R. v. McKay, 2019 MBPC 11

CITATION: R. v. McKay , 2019 MBPC 11 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) K. Anderson, for the Crown ) - and - ) ) Travis McKay ) J. Corona, for the Accused ) ) Judgment delivered: ) January 23, 2019 C.A. DEVINE, P.J. Introduction [ 1 ] Mr. McKay pleaded guilty to manslaughter for the stabbing death of his cousin Sean McKay on July 6, 2017 in Garden Hill First Nation.

He also pleaded guilty to failing to comply with a condition of his recognizance that occurred in Winnipeg the month before, on June 8, 2017, and a further recognizance breach that occurred when he left the Behavioural Health Foundation on August 8, 2018 because of aggressive behavior towards another client. [ 2 ] This is my decision about the sentence that will be imposed on Mr. McKay. Facts of the Offence [ 3 ] The facts of the offence were agreed to in an Agreed Statement of Facts attached to the presentence report filed with the Court. [ 4 ] Mr.

McKay had been struggling with a drug, alcohol and prescription pill abuse problem for years, which had been escalating in the months before the offence. He overdosed on Tylenol a month before. At the time of the offence he was not intoxicated. [ 5 ] He is the cousin of the deceased Sean McKay and Sean’s brother Martin McKay. Mr. McKay thought that Martin was having an affair with his girlfriend. He went to Martin’s house the day of the manslaughter. He knocked on the door and when Martin would not open the door, he threw a rock at the door, breaking the window. Martin was frightened.

He contacted Band Constables who took him to his parents’ home. While there, Martin tried to contact the RCMP for two hours, unsuccessfully. He and his brother Sean then went looking for Mr. McKay to address what was going on. They went to his house and saw him walking down the street. They ran to catch up to him and yelled at him to stop. They all walked towards each other. Sean asked what was going on and a fight ensued, with Sean and Martin against the Offender. Mr. McKay is bigger than Sean and Martin. In the course of the fight, Mr. McKay produced a kitchen knife and stabbed Sean in the abdomen.

He then walked away and threw the knife in some grass. He later told his uncle where the knife was, which led to the police seizing it and testing positive for his DNA on the handle, and the victim’s blood on the blade. [ 6 ] Sean died a short time later in the nursing station. [ 7 ] The range of acts that constitute manslaughter range from inadvertence to almost murder. The range of sentences is likewise wide, from a suspended sentence to life imprisonment.

What determines the length or severity of the sentence is generally the culpability of the offender’s actions and the extent of the violence or brutality involved. [ 8 ] In this case, the Crown is seeking a sentence of seven years minus the time that Mr. McKay has spent in presentence custody. The Defence is seeking a sentence of two years less a day plus the time that he has spent in presentence custody, to be followed by a lengthy period of probation where he would be supervised in the community.

Purpose of Sentencing, s. 718 [ 9 ] The purpose of sentencing in Canada is to contribute to a safe, peaceful and just society, by imposing a fair sentence that has one or more of the following objectives: denunciation, deterrence, separation of offenders from society where necessary, rehabilitation, providing reparations to victims or the community, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community. [ 10 ] The main objective in this case is to separate Mr. McKay from society for a period of time, so that he does not hurt anyone else.

He must be kept separate from the community until he is better able to regulate his emotions and mitigate his violence. [ 11 ] Denunciation is necessary to express society’s condemnation of a stabbing death. Too many people carry knives, purportedly

for their own protection. They get in fights and the knives come out and people die. The particular circumstances of this casedemonstrate why carrying knives must be denounced. Sean was Mr. McKay’s cousin. They are family. They were close. Mr. McKaywould never have planned to kill his cousin. [12] Deterrence is essential in this case, general deterrence to dissuade others from carrying knives and getting into fights. Andspecific deterrence. The sentence must deter Mr.

McKay from committing violent offences in the future. [13] It is also necessary to separate this offender from the community because he is violent and represents a high risk to be violent toother people in the community. At the time of this offence, Mr. McKay did not have a criminal record, but he was pending on a brutalassault on his wife from May 2017, and after he was released on bail to the Behavioural Health Foundation, he was required to leavebecause of aggression towards another client on August 8, 2018.

