R. v. MAYTWAYASHING, 2016 MBPC 23

CITATION: R. v. MAYTWAYASHING , 2016 MBPC 23 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Breta Passler ) for the Crown ) and ) ) ) MAYTWAYASHING, Fabian ) Stacy Soldier ) for the Accused ) ) ) ) Reasons for Decision delivered: ) May 10, 2016 CORRIN, P.J. [ 1 ] Mr. Maytwayashing entered a guilty plea on April 11, 2016, to one count of breach of probation by making telephone calls to unknown females on a chat line between November 13 and November 25, 2015. These calls were made from the Headingley Correctional Centre where he was incarcerated at the time.

As a consequence of his actions, Mr. Maytwayashing has not been credited for time in custody with respect to the sentence he was serving and has been ineligible to use a telephone for the last 4 ½ - 5 months. [ 2 ] Sentencing submissions were made before me on April 11, 2016, the same day the guilty plea was received. Crown and defence submissions differed with respect to what would constitute a fit and proper sentence. As of April 11, the accused had been in custody with respect to this matter for 73 days. The Crown suggested a sentence of 18 months less the 73 days on a one-to-one basis.

Defence recommended a sentence of 6 months less time in custody at a 1.5 to 1 enhanced credit basis. The Court reserved this decision to consider the submissions of counsel, as well as to re-read the extensive materials that were filed by both the Crown and defence in support of their sentencing submissions. These materials provided the Court with significant insight into the background and circumstances of Mr. Maytwayashing. In crafting a fit and appropriate sentence, it is important that the Court place appropriate weight on applicable sentencing principles.

It is also necessary that the Court give consideration to not only the circumstances of the offender, but also the circumstances of the offending behaviour. The Court is required to list and weigh both aggravating and mitigating factors in such respect. The sentence imposed must be proportionate to the gravity of the offence and the offender’s responsibility therefore. When considering this last matter, the Court is required to consider the Aboriginal heritage of the offender. [ 3 ] On July 31, 2013, Mr. Maytwayashing was sentenced to a term of custody by Judge Carlson.

In addition, he was required to serve 3 years of supervised probation. One of the conditions of such order was that he not make telephone calls to any unknown female persons. In November of last year, Mr. Maytwayashing contrived a way to make institutionally forbidden calls to 5 social chat lines. In answer to solicitations inviting contact from female subscribers, he made 130 phones calls. Twelve of these calls were to subscribers within the Province of Manitoba. Court was told by Mr.

Maytwayashing that he left the voicemails because he felt a profound need for “contact with the outside world.” There is no evidence that Mr. Maytwayashing had actual conversations with any of the females he contacted. [ 4 ] Mr. Maytwayashing has a significant previous criminal history, much of it related to breaches of Court orders. Courts have recognized that where an offender has a significant record for similar offences, he is generally disentitled to leniency. The defendant has over 3 dozen entries for past breaches of Court orders.

Indeed, it does not appear that the accused has ever successfully completed a

period of probation or parole. Many of the breaches are noteworthy because they were committed soon after his release from custody and also because they appear to have been both flagrant and deliberate in nature. [ 5 ] The accused appears to be endowed with average intelligence. Indeed he has completed his high school general equivalency exam and does not appear to suffer from any cognitive deficits. However, he has been diagnosed as possessing an anti-social personality disorder. A psychiatric report indicates that Mr.

Maytwayashing scored in the 96 th percentile for psychopathy as compared to other federal inmates. This situation, mental health issues, goes back to his early childhood. This may be the reason, or one reason, why the accused has demonstrated a history of not being amenable to supervision while in the community. I will discuss this further later in my decision. [ 6 ] Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct.

Many Aboriginal offenders find themselves in situations of social and economic deprivation with limited options for positive personal development. As a consequence of this situation, the Courts and Parliament have recognized that although their criminal actions may well have been voluntary, and therefore deserving of criminal sanction, such misdeeds were, because of their restrained circumstances, diminished in terms of their moral culpability. The Supreme Court of Canada has discussed this subject matter comprehensively in the Gladue and Ipeelee cases. [ 7 ] The remote Aboriginal community that Mr.

Maytwayashing was born into was essentially crippled in the sense of being profoundly impacted by the after effects of the residential school system. As a consequence, he was taken into CFS care in his infancy and sent to live with a non-Aboriginal family in London, Ontario. Until he was 11 or 12, he was unaware of his adopted status. However, due to a change in the government policy, he was forcibly returned to live with his mother in his community of origin at such time.

Apparently, when he learned of the repatriation plan, he experienced understandable deep sadness, anxiety and outright fear – an earlier pre-sentence report, indicated that he had sat on his mother’s lap and cried for hours as he did not want to go back to Manitoba. [ 8 ] It is clear that after Mr. Maytwayashing was removed from his adoptive parents and returned to his native community, he suffered significant social deprivation related to the stressful circumstances. The situation was also aggravated by a pre-existing psychological disorder which had necessitated putting him in care for periods of time.

Given that the accused was completely unaware of his Aboriginal culture and unfamiliar with his community of origin, it is difficult to imagine the culture shock that he must have experienced when he was forcibly repatriated to the remote community. Given that Mr. Maytwayashing had not even known that he was adopted and had no real contact with his biological mother until he was repatriated, it was also no wonder that he experienced profound difficulties adjusting to his new life.

