HIS MAJESTY THE KING - v. -, 2023 SKKB 54

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 54 Date: 2023 03 10 Docket: CRM-PA-00026-2019 Judicial Centre: Prince Albert ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING - and - MARRISSA LYNDSAY BIRD Counsel: Shawn E. Blackman for the Crown Patrick M. McDougall for the accused ___________________________________________________________________________ SENTENCING DECISION MACMILLAN-BROWN J. March 10, 2023 ___________________________________________________________________________ A.

Introduction [1] By decision dated September 8, 2022 (R v Bird, 2022 SKQB 202), I convicted Marrissa Bird [Marrissa] ofmanslaughter for the death of Duane Brett Ledoux [Brett]. This matter has travelled a lengthy path to arrive at this destination. Six yearsafter Brett was killed and two years after I convicted Marrissa of manslaughter, it is now time to impose a fit and just sentence upon her. [2] By way of a roadmap for my sentencing decision, I will begin by outlining the relevant facts and then move onto synthesize the principles of sentencing.

I will set forth the positions of the Crown and the defence in more detail. I will review othersentencing decisions. I will discuss what I consider to be the relevant mitigating, aggravating factors, and Gladue factors (R v Gladue, (SCC), [1999] 1 SCR 688). Finally, I will decide where on the spectrum of appropriate sentences Marrissa should falland pronounce sentence upon her. [3] I recognize there is no sentence I can impose upon Marrissa that can remedy the terrible consequences of heractions on that fateful August night in 2017. B.

Factual Backdrop [4] The facts surrounding the offence are set out in detail in my trial decision. I will therefore endeavour toprovide a brief narrative without reproducing my findings in full. [5] Brett was a member of the Prince Albert

chapter of the Terror Squad. Marrissa, who was also a member of theTerror Squad, had only met Brett in passing on one or two occasions before his death. [6] On August 9, 2017, Brett was called to a Terror Squad “meeting” which was to take place at Gerald Pocha’shouse in Prince Albert. On August 9 or 10, 2017, Brett told his mother, Carla Pedersen, that he had to go and “get a minute”, which ingang vernacular meant that he would be beaten for 60 seconds. He told her that he had to get a minute because he had kissed someone’sgirl – which he referred to as a “dirty mack”.

Carla asked if she could talk to the person who had ordered the minute, but Brett told herthat he would not let her get involved. [7] On August 10, 2017, Brett and his then girlfriend, Jessica Keenatch, were walking to Gerald’s home andstopped by his mother’s house around midnight. Carla had done his laundry for him and threw it down to him. Brett told her he lovedher. Carla never saw her son again. [8] Brett and Jessica arrived at Gerald’s house sometime after 12:38 a.m. on August 11, 2017. Brett got a minuteas he expected.

Tragically, however, the events of that night did not end with a mere minute, but rather ended with Brett dead from asingle gunshot.

[9] That Marrissa was the shooter is beyond doubt. Marrissa pointed a gun at Brett and shot him once in the head.However, because there were no eyewitnesses to the shooting, the clearest picture of what happened was painted by Marrissa herself. OnJune 4, 2018, in the last of three video statements to police, Marrissa confessed to shooting Brett. The following excerpts from Marrissa’sconfession – what occurred in her own words – bear repeating. SIMONSON Then let it go tell the truth. So what’s it gonna be, Marissa? Personally I think you’re doing yourself and your family adisservice by not answering to the charge.

That’s just the way I see it. BIRD I don’t know I just seen Lennie and Hoogin pointing it at him and they were joking and they’re saying “safety on safetyoff” and, and then they were pointing it at each other laughing and they would clip it and then the safety was on I knew it, it was like ajoke and then it just went off. Think it was an accident. … BIRD It just happened real fast SIMONSON So who had the gun? You’ve come this far you’ve come this far my dear. BIRD I did he passed it to me SIMONSON He passed it to you.

BIRD And said the safety was on and it just it wasn’t meant it was just I clicked it and it did just go off it didn’t it; it just, justwent off. Then I got so scared I just ran (inaudible) I just went running and I was tryna leave with Lennie and then Hoogin’s like, Marissacome over here and then I, I just listened to him and I went with him then. I didn’t know what to do he just told me that I’m going withhim that we were going. … SIMONSON Kay, so what happened with the gun? BIRD I don’t know I just remember throwing it then. SIMONSON You remember throwing it?

BIRD Yea, think we were I just don’t even remember looking I don’t know and I don’t even know where it hit I don’t know…Itwas supposed to have the safety on. Even when they’re doing it, they would safety on safety off click and it (inaudible) BIRD And he was on then they were doing it to him then I came they kinda just passed it to me I didn’t ask for it then beingstupid and being drunk. It was supposed to have the safety on. … SIMONSON How many times did you shoot?

BIRD It just popped once SIMONSON Kay BIRD Just accidentally … SIMONSON You said it was an accident BIRD It was an accident it happened so fast it popped before I even knew it and it was supposed to have safety on cause theywere going safety on, safety off. It was supposed to be the safety was supposed to be on when they passed it to me. C. Sentencing Provisions and Principles [10] Sentencing is not a rote exercise.

A fit and just sentence cannot be determined by applying a precise formula.There is no mathematical equation. [11] As recognized in R v M.(C.A.), (SCC), [1996] 1 SCR 500 at para 91: [91] … The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals ofsentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into accountthe needs and current conditions of and in the community.

The discretion of a sentencing judge should thus not be interfered with lightly. [12] Similarly, Danyliuk J. described the sentencing process as follows in R v Sand, 2019 SKQB 123 at para 15[Sand]: [15] The Canadian sentencing process is now highly individualized. It is as much art as it is science. … [13] The duty of the Court is to carefully sculpt a sentence, bearing in mind the principles of sentencing, the unique

circumstances of the offence and the offender, all set against the backdrop of community standards and public safety. [ 14 ] In deciding upon a fit sentence in this case, I must take into account the principles of sentencing as set forth in ss. 718 , 718.1 and 718.2 of the Criminal Code , RSC 1985, c C-46 . 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. … 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. … 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act , and (vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 15 ] In broad strokes, the fundamental purpose of sentencing is to contribute to respect for the law and to maintain a just, peaceful and safe society.