His behavior in BHF and jail has been marked by impulsive outbursts.This is an objective to which I have given considerable thought. Removing Mr. McKay from society will ensure he does not hurt anyone. [14] Rehabilitation is important for Mr. McKay. He is young and some of his rehabilitative work at BHF and in jail as well as therecommendation of the Probation Officer who wrote the presentence report suggests that he can demonstrate self-awareness and goalsetting skills with the proper supports in place and that a structured environment appears to be helpful in developing productive copingand life skills.

She suggested that a long-term residential treatment facility or community in-patient program would be the “mosteffective option in maintaining the safety and well-being of both the subject and the public at this time.” The problem is that such afacility is not available at this time. [15] This sentence can promote a sense of responsibility in Mr.

McKay and his acknowledgement of the harm his offence hascaused to his extended family, especially Sean’s children, his parents, also to the community of Garden Hill and the larger community inwhich we all live. [16] The fundamental principle in sentencing is that a sentence must be proportionate to the seriousness of the offence and thedegree of responsibility of the offender. The Seriousness of the Offence [17] In this case, the victim died of his wound. Nothing is more serious than the taking of a life. [18] Sean McKay was the father of four young children who have been left fatherless.

The children are now living with theirgrandparents. The grandparents have taken formal guardianship of the children and are experiencing financial hardship as a result. [19] Those grandparents of the little children are Mr. McKay’s aunt and uncle. Moses McKay stated resignedly in the VictimImpact Statement filed with the Court: We take it on a day-by-day basis. After we lost Sean, the whole family spent time alone, by themselves. We didn’t talk much. We aredoing ok now; we have had to learn to live with it.

It is never going to go away. [20] Stabbing someone with a knife is a visceral, cold-blooded form of homicide that requires the killer to plunge sharp metal intothe body of the victim. It is

an act of extreme violence. [21] Chief Justice Fraser of the Alberta Court of Appeal stated in R. v. LaBerge, 1995 ABCA 196 that the degree of moralculpability of the accused is the key to determining the length of a sentence in manslaughter cases: 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] 2All E.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 acontinuum within that spectrum.

It is precisely because a sentence for manslaughter can range from a suspended sentence up to lifeimprisonment that the court must determine for sentencing purposes what rung on the moral culpability ladder the offender reachedwhen he committed the prohibited act. The purpose of this exercise is to ensure that the sentence imposed fits the degree of moral fault ofthe offender for the harm done. (At paragraph 6; cited in R. v. Strongquill, 2016 SKQB 397 at para. 40)[Emphasis added.] [22] Justice McLachlin (as she then was) made a similar observation in the Supreme Court of Canada decision in R. v.

Creighton, (SCC), [1993] 3 S.C.R. 3: Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing whilecommitting a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstancesindicate an awareness of risk of death just short of what would be required to infer the intent required for murder.

The point is, thesentence can be and is tailored to suit the degree of moral fault of the offender. (At para. 20; cited in Strongquill at para. 41) The Moral Culpability of the Offender, including Gladue Factors [23] Although there was no premeditation in killing Sean, Mr. McKay was on an angry rampage that day, fueled by jealousy. Hebelieved his wife was having an affair with his cousin Martin McKay, the deceased Sean’s brother. Less than two months earlier on May24, 2017 he seriously assaulted his wife Trina McKay by kicking her in the head.

Judge Choy sentenced him to 6 months in jail for thatassault; at the time he had no criminal record. [24] After being charged with the assault on Trina, Mr. McKay was granted bail in Winnipeg, on condition he abstain from alcoholand drugs and to carry no weapons.

[ 25 ] A week later, Mr. McKay breached his bail condition. Winnipeg emergency crews were summoned to check on his well-being when he was found lying on the ground in front of the Millennium Library in downtown Winnipeg extremely intoxicated. [ 26 ] So, with this recent history of violence, drug and alcohol abuse and anger and jealousy we come to July 6, 2017. [ 27 ] He was pounding on Martin’s door. He threw a stone and broke the window. Martin was frightened enough to enlist the help of Band Constables who took him to his parents’ house.

