Her Majesty the Queen ) Todd Rambow ) for the Crown - v. –, 2014 MBPC 10

2014 MBPC 10 THE PROVINCIAL COURT OF MANITOBA The Pas Centre BETWEEN: Her Majesty the Queen ) Todd Rambow ) for the Crown - and – ) ) Bart Schwartz GEORGINA McNABB ) for the Accused ) ) Judgment delivered: ) January 31, 2014 L. ALLEN, P.J. INTRODUCTION [ 1 ] The accused is Georgina McNabb of Moose Lake, Manitoba. [ 2 ] Ms. McNabb, on January 12, 2012, in Provincial Court in Moose Lake, pled guilty to manslaughter as to the death of her sister, Victoria Mink on March 29, 2011. THE FACTS [ 3 ] A Sentencing Circle was held in Moose Lake on May 24, 2013.

Participant presenters included the Mosakahiken First Nation Chief, Philip Buck, a Band councillor, members of Ms. McNabb’s family, the deceased’s widower and general members of the community. Additional argument was heard on November 5, 2013, and the matter was adjourned for disposition. [ 4 ] March 28, 2011, members of the McNabb family, including 28-year old Georgina McNabb and her now deceased older sister, Victoria Mink, together with other family friends, gathered to celebrate the 44 th wedding anniversary of Ruby and Ahab McNabb, the accused and deceased’s parents.

Sometime around midnight, the non-family members left the party. The police narrative then states: “From that point on, there appears to have been significant alcohol consumption by the immediate family members in the home, including the Accused”. [ 5 ] The Accused and Victoria Mink were sisters and began arguing (as they had a habit of doing from time to time) and ultimately fighting. The Accused was telling her sister to leave the house and was upset about Victoria’s husband, Philip Mink, sleeping in her bedroom.

She felt that everyone was picking on her and blamed everyone for hating her. [ 6 ] At one point, their brother, Russell McNabb, went out of the bedroom, told them to stop arguing and returned to drink with his father. [ 7 ] When Russell came out of the bedroom a second time, he saw Victoria laying on the floor in the kitchen with blood squirting out of her left arm and the Accused was standing by the front door. Russell took his sweater off and wrapped it around Victoria’s wound.

Russell threw the Accused out of the house and went to wake up Philip Mink.” (pages one and two of the Prosecutor’s Information Sheet).

[ 8 ] Despite the fact that Victoria Mink suffered only a 2 cm wound to her left arm, she began to bleed copiously. Her injury was apparently inadequately dealt with by those present and consequently she lost a considerable amount of blood. At some point, the RCMP were called, but by the time the police and later nurses from the Moose Lake nursing station arrived, Ms. Mink had lost so much blood that she could not be revived. She was declared dead at 5:06 a.m. [ 9 ] Medical personnel later told the RCMP that if the victim had been given prompt proper medical attention, she would have survived the stabbing.

RCMP concluded that everyone in the house was too drunk to have acted with reasonable diligence. BACKGROUND OF GEORGINA McNABB [ 10 ] Ms. McNabb, who is 29 years old, is a lifetime resident of Moose Lake, Manitoba. She has no prior criminal record. A Pre- Sentence Report was prepared for the sentencing of this matter. [ 11 ] At the time of the incident before the court, Georgina McNabb was employed as a teacher’s assistant at the Rod Martin School in Moose Lake. According to the Pre-Sentence Report, Ms. McNabb had five siblings and she “got along with all of them”(PSR page 5).

Additional information from the PSR states that her parents struggled with alcohol abuse and the McNabb family dynamic included partying, fighting and violence. It was also revealed that Ms. McNabb’s mother had used alcohol throughout her pregnancies. Poverty and parental neglect were also features of her childhood. [ 12 ] Ms. McNabb herself began using alcohol at approximately age ten and continued to use and abuse alcohol to the time of her incarceration for this incident. Until the death of her sister, Georgina McNabb had never participated in rehabilitative alcohol counselling. Ms.