In striving toward that fundamental purpose, I must be guided by the touchstone sentencing objectives of denunciation, deterrence, rehabilitation, reparation and acknowledgment of victims and the community at large. Which objectives are paramount is dependent upon the unique circumstances of the individual case. [ 16 ] The principle of proportionality – that the sentence I impose must be proportionate to the gravity of the offence

and the degree of responsibility of the offender – is central to modern sentencing in Canada. In R v Ipeelee, 2012 SCC 13 at paras 37-38,[2012] 1 SCR 433 [Ipeelee], Justice LeBel stated as follows: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality.

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justicesystem. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, atp. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence.

Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [38] Despite the constraints imposed by the principle of proportionality, trial judges enjoy a broad discretion in the sentencing process.The determination of a fit sentence is, subject to any specific statutory rules that have survived Charter scrutiny, a highly individualizedprocess. Sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and theparticular offender.

Appellate courts have recognized the scope of this discretion and granted considerable deference to a judge’s choiceof sentence. As Lamer C.J. stated in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. [Emphasis inoriginal.] [17] The principle of parity dictates that any sentence I impose must be similar to sentences imposed on similaroffenders in similar circumstances. Parity does not, however, operate as a straitjacket for sentencing judges. Rather, parity provides theCourt with guideposts against which to assess a fit and just sentence.

It operates as a function of proportionality. [18] In that regard, the Supreme Court stated as follows in R v Lacasse, 2015 SCC 64 at para 57, [2015] 3 SCR 1089: [57] Tariffs differ from sentencing ranges in that tariff-based sentencing is theoretically the opposite of sentence individualization,which the ranges allow: Thomas [D.A. Thomas, Principles of Sentencing, 2d ed (London: Heinemann, 1979)], at p. 8. On the other hand,the principle underlying the two approaches is the same: ensuring that offenders who have committed similar crimes in similarcircumstances are given similar sentences.

The same is true of the starting-point approach, which is used mainly in Alberta butsometimes also in other Canadian provinces: R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 69. Ultimately,whatever mechanism or terminology is used, the principle on which it is based remains the same.

Where sentencing ranges areconcerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing.Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in anygiven case as guides for the application of all the relevant principles and objectives.

However, they should not be considered “averages”,let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise theirdiscretion in each case: Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to pastdecisions that the “range”, as it were, must be expanded.

The fundamental point is that a “range” is not a straitjacket to the exercise ofdiscretion of a sentencing judge. [19] In a recent Saskatchewan decision, our Court of Appeal stated as follows at paragraphs 78 and 79 of its decisionin R v Ratt, 2021 SKCA 7. [78]

Section 718.2(

b) embodies the principle of parity. It provides that a sentence should be similar to sentences imposed on similaroffenders for similar offences committed in similar circumstances. Parity does not mean uniformity and nor does it trump proportionalityin sentencing. Instead, parity informs the proportionality principle; it helps to define what is a proportionate sentence, as the Courtexplained in Friesen [2020 SCC 9, [2020] 1 SCR 424]: [32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application ofproportionality will lead to parity.

Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity norproportionality (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, atparas. 78-79). [33] In practice, parity gives meaning to proportionality.

A proportionate sentence for a given offender and offence cannot be deducedfrom first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody thecollective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality. [79] The principle of parity does not detract from the need for sentences to be individualized.

In R v Pham, 2013 SCC 15 at para 9,[2013] 1 SCR 739, the Supreme Court said that differing personal circumstances between offenders can justify differing sentences forsimilar offences. Parity is also not a matching exercise. While the parity principle is grounded in concepts of fairness, it is rare that the

circumstances of two offences and the offenders who commit them will match perfectly ( R v Klemenz , 2015 SKCA 89 at paras 45–46 ), [2016] 1 WWR 234). [ 20 ] Against the backdrop of these general sentencing principles, I must ask the question of whether there are any aggravating or mitigating factors that should militate for or against a particular sentence in this particular case. [ 21 ] Finally, Marrissa is an Indigenous offender which folds another crucial ingredient into the sentencing mix.

Section 718.2 (

d) and (

e) of the Criminal Code provides that the least restrictive sanction should be identified and that all available sanctions other than imprisonment should be considered, with particular attention to the circumstances of Aboriginal offenders. [ 22 ] In his decision in Sand , Danyliuk J. aptly summarized the purpose and application of the Gladue principles, and I shall simply reproduce his comments from paragraphs 20 to 24: [20 ] In my view sentencing judges cannot help but recognize that Parliament amended the Criminal Code to include s. 718.2 (

e) in large measure out of concern for the high incarceration rates of First Nations people, especially when measured against the general First Nations population in Canada and the disproportionate number of First Nations people within the general prison population. This subsection was intended to have sentencing judges take a somewhat different view of sentencing in the cases where it was warranted and possible, a view that was more restorative in nature.

It was hoped that this approach would, at least in part, address the issue of the overrepresentation of First Nations people within our prison system. [21 ] Gladue and the other cases cited have all interpreted s. 718.2 (e). It is not a “get out of jail free” card; neither is it an automatic discount to be applied to the sentences of First Nations offenders ( Chanalquay [2015 SKCA 141 , 472 Sask R 110 ] , para 54; Lemaigre [2018 SKCA 47] , para 17).

Rather, it is a direction that sentencing judges must consider additional factors when crafting a fit sentence for an individual offender, particularly one of First Nations heritage. There are two main additional factors to consider. Either, or both, can have an effect on what constitutes a fit and just sentence for a particular offender. In some respects, Gladue and s. 718.2(

e) are just refinements of the maxim: “Sentence the offender, not the offence”. [22 ] First, sentencing judges must consider systemic, or widespread, factors that may have impacted upon the offender presently before the court. Sentencing judges are entitled to take judicial notice of these systemic factors, such as the effects of residential schools and the theory of colonization.

These factors may illuminate the degree to which an Aboriginal offender has moral blameworthiness for the crimes he or she has committed - in other words, the degree of responsibility of the offender. [ 23 ] Seldom, if ever, does this mean that the socio-economic and cultural background of an offender is such that his or her moral blameworthiness is likely to be eliminated entirely. It is hard to imagine circumstances where that background will vitiate voluntariness.

