) Mr. B. Moen ) v. Mr. G. Bayly, 2019 MBPC 15

Cite: 2019 MBPC 15 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Mr. B. Moen ) and Mr. G. Bayly ) for the Crown HER MAJESTY THE QUEEN ) ) G. Brodsky Q.C. ) and Mr. Z. Kinahan - and - ) for the Accused ) JENNA ROSE TRAVERSE, ) ) Sentence delivered Accused. ) January 2, 2019 _____ KRAHN, ACPJ (Orally) This is my sentencing decision for Jenna Travers, conviction for aggravated assault on Henry Kipling and for breaching her recognizance. I'm delivering these reasons orally, so I will not be referring to specific case citations.

I do reserve the right, if a transcript of the decision is ordered, to add in the case citations that I have omitted in these reasons. Jenna Traverse was convicted after a trial of aggravated assault for assaulting Henry Kipling so as to endanger his life. After Mr. Kipling was assaulted by Jenna Traverse, he was assaulted a final time by Travis Chief. Travis Chief was convicted of manslaughter. Mr. Kipling died as a result of brain injury.

The Crown argues that an appropriate sentence for the aggravated assault by Jenna Traverse would be four years, but a reduction for Gladue factors would make three years of incarceration a fit and appropriate sentence. Defence counsel says a suspended sentence would be a fit sentence noting two months of pretrial custody, arguing that the assault by Ms. Traverse did not cause Mr. Kipling's death. A procedural note before I begin. The trial was held before Judge Roller. She is unable to continue this matter. Pursuant to

Section 669.2(2) of the Criminal Code the proceedings have continued before me. I have reviewed all of the material provided by counsel, including Judge Roller's reasons for convictions, the trial transcript, and the exhibits filed. A brief overview of the facts that support the conviction for aggravated assault can be found in the reasons for conviction. I will summarize them now. The assaults on Mr. Kipling were captured on video. On February 26th, 2016, Ms. Traverse put Mr.

Kipling's life in danger when she hit him while he was intoxicated, already unsteady on his feet, and sent him falling to the sidewalk where his head hit the concrete not once, but twice. Each time Mr. Kipling was caught unaware and each time his head hit the sidewalk with some force. The trial judge accepted the evidence of Dr. Littman that the assaults of Ms. Traverse would have resulted in significant impact head trauma. Ms. Traverse left Mr.

Kipling there, injured, outside the Northern Hotel on Main Street at 2:20 in the morning where he was also vulnerable to other acts of violence such as the one by Travis Chief. Travis Chief grabbed Mr. Kipling who was leaning against the wall of the Northern Hotel where he had been placed when helped up by bystanders after the last assault by Ms. Traverse. This was done to facilitate the theft of a case of beer. The back of Mr. Kipling's head hit the sidewalk a third time and he was knocked unconscious. Mr. Kipling died later that day from catastrophic brain injuries.

Travis Chief was found guilty of manslaughter after a trial. Medical assistance for Mr. Kipling was only sought after the final assault by Travis Chief. Ms. Traverse has also pled guilty for failing to comply with her recognizance on March 13th of 2018. On November 1st of 2016 she had been released on the aggravated assault charge to the Elizabeth Fry bail program. She was required to abide by a 9:00 p.m. to 7:00 a.m. curfew. On March 13th, 2018, a bail worker attempted to contact her at 9:00 p.m. for 20 minutes, to no avail. On May 8,

2018, a warrant issued for her arrest on that charge. She turned herself in on July 6th of 2018. I further note from a letter that was provided to the Court during this time period she also failed to attend two appointments required to prepare a presentence report on the aggravated assault conviction. She missed appointments on April 30th and May 18th of 2018. Her phone number was out of service. The Crown pointed out that she was unsupervised in the community for four months during this time period.

The Criminal Code sets out the fundamental purpose of sentencing offenders is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. It requires courts to structure sentences for offences -- for offenders that attain that purpose by addressing objectives which include denunciation, specific and general deterrence, rehabilitation, separation of offenders from society to protect the public where necessary, reparation to victims or the community, and promotion of responsibility of offenders, and acknowledgment of harm.