McNabb indicated to the writer of the PSR that her inherently shy nature has kept her in the past from attending alcohol treatment programming. She now says that she recognises she has a problem with alcohol and wants to get help. [ 13 ] The PSR indicates that Ms. McNabb was well liked in Moose Lake prior to this incident and still retains the support of her family and others in the community.

This was evidenced at the Sentencing Circle as numerous family members, including the deceased’s husband and community members spoke on her behalf. [ 14 ] At the Sentencing Circle, the offender spoke emotionally about her on-going grief at the loss of her sister. She said that at the time the event took place, she was suffering from alcohol and anger issues.

She said that she took responsibility for what happened and wants to give back to her family and to the community. [ 15 ] Philip Mink, the deceased’s husband, said at the Sentencing Circle that he has forgiven Georgina McNabb and that “if one cannot forgive, then one quickly becomes miserable and old”.

He said that he considered what happened to be an accident and asked that his sister-in-law be returned to the community with no further time spent in jail. [ 16 ] The Mosakahiken Chief, Philip Buck, spoke at the Sentencing Circle and said that “Ninety-eight per cent of our problems in this community are alcohol related”. He said that Georgina McNabb had always handled herself well in the community and that it was known that she was the only one of her siblings who was prepared to come forward and care for her elderly, frail mother. The Chief asked the court to return Ms.

McNabb to the community with no further jail and he pledged that there are relevant supports in the community to assist her. [ 17 ] It is noteworthy that after this incident, Ms. McNabb spent approximately 13 months in custody before being accepted and released into a long-term residential treatment program at the Behavioural Health Foundation in Winnipeg. She remained there for six months and completed at least four modules of rehabilitative programming from which certificates were filed as exhibits before the court. [ 18 ] Eventually, Ms.

McNabb was required to leave that institution and was returned to custody. [ 19 ] At the time of the Sentencing Circle, she had been incarcerated for approximately 15 months. After the Sentencing Circle, she remained in jail for approximately another four weeks, at which time the Crown consented to her release on bail to facilitate her

attendance at another residential facility for the treatment of alcohol abuse. [ 20 ] The court was told at a later sentencing hearing on November 5 th , 2013 in Moose Lake, that Ms. McNabb soon after her release gained admittance to the Ekweskeet Healing Lodge in Onion Lake, Saskatchewan and remained there until she had completed the required programming. A completion certificate was filed as Exhibit 8 in these proceedings. [ 21 ] Additional exhibits filed included a letter from the Mosakahiken Chief and Council which basically re-iterated the Chief’s position from the Sentencing Circle (Exhibit 5).

Also filed was a letter from Sylvia Grey, the Moose Lake NADAP (addictions) worker. Ms. Grey stated in her letter that Ms. McNabb has worked co-operatively with her both in terms of going to treatment and also as to remaining involved with her for follow-up counselling after she returned to the community. Ms. Grey also confirmed that in her opinion Ms. McNabb has remained sober while in the community. POSITION OF THE PARTIES [ 22 ] The Crown took the position at the Sentencing Circle and at the subsequent continuation of the sentencing process, that Ms.

McNabb should receive a jail term of approximately three years. The Crown argued that there is legal precedent for a jail sentence in that range and that denunciation and deterrence require a significant jail sentence. The Crown also argued at the Sentencing Circle that it would be dangerous to return Ms. McNabb to the community as she has an addiction problem. [ 23 ] Defense counsel argued that Ms. McNabb has already served 16 months and that term is adequate to reflect the seriousness of the situation.

Defence counsel suggests that in addition to the time already served, his client should be placed on a three-year term of Probation. He pointed out that she made significant rehabilitative efforts at two separate treatment programs and has done everything she has been asked to do.

Counsel also argued that the community unanimously supported his client at the Sentencing Circle and asked the court to release her without further incarceration. [ 24 ] Sentencing in this matter was adjourned in November, 2013, for the provision of a report from Linda Hope, the community mental health therapist who has been working with Ms. McNabb. This document is before the court as Exhibit 11. [ 25 ] The report from Ms. Hope states amongst other things, that: -When the therapist began working with Ms.