But that same personal background, in some cases, will operate to create a milieu wherein the offender does not have the same chances for success as others do. As was said in Ipeelee [2012 SCC 13 , [2012] 1 SCR 433 ] at para 73, “. . . the reality is that their constrained circumstances may diminish their moral culpability”. [ 24 ] I also hasten to add that the so-called “ Gladue analysis” is not the be-all and end-all of modern sentencing. It is one of a group of factors that can affect the level of moral blameworthiness of an offender.

Clearly, it is incumbent on sentencing judges to consider all of those factors in a holistic fashion. While the Gladue analysis is mandated by s. 718.2(e), it might be considered to be one of numerous components falling under the s. 718.1 directive: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Many things might go into the s. 718.1 consideration.

These will include, but not be limited to, what is mandated by s. 718.2(e): Chanalquay , para 40 . [23] Similarly, in R v Chanalquay , 2015 SKCA 141 at paras 42 and 43 , 26 CR (7th) 276 , the Court of Appeal stated: [42] Thus, while s. 718.2( e ), as interpreted by Gladue and Ipeelee , mandates a particular kind of analysis when sentencing an Aboriginal offender, it does not create a wholly new sentencing paradigm. … [43] I note that this means a sentencing judge must attempt to understand not just the situation and background of the offender and the particulars of the crime in issue.

He or she must also, to the extent reasonably possible, attempt to understand the relevant dynamics of the community and the circumstances of the victim. After all, the victims of crimes committed by Aboriginal offenders are all too frequently other Aboriginals, often ones with precisely the same Gladue backgrounds as the offenders. They must not be overlooked.

In order to understand all of this, it may sometimes be necessary for a trial judge to demand more than is typically provided in this province by way of a pre-sentence report. [24] At first blush, it may seem that the impact of colonialism is remote and peripheral in relation to a particular offender.

However, there does not need to be a direct causal connection between an offender’s personal circumstances and the commission of the offence. [ 25 ] In that regard, the Supreme Court commented as follows in Ipeelee , at paras 81 to 83 : [81] First, some cases erroneously suggest that an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge. … The Supreme Court found that to require such a causal link would display: [82] … an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples.

It also imposes an evidentiary burden on offenders that was not intended by Gladue . … [83 ] … it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. …

[26] In the recent case of R v Parranto, 2021 SCC 46, the majority, at paragraph 50, states: [50] When reviewing sentences imposed on Indigenous offenders, appellate courts must bear in mind that a “formalistic approach toparity” should not be allowed to “undermine the remedial purpose of s. 718.2(e)” (Ipeelee, at para. 79). Whether starting points or rangesare used, sentencing judges are under an obligation to factor in the “unique circumstances of an Aboriginal offender which couldreasonably and justifiably impact on the sentence imposed” (para. 72; see also R. v.

Park, 2016 MBCA 107, 343 C.C.C. 3(d) 347, atpara. 24). As recognized by the Court of Appeal of Alberta in R. v. Swampy, 2017 ABCA 134, 50 Alta. L.R. (6th) 240, at para. 36,“[t]here can be no sound proportionality analysis in the case of an Aboriginal offender without considering the impact of the offender’sAboriginal heritage on his moral culpability.” The Court of Appeal has also stated that it is an error in principle for a sentencing judge torefer to Gladue factors without considering the impact of those factors on moral blameworthiness (R. v. Bird, 2021 ABCA 243, atpara. 20 ). D. Sentencing Jurisprudence 1.

Sentencing range for manslaughter [27] Manslaughter is in the upper echelon of serious offences with significant sentencing repercussions. By imposinga maximum term of life in prison, Parliament has sent a clear message that the sentence for manslaughter must reflect the gravity of theoffence. [28] However, when considering the sentencing objective of parity, it is important to remember that not everymanslaughter is alike. The tragic consequence – death – is the same.

Loved ones are left without a mother, a father, a sibling, a friend.However, the circumstances of each case are entirely unique, and the court must decide where on the spectrum of moral culpability anoffender who commits manslaughter should lie. [29] In Saskatchewan, the general sentencing range for manslaughter is a four- to 12-year term of imprisonment.That the range is so broad is indicative of the fact that there is a wide range of circumstances that can lead to a conviction.

In R v W.M.,2021 SKCA 103 at para 75, Richards C.J.S. wrote that “[i]t can be somewhat difficult to identify the appropriate sentence for amanslaughter offence because the underlying facts of the offence vary a great deal from case to case.” [30] Allbright J. discussed the range of sentence for manslaughter in his decision in R v Hathway, 2008 SKQB 480 atparas 33 and 36, 327 Sask R 129 [Hathway]: [33] The offence of manslaughter is a unique offence in Canadian criminal jurisprudence in that it covers a very broad spectrum ofcircumstances, all of which are characterized as possessing the criminal culpability required for the commission of the offence ofmanslaughter.

The spectrum reflects the endless combination of circumstances which may give rise to the offence and ultimately, is anoffence which for the purpose of sentencing, requires a thorough analysis of the existing sentence precedents, the circumstances of theoffence and the circumstances of the offender. This spectrum, particularly as it relates to possible sentences, was commented upon byMcLachlin J., as she then was, in R. v. Creighton (1993), (SCC), 83 C.C.C. (3d) 346 (S.C.C.).

At page 375, sheobserved: I come then to the second factor mentioned in Martineau, the relationship between the punishment for the offence and the mens rearequirement. Here again, the offence of manslaughter stands in sharp contrast to the offence of murder. Murder entails a mandatory lifesentence; manslaughter carries with it no minimum sentence. This is appropriate. Because manslaughter can occur in a wide variety ofcircumstances, the penalties must be flexible.

An unintentional killing while committing a minor offence, for example, properly attracts amuch lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of whatwould be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral faultof the offender.

