of 10 years; and you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 57 ] Pursuant to s. 487.051 of the Criminal Code , manslaughter being a primary designated offence, you are required to provide a sample of your DNA for the DNA databank.

That will be taken while you are in custody. [ 58 ] I will waive the victim fine surcharge under the circumstances given it would cause financial hardship to you. [ 59 ] In terms of the time already spent in custody, Mr. McCabe, do you have that figure? [DISCUSSION RE PRETRIAL CUSTODY CREDIT] [ 60 ] THE COURT: Mr. Kematch, the appropriate sentence is three years. I will factor in the 17 days that you spent in custody and give you credit for one-and-a-half days for each day spent in custody which rounds it up to 26 days. Your sentence is three years less 26 days. (REASONS CONCLUDED)