HIS MAJESTY THE KING - v. -, 2022 SKKB 251

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 251 Date: 2022 11 22 Docket: CRM-MF-00039-2019 Judicial Centre: Melfort ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING - and - GEORGE SAMUEL CUSTER Counsel: Andrew J. Wyatt for the Crown Lisa J. Watson for George Custer ___________________________________________________________________________ SENTENCING DECISION ZERR J.

November 22, 2022 ___________________________________________________________________________ Introduction [ 1 ] On April 11, 2022, I convicted George Custer [George] of second degree murder in the shooting death of Jordan Charles [Jordan]. Specifically, I found that, on March 10, 2019 at Pelican Narrows, Saskatchewan, Mr. Custer shot Jordan Charles in the head, causing his death. I also found that, at the time he fired the fatal shot, Mr. Custer intended to kill Jordan. [ 2 ] On November 10, 2022, I sentenced Mr. Custer. What follows are my reasons for decision.

Legal Principles [ 3 ] The sentence for second degree murder is life imprisonment with no eligibility for parole until the offender has served at least 10 but no more than 25 years. [ 4 ] This exercise of discretion is grounded in s. 745.4 of the Criminal Code , RSC 1985, c C-46 .

It states: 745.4 … at the time of the sentencing … of an offender who is convicted of second degree murder, the judge who presided at the trial … may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission … substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.

[5] The intent behind this “sliding scale” of parole ineligibility is “to recognize that, within the category of seconddegree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability”: R v Shropshire, (SCC), [1995] 4 SCR 227. [6]

Section 745.4 directs me to consider three factors: 1. the character of the offender; 2. the nature of the offence; and 3. the circumstances surrounding the commission of the offence. [7] In addition, I must consider the purpose and principles of sentencing set out in sections 718, 718.1, and 718.2of the Criminal Code: R v Lenius, 2007 SKCA 65 at para 14, 299 Sask R 139; R v Paddy, 2011 SKCA 12 at para 54, 366 Sask R 4; andR v Goforth, 2021 SKCA 20 at paras 132 and 153, 400 CCC (3d) 1. [8]

Section 718 sets out the fundamental purpose of sentencing, which is to protect society and to contribute torespect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that serve one or more of thefollowing objectives: denunciation, deterrence, protection of the public, rehabilitation, reparations, and accountability. [9]

Section 718.1 sets out the fundamental principle of sentencing: a sentence must be proportionate to the gravityof the offence and the degree of responsibility of the offender. [10]

Section 718.2 sets out other sentencing principles I must consider. Of those listed, I find the followingparticularly relevant here: s. 718.2(a), which requires me to consider all relevant aggravating and mitigating circumstances; s. 718.2(b),which requires me to consider the principle of parity, the concept that similar offenders who commit similar offences in similarcircumstances should receive similar sentences; and s. 718.2(e), which requires me to consider Mr. Custer’s personal circumstances as anIndigenous person. [11] There are two ways in which Mr.

Custer’s circumstances as an Indigenous person may play a role in thedetermination of his sentence. First, systemic and background factors may provide important context within which to assess his moralculpability. Second, I must at all times be mindful of the root purpose of s. 718.2(e), which is to address the overrepresentation ofIndigenous offenders in Canadian jails.

Accordingly, I am required – to the extent possible under the circumstances – to consider arestorative justice approach: R v Chanalquay, 2015 SKCA 141 at paras 40-41, 472 Sask R 110. [12] In this case, the Crown submits that 20 years of parole ineligibility is appropriate. Mr. Custer disagrees,submitting that parole ineligibility should be set in the range of 13 to 14 years. [13] I will first address the nature of the offence and the circumstances surrounding its commission. [14] I will then address Mr. Custer’s character, including his personal circumstances as an Indigenous person.

Withinthese first two sections, I will highlight the factors identified by counsel as aggravating or mitigating. [15] I will then address the purpose of sentencing, as required by s. 718, followed by the principle of parity, as set outin s. 718.2(b). [16] Finally, I will address proportionality, as required by s. 718.1. This will include my assessment of how Mr.Custer’s circumstances as an Indigenous person intersect with his moral culpability.

Nature of the Offence and Circumstances Surrounding its Commission [17] Most of the relevant factual findings are set out at paras. 46 and 91 of my April 11, 2022 decision (R v Custer(11 April 2022) Melfort, CRM-MF-00039-2019 (Sask QB)). [18] In brief, during the evening hours of March 10, 2019, George Custer and Blaine Charles [Blaine] got into aconsensual fight at a residence in Pelican Narrows. Each left, vowing to get his brother. [19] George returned alone and was admitted back into the residence. Blaine returned in the company of four others,one of whom was Jordan Charles.

