R. v. Maytwayashing, 2022 MBPC 6

CITATION: R. v. Maytwayashing, 2022 MBPC 6 THE PROVINCIAL COURT OF MANITOBA WINNIPEG CENTRE BETWEEN Her Majesty the Queen ) C. Soul for the Crown ) - and - ) ) Elvis Maytwayashing ) C. Sutherland for the Accused ) ) ) Reasons delivered: January 18, 2022 ) L. Martin, P.J. INTRODUCTION [ 1 ] On November 10, 2018, Elvis Maytwayashing (Maytwayashing) robbed a taxi driver with co-accused, Ryan Sutherland (Sutherland), then drove the taxi while impaired. When apprehended by police, he refused to provide a breath sample.

Maytwayashing was found guilty after trial of all three charges ( Criminal Code ss. 343 (b), 253(1) (a), 254(3) ). (See July 8, 2021 unreported trial decision) The issue for the Court is the appropriate sentence. [ 2 ] During sentencing submissions, counsel focussed on the robbery as that is the most serious of the offences, and the one that usually attracts a lengthy custodial sentence. While they both agree that the impaired and refusal offences should attract a short concurrent custodial sentence they disagree as to sentence for the robbery.

The Crown submits that a four year sentence is appropriate, saying that when considering the fundamental sentencing principle of proportionality, denunciation and deterrence should be primary sentencing objectives despite Maytwayashing’s Gladue factors and efforts at rehabilitation.

He further submits that parity is an important secondary principle and points to co-accused Sutherland’s three and one-half year sentence that took into consideration his similar Gladue factors but also his in-custody rehabilitative efforts that he says are more significant than Maytwayashing’s. [ 3 ] Defence counsel urges the Court to properly pay heed to Gladue principles and Criminal Code s. 718.2 . While acknowledging the case law regarding vulnerable targets of robberies such as taxi drivers, he says that the law requires the Court to approach sentencing differently for Indigenous offenders.

He submits that Maytwayashing’s 61 days of pre-sentence custody, being the equivalent of three months when given enhanced credit, followed by three years of supervised probation is an appropriate sentence.

SENTENCING PRINICPLES [ 4 ] Criminal Code s. 718 stipulates that the purpose of sentencing is the imposition of “just sanctions” that reflect an array of sentencing objectives, namely denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community. Depending on the circumstances of the offence and the offender, different objectives are afforded different weight.

In the end, the sentence rendered must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( Criminal Code s. 718.1 ), mindful of secondary sentencing principles such as aggravating and mitigating circumstances, parity and the statutory requirement to consider “all available sanctions other than imprisonment that are reasonable in the circumstances”, with particular attention paid to the circumstances of aboriginal offenders. ( Criminal Code s. 718.2 ) Gravity of the Offence [ 5 ] The facts of the offence are detailed in the trial decision.

Briefly summarized, on November 10, 2018, shortly before 6 a.m., police directed the victim taxi driver to pick up Maytwayashing and Sutherland. They were both very intoxicated. Sutherland got in the front seat, Maytwayashing in the back. Within minutes, Sutherland punched the taxi driver in the face. The driver stopped his taxi, got out and ran to another taxi that was passing by, leaving the keys to the taxi in the ignition. Maytwayashing got out of the back seat, ran after the taxi driver and hit him in the back of his head knocking his turban off.

He then got into the driver’s seat and drove the taxi a short distance before hitting the curb and causing the tire to go flat. Maytwayashing and Sutherland fled but were apprehended by police. When arrested for the robbery and impaired driving, Maytwayashing refused to provide a breath sample. Degree of Responsibility of the Offender [ 6 ] Maytwayashing is a forty-seven year old Indigenous man from Lake Manitoba First Nation, a community that has been

significantly impacted by the Residential School System, and the legacy of discrimination and cultural cleansing practises. A pre- sentence and Gladue report prepared for the sentencing speaks about the hardships Maytwayashing has suffered – poverty, neglect, significant trauma and loss, including siblings and a child. He has few memories of his childhood as he has blocked them out. His mother detailed the domestic violence and substance abuse that was present in their home.

Maytwayashing recalled being taught not to cry and needing to act as a father figure at a very young age as his mother had left their father and taken up with men who sexually assaulted his sisters. He was also taught to entertain, being awoken to sing for the partiers his mother invited to the home. He attended day school, ultimately leaving school after grade seven. At fourteen, he left home and lived part-time on a farm where he worked to help support his family. [ 7 ] Alcohol has been a way of life for Maytwayashing. He grew up in a home with frequent substance abuse and the resultant dysfunctional behaviour.