Proportionality is an overarching principle of sentencing. This means that the seriousness of the offence and the moral culpability or moral blameworthiness of the offender's actions must fit the sentence. Let me deal first with the seriousness of the offence. Counsel for Ms. Traverse has emphasized that she was not convicted of manslaughter and that she is not responsible for Mr. Kipling's death. It was argued that but for Travis Chief's actions Ms. Traverse would not be in a courtroom at all. I do not agree. This is overstating or simplifying the facts.

The findings of fact made by the trial judge reveal that the actions of Ms. Traverse were sufficiently dangerous that they resulted in a brain injury that contributed in a meaningful way to the injuries that caused Mr. Kipling's death. These facts cannot be disregarded. Mr. Littman -- sorry, Dr. Littman testified that he could not say if the assaults by Ms. Traverse would have been lethal without the final assault by Mr. Chief, but they would have contributed to his death. Crown counsel submitted the robbery and final assault by Travis Chief was an intervening act sufficient to break the chain of causation.

This explains why Ms. Traverse was not charged with manslaughter. Aggravated assault is a serious offence and one which carries a maximum sentence of 14 years. The legal elements of aggravated assault which endangers life are similar to the legal elements the Crown must prove to the offence of unlawful act manslaughter: that is an unlawful assault or act that resulted in unintended consequences, but the risk of those consequences, the risk of bodily harm of a non- trifling nature, would have been evident to a reasonable person. At the same time the offence for which Ms.

Traverse has been convicted is not manslaughter. Manslaughter carries a maximum life sentence, and, therefore, she cannot be treated as if she was convicted of that offence. It must be recognized and borne in mind that the Crown was unable to prove that the assaults by Ms. Traverse would have been lethal without the intervention of the assault by Travis Chief. What was established on the evidence is that Ms. Traverse's assault did result in brain injury that would have been dangerous to life and contributed in a meaningful way to the injuries that ultimately killed Mr. Kipling.

As part of considering the seriousness of the offence, let me turn to the victim impact statements that were filed and read in court. In R. v. Woodfine, [2005] Carswell Nfld 397 (P.C.) at para. 11 , a judge explained how a court utilizes these statements as part of the sentencing process: They serve the sentencing objective of

Section 718 (

f) of the Criminal Code , “to promote a sense of responsibility in the offender and acknowledgment of the harm done to the victims and to the community”. Victim impact statements confront the offender with the victim, the real person affected by the criminal act. I am sure that the reading of the victim impact statements in this case did have that effect on Ms. Traverse. Other courts have noted that the sentence I impose does not represent the intrinsic value or worth of the deceased. The sentence I impose today is not a reflection of the value of Mr. Kipling's life.

No sentence imposed by the Court can restore Mr. Kipling to his family. I am required to balance many sentencing principles, some competing with others, to arrive at a fit and appropriate sentence, bearing in mind the individual circumstances of Ms. Traverse and the facts of this case. I have had the benefit of victim impact statements provided by Henry Kipling's sister, Marie Kipling, and Leanna Sutherland, Henry Kipling's partner who was with him at the Northern Hotel on the night that ultimately led to his death. These statements speak to the tremendous loss to his family from Mr. Kipling's death. Ms.

Marie Kipling spoke eloquently of the loss suffered by the death of Mr. Kipling. She said: My brother was a small and caring, loving man. He could not fight. It was not his nature. He was raised with women and was taught to honour and respect women. Henry's passing has left a huge void in many people's hearts and his community. His children miss him and are young. They will not grow up with their father, and they are traumatized due to this. Henry grew up facing systematic issues many of us Indigenous people are faced with. He witnessed all aspects of abuse growing up in our home.