When George tried to leave the residence, Jordan struck him in the head with a baseball bat, hardenough to create an audible sound and cut George over the eye. [20] Shortly thereafter, George confronted four people on the street. When he confronted Ashton Cook and his friendHunter, George was armed with a stick. When he confronted Marcie Sewap [Marcie] and Felicia Custer [Felicia], he was armed with abat. He was in a heightened, reactive emotional state.

He told Marcie and Felicia that he had been assaulted or “ganged up” by Jordanand was looking for Jordan so he could do to Jordan what had been done to him. [21] George returned to the residence and used a ruse so that Neanna Sewap would let him use her phone. He calledhis brother Greg, asking him to “bring the sawed off”. Once Greg arrived at the residence, the two brothers walked to their parents’trailer where George took possession of a sawed off .22 calibre rifle.

They then began walking up Linklater Street. [22] Respecting George’s mental state prior to the shooting, I wrote: [107] … I agree with defence counsel that, standing alone, George’s desire to get even and his decision to arm himself with a firearmare not determinative of his state of mind at the time he shot Jordan. I agree that firearms can also be used to show force, intimidate, andinstill fear. When leaving 4816 Linklater Street, George said, “let’s do some shit” or “let’s fuck shit up,” vague terms that reveal an

intention to confront, but nothing more. The only inference I am prepared to draw from these pre-shooting events is that George intended to provoke a confrontation in which it was possible he would use violence and possible he would, in some way, use the firearm. [Emphasis added] ( R v Custer (11 April 2022) Melfort, CRM-MF-00039-2019 (Sask QB)) [ 23 ] As Greg and George approached 4703 Linklater Street, Blaine Charles, Jordan Charles, and Daniel Custer walked from the yard at 4703 to the yard at 4704.

Blaine, Jordan, and Daniel were armed with metal rods or bars. [ 24 ] Greg and George stopped near some rocks in the front yard of 4704. Greg handed George the firearm. As George struggled with the firearm, Blaine rushed him, armed with a metal rod that he threw at George. George pushed Blaine aside. Blaine ran away from George, then stopped near the bottom of the ramp leading to the front door of 4704. George pointed the firearm at Blaine and asked, “Where’s Jordan?” [ 25 ] By then, Jordan had moved toward the back side of the front steps and stopped. George pointed the firearm at Jordan.

Jordan repeated the word, “Don’t”, in Cree, two or three times. George fired from a distance of fewer than six yards, hitting Jordan in the forehead. [ 26 ] Although I found that, right around the time he took possession of the firearm, George formed the specific intent to cause Jordan’s death, I was not satisfied the murder was planned and deliberate. In arriving at this conclusion, I noted the dynamic and quickly evolving circumstances under which the shooting took place, the fact George had been assaulted with a bat, the fact he had been drinking, and his heightened, reactive emotional state.

Respecting planning and deliberation, I concluded: [127] When George set out for 4703, he could not have known what he would encounter there. As they walked up Linklater Street it was Greg, not George, who had the firearm. When George arrived, he met three people armed with metal rods or bars, one of whom was Jordan. While I am satisfied beyond a reasonable doubt that, right around the time he took possession of the firearm, George formulated the specific intent to cause Jordan’s death, I am not satisfied beyond a reasonable doubt that the murder was planned and deliberate.

To the contrary, the evidence supports a finding that George formed the specific intent for murder on sudden impulse and with no deliberation. ( R v Custer (11 April 2022) Melfort, CRM-MF-00039-2019 (Sask QB)) [ 27 ] After shooting Jordan, George shouted, “Terror Squad” and discharged the firearm for a second time, into the air. [ 28 ] Once he returned to his parents’ trailer, George instructed the people there to tell the police he was there all day.

He also changed his clothes. [ 29 ] Of these facts, the Crown highlights the following: • the clear plan to provoke a confrontation while armed with a sawed-off .22 rifle; • the use of not only a firearm, but a prohibited firearm; • Mr. Custer’s single-mindedness, sustained over time, and despite several chance encounters with innocent bystanders; • Mr.

Custer’s decision to discharge two shots in a residential neighbourhood at 10:00 p.m. at night when there were clearly a number of pedestrians in the area; • the use of the phrase “Terror Squad”, presumably an intent to intimidate or provoke a state of fear in the potential witnesses; • the fact Jordan Charles was shot near his own home, in the presence of his spouse and brother, which led to his eldest daughter and other family members rushing to the scene; and • the attempt to create an alibi. [ 30 ] The defence highlights the following: • the significant assault perpetrated upon Mr.