And frightened enough to call the RCMP. [ 28 ] He was armed with a knife. [ 29 ] He did not run when his two cousins were physically fighting with him. Because he was bigger. And likely because he had a knife. [ 30 ] He was in custody for the manslaughter between July 7, 2017 and October 11, 2017 at which time he was granted bail to residential substance abuse treatment at the Behavioural Health Foundation. While he generally did very well at BHF, he was asked to leave because of an instance of aggressive, threatening behavior. Another resident accused him of pushing him.

They met with a staff member about the incident. When Mr. McKay did not agree with the characterization of what happened, he became verbally and physically aggressive, coming in very close to the other man in an intimidating way, yelling profanities. This was a breach of the BHF rules and he was required to leave, which meant he went back into remand custody in jail. [ 31 ] While all of the above behavior would suggest that Mr.

McKay’s moral culpability in committing this manslaughter was quite high, there are organic and historical medical factors which greatly mitigate his moral culpability. [ 32 ] The writer of the presentence report, Carmen Edwards, believes both from her own observations of Mr. McKay and from her conversations with staff at BHF, that Mr. McKay does not appear to fully understand the gravity of his actions. [ 33 ] Although he achieved a Grade 11 education on paper, the presentence report noted that Mr.

McKay appears to function “significantly lower than grade 11 in verbal communication skills and comprehension.” [ 34 ] Sean Gallup, the Behavioural Health Foundation Court Communicator, also had serious concerns about Mr. McKay’s cognitive functioning and moral culpability. He stated for the presentence report that Mr. McKay, . . . presents as a vulnerable person due to his cognitive functioning and immature emotional development and (Mr. Gallup) expressed curiosity of a NCR designation had been explored by the Court. [ 35 ] Ms. Edwards discussed Mr.

McKay’s immaturity, undeveloped social skills and vulnerability: Mr. McKay presents as immature and appears to lack the social skills required to build productive peer relationships, as demonstrated by his frequent confrontations with peers both in the community as well as in treatment/custody. [ 36 ] Not only did Ms. Edwards and Mr. Gallup have concerns about Mr. McKay’s cognitive functioning and immaturity, they also believe he suffers from FASD, as he presented characteristics of FASD and scored 2 out of 4 on the FASD screening tool, suggesting some evidence of fetal alcohol effects.

The BHF team concluded however, it was difficult to make a definitive diagnosis, as it was difficult to distinguish between alcohol-related birth defects and developmental delays and language barriers. Parenthetically, Oji-Cree is Mr. McKay’s first language, as is the case for almost all Island Lake people. [ 37 ] Ms. Edwards also noted her concern for Mr. McKay’s mental health. On the one hand he is overly concerned about people not liking him and on the other hand he is quick to engage in hostile behavior.

In the Court’s experience, these two things are commonly related. [ 38 ] Further information was provided to the Court during the sentencing hearing. Mr. McKay was involved in a serious car accident when he was seven or eight years old and was in a coma for several weeks. When he was 16 or 17 years of age he suffered a concussion when he was hit with a baseball bat and knocked unconscious. [ 39 ] I am aware of the general requirement that evidence be filed that would support a nexus between the medical conditions and the offending behavior. ( R. v. Friesen , 2016 MBCA 50 ; R. v. J.M.O. , 2017 MBCA 59 and R. v.

Catcheway , 2018 MBPC 49 ) There are no medical reports in this case. Mr. McKay has lived virtually his whole life in a remote northern community that is under-resourced. Moreover, FASD assessments are not available to adults in Manitoba. To disregard the information provided by Mr. Gallup and Ms. Edwards in the presentence report because it is not augmented by medical reports would put an unfair burden on Mr. McKay who by virtue of the very same Gladue factors that have impacted his criminal offences, cannot produce medical reports.

I am satisfied that I can put weight on the observations of the senior professionals who commented on Mr. McKay’s moral culpability in the presentence report, from the Behavioural Health Foundation and Probation Services. [ 40 ] Moreover, I was able to observe Mr. McKay during the sentencing hearing and listen to his comments at the end of sentencing.