Domestic violence, sexual abuse, alcohol abuse was in our home. Child and Family Services presence was part of our lives as well. They say these are contributing factors to the high level of Indigenous people incarcerated as well as the number of children in care. My brother made sure never to be part of those statistics. Instead, he graduated with his high school diploma, worked odd jobs. He was never on welfare. He worked his way out of the system to be a role model to his nieces and nephews. Unfortunately, I can only say his devastating death made him a statistic, our own people killing each other.

Now he lies in the ground, his life taken from a culture of his own kind. I agree with a comment of the Alberta Court of Appeal in a case called Swampy (R. v. Swampy 2017 ABCA 134 at para. 32 ) that Ms. Traverse's moral culpability is affected no less and no more by the fact that the victim, too, was from a First Nation's community.

The sentencing analysis does allow for the assessment of her culpability with a full appreciation of the gravity of this offence whichincludes the loss of Mr. Kipling to his family and community. As I have said, the offence before the Court is a serious one. The assault was intentional. It is an aggravated assault because itresulted in life threatening consequences. Let me move on to consider the moral culpability of the offender. The Crown provided the Court with R. v.

LaBerge, [1995], 1995 ABCA 196 a decision of the Alberta Court of Appeal which provides direction on how asentencing judge should assess moral culpability. While I recognize that the offence before the Court in LaBerge was one ofmanslaughter, based on the facts of this case the legal principles are helpful to analyze the moral culpability of Ms. Traverse. In R. v.

Stone, (SCC), [1999] 2 S.C.R. 290 at paragraph 21, the Supreme Court of Canada adopted the AlbertaCourt of Appeal's comments in LaBerge in considering this issue and said that: the Court must look not only at the physical characterization of the act itself, but must assess a range of other considerations.

Theseinclude the choice of weapon used to effect the unlawful act, the degree of force the offender used in perpetrating the act, the extent ofthe victim's injuries, the degree of violence or brutality, the existence of any additional gratuitous violence, the degree of deliberationinvolved in the act, the extent which the act reflected forethought of action or planning, the complexity of the act, what, if anything,provoked the act, the time taken to perpetrate the act, and the element of chance involved in the resulting death. I have applied those factors to the case before me.

In this case there was no weapon used. Ms. Traverse did use a significant degree of force in assaulting Mr. Kipling. Ms. Traverseis larger in stature and hit Mr. Kipling on each occasion when he was not looking at her or anticipating the assault. Mr. Kipling wasvulnerable to the assaults because of an eight centimeter difference in his leg lengths from scoliosis. He was naturally unbalanced and hewas heavily intoxicated. The second time that Ms. Traverse pulled Mr. Kipling to the ground and he struck the back of his head he wasstill disoriented, reeling and staggering from the first punch to the ground.

The extent of Mr. Kipling's injuries were sufficient to endanger his life. There was no gratuitous violence such as blows or strikes when Mr. Kipling was down on the ground, although I do find that boththe assaults outside of the hotel, including a second throw backwards to the ground were gratuitous violence. Ms. Traverse had decidedto take matters into her own hands after having already punched him once because she believed that Mr. Kipling had touched her in anunwanted way. I will have more to say about this shortly. There was certainly some deliberation in the assaults on Mr. Kipling by Ms. Traverse.

The first punch to his face occurred at 2:12a.m. in the hotel lobby. Ms. Traverse was quickly removed from the bar. It is clear that she waited outside the bar for Mr. Kiplingwhere she punched him again. Almost nine minutes had gone by since the punch in the hotel lobby which had already resulted in herbeing removed from the hotel. It is clear to me that she waited for the express purpose of further assaulting him which speaks to thedeliberate nature of the second and third assaults which resulted in Mr. Kipling falling backward to the ground and hitting the back of hishead on the cement sidewalk.

The punches were not particularly complex acts. What provocation was there for these assaults? Ms. Traverse believed that it was Mr. Kipling who touched her rear end or wasgrinding against her in a lineup to buy beer at the off-sale vendor. This cannot be seen in the video and was not seen by her friend,Shaylene McLean who was standing between Ms. Traverse and Mr. Kipling. While I accept Ms. Traverse believed that he had touchedher and this is what motivated her assault of Mr. Kipling, there's no evidence to establish that this actually occurred. The video showsthat Mr. Kipling was some distance away from Ms.