Custer by Jordan Charles; • the dynamic and quickly evolving circumstances under which the shooting took place, including the fact Mr. Custer was rushed by Blaine Charles who was armed with a weapon; and • Mr. Custer’s state of intoxication. Character of the Offender Personal Circumstances [ 31 ] Mr. Custer was born on March 18, 1995. This offence occurred just a few days prior to his 24th birthday. He is now 27. He is the oldest of five siblings and the father of two children. [ 32 ] Mr. Custer, his parents, and all four of his grandparents are from Pelican Narrows, Saskatchewan, the largest of

the eight communities that make up the Peter Ballantyne Cree Nation. As a community, Pelican Narrows continues to suffer thedevastating impacts of colonialism and residential schools. These impacts can be described as insidious, prevalent, and enduring. For theCuster family, they are very real and very near. [33] Mr. Custer’s father, William Custer Sr., attended the Qu’Appelle Residential School, also known as LeBret, St.Paul’s and White Calf. When asked about his experiences there, Mr. Custer Sr. described the cement and barbed wire that confined himand how his family would come to look at him through the wire.

Because there was not enough food, he snared rabbits to supplement hisown nutrition. He spoke of many beatings and said he was targeted due to his small stature. [34] Mr. Custer Sr.’s experiences accord with those shared by other survivors of the Qu’Appelle Residential School,which include malnutrition, overcrowding, poor sanitation, punishment for speaking an Indigenous language or practicing Indigenousculture, physical abuse, sexual abuse, high rates of tuberculosis, and death. [35] George Custer’s mother, Doreen Custer, went to Pelican Narrows Day School.

Although she was notinterviewed for the Gladue report, she told George she was bullied there, and was physically assaulted with a ruler by a nun. (R v Gladue, (SCC), [1999] 1 SCR 688]. [36] I am satisfied that William and Doreen Custer’s experiences in residential and day school impacted their abilityto parent. I note the following from the Gladue report: Reflecting on his childhood, George indicates that his upbringing was affected by his mother’s alcohol consumption.

He shares, “I had arough childhood because of the way she handled me, herself I guess.” George shares that he did not witness physical abuse between hisparents, but that his mother could be the aggressor when drinking. He states, “she’s like that when she’s drinking. I don’t know like,mean, I guess, mean. Just like a mean drunk.” William shares, “we had a rough life, me and my son.” [37] Further details were shared with the author of the pre-sentence report. During that interview, George said that,when his mother was drinking, she would yell and swear at him and spank him with a stick or a shoe.

He said he was the only one treatedthat way, but never understood why. Mr. Custer also – in an apparent contradiction with the Gladue report – told the author of the pre-sentence report that there was domestic violence in his home, perpetrated by his mother. He recalled two major incidents: one in whichhis mother threw a glass beer mug at his father, and one in which she stabbed him with a fork. He recalled thinking he would rather be ina group home or foster home than in his parents’ care. [38] To the authors of the Gladue report, Mr. Custer reflects: I felt like they needed help earlier. I don’t know.

Now it’s – I don’t know, it’s kind of too late for that now. I love my parents regardless.But it’s just, I don’t know, the things that they put me and my siblings through growing up, they didn’t realize that it affected us morethan they – they didn’t do better for themselves. [39] Mr. Custer described his maternal grandmother, Esther Custer, as a refuge for him when his parents weredrinking. He recalls walking along a trail to his kokum’s house, intending to stay there for the night. As Esther Custer died when Georgewas only four or five, this must have happened when he was very young.

Esther tried to explain Doreen’s drinking to George bydescribing her as “sick”, but George did not understand what she meant. [40] After his kokum’s death, Mr. Custer continued to strategize ways to escape his parents’ drinking. He wouldsometimes stay with a friend or just leave the home and stay up all night until they sobered up. [41] Misuse of alcohol created other challenges as well. According to Mr. Custer: There was more drunk days than sober days. Every chance they go to have alcohol, they got money, they’d drink. They were like thatgrowing up as a kid.

Had everything hard for me as a kid, I don’t know, I had to grow up faster ‘cause sometimes I’d take care of mysiblings too. I don’t know, I’d do what I could, ‘cause I don’t know, I didn’t – my parents were always passed out or drinking. Mysiblings didn’t have that much stuff, I guess, growing up. Never had any clothing, never had any food. I don’t know. Sometimes I’d bethe one trying to do what I can for my siblings while they’d be drinking or passed out I guess, keeping an eye on my siblings. [42] Mr.

Custer reports that his siblings were apprehended on two occasions: once for 24 hours and once for about aweek. Because he ran away, Mr. Custer was not apprehended. [43] School became another refuge. Mr. Custer reports near-perfect attendance in elementary school and describeshimself as a good kid who did consistently well. He remembers getting himself up early and off to school, to get away from his parents. [44] Things started to go sideways in grade eight. Mr. Custer reports – and his parents confirm – he was bullied inhigh school.