This court acknowledged this in Martineau, at p. 362: “The more flexible sentencing scheme under a conviction formanslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of theoffender.” It should be noted in contrast to the Criminal Code manslaughter sentencing provisions in effect at the time of McLachlin J.’s judgmentin R. v. Creighton, supra, the current classification of sentencing for manslaughter recognizes in those instances in which a firearm isutilized, that there is now a minimum imprisonment for a term of four years.

Her comments nonetheless remain vitally apposite. … [36] In considering the relevant decisions of the Saskatchewan Court of Appeal and various decisions of the Saskatchewan Court ofQueen’s Bench which have not been subject to appeal, I have concluded that the appropriate range of sentencing for the offence ofmanslaughter in the Province of Saskatchewan is between four years and 12 years.

There are isolated instances of sentences less thanfour years, and sentences greater than 12 years, however they are indeed exceptional, and in my view, a sentence falling outside of therange of four years to 12 years ought to occur only in the most unusual, exceptional or extenuating of circumstances.

A distillation of thesentencing principles articulated in ss. 718, 718.1 and 718.2 of the Criminal Code, along with the circumstances of the offence and thecircumstances of the offender, will result in the vast majority of instances, in a sentence falling within this range. [31] In R v Keepness, 2010 SKCA 69,255 CCC (3d) 457, the Court of Appeal took issue with Allbright J.’s statementin Hathway that the Court should only depart from the 4- to 12-year sentencing range in “usual, exceptional or extenuating ofcircumstances” but did not depart from the notion of the 4- to 12-year sentencing range for manslaughter. [32] In a very recent case, R v Morrison, 2022 SKQB 194 [Morrison], Popescul C.J. stated as follows atparagraph 74: [74] The offence of manslaughter covers a broad spectrum of circumstances, which accounts for the variable range of sentencesimposed by courts across the country.

In R v LaBerge, 1995 ABCA 196, 165 AR 375, the Alberta Court of Appeal commented that while

there are common elements to all manslaughter cases – conduct which caused the death of another but falls short of intention to kill – there are different degrees of moral culpability ranging from near accident at the one extreme to near murder at the other. At para. 6, the Court said this: 6 All unlawful act manslaughter cases have two common requirements conduct which has caused the death of another; and fault short of intention to kill.

However, despite these common elements, the offence of unlawful act manslaughter covers a wide range of cases extending from those which may be classified as near accident at the one extreme and near murder at the other: … . Different degrees of moral culpability attach to each along a continuum within that spectrum. It is precisely because a sentence for manslaughter can range: from a suspended sentence up to life imprisonment that the court must determine for sentencing purposes what rung on the moral culpability ladder the offender reached when he committed the prohibited act.

The purpose of this exercise is to ensure that the sentence imposed fits the degree of moral fault of the offender for the harm done. [ 33 ] Similarly, Popescul C.J. stated as follows at paragraph 77 in Morrison : [77] Although the Court has the authority and responsibility to craft a sentence that fits this offender to this crime, regard must be had to the jurisprudence that guides the analysis. In Saskatchewan the range of sentence for the offence of manslaughter is generally between 4 and 12 years.

See R v Moostoos , 2017 SKQB 12 at para 33 ; R v Jimmy , 2009 SKQB 124 at para 25 , 330 Sask R 306 ; and R v Hathway , 2008 SKQB 480 at para 36 , 327 Sask R 129 . This general range, however, should not be seen as a restraint. [ 34 ] Though it is well established in Saskatchewan jurisprudence, it must be recognized that the manslaughter sentencing range does not operate as a judicial “straightjacket”.

The Court is not mandated to impose a sentence that falls within this range of 4 to 12 years in custody. [ 35 ] Thus, at the end of the day, there is no “fixed tariff” when sentencing an offender guilty of manslaughter. A nuanced approach must be taken based upon the totality of the information before the Court in relation to both the offence and the offender when determining a fit and just sentence for manslaughter. 2.

Positions of the Crown and the defence [ 36 ] In line with the prevailing sentencing jurisprudence, both the Crown and the defence speak in terms of a spectrum when it comes to sentences to be imposed for the offence of manslaughter. At one end of the spectrum is manslaughter that can be characterized as “near accident”. At the other end of the spectrum is manslaughter that can be characterized as “near murder”.

It is where on the spectrum Marrissa is properly placed that the Crown and defence diverge. [ 37 ] The Crown suggests that Marrissa’s offence falls on the “near murder” end of the manslaughter spectrum and that an appropriate disposition is a 12-year custodial sentence. [ 38 ] The Crown referenced several cases in support of its contention that a 12-year custodial sentence is warranted in the circumstances of this case: • R v Brooks , 2012 ONCA 703 , 298 OAC 126; • R v Ispanovic , 2008 BCCA 270 , 257 BCAC 31 ; • R v Snelgrove (1977), 13 Nfld & PEIR 190 (Nfld CA) ; • R v Brooks , 2016 ONSC 4645 ; • R v McMath , 2015 BCSC 440 ; • R v Loppie , [2006] OJ No 1025 (QL) (Ont Sup Ct) ; • R v Leaf , [2004] OJ No 1692 (QL) (Ont Sup Ct) ; • R v Alexander , 2022 ONSC 1225 ; • R v Khan , 2022 ONSC 410 ; • R v Fiddler , 2018 SKQB 197 [ Fiddler ] ; • R v Garthwaite , 2018 ONSC 6776 ; • R v Worm , 2009 SKQB 125 ; • R v Jimmy , 2009 SKQB 124 , 330 Sask R 306 ; • R v Weir , 2022 ONCJ 399 ; • R v Janvier , 2020 SKPC 12 [ Janvier ] ; and • R v Hohner , [1995] OJ No 3056 (QL) (Ont Ct J) . [ 39 ] The defence characterizes this offence as being on the “near accident” end of the manslaughter spectrum and suggests that an appropriate sentence in this case is “time served”.

Given the amount of time that Marrissa has spent on remand, which I will discuss below, the defence is effectively suggesting a custodial sentence of approximately six years and nine months.