Traverse and in my view could not physically have touched her in the way that shebelieves he did. Ms. Traverse did not testify at the trial. In the presentence report Ms. Traverse admits that she had been drinking that day and evening and all of the events are a blur. Ifind that her own consumption of alcohol resulted in her misperception of reality. Even if Mr. Kipling had touched her rear end and sheturned around and punched him, this would not have justified the repeated attacks on the unsuspecting Mr. Kipling outside the bar. Throughout counsel's submission on behalf of Ms. Traverse he argued that Mr.

Kipling touched Ms. Traverse's bum and would notstop. Other than the accused's belief, there is no other evidence that this actually happened. There is definitely no evidence that whenMs. Traverse waited for Mr. Kipling outside the hotel that he touched her in any way at that time. All of that is captured on the video. There is no evidence to support the characterization that he, Mr. Kipling, would not stop. And finally, in terms of the factors that I'm to consider in assessing moral culpability, is what degree of chance was involved in theresulting death of Mr. Kipling. Ordinarily the assaults by Ms.

Traverse, even delivered as forcefully as they were, one would haveexpected some ability of the victim to break his fall in order to protect himself. Mr. Kipling was not able to do that. It may have beendue to his level of intoxication. His second fall to the ground was again not broken by him in any way. In my view, intoxication andsuffering from disorientation from the first fall to the ground were still operating. I find that Mr. Kipling's not anticipating any of theassaults also resulted in his not being able to ready himself or protect himself. I also accept that Ms.

Traverse did not know Travis Chiefand would not have expected that Mr. Kipling would be assaulted by another person a final time. I find that there was some element ofchance in the infliction of injuries dangerous to life, particularly the intervention of the final assault by Mr. Chief. In looking at all of these factors I conclude that Ms. Traverse's assault of Mr. Kipling was deliberate and occurred out of anger

fueled by intoxication. While things occurred relatively quickly, the punch and pull backwards outside of the hotel occurred without anyprovocation from Mr. Kipling. Ms. Traverse's moral culpability based on the factors I have just reviewed is significant. Her angryforceful strikes resulted in injuries that contributed to devastating consequences. That is not the end of my assessment of the moral culpability of Ms. Traverse. I must also look at the Gladue, (SCC), [1999] 1 S.C.R. 688 factors, that is the broader historical context of Indigenous persons in Canada.

In Ipeelee, [2012] 1 S.C.R.433, 2012 SCC 13 at para. 60 the Court said: ... courts must take judicial notice of such matters as ... colonialism, displacement, and residential schools and how that history continuesto translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and ofcourse higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentencefor Aboriginal offenders.

Rather, they provide the necessary context for understanding and evaluating the case specific informationpresented by counsel. I had the benefit of a Gladue presentence report which provides me with a good amount of information about Ms. Traverse. Ms.Traverse is a 26-year-old Indigenous woman and is a treaty band member of the Little Saskatchewan First Nation. She was raised by hergrandfather. Between the years of eight to 12 she lived with her biological mother where she witnessed alcohol abuse, domesticviolence, and a lack of stability.

She was a victim of sexual abuse while living with her mother which she did not report and wasn'tsupported to report to the authorities. Her biological father was incarcerated for some of her growing up years. She is now estrangedfrom her biological mother because she says she was assaulted by her mother when she was 15. She considers her aunt, DoreenTraverse, who helped raise her as her mother. Ms. Traverse has never sought treatment or counselling for her own use of substances. There is a native alcohol and drug addictionprogram in her home community that is available to her as a band member free of charge.

I was told she may have made a phone call toinquire into available resources, but not of any follow-up or treatment. She saw a counsellor while on the Elizabeth Fry bail program, but discontinued the counselling when she did notconnect with the counsellor. She has not taken further counselling. She currently experiences anxiety and has started cutting herself because of the matters before the Court. Ms. Traverse has a young son, six years old, with Colton Beardy. Her son lives with her paternal grandmother -- with his paternalgrandmother in Lake St. Martin First Nation. She visits her son regularly.