Although his father attempted to intercede, George did not finish grade eight. [45] By 13 or 14, Mr. Custer was experimenting with marihuana. He began drinking alcohol around age 16. When hewas 17 or 18, he first came into conflict with the criminal justice system. [46] Despite these adverse childhood experiences, Mr. Custer recalls other, more positive childhood experiences. Mr.Custer is fluent in Cree, the language of his home and community. Undoubtedly, his language provides Mr. Custer with an importantlink to his culture, identity, and sense of belonging.

His father taught him how to hunt, trap, fish, camp, and collect medicines. Mr.Custer describes their relationship in positive terms, stating, “[he has] always been there for me, since I was a kid.” [47] When Mr. Custer was young, his family spent time together, camping and berry picking. Starting when he was14 or 15 and continuing for five or six years, Mr. Custer danced in the annual Prince Albert Fine Arts Festival. According to his father,George was a good dancer.

[ 48 ] Mr. Custer enjoys the outdoors and working with his hands. For two years, he had a job cutting fence posts with a friend. He has completed training in the areas of firefighting and hazardous materials. He plans to obtain a complete grade 12, as well as qualifications as a youth worker and/or heavy equipment operator. [ 49 ] In 2011, Mr. Custer began a relationship with Theresa Linklater. They have two children: a daughter who is 7 and a son who is 6. Ms. Linklater and Mr. Custer separated in 2017 or 2018. Although both describe their relationship in positive terms, I am satisfied it was not always so.

This will be discussed in more detail below. [ 50 ] In August 2022, Mr. Custer married Regan Ballantyne. [ 51 ] Respecting Mr. Custer’s relationship with alcohol and drugs, the pre-sentence report states: George said he began consuming alcohol when he was 16 years old. Prior to arrest, he advised he would drink alcohol approximately three times a month for two or three days straight. According to him, his alcohol use impacted his desire to attend school or find a job prior to being arrested. When asked if he thought his alcohol use was a problem for him, he presented as unsure.

Initially he said it was not really a problem because he does not always over drink and he has a “good time” however after this, he said it can be a problem “once in awhile” when he drinks too much. George did explain a “whole different person” comes out while he is drinking. He said he has never attended inpatient treatment but has attended appointments with holistic workers at the clinic regarding his alcohol use. When asked about his drug use, George shared he started smoking marijuana at 13 years old. Prior to arrest, he noted he was smoking marijuana everyday.

George explained when he is drinking alcohol and smoking marihuana together, he blacks out. He denied any other drug use, past or present. [ 52 ] In November 2015, Mr. Custer’s cousin, Antoine Custer Jr., was murdered. George and one of his brothers found Antoine lying on the ground. Despite their efforts to help him, Antoine died. Mr. Custer reports that Antoine’s murder has adversely affected his mental health. He also reports feelings of depression and anxiety, which he attributes to past trauma and his current legal predicament. [ 53 ] Mr.

Custer admits that, since being remanded, he has joined the Terror Squad street gang. Criminal Record and Court Orders [ 54 ] Spanning the period between July 2014 (when he was 19) and May 2018 (when he was 23), Mr. Custer’s criminal record is comprised of 34 convictions. They can be categorized as follows: o failures to comply with court orders: 21 o violent offences: 8 o obstruct/resist peace officer: 2 o fail to attend court: 2 o weapons offences: 1 [ 55 ] The offences involving violence are particularly concerning. On July 7, 2014, Mr.

Custer was before the Provincial Court for sentencing on one count of assault causing bodily harm, one count of assault with a weapon, one count of common assault, one count of uttering threats, and one count of possessing a weapon for a purpose dangerous to the public peace, as well as three failures to comply and one failure to appear. As the sentencing transcript makes clear, Theresa Linklater was the victim of all four violent offences, one of which involved the use of a firearm.

The sentence was eight months jail, from which was deducted four months’ remand credit, followed by a four-month conditional sentence order, and twelve months probation. On February 17, 2015, the conditional sentence order was terminated. [ 56 ] On April 20, 2015, Mr. Custer was before the Provincial Court for sentencing upon one count of common assault and one count of breaching a probation order. The victims of the assault were Ms. Linklater and four young women who attempted to intervene on her behalf. Ms. Linklater was grabbed, pushed to the ground, and dragged.

The sentence was six months in jail. [ 57 ] On June 20, 2017, Mr. Custer was again before the Provincial Court, this time for sentencing upon one count of common assault, one count of uttering threats, one count of resisting arrest, and three counts of breach of undertaking. While intoxicated, Mr. Custer assaulted Ms. Linklater by pushing her and striking her in the head while she was holding their son, then five months old. The sentence was 120 days less 81 days remand credit, followed by six months probation. [ 58 ] Finally, on January 6, 2019, Mr.