[ 40 ] In support of its position that a fit and just sentence would be time served, the defence referenced several cases, a few of which overlapped with the cases cited by the Crown: • R v Whitehead , 2016 SKCA 165 , 344 CCC (3d) 1 [ Whitehead ]; • R v Ward , 2023 NLSC 15 ; • R v Panipakoocho , 2022 NUCJ 33 ; • R v Grumbo , 2022 SKQB 119 ; • Sand ; • Fiddler ; • R v Kurek , 2018 SKQB 168 ; • R v Moostoos , 2017 SKQB 12 ; • R v Strongquill , 2016 SKQB 397 ; • Hathway ; • Janvier ; and • R v Bellegarde , 2019 SKPC 22 . [ 41 ] Having reviewed the cases submitted by the Crown and the defence, I do not accept either position.

This offence was not near accident. It was not near murder. As is oft the case, this offence falls somewhere between the two positions. Below, I will discuss where on the spectrum I place Marrissa’s killing of Brett. E. The Offender 1. Marrissa’s personal circumstances and history [ 42 ] I have drawn much of the information in relation to Marrissa’s background from the pre-sentence report [PSR] and the Gladue report dated February 6, 2023 [ Gladue Report], which were filed as Exhibits C-1 and D-1 respectively at the sentencing hearing.

There is considerable overlap between the two reports though the Gladue Report, as it is designed to do, focuses more intensely upon Marrissa’s Indigenous background. [ 43 ] Marrissa was born in Edmonton, Alberta, on March 3, 1989 – turning 34 years old one week ago. She was just 27 years old when she committed this offence. Marrissa has two older half-brothers and one younger brother. Unfortunately, one of Marrissa’s older brothers passed away less than a year ago. Marrissa has three children ranging in age from 9 to 14 years old. [ 44 ] Marrissa and her youngest brother share the same father – Spencer Bird.

He is a member of the Ahtahkakoop Cree Nation. Marrissa’s father has been in and out of custody for most of her life. He is currently in custody in the Prince Albert Correctional Centre. Marrissa’s mother, Joyce Sayese, is M é tis. [ 45 ] Marrissa lived with her mother and brothers in Calgary until she was five years old. At that time, they moved to Prince Albert. [ 46 ] Both the Gladue Report and the PSR paint a picture of a very troubled childhood for Marrissa – largely arising out of two factors.

First, Marrissa’s mother struggled with addictions, including alcohol and intravenous drugs, and was unable to provide for and parent Marrissa and her brothers. Second, when her father was not in custody, the relationship between him and Marrissa’s mother was toxic and marred by significant domestic violence. Marrissa witnessed the domestic violence firsthand. [ 47 ] Marrissa was very close to her Aunt Bernice, who died of cancer in 2003, when Marrissa was 14 years old. It appears it was at this point that Marrissa began drinking heavily and using marijuana.

By the time she was 16, she was smoking crack cocaine, partying and had dropped out of school. [ 48 ] Marrissa became pregnant with her oldest child when she was 18 years old. Upon learning of the pregnancy, Marrissa left the life of drugs, alcohol and partying. According to the PSR at page 4: In 2007, at 18 years old, Marrissa entered into a common-law relationship with her now ex-partner…She became pregnant with their first child, a daughter, from this union. This was the event in her life that caused her to stop using alcohol and drugs for a period of time.

She describes her experiences with motherhood as “the best thing in this world” and believes when she had her children, she became a “natural mom”. Marrissa had her first son in 2010 and then her second son in 2014. From the time she found out about her pregnancy with her daughter through until late 2015, Marrissa reports that she maintained her sobriety. [ 49 ] In April 2016, however, Marrissa’s younger brother was charged with murder. This was traumatic for her, and she spiralled out of control once again.

As described in the PSR at page 5: Marrissa describes this event as her second loss in her life and recalls thinking he would be sentenced to life in jail when she found out the news and “took it pretty hard”. As a result, she began heavily drinking, using substances again, and tried crystal methamphetamine for the first time…Marrissa states “I lost myself before I even knew it”.

Marrissa identifies her brother’s arrest as a catalyst for events leading up to her arrest for the index offence. Within a few months, Marrissa was associating with and had joined Terror Squad (TS) and states less than a year later she was facing her current charge. Joyce reports in 2017 she saw a “360-degree change” in Marrissa. [ 50 ] Marrissa is generally physically healthy but struggles with some mental health issues. She was diagnosed with ADHD when she was five years old.

She reports having anxiety and panic attacks regularly and having undiagnosed depression. [ 51 ] Marrissa received most of her education in Prince Albert but did not graduate at the time. She has had some very sporadic employment over the years. [ 52 ] As indicated, substance abuse plagued much of Marrissa’s life. Though she was able to maintain sobriety for a lengthy period of time after having her first child, she spiralled out of control in 2016 after her brother was charged with murder. Marrissa’s addictions followed her into custody, and she overdosed on drugs on two occasions while on remand.

Most notably, she overdosed after the trial in this matter but before I handed down my decision. She was placed in a medically-induced coma and required ventilation to assist with her breathing. It was touch and go, but Marrissa survived. She is now on the Suboxone program to manage withdrawal and to maintain sobriety. [ 53 ] This offence took place while Marrissa was a member of the Terror Squad, and her involvement in gang activity is pertinent. The PSR states at page 8: As noted, Marrissa joined the TS gang in October 2016 when she was 27 years old.

She states she got into it because of the people she was hanging around with at the time and because of her regular meth use. Had she never started using meth, Marrissa believes she would have never joined the gang. … Sgt. Darren Androsoff with Prince Albert Police Services (PAPS) provided further insight into Marrissa’s gang involvement at the time of the index offence. He advised, given his experience with the TS in Prince Albert, he understands the hierarchy to follow the pattern of “hang around”, then “soldier”, followed by “higher up”, and finally at the top “floor holder”.

At the time of the index offence in 2017, he reports it was clear there were two “floor holders” in Prince Albert, one for men and one for women. Sgt. Androsoff reports Marrissa was believed to be a “higher up” for the TS as police were aware she was being considered as a “floor holder”. [ 54 ] According to the defence, Marrissa is no longer a member of the Terror Squad, having taken a minute while on remand.