Court was told that his biological mother had been unable to care and control him after his return to her care, resulting in his being placed with foster parents who sexually abused him on a number of occasions prior to his being moved to a different placement. After that, he was moved to Winnipeg where he lived at the Seven Oaks Youth Centre for a couple of years. At around age 16 he ran away and lived on the streets, playing pool and prostituting himself to get money for food and alcohol. Not surprisingly, his criminal history began at an early age, around 13.

The accused informed the Court that he has not received any occupational training at any of the several institutions he has served time in since his teens. As a consequence, he has no job skills and has been on social assistance most of his life. [ 9 ] As an adult, he has had a number of failed personal relationships, many of which have been marked by violence. Some of these failures appear to have been related to ingrained feelings of insecurity with relationship stability – a circumstance that most probably is rooted in his chaotic, early life experiences.

He has one surviving child who is now herself in Child and Family Services care in her mid-teens. One of his most recent relationships was with a victim of the offences for which he was placed on probation... Ms. Amyotte. Interestingly, he met Ms. Amyotte on a chat line while he was incarcerated in the Saskatchewan Penitentiary. The most serious offence on his record dates back to 2001, when he was sentenced to a 5 year term of imprisonment for sexual assault on a 14 year old girl who was unknown to him. This assault occurred after an argument with his partner.

It appears he was venting his uncontrollable rage on a misplaced basis in this respect. Mr. Maytwayashing’s early traumatic experiences have been noted by treating professionals to have been not only connected to his past violent behaviour but also to have shaped his negative and unhealthy lifestyle generally. Mr. Maytwayashing’s Aboriginal background has clearly had a very negative impact – leading him to lower educational attainment (only grade 6 completion), chronic unemployment, ostensibly due to incarceration, lack of education or job training, and some substance abuse.

As a result of the foregoing, as well as deprivation of any positive role modeling exposure, Mr. Maytwayashing has had very few healthy community supports in his life, leaving him bereft of any significant coping mechanisms to contend with the many frustrations and fears that he has had to contend with over the last 30 years of his life. [ 10 ] Mr. Maytwayashing has entered guilty pleas and in so doing has taken responsibility for this offence. This is a mitigating factor.

As mentioned, the Court is of the view that there is a clear link traceable from his Aboriginal roots to the nature of his continuing offending behaviours. I reiterate that the accused certainly seems to have been subject to considerable Gladue factor trauma because of his early life experiences. [ 11 ] Defence counsel reminded the Court that the Gabriel case, a 2013 decision of our Manitoba Court of Appeal, instructs the lower Courts to pay serious attention to the principles set out in the Gladue and Ipeelee cases from the Supreme Court of Canada in reference to applying s. 718.2 (

e) of the Criminal Code when determining a fit sentence for Aboriginal offenders. Of course, in Ipeelee , the Supreme Court spoke to the importance of proportionality in sentencing. In so doing, the lower Courts were reminded that proportionality was the fundamental principle of sentencing and was a principle which had to be respected as “the sine qua non ” of a just sanction (see paragraph 37). In this respect, Court observes that the punishment meted out to the offender must fit the crime in the sense that it should be in proportion to the gravity of the offence itself.

In this regard, the Court notes that the Crown’s suggested sentence of 18 months incarceration is from a comparative viewpoint, a sentence most often imposed for commission of quite serious breaches. For example, in R. v. McKenna , a recent 2015 case of the N.S.C.A, a 12 month sentence for breach of probation was imposed notwithstanding that the accused had 25 prior convictions for breaches of probation, 29 convictions for breaches of bail recognizances, as well as 13 convictions for offences against a person and 5 convictions for assaulting police officers.

He was a flagrant violator of Court orders made in relation to matters involving victim safety. As well, in McKenna, the defendant’s breach was based on failure to keep the peace and be of good behavior – the accused having been found in possession of a stolen purse and been sentenced to a further term of 6 months consecutive in such regard. Mr. Maytwayashing has approximately 39 prior convictions for breaches of Court orders, 10 less than McKenna . Unlike McKenna , Mr. Maytwayashing did not commit any substantive offence associated with his breach.

[ 12 ] During her submissions, the Crown suggested that the accused’s prior record, particularly his sexual assault on the 14 year old, should be perceived as a significant aggravating feature meriting a lengthier sentence.

Defence disagreed, reminding the Court of the 1979 Young decision, of the Manitoba Court of Appeal, which stated that such a record in and of itself “should not be evoked in such a manner that the sentence seems to be imposing double punishment.” In other words, although an accused may be disentitled to leniency by reason of his record, he should not be sentenced for something he did in the past, as well as what occurred in the matter before the Court. To quote my brother Judge Slough in R. v.

Francois , a sentence delivered April 30, 2013, “the appropriate sentence for a breach of a Court order should be based on the gravity of the breach as the predominate factor while taking into account the accused’s record.” [ 13 ] Taking all the relevant factors into account, excluding the Gladue factors, this Court would impose a sentence of 9 months less time in custody to date at one-to-one credit. I agree with Crown counsel that the accused should not benefit from an enhanced time in custody credit because the offence occurred while in custody.

However, that having been said, I am mindful that the accused’s misconduct has also has a profound impact on his pre-existing term of incarceration – effectively extending it for several months. I am also of the view that his Gladue factors should favorably inform the final calculation of sentence. As such, with both totalities of sentence and Gladue factors in mind, I sentence the accused to 7 months less time in custody on a one-to-one basis. Original Signed by CORRIN, P.J.