Custer was before the Provincial Court for sentencing on one count of common assault. The victim of the assault was his mother, Doreen Charles. During an argument about money, he threw a plate at her and punched her in the face. He received a six month conditional sentence order. [ 59 ] Counsel agree that, at the time he shot Jordan Charles, Mr. Custer was subject to the following court orders: o a probation order, dated May 8, 2018;

o an undertaking, dated August 2, 2018; o a conditional sentence order, dated January 6, 2019; and o a firearms prohibition. Post-Offence Conduct [60] Relying on R v Roberts, 2006 ABCA 113, 384 AR 263 (leave to appeal to Supreme Court of Canada refused)[Roberts], the Crown suggests I may consider the fact that, while on remand for this offence, Mr. Custer was charged with an equallyserious, yet unrelated offence. Specifically, Mr. Custer stands charged that, on January 15, 2020, he and a co-accused unlawfully causedthe death of Tyson Lafond and did thereby commit second degree murder.

That charge is scheduled to proceed to trial in late 2023. [61] Mr. Custer objects to my considering this charge. For the following reasons, I agree with him. [62] In Roberts, the accused was alleged to have shot the deceased five times, thereby committing first degreemurder. At trial, there was a voir dire to determine whether evidence of two prior acts, in which the accused was alleged to have pointeda firearm, was admissible at trial. Although the evidence was found to be inadmissible, the judge was satisfied the prior acts had beenproven beyond a reasonable doubt.

Accordingly, he took them into account at sentencing, having found them relevant to the accused’scharacter and background. [63] On appeal, the Alberta Court of Appeal applied the factors enumerated in R v Edwards, (2001), (ON CA), 54 OR (3d) 737 (Ont CA). As a part of its analysis, the Court of Appeal in Roberts noted: [35] In Lau [2004 ABCA 408, 357 AR 312] this Court was concerned that the offender had no opportunity to respond to theimpugned evidence. That is not the case here. The allegations of prior acts were made under oath and subject to cross-examination.

Theappellant testified in response; so did his wife. Moreover, defence counsel was put on notice by the sentencing judge that he intended touse the voir dire evidence in sentencing and could have asked to adduce further evidence if necessary. Even though this appellant had thefull opportunity to respond, he failed to do so. [64] Within two years of Roberts¸ the Supreme Court released its decision in R v Angelillo, 2006 SCC 55, [2006] 2SCR 728 [Angelillo].

Although Angellilo ultimately turns on the admissibility of fresh evidence, the Supreme Court took the opportunityto address “the relevance of evidence of acts that have resulted neither in charges nor in convictions”: para. 17. [65] The facts of Angelillo are somewhat similar to this case.

As here, the Crown sought to introduce evidenceestablishing that, while awaiting sentencing on one charge, the offender had been charged with other offences. [66] Justice Charron began the majority judgment by recognizing the various sections of the Criminal Code thatallow for the admission, at sentencing, of evidence showing an offender has committed another offence. Included are sections 725(1)(b),(b.1), and (c). Subsection (b.1) is relevant here. It requires a sentencing judge to consider outstanding charges against an offender if: (

i) the Attorney General and the offender consent; (ii) the court has jurisdiction to try each charge; (iii) each charge has been described in open court; (iv) the offender has agreed with the facts asserted in the description of each charge; and (

v) the offender has acknowledged having committed the offence described in each charge. On the facts of this case, these preconditions are clearly unmet. [67] However, that is not the end of the matter. As Justice Charron put it: 27 ... if none of the paragraphs of s. 725(1) are applicable, the evidence in the instant case may be the type of extrinsic evidence thatwas in issue in Edwards.

As Rosenberg J.A. recognized, there may be situations in which evidence that relates to one of the sentencingobjectives or principles set out in the Criminal Code shows that the offender has committed an offence but never been charged with orconvicted of it. Such facts may nevertheless be relevant and must not automatically be excluded in every case. … [68] However, if the evidence is contested, the prosecution must prove it. As Justice Charron put it: 32 ...

Since the facts in question will doubtless be aggravating facts, they must be proved beyond a reasonable doubt ... [69] Here, I have nothing more than a description of the outstanding charge. During oral submissions, I raised thepresumption of innocence with Crown counsel. Understandably, he did not propose to call evidence.

The logistics of proving a seconddegree murder charge within a second degree murder sentencing were undoubtedly prohibitive, and would very likely have engaged asecond procedural protection underscored in Angellilo: the prejudicial effect of such evidence must not outweigh its probative value:para. 32. [70] For these reasons, I decline to consider the outstanding murder charge in any way.