The paternal grandmother speaks highly of the responsibilityand caring nature she has recently seen from Ms. Traverse when caring for her son. Her son was apprehended in 2015 when Ms.Traverse was taken into custody on charges of trafficking cocaine. Her Child and Family Services worker notes that Ms. Traverse isdetermined, kind, and humble. She is quiet, but shows compassion and is conscientious of others. Defence counsel filed certificates indicating Ms.

Traverse successfully completing a parenting course in 2017, a Managing YourAnger course in 2017, and she's also completed Healthy Relationships for Women, DV, and a Positive Parenting course in 2015. Thecertificates from 2015 predate her involvement in the offences before the Court. I accept these certificates as steps Ms. Traverse hastaken to be able to regain custody of her son. Ms. Traverse has been negatively impacted by the 2011 flood evacuation of her home community and the death of her grandfather. These two events have led to her feeling disconnected from family and community.

I must say this is not the first time I or judges of thiscourt have seen a person who was displaced as a result of the evacuation from their home community due to a flood begin their criminalinvolvement after such a displacement. Ms. Traverse says in the presentence report that she was not used to living in the city and becameinvolved with negative people and eventually into trouble with the law. Ms. Traverse says in the presentence report that she believes in God and prays regularly. She was not exposed to Aboriginalspirituality when she was growing up.

She was exposed to Aboriginal spirituality when she attended Children of the Earth School and inHeadingley Women's Correctional Centre. Ms. Traverse says she experienced racism growing up in her home community as she was called white due to her fair complexion. She experienced more racism when she had to leave her home community to go to high school in Ashern. This has had a negative impacton her education. She did try to complete some adult education courses in 2017 through the Urban Circle Adult Education. She found itdifficult to balance this with getting her son to school.

She has also received very good marks in math, English, and Indigenous literacyclasses that she took while serving her last jail sentence. I am sure that Ms. Traverse has the ability and potential to further her educationin the future. I agree with her aunt and great aunt that this would be a very good goal for her in the future. The presentence report also speaks to a family history of residential schools. Her grandfather attended day school and her greataunt attended residential school.

Her great aunt described how her own father -- this would be Jenna Traverse's great-grandfather -- hadbeen murdered on Lake St. Martin First Nation which led to family breakup. Her stepfather -- that is her great aunt's stepfather -- was analcoholic and abusive. This is how Jenna Traverse's grandfather was raised. Her great aunt, Bertha Traverse, describes it this way: The emotional and physical abuse became normal and impacted the way they interacted with each other and spouses.

The PSR says that Jenna Traverse has a great deal of respect for her great aunt as her elder, and her great aunt provides positive support

and direction for her. Jenna Traverse has now returned to Little Saskatchewan First Nation and is enrolled in a full-time carpentry course. The programmanager is hopeful that graduates of this program will gain employment in the community. Ms. Traverse is hopeful of securing housingin this community in the future. The Criminal Code and the Supreme Court of Canada have directed sentencing judges to bear in mind the specific history ofIndigenous peoples when sentencing an Indigenous offender.

In Ipeelee the Supreme Court said: "Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limitedoptions for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were notvoluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moralculpability.

Failing to take these circumstances into account would violate the fundamental principles of sentencing — that the sentencemust be proportionate to the gravity of the offence and the degree of responsibility of the offender." (at para. 73) It is not surprising to me, given her family history, that Ms. Traverse is convicted of an offence involving a toxic mixture of alcoholand violence. This is something that her family has had to confront and continues to challenge her home community.

I do find that herpersonal history and the broader context of barriers faced by Indigenous persons in this country reduces her moral culpability for theaggravated assault. It is clear to me that Ms. Traverse feels remorse for her involvement in the death of Mr. Kipling. She said as much in herpresentence report, and it was clear from her demeanour in court. She was crying during most of the sentencing submissions. With someencouragement she did express in court that she was sorry for what happened to Mr. Kipling. She said it was very hard for her to have tolive with what she did and what has happened.