His demeanor and language were consistent with the information in the presentence report and from counsel: extremely emotionally immature, unable to grasp the gravity of what he did, and able to convey information in only a very rudimentary way. [ 41 ] I am satisfied that Mr. McKay’s moral culpability was reduced by his organic or later onset brain functioning. [ 42 ] At this stage, it is important to also consider Mr. McKay’s background as an Oji-Cree man from Island Lake and the unique systemic and background factors that have played a

part in bringing him before the courts. This consideration is intrinsic to the proportionality analysis. Justice LeBel explained in the Supreme Court of Canada case of R. v. Ipeelee , 2012 SCC 13 that there is a two- part analysis that is required by subsection 718.2 (

e) of the Criminal Code , the subsection requires:

s. 718.2(

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for alloffenders, with particular attention to the circumstances of aboriginal offenders. [43] The first part of that analysis determines how the Indigenous person’s background impacts on the proportionality analysis: First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthiness. . . .

Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack ofopportunities and limited options for positive development. While this rarely - if ever - attains a level where one could properly say thattheir actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances maydiminish their moral culpability. As Greckol J. of the Alberta Court of Queen's Bench stated, at para. 60 of R. v. Skani, 2002 ABQB1097, 331 A.R. 50, [page 478] after describing the background factors that lead to Mr.

Skani coming before the court, "[f]ew mortalscould withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into accountwould violate the fundamental principle of sentencing - that the sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender. (At para. 73) (Emphasis added) [44] Similarly, in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, Justices Cory and Iacobucci stated: The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known.

Years ofdislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack ofopportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. (At para. 67) [45] Mr. McKay was born and raised in Garden Hill. His mother had him when she was 15. He recalls a positive childhood, withoutany kind of abuse. He remembers trapping as a child.

The family has not been without heartache though – both parents have struggledwith addictions in the past, but have gone to BHF – both parents in 2001 and his father again in 2008. [46] I take judicial notice of the fact that this community has been strongly impacted by colonialism and the residential schoolsystem, which has played out in many, many ways, including family difficulties and dysfunction, reliance on alcohol and othersubstances, and very poor infrastructure, such as housing and modern plumbing and clean water.

There is insufficient economic activityor alternatively, very little retention of traditional ways which might guarantee people health and well-being. Other Relevant Sentencing Principles, s. 718.2 Aggravating and mitigating factors (s. 718.2(a)) [47] Mr. McKay took responsibility for this offence from the time he told his uncle where the weapon was. He has pleaded guilty.In Court, he faced his uncle and aunt and told them how sorry he was. He spoke first in English and then in their language, Oji-Cree. [48] It is aggravating that Mr. McKay was pending on a violent charge when he committed this offence.

It is also aggravating thathe was in breach of the condition that he carry no weapons. And it is aggravating that the death was caused by a weapon. Parity (s. 718.2(b)) [49] Subsection 718.2(2)(

b) requires that: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [50] Manslaughter sentences are very difficult to subject to a parity analysis, because the range of circumstances in which amanslaughter is charged varies so greatly and the range of sentences varies more significantly than for any other serious criminaloffence, as I have indicated earlier in this judgement. [51] The Crown filed three cases: R. v. Csincsa, 1993 CarsellMan 18 (Man.C.A.), R. v.

McKay, 2010 MBQB 56 and R. v.Strongquill, 2016 SKQB 397, where the sentences were seven or eight years. [52] Defence counsel filed a case book of 11 cases, where the sentences ranged from a Conditional Sentence Order to nine years. [53] There is no established range of sentences for manslaughter, including where the manslaughter is within a family context, norhas the Manitoba Court of Appeal established a starting point for that reason, because of the wide range of circumstances of the offence. [54] This may not be the case in other jurisdictions.