She began working with STR8 UP in 2020 and continues to work with them at this time. [ 55 ] Marrissa has taken advantage of programming while on remand – notwithstanding the limited availability for individuals who have not yet been convicted and sentenced. According to the Gladue Report, Marrissa completed the following programs: a. Cultural Drug program; b. Grief and Loss program; c. Social Skills program; d. Healthy Parenting; e. All My Relations cultural program; f. Ribbon Skirt; g. Competencies program; h. Anxiety program; and i.

Bible studies. [ 56 ] Most notably, Marrissa achieved her Grade 12 diploma while on remand. In a support letter, the teacher therapist at Pine Grove, stated: I have been working with Marrissa for three years as she has been working diligently towards achieving her Adult 12 and has graduated with an admirable grade point average. She is a very determined and dedicated student who has been a pleasure to work with.

Marrissa is a very capable student and I have no doubt that she will go on to achieve post-secondary level education. [ 57 ] One area of concern that arises out of the PSR is Marrissa’s behaviour while on remand – more specifically, numerous infractions including fighting, bullying, intimidation and possessing contraband. She was disciplined for some of these infractions, up to receiving a penalty of 10 days in segregation. That having been said, the Acting Deputy Director of Programs described Marrissa as being cooperative on the unit when she was not impaired. [ 58 ] In a Saskatchewan Primary Risk Assessment

Summary Report [Risk Assessment], which is attached to the PSR, Marrissa’s overall risk for re-offending was described as follows: Marrissa’s overall risk for general re-offending was assessed as being within the high-risk category. Research indicates individuals in the high-risk category recidivated at approximately a(n) 80% rate over a three-year period while in the community. When comparing Marrissa to the remainder of the Saskatchewan offender population Marrissa is assessed to be at the 63 percentile which means 37% of

Saskatchewan offenders were assessed as having more risk factors. … Marrissa appears motivated to make positive change and has been taking the necessary steps while incarcerated, such as continuing hereducation and accessing addictions support through the suboxone program… The risk area of peers and attitude should be addressedfirst, particularly developing the necessary skills to manage high risk situations with negative peers and her pro-criminal thinkingpatterns. Marrissa would also benefit from further interventions and supports related to drugs and alcohol. 2.

Criminal record [59] Marrissa’s involvement in the criminal justice system began in 2005 when she was just 16 years old. She wasconvicted of assault causing bodily harm, robbery and failure to comply with an undertaking. [60] In 2006, Marrissa was convicted on three counts of failure to comply with a youth disposition, theft under$5,000, failure to comply with an undertaking and failure to attend court.

In 2007, Marrissa was convicted once again of failing tocomply with a youth disposition. [61] In 2008, Marrissa received her first conviction as an adult – failing to attend court and failure to comply with ayouth disposition. [62] There is then a four-year gap in Marrissa’s criminal record. In 2012, Marrissa was convicted of failing to complywith a probation order.

This gap in her criminal record coincides with her pregnancy with her first child and maintaining her sobriety untilher brother’s arrest for murder in 2016, as discussed above. [63] Marrissa re-entered the criminal justice system in the summer of 2017. More specifically, she was on remandfrom July 31, 2017, to August 3, 2017 – mere days before she killed Brett on August 11, 2017. She was remanded on an unrelated chargeon October 17, 2017, and was released on electronic monitoring from October 25, 2017, to November 30, 2017, at which point sheabsconded.

She was remanded once again from December 12, 2017, to April 3, 2018. She was placed on remand once again and hasbeen in custody since that time. [64] While on remand, Marrissa was convicted of two counts of assault, one count of theft under $5,000, one failureto comply with a recognizance and one count of mischief under $5,000. These offences resulted in her first custodial sentence. All of herprior convictions resulted in non-custodial sentences. [65] Although there was a conviction in 2012, it is what I would consider to be rather innocuous – a failure to complywith a probation order.

Thus, in essence, there is a gap in Marrissa’s record from 2008 to 2017. In my view, this demonstrates an abilityto live a pro-social life when she is free of the grip of addiction. [66] The “gap principle” was discussed in R v Noltcho, 2021 SKCA 113 at paras 27-31, as follows: [27] This Court has previously recognized the need for sentencing judges to be alert to gaps in an offender’s record as a factor bearingon the appropriate sentence. For example, in R v Kennedy (1972), (SK CA), 5 CCC (2d) 373 (Sask CA), an accusedconvicted of manslaughter was sentenced to two years less one day.

The Crown appealed, pointing to Mr. Kennedy’s extensive criminalrecord that included assault, breaking and entering, escape from custody, mischief, wilful damage and, again, breaking and entering. Mr.Kennedy had ceased all criminal involvement for a period of five years prior to the manslaughter conviction.

This Court determined that,“after having gone five years without involvement in the criminal law, the past record should not be a too material factor in determiningan appropriate sentence” (at 375). [28] Similarly, in R v Klotz, 2015 SKCA 7, 451 Sask R 237, this Court reduced the sentence imposed by the sentencing judge, findingthat the “extensive gaps in the appellant’s record between convictions for breaking and entering … were given no weight by thesentencing judge”.

The sentencing judge had referred to the offender’s “‘continuous’ criminal activity” (at para 8) when there had been a14-year gap between break and enter offences. While the Court did not refer to the gap principle explicitly, the application of theprinciple is evident. [29] More recently, in R v Smith, 2019 SKCA 100, [2020] 5 WWR 70, this Court was required to craft a fit sentence after finding thatthe sentencing judge had erred.

Justice Jackson referred to the “significant gap” (at para 130) in the offender’s criminal record and notedthat it had to be considered in fixing a fit sentence. [30] The gap principle is considered in context with the other principles of sentencing and, thus, does not always serve to ameliorate asentence. The effect of a gap in the criminal record of an offender depends on context and relevance.

As noted in Sentencing [ClaytonRuby, Sentencing, 10th ed (Toronto: LexisNexis, 2020)], “[t]he nature of the offences, the circumstances of the offender, and anyintervening events that render the record more or less relevant will affect the weight given to a prior criminal record” (at §8.117). [31] The principle does not require a timeline absent of all crime for it to come into consideration.