The Crown pointed to the fact that she did not enter a guilty plea, but proceeded to trial asan absence of a mitigating factor. A guilty plea is often seen as a demonstration of remorse. In this case, however, there was a legitimatelegal issue with respect to causation and the ability of the Crown to prove the aggravated assault. I accept that Ms. Traverse always feltremorse for her involvement in Mr. Kipling's death. Let me now deal with the aggravating and mitigating factors of the offence and this offender. Mitigating factors. The Gladue and Ipeelee factors that I've just outlined are mitigating factors.

Her remorse for her involvementin this offence is a mitigating factor. As her counsel pointed out, she was cooperative with the police in that she turned herself in whenshe learned of the investigation. And Ms. Traverse has completed some educational programs and is now involved in a carpentry coursein the Little Saskatchewan First Nation. It is not a mitigating factor in the circumstances of this case, but I do note that it is an absenceof an aggravating factor in that she did not use any weapons against Mr. Kipling. There are aggravating factors in this case.

The aggravating factors include the fact that she struck Mr. Kipling twice after havingalready been removed from the hotel lobby and having punched him in the lobby. Ms. Traverse used considerable force against Mr.Kipling in circumstances that were objectively dangerous and in circumstances where he demonstrated no aggression towards her, and itwas quite apparent that Mr. Kipling was physically vulnerable and unsteady on his feet. Another aggravating factor is the fact that she was on bail for an offence of trafficking cocaine at the time of this incident. I willnote here that she had been charged in 2015.

She ultimately pled guilty to that charge, I take it, when she was arrested on this charge. She pled guilty on March 14th, 2016. After noting 16 days of time in custody a sentence of eight months and 14 days incarceration wasimposed for an effective total sentence of nine months incarceration. I also have to consider sentencing principles of denunciation and deterrence. Serious crimes of violence require a sentence thatdenounces or punishes in order to send the message that our society values peaceful interaction and rejects physical violence.

It isimportant that individuals in our society are able to go out for the evening and not be subject to violence that endangers their life. In defence counsel's submission he said that this was a normal thing that occurs outside of a beer vendor in the city of Winnipeg,that it was not uncommon, and no one anticipates that death will result. A review of the case law, including some of the cases that I willrefer to soon, and the Hanifan (ONCA) decision provided by Crown counsel evidences that a push or punch resultingin life altering permanent injury or death is not difficult to find.

It is the very dangerousness of these types of assaults that calls for asentence which educates and leaves a message that violence will be denounced by the Court because of the value we as a society placeon the sanctity of human life. In R. v. M.O. 2011 MBPC 47 my colleague, Judge Carlson reviewed a long list of cases in imposing a sentence for anaggravated assault. The facts in the case before her were quite different from the ones before me because it was a gang beating of acitizen resulting in permanent injuries, life altering injuries that required 24-hour care for the victim for the rest of his life.

The casesreferred to in the M.O. decision identify a range of 16 months to six years incarceration for offences of aggravated assault. In R. v. Linklater 2015 MBCA 79 the Manitoba Court of Appeal upheld a two years less a day sentence followed by a year ofprobation for a single stab wound to the chest of a domestic partner on a charge of aggravated assault. The Court notes defence counsel'sconcession that a sentence of two years less one day was within an appropriate range of sentence for aggravated assault. Mr. Linklater,too, was an Aboriginal offender. Counsel for Ms.

Traverse provided the Court with some cases in which individuals received suspended sentences for aggravatedassault convictions. Parliament has removed the possibility of conditional sentences for crimes of violence that result in bodily harm,and, therefore, some courts have imposed suspended sentences. These cases can all be distinguished on their facts.

