) Ms. C. Ritchot, ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. A. Libman, - v. -, 2013 MBPC 61

R. v. Captain , 2013 MBPC 61 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. C. Ritchot, ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. A. Libman, - and - ) for the Accused ) EUGENE LEVIS CAPTAIN, ) ) Sentence delivered Accused. ) August 2, 2013 _____ PRESTON, P.J. (Orally) I am sentencing Eugene Captain this afternoon. Eugene Captain is now 23 years of age. He has entered guilty pleas to aggravated assault and breaching a recognizance by both not abstaining from alcohol and breaching a curfew. All three offences occurred October 8th, 2011.

Prior to the initial sentencing hearing, I was provided with materials which included a touching victim impact statement, and I notice that the victim is here in court. Thank you very much. Ms. Ritchot, who else is here today? MS. RITCHOT: I believe in the front row, it’s his aunt. Is that correct? UNIDENTIFIED PERSON: Yes. MS. RITCHOT: And I guess -- UNIDENTIFIED PERSON: Cousin. MS. RITCHOT: Oh, yes, yeah, the cousins and the aunt. UNIDENTIFIED PERSON: Nephew. THE COURT: All right. MS. RITCHOT: And the nephew. Yes, Lillian (phonetic) -- THE COURT: Well, thank you very much for being here.

My task today is to craft a fit and proper sentence for Mr. Captain, who is in custody. During the evening of October 8th, 2011, a group of individuals were drinking alcohol on the banks of a city pond. The victim, Taylor Redhead, and his girlfriend ended up drinking with Mr. Captain. The victim left the scene for a while, and the victim’s girlfriend and Mr. Captain were kissing and caressing. Unbeknownst to the two of them, Mr. Redhead, the victim, returned. While Mr. Captain was lying down on the ground with the victim’s girlfriend, the victim kicked Mr. Captain in the head. So, fueled as he was by alcohol, Mr.

Captain’s immediate reaction was to jump up and strike back. Mr. Captain punched the victim, hard, twice in the head, with his left and right fist and knocked Mr. Redhead unconscious. He then carried Mr. Redhead from the pond to a nearby bus stop on the city street, with the intention of leaving him in a more public area. Unfortunately, by this time, Mr. Redhead’s girlfriend, who was upset that her boyfriend had been knocked out cold, was hitting Mr. Captain as he was carrying Mr. Redhead. The result was that Mr. Captain dropped Mr. Redhead, and Mr. Redhead hit his head, hard, on the cement.

The victim, Taylor Redhead, who was then 19, suffered a life-threatening injury. He was intubated. His brain swelled and bled.

He was induced into a coma. He suffered a severe traumatic brain injury, which required the surgical removal of almost half of his skull. A couple of months later, the surgery to replace the bone flap which had been removed was successful. However, Mr. Redhead was hospitalized throughout, and after two weeks, was transferred to a care home, to their traumatic brain rehabilitation wing. While at the care home for four months, deficits were noted in the realm of memory, problem solving, abstract reasoning, judgment, insight and organization. These were noted to improve over time.

Unfortunately, the recommendation by the medical team for out-patient speech and language rehabilitation was ultimately declined by Mr. Redhead. When the guilty plea inquiry for these charges occurred in March of 2013, the plea inquiry was fairly lengthy, because the court heard that the dropping of the victim at the bus stop was not intentional, and that seemed to the court to be the point at which the injuries may have occurred. After hearing from counsel at some length, the court accepted that Mr.

Captain did not intend the consequences, however, when he struck the victim twice, he did intend to use force, was reckless in his actions, including carrying the victim to the bus stop and dropping him. Mr. Captain acknowledged that the first two blows that he struck were a cause of the endangerment of the life of Taylor Redhead. On that basis, the plea was accepted by the court. Mr. Captain is an Aboriginal man. A pre-sentence report was ordered with what is commonly referred to as a “Gladue” report as a component. What springs from this report is that Mr.

Captain, who is now 23 years old, was born and raised at God’s Lake Narrows First Nation. His parents still reside there. His grandparents attended residential school. Unfortunately, Mr. Captain’s grandfather committed suicide. Mr. Captain left school in grade 8 and speaks of being bullied in school. He was raised in a Christian environment and at present, feels he is not particularly connected to his culture, although, he wishes at some point to be so in the future. As a younger man, he learned to hunt, to fish and to trap.

He has a daughter, who lives with her mother at God’s Lake Narrows, and he wants to play a role in her life. He says he is not in a gang, but most of the people he knows are in some sort of trouble. He freely admits that he hass struggled with substance abuse; realizes that alcohol is a big problem in his life. He did manage to stay sober in 2011 for months after his treatment through the Addictions Foundation of Manitoba. He has good reviews from his employer, from the Elk Island Lodge, where Mr. Captain was employed as a summer fishing guide.