McNabb in April, 2011, she found her to be “extremely shy...and suffering the consequences of her actions which have included severe shame, guilt and ostracism from a majority of the community and her family”; -Georgina McNabb has completed a total of seven months of rehabilitative treatment and is currently attending AA meetings in Moose Lake; -Ms. McNabb has suffered from alcoholism from an early age, but she “is now realizing the effects and is determined to put it behind her”; -The treatment programs Ms.

McNabb has attended have given her “many strategies to deal with life situations in a healthy, adult manner”; -Ms. Hope maintains that each time Ms. McNabb has returned from treatment, “She is more animated, smiles more and is more at peace with herself”. -In summation, Ms.

Hope concludes that “in my professional opinion, Georgina is not a threat to society and is committed to a sober life and her experiences in treatment have shown her a better way to live”. [ 26 ] The principles of sentencing set out in Criminal Code sections 718 to 718.2 provide guideline objectives which are of assistance to a sentencing court in imposing a just sanction. [ 27 ] In assessing the relevant objectives in this case, it is important to be aware of certain mitigating and aggravating factors. [ 28 ] It is aggravating:

-That this crime involved the use of a knife against an unarmed person; -That the victim was the perpetrator’s sister; [29] It is mitigating that: -The incident began with what appears to have been a mutually consented to fight; -The violence was a spontaneous reaction to anger resulting from extreme intoxication rather than a pre-meditated act; -There was only one stab wound inflicted; -Ms. McNabb quickly admitted her responsibility for the death of her sister; -Ms. McNabb has expressed in court and to others that she feels not only remorse but grief and loss resulting from the death of her sister; -Ms.

McNabb has no previous criminal record; -Prior to this incident, Ms. McNabb was known in her community as a friendly, non-violent person who gave of herself to assist others; -Ms. McNabb has made significant rehabilitative steps to deal with the alcohol addiction problem which appears to have been at the rootof this crime; -Ms.

McNabb has significant family and community support as shown by the many supporters who spoke on her behalf at theSentencing Circle and by the letters of support filed by the Mosakahiken Chief, Band council, NADAP worker and mental healthcouncillor; [30] As previously noted, the information sheet provided by the RCMP indicates that Georgina McNabb was upset because hersister’s husband was sleeping in her bed and that she felt that the rest of her family were picking on her and hated her. Having observedthe family dynamic as represented at the Healing Circle, it was my observation that Ms.

McNabb appears to fit at the lowest end of thatdynamic. Her siblings all appeared much more outspoken, outgoing and arguably more aggressive than she is. I found it reasonable thatshe might feel herself bullied or picked on by her siblings. CASE LAW (THE CROWN) [31] Crown counsel suggests that an appropriate sentence in this matter is three years less the 16 months that Ms. McNabb hasserved in custody. Crown counsel provided three cases which he maintained supported this position. These are: R. v.

Larche, 2013 MPPC 54 (Manitoba Provincial Court). [32] In that case, a 22-year old man with no criminal record, stabbed his brother in the midst of a family dispute. The brothersubsequently died. Mr. Larche was given a jail sentence of four years. [33] Despite the obvious similarities between Larche and the case at bar, there are some notable differences. It was noted asaggravating in that case that the victim was stabbed twice. It was also noted that Mr. Larche “lacked insight” with respect to his need forprofessional help to address issues of anger management and substance abuse (paragraph 21).

The sentencing Judge also stated: “It is ofsignificant concern that the accused has not taken steps to seek counselling for his abuse of alcohol or for anger management” (para 19). [34] Additionally, the Judge went on to say “without professional help he remains a risk to act out again in a violent fashion. Thesentence imposed must be of sufficient duration to allow him to access counselling and programming prior to his release from custody”(para 20). [35] In the case at bar, it is suggested by both Ms. Grey, the local NADAP worker, and Linda Hope, the mental health therapistworking with Ms.

McNabb, that their client is realizing the effects of alcohol in her life and is committed to a rehabilitative path. [36] Additionally, unlike Mr. Larche, Georgina McNabb has taken significant steps to deal with her addiction. Both of these factorsreduce the risk presented by Ms. McNabb as she transitions back into the community.