In Knott [2012] MBQB 105 , Brown 2017 ONSC 4866 , and Ross 2015 SKQB 150 there was someprovocation by the victim. In Knott the accused had no criminal record and his co-accused were responsible for the most serious of theinjuries caused by the use of weapons. In all of them significant rehabilitative steps have been taken by the offender that have not beentaken by Ms. Traverse. In Peters 2010 ONCA 30 the majority of the Ontario Court of Appeal upheld the three year suspended sentence foraggravated assault for an Aboriginal offender.

The case is more about appellate deference than a case about the appropriate range ofsentences for convictions of aggravated assault. Justice Watt in the Peters case in dissent would have overturned the suspended sentenceand imposed 12 months incarceration noting that a suspended sentence is entirely rehabilitative and does not address principles ofdenunciation and deterrence. Any case can be distinguished on its facts, so these are helpful only to illustrate that very broad ranges of sentence have beenimposed by other courts on aggravated assault convictions.

The range similar to manslaughter offences can extend from suspendedsentences in rare cases to lengthy penitentiary sentences on, on offences of aggravated assault. There are two decisions I have reviewed that I found to be more helpful based on facts similar to the case before me. In R. v.Burgess, 2016 NSPC 1, a Nova Scotia judge, Judge Derrick as she then was, convicted Ms. Burgess of manslaughter when she pushedher father down a set of stairs. Her father died from those injuries. Ms. Burgess did not intend to kill her father.

Judge Derrick revieweda number of one-punch manslaughter cases where sentences of three to four years were imposed. She imposed a four year sentence onMs. Burgess. This case supports the Crown's position on sentence which was one of three to four years. I note that Burgess is amanslaughter case, and normally one could expect lesser sentences for offences of aggravated assault. In R. v. Corey Leger, , Judge Linehan of the Newfoundland Provincial Court reviewed many decisions forsentences imposed in aggravated assault cases.

In the majority of cases he reviewed the sentences fell in the 18th months to four yearrange. In Leger, similar to this case, the victim was punched outside of a bar once. The victim fell back and suffered life threateninginjuries from striking his head. He survived the injuries, but suffered permanent hearing loss and other lasting consequences. Mr. Legerhad no prior criminal record, good community supports, and good rehabilitative prospects. Judge Linehan imposed a sentence of 18months incarceration and 18 months probation.

In my view, it is the exceptional case that would result in a suspended sentence for a conviction for aggravated assault. I recognizeand give credit to Ms. Traverse for having taken the programming I have already detailed. I recognize and credit her for doing well onthe bail program between November 2016 and March of 2018. However, the fact that she breached her bail conditions in 2018 showsthat she has some way to go. She reports that she has, she reports that she has severely curtailed her drinking.

The presentence reportsays for as long as two months, her counsel told me she had been able to maintain sobriety for as long as four months. So while I accept that Ms. Traverse genuinely wants to start down a different path, this must be balanced with the type of sentencethe offence before the Court will ordinarily attract. She has not yet demonstrated the complete turnaround in terms of rehabilitation thatcan be seen in the cases relied on by defence counsel.

In Burnett, 2017 MBCA 122, Justice Mainella of our Court of Appeal concluded that a sentencing judge had committed an errorwhen he focussed on rehabilitation to the exclusion of recognizing the seriousness and the circumstances of the offence there. He said: "Proportionality is a much wider inquiry than simply looking at an individual’s circumstances and the effect of a sentence on him or her...

When punitive aspects, such as denunciation and general deterrence, are paramount because of the seriousness of the offence, coupledwith a high degree of moral blameworthiness of the offender, as is the case here, “they cannot shift the emphasis to restorative objectivesand rehabilitation”." (at para. 34) Another factor for me to consider is sentence parity. This principle is set out in the Criminal Code which says that similarsentences should be imposed on similar offenders for similar offences in similar circumstances. I have reviewed the reasons for sentenceof Travis Chief.

The sentencing judge noted prior convictions on Mr. Chief's criminal record including for robbery and assault. He wason probation from the robbery charge when he robbed Mr. Kipling of his beer and assaulted him. In weighing the Gladue factors thesentencing judge noted that a lack of family support in his growing up years had contributed to Mr. Traverse's (sic) addictions to alcoholand drugs. The judge reduced the eight year sentence he would otherwise have imposed by 18 months for Gladue factors and imposed asentence equivalent to six-and-a-half years.