He dreams of being a welder or a carpenter, and the owner of the Elk Island Lodge has indicated that he is the type of person, (Mr. Captain, that is), that he would re-hire. Mr. Captain plans to eventually live back with his parents in God’s Lake Narrows. His parents are not drinkers. In fact, he was raised in a placid untroubled home environment. In general, the report assesses him as a high risk to reoffend. His criminal record is of concern to the court. As a youth in 2008, he was convicted of assault. In 2010, he was convicted of a breach of recognizance. In 2011, he was convicted of more breaches.

At the time he committed this offence, he was on bail for an aggravated assault, which occurred in God’s Lake Narrows in July of 2010. While in custody, he has since entered a guilty plea to that aggravated assault on which he was pending at the time of this aggravated assault. In February of 2012, he was convicted of breaching his curfew and aggravated assault and sentenced to six months jail, plus two years of supervised probation. Mr. Redhead provided a victim impact statement completed by his common-law spouse, Ms. Mallin; completed, in her words, because Mr.

Redhead was “not able to properly comprehend things for people to understand him”. Those are her words. Ms. Mallin wrote in Mr. Redhead’s words the physical and emotional pain and trauma that he suffered. Of course his family and friends have suffered with him and worry constantly about him. Mr. Taylor Redhead has issues with trusting people, feeling totally self-conscious, feeling as if he could at any time be hurt again. He, of course, reiterates that he was induced into a coma. He still has headaches daily and has trouble controlling his emotions, is not able to work at present.

He is embarrassed, he is angry, he feels awful for his family. And speaking of his family, he wanted me to know, Mr. Redhead wanted me to know that his family came to visit him from their First Nation at their expense. He said that being in the care home for four months felt like being in prison. He also has follow-up surgery regarding the placement of the skull replacement. He says he will never feel safe again in his life, so obviously, this has been a hugely traumatic event for him, whose potential has been devastatingly diminished. Unfortunately, this court cannot bring back his physical and emotional health.

However, Mr. Redhead needs to know, sir, you need to know that I have read you loud and clear through your girlfriend’s words. The extent and nature of his injuries are a huge aggravating circumstance here. I sincerely hope that he may, with time, take advantage of the counselling that is offered to him and his family to help him and his loved ones heal. And I see his family nodding. The sentencing precedents filed by both counsels assist the court.

They demonstrate the wide range of sentences that are available because of the differing individual circumstances of each accused person and the severity of the violence used. If I can summarize the thrust of the precedents, the defence cases focus on those decisions in which Gladue and Ipeelee factors have played a part, while the Crown’s case focus on the moral blameworthiness of the offender in these types of assaults with serious consequences.

For instance, with the Crown’s case is the Hogg decision from 2004, Manitoba Court of Appeal, involved a 21-year-old male who had had a prior disagreement with someone and followed in his car someone he thought was that person, attacked that person with a steel bar, kicked him and fractured the victim’s skull. The victim almost died and was left with permanent brain damage: turned out to be the wrong person. The sentence, which ought to have been four years in the Manitoba Court of Appeal’s opinion was, because of time in custody, three years.

The Moller case from the Alberta Court of Appeal in November of 2012 involved a fight outside the bar where someone was hit with a beer bottle which broke and serious severe deep lacerations, surgery was required. A four-year sentence resulted.

The Sayazie Saskatchewan Court of Appeal decision from 2010 involved what the court there described as an inordinately brutal assault resulting in the loss of a fetus and permanent injury to the victim. The assault was calculated, premeditated and there was no remorse. That person was on bail for aggravated assault. A three-year sentence was imposed. The Sleigh decision from the British Columbia Court, Provincial Court, November 2008, involved someone being bashed on the head with a log of firewood resulting in a broken jaw, hearing loss, vision loss, balance loss, sleep disorder, depression.

The 21-year-old accused had no record and an alcohol problem. The sentence was four years. And the final case cited by the Crown was the Woodward decision which involved a six-year jail sentence for an unprovoked homophobic assault in a bar with catastrophic brain injury and no remorse on the part of the accused. A six-year sentence was imposed. Factually, the cases differ from this case. Similarly, the defence cases are factually distinguishable. The Knott case from the Manitoba Queen’s Bench involved the sentencing of a 25-year-old Aboriginal man with no criminal record who participated in a group beating.