[ 71 ] Respecting the telephone calls placed by Mr. Custer from the Prince Albert Correctional Centre, I have reached a different conclusion. By consent, an audio recording of the calls was played during the trial and, by agreement, tendered as full exhibit P-30. [ 72 ] On each of August 21, 22, September 6, 10, and 11, 2021, Mr. Custer spoke by telephone with his former spouse, Theresa Linklater. On August 21, he told Theresa, “you have to put in some work for me”.

When she asked what he meant, he said, “I would fucking go kidnap those people so they won’t come to court.” [ 73 ] On August 22, he was more specific. After naming several of the Crown witnesses, Mr. Custer said he already took care of Neanna and Blaine. Later, he said: ... I need you in a couple days or something like that to go to Ardell’s and I want to talk to everybody at once ... I want to talk to them myself, man.

Tell them that, if you guys don’t come to court, me and Greg are going to come out together man, but .. if you guys come to court, you guys are going to basically ... put me in jail, and Greg is going to walk or some shit like that. And still later: ... you’re going to have to do whatever you can to stop those guys from coming to court man. When Theresa suggested she would get them drunk, Mr. Custer said: No. Get the boys together, man.

Get the boys together and fucking tell them to mask up and tell them not to go to court man or they’re going to go there, and tell them that fucking people are going to ... some people from S’toon are going to be coming to court in Melfort and a couple guys from Meadow Lake. Respecting his brother, Greg, Mr. Custer said: ... he’s fuck all to me, man. I already told him man, if he comes to court man, I’m going to fucking stab him up man. I told my mom. My mom didn’t even want to talk to me man. I don’t give a fuck what I do man, fuck I’m not going to jail forever.

Fuck, I’ll do what I can to keep them all from coming man. [ 74 ] On September 6, there were further references to the boys from Saskatoon who will “deal with it”, “trunk em,” and “fucken make them disappear.” [ 75 ] A particularly chilling exchange occurred on September 10, 2021. During that conversation, Mr. Custer said: ... if you guys can get a hold of fucken Coltin, Blaine, and Daniel. If they come to court towards Melfort, fuck tell them there’s a bullet with ... a bullet each waiting for them if they do come. Later in that call, Mr. Custer named Neanna Sewap and Crystal Ballantyne.

When Theresa said, “we just have to tell them there’s a bullet each waiting for them if they go to court”, Mr. Custer said, “a bullet each waiting for them, I already got boys coming.” There is also a discussion about paying Crystal Ballantyne to not attend court. Similar themes were repeated on September 11, 2021. [ 76 ] There are two additional calls that formed part of the evidence at trial. In both, Mr. Custer spoke to a man identified by name as “Jabo”. On September 6, 2021, Mr.

Custer confirmed Jabo had received some names, then asked, “do you want to take care of that or what?” Jabo replied, “Yeah man, I can get some of them, but not all of them.” Mr. Custer said, “just tell em out of respect ... to miss your court, not to come to court.” [ 77 ] On September 18, 2021, Mr. Custer spoke to Jabo again. Part of the conversation unfolded as follows: George: ... Coltin and Daniel showed up man. Jabo: Coltin and Daniel? George: Yeah, you fucken failed. Jabo: Fuck man I’m gonna ... George: Bro, they came point fingers at me. Jabo: Fuck man, can I do something about ... George: Say less bro.

And later, in respect of Blaine: Jabo: Fucken see bro I scared him ... not to go. Fuck man, I beat up fucken Coltin, he said ... “I’m not gonna go”, fuck man. [ 78 ] These calls are the subject matter of charges pending before the Provincial Court at Prince Albert. While Mr. Custer agrees that I may consider the calls, I wish to make my approach clear. First, I do not have the consent of the Attorney General, which means that s. 725(1)(b.1) does not apply.

Second, as was noted by the Supreme Court in Angellilo : 32 … The court can sentence the offender only for the offence of which he or she has been convicted, and the sentence must be proportionate to the gravity of that offence. In addition, the judge can and must exclude otherwise relevant evidence if its prejudicial effect outweighs its probative value such that the offender’s right to a fair trial is jeopardized. Finally, the court must draw a distinction

between considering facts establishing the commission of an uncharged offence for the purpose of punishing the accused for that other offence , and considering them to establish the offender’s character and reputation or risk of re-offending for the purpose of determining the appropriate sentence for the offence of which he or she has been convicted . … [ 79 ] Guided by this passage, my consideration of the calls will be limited to their relevance to issues of character and risk. Attitude [ 80 ] During the pre-sentence report interview, Mr. Custer was asked about the predicate offence.

Although he identified his actions as wrong, he characterized the murder charge as unfair. When asked to explain why, he said he was very intoxicated at the time, a whole different person comes out when he is intoxicated, and if he had not been intoxicated, it would not have happened. He went on to acknowledge it was also unfair for the victim’s family to lose a family member. [ 81 ] When asked about his high-risk areas, Mr. Custer did not think he had any. When asked what he could have done differently, Mr. Custer said he was not too sure, some things are meant to happen, and everybody makes mistakes.