As I have already noted, it is important to distinguish between the manslaughter conviction for which Mr. Chief was sentenced andthe aggravated assault that endangered life that is before me. Mr. Chief's criminal record distinguishes him from Ms. Traverse who hasno other convictions for violence on her record. It is also noteworthy that in committing the assault that caused Mr. Kipling's death Mr.Chief committed the further offence of robbery. This was noted by the sentencing judge. I do consider sentence parity in this case as favouring in the balance a sentence of incarceration.

In my view, to impose a suspendedsentence for Ms. Traverse when the nature of the assault is virtually identical to the assault committed by Travis Chief would result insentences so disparate that they would not be justifiable in all of the circumstances of this offence and this offender. But the length of thesentence needs to reflect the difference between aggravated assault and manslaughter and the individual circumstances of Ms. Traverse. Ms. Traverse is still a young woman. She has some solid support in the community. She has never been sentenced to apenitentiary sentence.

She is motivated to do better for herself, her son, and her family. The sentencing principles of rehabilitation and restraint such that I should impose the least restrictive sentence I can, also have to beconsidered. If I impose the penitentiary sentence sought by the Crown, Ms. Traverse would have to serve that sentence outside of this

province further removed from her family and supports. In balancing all of the factors I have detailed today I find that Ms. Traverse bears a high level of moral culpability for twice striking the physically vulnerable Mr. Kipling to the ground. The deliberate assaults resulted in what a reasonable person would have seen was a significant risk for serious injury. The aggravated assault endangered his life. Her moral culpability is reduced by the Gladue factors as I have detailed and should result in a reduction of her sentence.

The seriousness of the offence and her high moral culpability still warrant, warrant a period of incarceration as the only fit and appropriate sentence based on all of the information before me. In my view, a period of incarceration is called for based on the principles of denunciation and deterrence. The length of this sentence should be tempered due to her remorse, the Gladue factors, and the positive prospects for her rehabilitation. In my view, the appropriate sentence based on the range of sentences I have described earlier, especially the Leger case, is one of 18 months incarceration.

From this sentence I give her credit for 60 days of time already served at time-and-a-half which is effectively a three month -- effectively she has served three months of time in custody already, so that will be reduced or subtracted from that sentence for a sentence of 15 months in jail left to serve. To support her rehabilitation this will be followed by two years of supervised probation after her release from custody.

The conditions of the probation order are the statutory conditions, and those conditions are, that you keep the peace and be of good behaviour; that you abstain from communicating directly or indirectly with Leanna Sutherland; and that you appear before the Court when required to do so; and that you notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation.

With -- you are to report to a probation officer within two working days of your release from custody, and thereafter to report when and as directed by the probation officer. You are to attend, participate, and -- to attend, participate, and complete any treatment or counselling program recommended by your probation officer. Given the fact that you have been able to maintain your sobriety for some months and that the risk to public safety when you drink is increased, there will be a condition that you abstain absolutely from the consumption and possession of alcohol.

A condition of the probation order as well will be -- or there will be a further order that while she is in custody she is to have no contact or communication either directly or indirectly with Leanna Sutherland. I also make an order that within -- that while you are in custody you are to provide a bodily sample sufficient for DNA analysis. Your DNA will be registered on a national data bank. I'm also making an order that you are prohibited from possessing firearms for 10 years from today's date.

All of those -- the order is that you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance. On the breach of recognizance I note that this is your first conviction for such an offence. In September of 2013 you were convicted of fail to appear and received a discharge. On the charge of breaching your recognizance I will note one day, which is today's court appearance. Given the recent decision from the Supreme Court of Canada there is no victim surcharge. Ms.

Traverse, I do mean the sentence to send a message that what you did was a serious criminal act, but I hope that you can serve your sentence and then return to your family in this community never to come back into a court of law again. I wish you good luck. _____