[37] R. v. MacFarlane [2012] Ont Ct Appeal 82, 2012 Carswell Ont 1321. [38] Crown counsel quoted from this case at paragraph eight: “Sentencing in manslaughter cases varies widely, but as a general rule, sentences are imposed proportionate to the gravity of theparticular offence of manslaughter. Ordinarily, a lengthy sentence is imposed for the offence of manslaughter to reflect society’sconcern for the sanctity of life.” [39] In that case, the offence committed was assessed by the judge as very serious. Additionally, the offender was on probation andhad just been released from jail.

He participated in a two-on-one beating of an unarmed 18-year old which resulted in the victim beingleft bleeding in the street and eventually losing his life. Mr. MacFarlane received a jail sentence of two years less one day. [40] The most notable factor which differentiates the MacFarlane case from the case at bar is the seriousness of the manslaughter. MacFarlane knew that his co-accused had a knife (which eventually the co-accused stabbed into the heart of the victim).

His victim wasbeaten in a two-on-one situation and he was left to die. [41] The death in the case at bar resulted from a spontaneous, single act of stabbing. [42] R. v. Green, 2001 Carswell BC 2600, 2001 BCA 672. [43] Crown counsel provided this case and referenced statements therein made by the British Columbia Court of Appealemphasizing that general deterrence and denunciation are the most important factors in determining a proper sentence for manslaughter. [44] Green, the cocaine addicted perpetrator stabbed his victim 47 times and then eviscerated her body.

The seven year sentenceimposed reflected the significant brutality of the crime. CASE LAW (DEFENCE) [45] Counsel for Georgina McNabb asks the court to be aware of the decisions from the Supreme Court of Canada in R. v. Gladue[1997] 1 S.C.R. 688 and R. v. Ipeelee 2012 SCC 13 , [2012] 1 S.C.R. 433 which require sentencing courts to be particularlymindful of the circumstances of aboriginal offenders and be conscious that background factors may bear on an offender’s culpability. [46] Counsel for Ms.

McNabb suggests that the 16 months already served by his client, followed by three years of Probation, is anappropriate sentence. In support of that position, he provided the following cases: R. v. Bonnie Susan Simcoe, Ont Ct Appeal (ONCA). [47] In this case, the perpetrator pled guilty to stabbing and killing her father. She was originally sentenced to four years in prison inaddition to eight months of pretrial custody. Her sentence was reduced on appeal to time served, being eight months of pretrial custody(credited at 16 months), plus one year that she had already served. She had no record. In that case, Ms.

Simcoe had historically beensexually abused by her father and had also been sexually assaulted by him just before the stabbing. Provocation was considered a factor. [48] One of the reasons why the original sentence in the Simcoe case was over-turned, was because the Appeal Court found that thesentencing judge had erred in suggesting that the range of sentence for a homicide is between five to ten years. [49] The Court of Appeal quoted from R. v.

Turcotte (2000) (ON CA), 48 O.R. (3D) 97 at 101, saying that theTurcotte case was the Ontario Court of Appeal’s statement case that for cases of manslaughter the range flows down from penitentiarysentences to maximum provincial sentences and even to conditional sentences (para 14).

[ 50 ] The Simcoe decision said the following about sentencing for manslaughter: “The taking of a life is always a terrible tragedy and a most serious offence no matter the circumstances. It is therefore difficult to consider how a prison sentence of a term of years can be viewed as disproportionate to the offence. Rather, courts have viewed the offence of manslaughter in the context in which it occurred, including the relationship between the victim and the accused, together with the personal characteristics of the accused, in order to determine the appropriate sentence.” (para 24) [ 51 ] R. v.

Kleon Cassidy Pop [2013] BCCA 160 : In this case, Pop and his brother (a young offender) were charged with the second degree murder of the deceased, an individual they had been drinking with. Mr. Pop pled guilty to manslaughter. The victim suffered 34 stab wounds. Both the victim and the perpetrator Pop were highly intoxicated. [ 52 ] The B.C. Court of Appeal in reducing the decision of the sentencing judge as to sentence, felt that Pop’s level of blameworthiness was “significantly reduced because of the circumstances of Mr.