When asked what he has learned since March 10, 2019, Mr. Custer said, “I am missing out on things and stuck in jail for the rest of my life.” Risk [ 82 ] Using the Saskatchewan Primary Risk Assessment Tool, Mr. Custer was assessed as a high risk for general recidivism. Eighty percent of individuals within the high-risk category reoffend within three years in the community. Mr. Custer was assessed as being within the 86th percentile, which means that only 14 percent of Saskatchewan offenders were assessed as having more risk factors than him. Remorse [ 83 ] Before court opened on October 12, 2022, Mr.

Custer offered an apology to Geraldine Charles, Jordan’s mother. The two embraced. Through counsel, Mr. Custer again apologized, saying he was sorry for everything that happened. He also said that, if there was a way to give his life to bring back Jordan, he would. Similarly, if he could turn back the clock, he would do that too. [ 84 ] Respecting Mr. Custer’s character, the Crown identifies the following factors as aggravating: o Mr. Custer’s criminal record; o the number of court orders in effect at the time of the offence; o previous attempts at restorative or rehabilitative sentences; o Mr.

Custer’s lack of insight into his use of alcohol; o Mr. Custer’s attitude toward the offence; o Mr. Custer’s attempts to intimidate witnesses and dissuade them from testifying through threats of violence and actual violence; o Mr. Custer’s membership in the Terror Squad; and o the risk assessment tool, indicating he is high risk to reoffend. [ 85 ] Mr.

Custer identifies the following factors as mitigating: o his young age; o his sincere remorse; o his systemic and background factors; o his considerable strengths, identified in the Gladue report; and o his prospects for rehabilitation, as supported by Correctional Service of Canada (CSC) programming, community-based organizations such as the FASD Network and the Integrated Justice Program, and hopefully, the Willow Cree Healing Lodge, for which he is particularly well-suited as a Cree speaker who is strongly connected to his culture.

The Purpose of Sentencing [ 86 ] Of the sentencing objectives enumerated in s. 718 , I find that denunciation, deterrence, and protection of the public are the paramount sentencing considerations. Respecting rehabilitation, I am deeply troubled by Mr. Custer’s wholehearted embrace of violence as a tool to escape legal responsibility for past violence. That he would make those calls while on remand belies both a surprising lack of insight and a commitment to violence as a means to achieve his ends. [ 87 ] I am also troubled by Mr.

Custer’s overall lack of insight – into his risk factors, his alcohol use, and his responsibility for the offence. He has not responded well to previous sentences and was not deterred by court orders. Under these circumstances, I can only conclude that Mr. Custer presently poses significant risk to the public.

[ 88 ] However, I have also considered Mr. Custer’s strengths, as outlined in the Gladue report, as well as the opportunities for programming, including a possible transfer to the Willow Cree Healing Lodge, where culturally informed programming may be particularly effective in reducing risk. I am not convinced Mr. Custer is intractable, nor that the situation is hopeless. Parity [ 89 ] Of the reported cases filed by counsel, I find R v Burwell , 2017 SKQB 375 of most assistance. When he was about 20 years of age, Mr. Burwell caused the death of another young man by hanging him.

During a three-day methamphetamine binge, Mr. Burwell placed a bag over the victim’s head and put toxic substances into his drink. One of Mr. Burwell’s friends looped a rope over a basement beam. The rope was placed around the victim’s neck, after which Mr. Burwell kicked the victim’s feet out from under him. The friend held the victim’s feet off the ground, while Mr. Burwell held the rope. It took about a minute for the victim to die. Mr. Burwell then altered the scene to make it look like a suicide. Mr. Burwell told police the victim had admitted to sexual assault upon a child. Later, Mr.

Burwell recanted that statement as untrue. No alternative motive was ever provided. Had Mr. Burwell not confessed, it is unlikely the murder would ever have been solved. Mr. Burwell pleaded guilty. [ 90 ] Mr. Burwell’s childhood was marred by his father’s abandonment, his mother’s drug addiction, and violence within his home. Mr. Burwell was physically assaulted by family members and sexually assaulted by his mother’s boyfriend over a period of four years. [ 91 ] When he was 12, Mr. Burwell began drinking. When he was 14, his mother died. He turned to illicit drugs and quickly became addicted.

At sentencing, crystal meth and crack cocaine were identified as his drugs of choice. [ 92 ] Mr. Burwell had a limited criminal record, with only one conviction for a violent offence. Admittedly, the facts were disturbing. While a youth, Mr. Burwell stabbed a 14-year-old boy twice in the back at a party. [ 93 ] At the time he pleaded guilty to murder, Mr. Burwell also pleaded guilty to several other charges, including possession of a prohibited firearm, committed about six weeks before the murder, and armed robbery committed about nine months later.