He was introduced to alcohol at his mother’s parties. His mother would make homebrew. His stepfather drank Lysol. He began drinking at twelve or thirteen. By fifteen, he was drinking most weekends, and by seventeen he was drinking excessively. It was at this age that he also began using drugs. [ 8 ] Maytwayashing’s drug and alcohol use have had negative effects on his life. He recognizes that each conviction on his criminal record is related to substance use. His first marriage of twenty-eight years was plagued with domestic violence.

Maytwayashing recognizes that his and his wife’s grief would come out when they drank. He also recognizes that his substance use was a contributing factor in the apprehension of his children. [ 9 ] It is clear that despite his demons, Maytwayashing has tried to live a giving life. His first job at fourteen to support his family and his fatherly role to his younger siblings is an example of this. He has helped youth and elders in his community as well as his mother who is now in ill health. He also allowed his estranged homeless father to live with him for four years before he passed away.

Maytwayashing described how during those years his father cried frequently from the trauma he had suffered as a child. Maytwayashing also regularly comes to the aid of his community, offering to help with snow clearing or transportation. On the day before this offence, he was assisting Sutherland who required dental surgery in Winnipeg. Unfortunately, the two began drinking. [ 10 ] Maytwayashing has tried over the years to address his substance use and underlying risk factors. Through probation services, he has completed addictions treatment, parenting skills, anger management and domestic violence programming.

While previously in custody, he completed two programs related to healthy relationships. He has been to the Behavioural Health Foundation, as well as the residential treatment programs in Nelson House, Thompson, Peguis and Pritchard House in Winnipeg. He continues to want help through programming but prefers not to be mandated to do it. [ 11 ] Consistent with his background, Maytwayashing has had mixed success during his release in the community while pending on these charges. He was first granted bail on November 14, 2018 with a curfew.

He came back into custody on October 28, 2019 for criminal charges that have been stayed and a s. 225(1) Highway Traffic Act offence. He was released on bail December 23, 2019 with an absolute curfew and a surety from the Chief of Lake Manitoba First Nation. There have since been no allegations of breaches of his Release Order and no further criminal involvement.

Rather, Chief McLean shared with the Court at the sentencing hearing that Maytwayashing is doing exceedingly well. [ 12 ] Maytwayashing recognizes his own past difficulties following court-mandated conditions in the community, stating that he did not want to listen to what he was told to do. He expressed a change in his attitude, stating that he cares more about his life now. He is also in a new relationship, which is respectful.

ANALYSIS Proportionality as a Fundamental Sentencing Principle [ 13 ] The fundamental sentencing principle is proportionality, meaning that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. ( Criminal Code . 718.1) Achieving proportionality requires a delicate balancing of various principles to determine the relevant sentencing objectives. [ 14 ] As noted in Clayton, Ruby et al., Sentencing , 10th ed. (Markham: LexisNexis Canada Inc., 2020) para 23.506: Taxi drivers are considered vulnerable victims.

They are alone, often work late at night and carry money in cash. Deterrence is most often cited as an important sentencing principle in this offence. The sentencing range for this offence is quite wide ranging, anywhere between 3 and 12 years. [ 15 ] Though dealing with the robbery with weapon of a taxi driver, the Manitoba Court of Appeal endorsed a sentencing range of two to four years “unless there are mitigating factors that call for an emphasis on rehabilitation rather than deterrence, denunciation and protection of the public.” ( R. v.

Charlette, 2015 MBCA 32 at para 46 ) [ 16 ] As noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 , sentencing ranges are not straightjackets (para 57). A court needs to ensure that the cardinal principle of proportionality is respected (para 12). [ 17 ] In this case, the seriousness of robbing the taxi driver cannot be overstated. Though the robbery was not planned nor sophisticated, it left an indelible emotional mark on the victim. [ 18 ] Maytwayashing’s degree of responsibility is significantly reduced.

All of his offending is linked to his substance use, which is intricately tied to his Gladue factors. As noted in R. v. Ipeelee, 2012 SCC 13 at para 73 : …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 a lack of opportunities and limited options for positive

development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. [ 19 ] Courts must be cautious when applying sentencing ranges without due regard to the circumstances of Indigenous offenders. As noted in Ipeeleea at para 79 : In practice, similarity is a matter of degree. No two offenders will come before the courts with the same background and experiences, having committed the same crime in the exact same circumstances.

Section 718.2 (

b) simply requires that any disparity between sanctions for different offenders be justified. To the extent that Gladue will lead to different sanctions for Aboriginal offenders, those sanctions will be justified based on their unique circumstances — circumstances which are rationally related to the sentencing process. Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2 (e). As Professor Quigley cautions, at p. 286: Uniformity hides inequity, impedes innovation and locks the system into its mindset of jail.

It also prevents us from re-evaluating the value of our aims of sentencing and their efficacy…. [ 20 ] Moral culpability must be assessed by taking into account Gladue factors: Because the proper analysis of sentencing Indigenous people involves considering their circumstances as Indigenous people not simply as mitigating personal factors, but rather as circumstances that have affected their moral culpability and contributed to their criminal behaviour, the objective of denunciation and deterrence do not “trump” other important sentencing principles. ( R. v.