In this regard, in R v Oxford, 2010NLCA 45, 257 CCC (3d) 484, the Court noted that the “gap principle is given effect even if the preceding period is not totally crime freebut is free from crime of the serious nature of the crime for which punishment is then being considered” (at para 22, citing R v Graveline(1958), (ON CA), 120 CCC 367 (Ont CA) and R v Letourneau, 1996 ABCA 309, 193 AR 62). [67] What is striking about Marrissa’s criminal record is that it paints an objective picture of Marrissa’s struggleswith addictions, her relatively lengthy period of sobriety and then her spiralling back into a life of addiction and gang activity.

However,the lengthy gap in her criminal record demonstrates a very real possibility of rehabilitation – which will undoubtedly be tied to her abilityto remain sober and out of gang life.

3. Marrissa’s statement at the sentencing hearing [ 68 ] Marrissa did not simply rely upon the submissions of her lawyer. She spoke to the Court. She spoke to Brett’s family and friends. She exhibited what I consider to be sincere remorse.

Not remorse for the impact that Brett’s death on her life but, rather, remorse for the impact of Brett’s death – death at her hands – on his family and friends. [ 69 ] The following excerpts from Marrissa’s statement are particularly striking to me (provided with the caveat that the excerpts come from my own typewritten notes and not a transcript from the sentencing hearing): I want to tell everyone that I’ve hurt that I’m sorry. My heart goes out to Brett’s family. I wish I could take away your pain. I can’t imagine how much this has changed your life. I have no words to express to you how deeply sorry I am.

Not a day goes by that I don’t think about what I did. I hope and I pray that you will find peace in your hearts. I realize that I no longer need a gang to hold me back with what I want to do with my life. My addiction is a real thing and will continue to be if I don’t continue to take action and seek professional help. I was sober for nine years before and I know I can do it again – especially for my kids. F. Victim Impact Statements [ 70 ] The Crown tendered victim impact statements [Statements] pursuant to s. 722(1) of the Criminal Code which states: 722

(1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under

section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this

section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim. [ 71 ] It is an important aspect of sentencing to reflect upon the impact that an offence has on a victim and so I will provide excerpts from the Statements. [ 72 ] Brett’s sister, Brittany Ledoux, stated: I don’t even know where to begin.

All I know is that losing my only brother is one of the hardest things me and my family has ever had to go through .… Hearing the sound of my mother’s voice on the phone crying out that he’s gone is something I’ll never forget. Seeing the pain it has caused my mother to lose her baby is something so unbearable. [ 73 ] Brett’s other sister, Sheena Peekeekoot, also provided a Statement in which she stated: When my brother got murdered, this broke my heart. My baby brother, that I used to look after and he always looked up to me.

I felt broken, angry, sad, incomplete etc. [ 74 ] Brett’s mother, Carla Pedersen, provided two Statements – one from 2021 and another from February 2023. These are some of her words from her earlier written Statement: I’m so lonely for my son, sometimes I wish I was dead so I can see him again. The loss sure changed me a lot. He died way too young, he had a lot to live for. It’s so terrible, he had to die on his 25 th birthday. I feel anxious, angry, afraid, lonely, terribly sad, and hurt, and so so disappointed in his senseless death. [ 75 ] Ms. Pedersen read aloud her 2023 Statement.

That took immense courage in my view. I will quote from her written Statement, however, for the sake of accuracy. I just wish I could turn back time, and things could have been different instead of taking away my only son, I loved so very much. But that is impossible to do. I’ve been through so many storms in these past five years in my life. For example, my daughter Sheena has been struggling with alcohol and crystal meth since she lost her brother. It’s gotten so bad I’ve been taking care of her kids for over 10 months now. She has been grieving in a negative way.

The emotional impact that has affected me is this court case has taken its toll on me. I’m starting to feel afraid, worried, stressed out. It’s just so hard to have a peaceful day…There’s been so many different emotions that have been running through my head. It’s like a roller coaster some days. I’m happy and having a great day, then the next thing, I get very overprotective with my three grandchildren. [ 76 ] The ultimate victim of this senseless act is Brett, of course.

His voice was silenced by Marrissa. [ 77 ] The Statements are compelling and speak to the life-changing effect that Brett’s death had upon his family. I will sentence Marrissa knowing there is nothing the sentence I impose can do to bring Brett back to his family or to erase the grief that has been imprinted upon the lives of his family and friends. G. Mitigating, Gladue and Aggravating Factors [ 78 ] I will begin with the mitigating factors that I have considered. Marrissa is relatively young – having just turned 34 years of age.

She was just 27 years old when she committed the offence. [ 79 ] I am entirely satisfied that Marrissa is remorseful and that she has taken responsibility for her actions. She recognizes the pain she has inflicted not only upon Brett’s family and friends but also upon her own family as well.

[ 80 ] Marrissa is dedicated to her children, and they will be a lodestar for her to remain on a positive path upon her release. She has the support of both her mother and Anita Roberts, who has been looking after her children for the past several years while Marrissa has been on remand. [ 81 ] It also appears that Marrissa has the support of her brother, who is a social worker and married to a teacher. I use the word “appears”, not because I doubt that her brother will be a pro-social support to Marrissa.

Rather, I use the word “appears” because her brother is mentioned in the Gladue Report and PSR, but he was not interviewed and little concrete information was provided in relation to the role that he is prepared to play in Marrissa’s life upon the completion of the sentence that I impose. [ 82 ] By way of mitigation, I have also noted that there was no planning of this offence and Marrissa was not the ringleader. She followed along with the instructions of others. In saying this, I am in no way minimizing her reprehensible conduct. She alone pointed the gun at Brett’s head and pulled the trigger.

However, she did not instigate the events of August 11, 2017. [ 83 ] Marrissa has been on remand for an unusually lengthy period of time. She has made use of that time – completing her GED and participating in the programming available to individuals on remand. I consider this to be a commendable and mitigating factor. [ 84 ] Although Marrissa has a criminal record, which includes assaults, there is a nine-year gap in in her record that demonstrates an ability to remain off the criminal path.

This speaks to her rehabilitative prospects. [ 85 ] In her statement during the sentencing hearing, Marrissa reflected upon what she needs to do upon her release from custody. She showed insight into the fact that her path to success in the future requires her to abstain from drugs and alcohol and to avoid a gang lifestyle. She has already been involved with STR8 UP and indicated a commitment to continue to look to the organization for support.