He kicked the victim, but the court held that his participation resulted in reduced moral blameworthiness and suspended a passing of sentence. And the judge found that he was no risk to the community, even though assessed as a high risk to re-offend. The Manitoba Court of Appeal in November of 2012, the L.L.D.G. case, reduced a 10-year sentence to five years for break and enter and sexual assault.

And in that decision, and I believe that counsel filed it, was that the Manitoba Court of Appeal cited the Ipeelee case with approval, which that case encourages the restorative approach and decries what is sometimes a pro forma “Gladue”-type report which purports to individualize sentencing and emphasize that the court has a statutory duty to consider the unique circumstances of Aboriginal offenders. The court needs the help of both counsel and provincial resources to provide the relevant information.

The Abraham decision from my brother, Judge Heinrichs, November of last year, sentenced a woman convicted of home invasion where she had brought somebody else with her and the victim got seriously hurt by the other person who was slashing the victim with an Exacto knife and bear spraying him. Ms. Abraham had no criminal record. The Crown recommend six-and-a-half years, defence recommended three years. He had spent a year in custody.

Applying the principles of the Ipeelee case, a sentence of time in custody over 15 months plus two years less one day, plus three years of probation, balanced the need for denunciation and deterrence, and also balanced the rehabilitation of the offender. The co-accused was on bail, and he received a sentence of four-and-a-half years.

Lastly, the Gabriel decision from the Manitoba Court of Appeal from May of this year dealt with a breach of a court ordered recognizance and reduced a 16-month sentence to one year, saying that it is important for judges to consider “Gladue” factors where appropriate, where the historical context can be linked to case - specific information. And now in this case, getting back to this case, the Crown asks that Mr. Captain be jailed for five to six years, less time in custody. And Mr. Captain’s lawyer points out that Mr. Captain was “labelled” in custody and that is why he was involved in physical altercations.

And he, Mr. Libman, is asking for time in custody, which is about a year, be enhanced to 1.5, and ask that that be his sentence, followed by three years of supervised probation. I’ve concluded that Mr. Captain still struggles with substance abuse and can be violent when under the influence of alcohol. He confirmed in the pre-sentence report that he struggled with alcohol throughout his adult life. He, in fact, states that he has a drinking problem. This incident occurred when he was under the influence of alcohol.

He shared to the probation officer that he fights when he feels threatened, as he has fought most recently while in jail, but he has remorse about what happened to the victim. His words: “He”, meaning the victim, “deserved to get punched. That was probably it, but he doesn’t deserve to be the way he is now.” He tells the probation officer he feels terrible about it, and he apologized to the victim here in court. His words saying that he deserved to get punched, in and of themselves, demonstrate a limited insight. As I’ve said, the facts of this case are unique. Mr.

Captain was kicked in the head by the victim and immediately responded by knocking the victim unconscious with two punches to the head. His guilty plea was accepted on the basis that he punched the complainant in the head and caused the injuries. I conclude that his attempt to bring the victim into a more public space was not only misguided, but fueled by the overconsumption of alcohol. It is true that the devastating consequences to the victim were not intended by Mr. Captain, but he is ultimately responsible for punching him in the head and the resultant injuries. This was a fight.

It was not a fair fight, and it certainly was a fight with devastating consequences. Courts have said on numerous occasions that these types of fights, especially those which have devastating consequences, must be condemned and denounced. Mr. Captain was on bail for aggravated assault, flaunting his bail at the time. He has a recent record for breaching court orders. He chose to drink and he chose to fight. However, the fight response was swift, uncalculated, unpremeditated and spontaneous. No weapon was involved, and it was not a sustained attack.

Gladue factors are relevant in this instantce, as they should be with respect to all Aboriginal offenders. It is apparent that Mr. Captain’s family has been affected by the residential school experience. His First Nation has dealt with issues relating to alcohol, drugs, gangs and poverty. His life has been affected quite heavily by these issues. The Supreme Court in Ipeelee encourages the restorative approach and, of course, this approach must be individualized. Mr. Captain is a young man who has a stable family support, prospects for good employment, and the potential to be a law-abiding citizen.

At present, however, the public still needs to be protected from him. The high risk to re-offend is clear. He did maintain sobriety for some time after counselling, but began drinking partly out of boredom. It is apparent that prior to his being brought into custody, there was very little structure in his life. There are a number of aggravating features.

The use of alcohol while prohibited from doing so by a court ordered bail, the breach of a court ordered curfew, devastating injuries to the victim, the fact that he was on bail for aggravated assault and his criminal record, which has entries for violence and breaches.