For example, it appears that courts in Saskatchewan have established a range formanslaughter sentences of four to 12 years. (See Strongquill at paras. 23 - 25, citing R. v. Keepness, 2010 SKCA 69 at paras. 28 – 29). [55] The Manitoba Court of Appeal has rejected the establishment of a range or a starting point approach to the offence ofmanslaughter. In Csincsa the Court of Appeal provided a review of manslaughter sentencing decisions to discern patterns, ranges orstarting points. The Court of Appeal found that three general conclusions could be drawn: 1.

There has been an incremental response to the frequency with which the crime of manslaughter is committed. 2. The paramount factors in determining the range of sentence are the culpability of the offender’s actions and the extent of violence orbrutality present. 3. Mitigating and aggravating factors are relevant, looking to the interests of the public and having regard to the personalcircumstances of the offender, including his background, prior involvement in the criminal justice system, his prospects for rehabilitationand his remorse. (Csincsa at para. 32)

[ 56 ] In Csinsca , the accused was of similar age, was sober at the time of the offence and did not have a criminal record. The similarities end there. The death was as a result of an extremely brutal and violent assault on an older, drunken victim who weighed 140 pounds, while the accused was a body builder who weighed 230 – 260 pounds. The victim’s chest was essentially crushed, with every rib and his sternum broken, and injuries to 26 parts of his head, face and body. The accused was convicted of manslaughter after a trial for murder.

The Court of Appeal substituted a conviction for manslaughter, but found the offence to be close to murder. He was sentenced to eight years. There were no circumstances which reduced the accused’s moral culpability, such as mental deficits or Gladue factors. [ 57 ] The case of McKay has many similarities. The accused stabbed his cousin with a knife during a fight involving several family members. Everyone was drinking. The victim had provoked the incident, was bigger and the accused feared him, because the victim had a record for manslaughter. The accused was remorseful right after the incident and in court.

There was no presentence or Gladue report before the court. The Crown sought a sentence of 10 years and defence sought a sentence of six years. The Court failed to take the offender’s circumstances as an Indigenous offender into account, citing “no evidence before me as to any unique systemic or background factors which may have played a role in bringing this particular offender before the court” and no information was provided by defence counsel.

The judge concluded that “there will be an enhanced likelihood that an aboriginal offender may be dealt with in the same manner as a non-aboriginal offender if the offence committed is serious in nature as this one clearly was” (at para. 11). There was no consideration of Gladue in the analysis. In imposing sentence, the judge reiterated that “a fit and proper sentence for a serious offence such as manslaughter will not likely be significantly different as between aboriginal and non-aboriginal offenders.” (At para. 35) She sentenced the accused to seven years.

His sentence was reduced by the four and a half years of presentence credit, leaving his going forward sentence two and one half years. [ 58 ] The Saskatchewan case of Strongquill involved a group chasing the victim and the accused stabbing him. The accused had no record, and had a wife and two young children. Justice Gunn did consider the Gladue circumstances of the offender. She cited the sentencing range for manslaughter sentences in Saskatchewan, as well as the joint recommendation before her, which she felt bound to accept.

She sentenced the offender to the recommended eight years, reduced by the two years he had served in custody, with six years going forward. Restraint (s. 718.2(

d) and (e)): [ 59 ] Defence counsel stated a federal penitentiary would be anathema for Mr. McKay, whose cognitive and emotional functioning is child-like at best. He stated that it would be harder for Mr. McKay than for other offenders.

Indeed, the Supreme Court in Gladue recognized that Indigenous offenders may be more adversely affected by incarceration than non-Indigenous offenders. (At para. 68) A Restorative Approach to Sentencing [ 60 ] The Supreme Court’s decisions in Gladue and Ipeelee were a judicial response to the over-incarceration of Indigenous people and direction to sentencing judges to address the crisis. The Supreme Court directed that judges consider a restorative approach to sentencing, mandated by subsections 718 (d), (

e) and (

f) and subsections 718.2 (

d) and (

e) of the Criminal Code . [ 61 ] Emphasis should never be placed on the length of incarceration, but rather on whether a sentence that is fit and appropriate can incorporate a restorative approach. [ 62 ] It is an over-simplification to state either that jail sentences for Indigenous offenders should be shorter, or that jail sentences for serious offences are the same for Indigenous and non-Indigenous offenders. The approach must always be different when sentencing Indigenous offenders, and that approach must be restorative to the extent possible. [ 63 ] Justice LeBel stated this trenchantly in Ipeelee at paragraph 87 : The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality.

Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention. [ 64 ] However, where separation of the Offender is necessary for the protection of the community and there is a lack of community resources to allow both for separation of the offender from society and his rehabilitation, then the Court must rely on the correctional services for that rehabilitation and restoration of the offender, the victims and the community.

The length of incarceration then often becomes the difference between a restorative and non-restorative sentence. [ 65 ] Perhaps the best example of how a reduction in sentence is the result of a proper application of the principles from Gladue and Ipeelee is Ipeelee . Mr. Ipeelee’s sentence was reduced from three years to one year by the Supreme Court of Canada, after applying Gladue principles and clarifying that rehabilitation is a relevant objective when sentencing Long Term Sentence Offenders. [ 66 ] Mr.

Ipeelee had a lengthy record of serious, violent offences that included two sexual assaults, two assaults causing bodily harm and an aggravated assault. He did not suffer from any mental illness. He had average to above-average intellectual ability. He had been diagnosed with antisocial personality disorder and severe alcohol abuse disorder. His offences were marked by extreme violence; the sentencing court described “a consistent pattern of Mr.

Ipeelee administering gratuitous violence against vulnerable, helpless people while he is in a state of intoxication” (at para. 10). [ 67 ] Ipeelee was not only a restatement in the strongest of terms of Gladue . It also stands for two other critical principles. First, that the unique circumstances of Indigenous people must always be taken into account and given expression in the resulting sentence. Secondly, a reduction in a jail sentence is sometimes the result. [ 68 ] There are several other examples of sentence reduction after consideration of Gladue circumstances. In R. v.

Park , 2016 MBCA 107 at paragraph 24 , Justice Steel stated,

The Gladue factors are not only to be considered when deciding whether to impose a term of imprisonment. They should also be considered when determining the length of that custodial sentence. [ 69 ] Similarly, in R. v. L.L.D.G. , 2012 MBCA 106 , the Manitoba Court of Appeal reduced a young Indigenous offender’s sentence from 10 years to five years, in “ attempting to pay more than lip service to the Gladue principles and requirements” (at para. 45). [ 70 ] In R. v. Okemow , 2016 MBQB 240 , Justice Keyser sentenced the Ojibway offender to 44 months for a manslaughter involving a group beating. See also R. v.

Branconnier , 2016 MBPC 50 where the Metis co-Accused was sentenced to just over 52 months. [ 71 ] The Supreme Court directed that in determining whether restorative justice objectives can be satisfied in a particular case, the judge should consider: - the offender’s prospects of rehabilitation, - including whether the offender has proposed a particular plan of rehabilitation, - the availability of the appropriate community service and treatment programs, and - whether the offender has acknowledged her/his wrongdoing and expresses remorse. [ 72 ] This is a difficult proposition.

Sentencing judges have more recently taken into account the programming that is available in various correctional institutions and how offenders are doing in those programs, to impose a sentence that incorporates restorative principles. Such examples were Okemow and Branconnier , who were both serving pre-sentence custody at Headingley Correctional Centre and who were both participating in the Winding River program.

They were sentenced to provincial incarceration (in addition to the two plus years they had spent in presentence custody) to allow for them complete the Winding River program. [ 73 ] That option was suggested for Mr. McKay in this case, but Mr. McKay is not in Headingley Correctional Centre, and considering a transfer to that institution and acceptance into Winding River is too speculative. [ 74 ] I have taken into account the many aspects of the presentence report that suggest that Mr. McKay participates well in rehabilitative programming, as he apparently did at BHF.

But I cannot ignore that he represented a violent threat there, which is why he had to leave. He continues to demonstrate aggressive behaviour in jail, such as flashing gang signs and trying to intimidate other inmates. [ 75 ] Mr. McKay is not a good candidate for rehabilitation outside a prison setting at this time. [ 76 ] Notwithstanding the holistic and compassionate approach Ms. Edwards took with respect to Mr.