Harper, 2021 MBPC 47 at para 42 ) Secondary Sentencing Principles: Aggravating and Mitigating Circumstances [ 21 ] It is aggravating that the offence was committed by two co-accused against a lone vulnerable complainant. It is mitigating that Maytwayashing has expressed remorse as well as an understanding of his offending patterns. There is also the significant time Maytwayashing has been on bail, particularly since December 23, 2019 when he has been on an absolute curfew without any re- involvement.

While it is often said that compliance is expected while on bail, when considered from a Gladue perspective, it is a significant mitigating factor. Secondary Sentencing Principles: Parity [ 22 ] S. 718.2(

b) stipulates that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” Parity is an expression of proportionality in that any sentence imposed should be reflective of other sentences imposed in similar circumstances. [ 23 ] In this case, Sutherland received a sentence of three and one-half years for the same offence. I find however, that Sutherland is not similarly situated to Maytwayashing and that a different sentence may be warranted. As noted by the Supreme Court of Canada in R. v.

M.(L.), 2008 SCC 31 at para 36 : Owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical. The principle of parity does not preclude disparity where warranted by the circumstances , because of the principle of proportionality (see Dadour, at p. 18). As this Court noted in M. (C.A.) , at para. 92 , “there is no such thing as a uniform sentence for a particular crime”.

From this perspective, an appellate court is justified in intervening only if the sentence imposed by the trial judge “is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes” ( M. (C.A.) , at para. 92 ). [ 24 ] It would be an error to say that because two people grew up in the same Indigenous community, they were subjected to the same circumstances and they were affected by them in the same way.

Though Sutherland and Maytwayashing are both from Lake Manitoba First Nation, their Gladue factors and the impact those factors have had on them are different. Their criminal records are also different in nature. While they both have lengthy criminal records, Sutherland’s is more serious particularly as he has two convictions for aggravated assault and lengthier custodial sentences whereas Maytwayashing mainly has convictions for impaired driving and assaults. His longest custodial sentence was for 60 days. Their risk to re-offend is also different.

Sutherland was assessed as a very high risk to re- offend, Maytwayashing a high risk. Not surprisingly, his risk factors are his criminal record, companions and use of alcohol and drugs. [ 25 ] As for their rehabilitative efforts, the sentencing judge in Sutherland’s case found his rehabilitative efforts to be significant. I likewise find Maytwayashing’s rehabilitative efforts significant. Maytwayashing has been living with the repercussions of his Gladue factors his entire life. He was initiated into substance use as a means of coping with these Gladue factors by his family.

While substance use has continued to plague him, he has soldiered on, leading a productive and giving life. He has tried many times to address his addictions. Unfortunately, like many, the stain of the past is indelible. Maytwayashing understands that his Gladue factors have translated into unresolved anger and substance use and that not finding a way to deal with his trauma has a negative impact on the community. I do accept that when sober, Maytwayashing is a giving individual who has exercised a great deal of forgiveness.

Though he has not undergone extensive programming while on his current pre-sentence release, he has healed in other ways more consistent with

his Indigenous heritage. He has also surrounded himself with the support of his Chief and friend and built more positive, loving relationships. This is proof of Maytwayashing’s strong rehabilitative steps. Where I think Maytwayashing has proven himself, is in the last two years on absolute curfew without further criminal re-involvement. DECISION [ 26 ] This is not an easy sentencing decision. On the one hand, the robbery committed by Maytwayashing was extremely serious.

On the other hand, is Maytwayashing who has significantly reduced moral blameworthiness and has embarked on a steadfast journey of rehabilitation for over more than two years. The relevant sentencing objectives in this case are denunciation, general deterrence and rehabilitation. While the Court can impose a sentence outside of the sentencing range in the appropriate circumstances ( R. v.

Burnett, 2017 MBCA 122 at para 25 ), it must still reflect the applicable sentencing principles and objectives to be fit. ( Lacasse , at para 58 ) [ 27 ] In balancing the foregoing, I find that an appropriate sentence is 18 months of custody. I am prepared to give Maytwayashing three months enhanced credit for his pre-sentence custody. The sentence going forward is therefore 15 months. [ 28 ] There is a mandatory primary DNA order as well as a ten year Criminal Code s. 109 weapons prohibition.

I am prepared to grant a Criminal Code s. 113 exemption to allow Maytwayashing to hunt for sustenance. [ 29 ] As for the drive impaired and refusal offences, given the connected nature with the robbery, I am imposing a concurrent sentence of 7 day days. I am also imposing a concurrent one year driving prohibition. Costs and surcharges are waived. “Original signed by” Judge Martin