The mitigating features: He cooperated completely with the police upon his arrest; basically helped them figure out what happened. His guilty plea is a sign of his remorse, as is his articulation of how he feels; his youth, his ability to change, his stable family unit and his positive work references. Finally, the incident was not premeditated or prolonged. So I am balancing the obvious need for denunciation and deterrence and the protection of the public with the competing sentencing principle of the rehabilitation of a young Aboriginal offender. Defence counsel asks that Mr.

Captain be given enhanced credit for the time he has already spent in custody. On the one hand, we have repeated institutional fighting and bad behavior, and on the other hand, we have his progress as a student and an employee in the institution. The report outlines several incidents that have occurred since Mr. Captain has been in custody, and February of last year, he was pulling a sprinkler and involved in a physical altercation. It was recommended he complete anger management programming. He was charged the next month with wrestling with another offender.

In August of last year, he was charged with behaving in a threatening, abusive or indecent manner towards another person. Finally, in January of this year, there was a physical altercation. He was formally charged institutionally. On the other hand, he’s worked as a housekeeper and he has been what they call a “sanitizer”, having been promoted from a position in the laundry, and he was proactive about getting the position. He is currently acquired a general equivalency diploma.

In the Stonefish decision from December of last year, even though in that case the Manitoba Court of Appeal did not eventually enhance credit for pre-trial detention, they outline the circumstances that might justify enhanced credit. The evidence need not be overly complicated, but it should be credible and relevant to establish that circumstances for the offender have been onerous. In the Stonefish decision, there was not any evidence of this. In fact, it was bad evidence of misbehaviour, the very type of behaviour that we are dealing with here. Bad behavior can and does nullify earned remission.

I did not hear anything about Mr. Captain making attempts to solve this labelling problem with the correctional authorities. The events in custody I find tend to neutralize each other. Mr. Captain has spent over a year in pre-trial detention now. I’m prepared to enhance credit only for pre-trial custody at the rate of just less than 1.5 to 1, from March 11th of this year to August 2nd of this year, after the entry of his guilty plea, because any further delay after that really was not his responsibility. This is the equivalent of 15 months pre-trial detention.

Bearing in mind all the aggravating and mitigating features and the facts of this particular circumstance, a fit and proper sentence for the aggravated assault is 30 months in jail followed by three years of supervised probation. Thus, the 30 month jail sentence is as follows: 15 months of time spent in custody followed by 15 months of custody going forward to be followed by three years of supervised probation, and so that Mr. Captain is under the strictures of a lengthy probation order to keep the peace and, therefore, the public is still protected long after his release from custody.

So the terms of his probation are that he keep the peace and be of good behavior; appear in court if and when required within 24 hours of his release from custody; that he make his first appointment with probation and thereafter report as directed; that he attend, participate and complete such counselling, programming or assessments as may be directed by Probation Services; that he abstain absolutely from the consumption or possession of alcohol and non-prescription drugs; that he not carry or possess or own any weapons, except during the course of his employment.

And with respect to the two breaches, they are distinct crimes. As I’ve said, he was flaunting his bail order. With respect to those charges concurrently, there will be a 30 day jail sentence consecutive to the sentence on the aggravated assault, as I say, concurrent to each other. I am waiving the costs and surcharge. I am also making a DNA order that within the next 30 days, on the aggravated assault, within the next 30 days, he submit a sample of his DNA to the correctional authorities. And with respect to

Section 109 of the Criminal Code , again, with respect to the aggravated assault, he is prohibited from possessing or owning any firearms, ammunitions, explosives for a period of 10 years, and prohibited weapons for life. Counsel, before I finish, is there anything I’ve missed in terms of ancillary orders, or is there any need for clarity? MR. LIBMAN: No, Your Honour. MS. RITCHOT: Your Honour, just if the court would consider a no contact or communication with the victim as part of the probation order? THE COURT: Absolutely, yes. Thank you for suggesting that.

I’m ordering him also to have no contact directly or indirectly with Taylor Redhead, and to not attend anywhere where Taylor Redhead is living, working, going to school or worshipping. Mr. Captain, would you stand up, sir? So I’ve sentenced you, from today’s date, you will end up with 16 months of jail, going forward from today. I expect you to make better progress in custody. Take advantage of whatever programs are available. And I’ve heard about the potential of you going back and living with your parents in an alcohol-free environment, and a person who is prepared to hire you.

So I would hope that you take advantage of that, sir. But do you understand the terms of my three-year probation order? What does that mean, yes? THE ACCUSED: Yeah. THE COURT: Yes? Okay. If you break any of the terms of the order, as you know from prior experience, you’ll be arrested, taken into custody and charged with breach of probation. I don’t expect that to happen, and so good luck, sir. Thank you. _____