Pop, including his degree of intoxication, his background and circumstances”. (para 28) [ 53 ] That court also said that Mr. Pop’s aboriginal background should be considered a significant mitigating factor in determining an appropriate sentence. (para 28) Ultimately, the Court of Appeal sentenced Mr. Pop to one year of incarceration followed by three years of probation. [ 54 ] There is no minimum proscribed sentence for the offence of manslaughter.

An examination of reported cases will indicate cases falling within a wide range. [ 55 ] The previous decisions by Canadian courts largely involve the application of the principles of sentencing as found in our Criminal Code to the facts of each case and the circumstances of each offender.

SUMMARY [ 56 ] In this case, in addition to the mitigating factors already enumerated, the moral culpability of the accused is reduced by the fact that she had not planned and did not intend to kill her sister. As well, it is mitigating that she had no prior criminal record and no history of violent behaviour either before this incident or subsequently. Additionally, she comes from a family and a community that has been bedevilled by alcohol addiction, the same problem that in Ms.

McNabb’s life has lead to the tragic situation before the court. [ 57 ] As stated in the Pre-Sentence Report, “Moose Lake has a high level of substance abuse including alcohol, marijuana and crack” (page 4). There is no doubt that this is a community which has been significantly affected by addictions and the resulting social problems. One of the resulting problems frequently seen is violence and particularly family violence. Background information as to Georgina McNabb indicates that her parents struggled with alcohol addiction throughout their lives.

As a child, she learned to cope with her life by trying to block off memories of family violence and fighting (PSR page 5). [ 58 ] All of the above background contributed to this young woman very early in life becoming addicted to alcohol. Whatever hope she had for a sober life would only have reached fruition in some other location, not within the context of her family, and not within her home community. [ 59 ] Clearly, Ms. McNabb’s history handicapped her and is directly linked to the criminal act which brings her before the court.

These factors are relevant from a Gladue/Ipeelee perspective and should be considered in determining a fit sentence. [ 60 ] The principles of sentencing, as set out in the Criminal Code , also require that in determining sentence, consideration be given to aspects of the offender’s rehabilitation. [ 61 ] In this case, Georgina McNabb has not only voiced a desire to participate in rehabilitative programming, but she has completed significant programming.

Additionally, she appears to be maintaining sobriety and maintaining contact with professionals who are supporting her as to alcohol issues and as to mental health counselling. [ 62 ] In the significant time that has passed since March 29 th , 2011, Ms. McNabb has had further legal complications in terms of

allegations of breaching release conditions. Some of those breaches have been admitted and some remain unresolved. None of those matters have involved the use of violence. [ 63 ] While her ability or lack thereof, to abide by residential requirements may be of concern and certainly causes concern as to her ongoing sobriety, these concerns cannot be directly related to risk of violence. She is a person with no prior record of violence.

There is no suggestion that she was of a violent nature; in fact, the evidence provided by the PSR is that she was a mild, shy, particularly non- violent person. [ 64 ] There is little doubt that continued sobriety for Ms. McNabb will be difficult, particularly in Moose Lake. In my opinion, the evidence before this sentencing court, including the evidence from the Sentencing Circle, suggests that this act of manslaughter was an out of character, one-time tragedy.

There are really no other indicators, either before the event or after, to suggest that there is more than a manageable risk that anything like this will again be perpetrated by Georgina McNabb. [ 65 ] A life has been lost and sentencing must reflect the principles of denunciation and deterrence.

As well, the fundamental principle of sentencing requires that the sentence be proportionate to the offence and the degree of responsibility of the offender. [ 66 ] I am satisfied that each of these principles and those that require attention to Gladue factors, as well as the accused’s rehabilitative prospects are met by a disposition which notes the 16 months that the accused has served in custody and further places her on a three-year period of Probation. “ORIGINAL SIGNED BY:” L. ALLEN, P.J.