The circumstances of the armed robbery were particularly serious. Mr. Burwell, masked and armed with a sawed-off shotgun, choked a pizza delivery man to the point of unconsciousness. When the victim regained consciousness, there was a struggle over the firearm, which discharged. [ 94 ] Following his arrest, Mr. Burwell’s behaviour did not improve. He threatened a guard and fought with other inmates. Respecting risk to reoffend, the Court concluded, “the odds are very high that Mr.

Burwell will continue to commit violent offences.” [ 95 ] Respecting Gladue factors and moral culpability, the Court held: [133] Notwithstanding my careful assessment and consideration of Mr. Burwell’s personal circumstances and the Gladue factors leading me to find that there is some diminishment of his moral responsibility, I conclude that he is a highly culpable individual. He has absolutely no one to blame for his crimes but himself. The sentence I am about to impose on all matters before me is intended to be proportionate to his overall responsibility, or moral blameworthiness.

As well, I have at the forefront of my mind that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. [ 96 ] Parole ineligibility was set at 16 years. Proportionality [ 97 ] As noted above, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of an offence lies in its nature, its comparative seriousness, and the harm it caused. [ 98 ] Punishable by life imprisonment, second degree murder is one of the most serious offences known to Canadian criminal law.

Its impacts are devastating, including trauma, grief, and profound loss that can endure for generations. Jordan Charles was a spouse, a father, a beloved son, and brother. [ 99 ] Although brief, Geraldine Charles’ victim impact statement eloquently captures her feelings of fear, sadness, loss of safety, and despair: I feel very scared for my life. His brothers scare me too. I always feel very lonely for my son. He always kept us together. His brothers bust holes on my house and they pepper sprayed my house. Sometimes I can’t sleep at night when I hear noise outside. I have bad headaches.

I left home for 3 months to help my mental health and, when I came back, all the bad feelings came back and it felt worse. [ 100 ] Respecting moral culpability, I have considered the element of planning, specifically, Mr. Custer’s plan to provoke a confrontation in a residential neighbourhood while armed with a prohibited firearm. I have considered his single-mindedness. I have considered that, despite his level of intoxication and the somewhat chaotic circumstances, Mr. Custer could differentiate between Blaine and Jordan.

He asked Blaine, “where’s Jordan?” and then paused long enough for Jordan to plead for his life. [ 101 ] All these factors increase Mr. Custer’s moral culpability.

[ 102 ] However, these are not the only factors I have considered. I have also considered Mr. Custer’s circumstances as an Indigenous person, including the ways in which colonization and residential schools impacted his community and family, rendering him vulnerable to adverse childhood experiences that impacted his social and emotional development and predisposed him to addictions issues. I am satisfied these systemic and background factors do reduce Mr. Custer’s moral culpability, albeit to a modest extent. [ 103 ] Before sentencing Mr.

Custer, I pause to address the Crown’s concerns respecting the Gladue report. Many of those concerns centered on its exploration of potential diagnoses: traumatic brain injury, FASD, anxiety, and depression. Respecting these portions of the report, defence counsel confirmed she was not relying upon them as medical opinions and intended to focus on more “traditional” Gladue factors. She felt the value of the potential diagnoses lay in their ability to inform future treatment providers.

I have placed no weight on these potential diagnoses. [ 104 ] The remainder of the Crown’s concerns focused on the veracity of the information provided by Mr. Custer and by Theresa Linklater. While I acknowledge there are some discrepancies between the pre-sentence report, the Gladue report, and a more dated pre-sentence report, my overall assessment of Mr. Custer’s input is that it was detailed, balanced and not exaggerated. Accordingly, where the source of information was Mr. Custer or his father, I accepted it as reliable, while placing less weight on the information provided by Ms. Linklater.

Conclusion [ 105 ] Mr. Custer, would you please stand: 1. I sentence you to life imprisonment with no eligibility to apply for parole for a period of 15 years. 2. Pursuant to s. 487.051 of the Criminal Code , I make an order in Form 5.03 authorizing the taking of such samples of bodily substances from you as are reasonably required for forensic DNA analysis. 3. Pursuant to s. 109 of the Criminal Code , I make an order prohibiting you from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. 4.

Pursuant to s. 737(2.1) of the Criminal Code , I waive the victim fine surcharge for reason of undue hardship. 5. Pursuant to s. 743.2 of the Criminal Code , I order that a copy of my April 11, 2022 decision, this sentencing decision, as well as the pre-sentence and Gladue reports, shall be forwarded to the Correctional Service of Canada. Pursuant to the same section, I recommend that Mr. Custer serve his sentence within the Province of Saskatchewan. J. K.L. ZERR