McKay and his circumstances, she still found him to be a high risk to reoffend. [ 77 ] After reading the presentence report, I thought it might be helpful to hear more from Probation Services, BHF, and members of the family and the community during this sentencing, given the suggestions from the probation officer and BHF about many of the more positive prospects for rehabilitation.

This would have delayed the sentencing hearing and counsel wished to proceed to sentencing with the information counsel was able to provide me and of course with the presentence report and the Victim Impact Statement. [ 78 ] At the sentencing hearing I learned more about Mr.

McKay’s other violent and impulsive acts, including the assault on his wife, the aggression demonstrated at the BHF resulting in his removal from the facility, and the breach of his recognizance where he was found intoxicated on the ground downtown. [ 79 ] I considered whether a provincial sentence followed by the maximum three year period of probation requiring him to stay in Winnipeg would protect the community of Garden Hill, given that there are fewer resources to help Mr. McKay and protect the community in Garden Hill, but this keeps him away from his language and land, which seems counter-intuitive.

Moreover, I am not satisfied that any community-based programs and conditions would be adequate to reduce his risk at this time. [ 80 ] A provincial sentence of two years less a day with three years of probation would not adequately protect the community from Mr. McKay, nor would it address the seriousness of the offence and the need for denunciation of this loss of life. [ 81 ] Moreover, Mr.

McKay’s recent history even after months in a residential treatment facility was aggressive and intimated violence. [ 82 ] There is no easy solution. [ 83 ] Even his stance and physical movements in Court when he apologized to his aunt and uncle seemed aggressive, when Mr. and Mrs. McKay did not respond to him. It appeared that he was repeating his apology in increasingly emotional attempts to get a response from them. [ 84 ] I recognize that some of this behaviour is as a result of cognitive deficits.

But when he intentionally decides to carry a knife in defiance of a court order, he is a dangerous person. [ 85 ] If there were resources to allow me to send Mr. McKay to a secure facility where he could deal with his addictions, develop his emotional intelligence, learn to moderate his behavior, develop his literacy and learn some job skills, I would sentence Mr. McKay to that place for a period of time. [ 86 ] Without such a facility, I must rely on the Correctional Service to provide him the rehabilitation required to lower his risk to the community.

Sentence [ 87 ] The intention is to impose a sentence on the manslaughter offence that expresses denunciation for this senseless crime resulting in the loss of a father, son, cousin, Mr. Sean McKay, and that adequately protects the community from a man who continues to have violent outbursts. [ 88 ] The sentence must also take into account Mr.

McKay’s reduced moral culpability because of the Gladue factors in his life as well as the cognitive and emotional defects from which he suffers. [ 89 ] Taking these factors into account, I believe a fit and appropriate sentence for the manslaughter is four and one half years. [ 90 ] For the breach of his recognizance when he was found extremely intoxicated outside the Millennium Library on June 8, 2017, which predated the manslaughter, a fit and appropriate sentence is one month in custody.

For the breach of his recognizance for failing to abide by the rules of BHF on August 8, 2018, the sentence is also one month in custody. [ 91 ] The total sentence is four years and eight months. That is 56 months. [ 92 ] Subtracted from that is the almost eight months Mr.

McKay has already spent in custody. (He has accrued 153 days of presentence custody on these charges, credited at time and a half, which is 230 days, or 7.6 months.) I will deem it eight months. [ 93 ] The remaining sentence is therefore 48 months or four years. [ 94 ] It is my hope that while he is in custody, the kind of intervention, treatment and rehabilitation necessary for him will be made available to Mr.

McKay, including: - A mental health assessment - An FASD assessment - Appropriate healing from an Indigenous perspective, and specifically, services that are accessible to him in his Oji-Cree language to the extent possible - Addictions treatment - Treatment and rehabilitation for impulse control, aggression and violence - Training and education [ 95 ] The following ancillary orders are made: -

Section 109 mandatory 10 year weapons prohibition; -

Section 487.051(1) DNA primary designated offence; if you do not provide a sample of your DNA while in custody, you will do so within 30 days of your release from prison. “Original signed by:” C.A. Devine, P.J.