This too speaks to her rehabilitative potential. [ 86 ] With respect to the Gladue factors at play in this case, Marrissa is a member of the Ahtahkakoop Cree Nation but never resided on the First Nation and did not have a strong connection to her Indigenous culture. It is difficult to draw a direct and tangible connection between her Indigenous status and the offence she committed.

However, a long line of cases has made it clear that a direct connection is not required. [ 87 ] The impact of colonialism upon Indigenous peoples as a whole, which manifests in lower educational attainment, lower socio-economic status, higher rates of substance abuse and higher levels of incarceration, can have an indirect impact upon Indigenous offenders. As the Court of Appeal recognized in the Whitehead decision, systemic and background factors in an Indigenous offender’s personal history shape their life experience.

As stated by Danyliuk J. at paragraph 23 in Sand : “[an offender’s] personal background, in some cases, will operate to create a milieu wherein the offender does not have the same chances for success as others do.” [ 88 ] In my view, it is the systemic and background factors that form the Gladue context for Marrissa.

The personal background that shaped her life experience includes: a. her father was in and out of custody for most of her life; b. her mother succumbed to severe alcohol and drug abuse, leaving Marrissa effectively without a parent; c. she witnessed severe domestic abuse; d. she was bound to her own addictions; and e. she filled a hole in her life with gang activity – in a gang that is primarily made up of Indigenous members. [ 89 ] In light of Marrissa’s life experiences as an Indigenous woman, I find that her moral culpability or moral blameworthiness is somewhat reduced.

Having said that, it is not lost on me that her victim, Brett, was Indigenous also. Many of the same systemic and background factors that I have taken into account with respect to Marrissa would very likely have impacted upon his life too. [ 90 ] Moving on to the aggravating factors. [ 91 ] Marrissa killed Brett as a member of the Terror Squad. Gang activity must be denounced and deterred in the strongest possible terms. I take this aggravating factor very seriously. [ 92 ] Marrissa used a gun to kill Brett.

The fact that Parliament has imposed a minimum sentence when a gun is used in the commission of the offence of manslaughter speaks to the aggravating nature of her actions. [ 93 ] I already referred to the fact that Marrissa has a significant gap in what is a relatively short criminal record as a mitigating factor. However, it is extremely problematic that Marrissa committed this offence within just days of being released from custody. [ 94 ] There is nothing more serious in the criminal realm than the taking of another life. While the spectrum of circumstances is wide, the result is the same.

Whether Marrissa was drunk or high, whether she thought the gun safety was on or not, Marrissa played Russian roulette with Brett’s life. She pulled the trigger on a gun she knew to be loaded. Marrissa displayed a callous disregard for the man that was in front of her. She stole him from his family and friends, and there is no coming back from that. Her remorse, as genuine as I have found it to be, cannot turn back the clock. H. Sentencing Decision

[ 95 ] More an art than a science, the sentence that I impose today must be carefully molded and crafted to be fit and just in the circumstances of this case. [ 96 ] The paramount sentencing objectives to be met in this case are denunciation and deterrence, and yet I see prospects for rehabilitation that should not be discounted. [ 97 ] When the sentencing objectives, combined with the relevant mitigating, aggravating and Gladue factors, are brought to bear upon the circumstances of the offence and the role that Marrissa played, this matter does not merit the most serious of consequences that would be applicable to a near murder.

Neither, however, should Marrissa attract the type of light sentence that would be associated with a near accident. As I observed earlier, a fit and just sentence falls somewhere between the two ends of the spectrum. [ 98 ] I am of the view that the fit and proper sentence for this offence is 7.5 years in custody. After remand credit, Marrissa will have less than two years left to serve in custody. Therefore, it is open to me to impose a term of probation, and it is appropriate in the circumstances of this case to do so. A term of probation will foster the sentencing objective of rehabilitation.

Therefore, I will also impose a three-year term of probation on the conditions that I will set out below. I. Conclusion [ 99 ] I would be remiss if I did not thank counsel for all the assistance that I received throughout the trial process and during this sentencing. [ 100 ] To Brett’s family and friends, I recognize that no sentence can remedy the loss of your loved one. I recognize that this has a been a long and emotional process, but it is a necessary process in the Canadian system of criminal law.

I hope that with this decision, you will find some closure. [ 101 ] To Marrissa, I expect there is no sentence I can impose that will surpass the guilt you feel yourself. You have and will experience severe repercussions for killing Brett, but the impact of your actions has also negatively impacted your family – particularly your young children. I am hopeful that your stated intention to remain clean and sober and away from the gang lifestyle is more than just words and becomes your path forward. [ 102 ] Ms.

Bird, please rise. [ 103 ] For the offence of manslaughter causing the death of Duane Brett Ledoux, I sentence you to 2,750 days of imprisonment (approximately 7.5 years). [ 104 ] You have been in custody on remand since June 4, 2018 – a period of 1,741 days. The Crown and defence agree that for 60 days of this period of time, you were serving a sentence on another offence and these days are therefore not eligible for remand credit.

On the remaining 1,681 days, I am applying enhanced remand credit at 1.5 times, which results in total remand credit of 2,522 days. [ 105 ] This leaves your net sentence, going forward and starting immediately, as 228 days in prison. [ 106 ] Upon completion of this custodial term, you will serve a three-year term of probation, commencing upon your release, on the following terms: a. You will keep the peace and be of good behaviour. b. You will appear before the Court when required to do so by the Court. c.

You will report to a probation officer at 12th Floor, 800 Central Avenue, Prince Albert, Saskatchewan, (306) 953-2835 (Toll Free: 1-866-305-3888) within two working days of your release from custody and after that as told to do so by your probation officer or designate. d. You will remain within the jurisdiction of the Court unless written permission to go outside the jurisdiction is obtained from the Court or by your probation officer. e.

You will live at a residence approved by your probation officer and not change that residence without the prior written permission of your probation officer or designate or the Court. f. For the first 18 months of your probation, you will stay inside your approved residence from 9:00 p.m. each night to 6:00 a.m. the next morning, unless you have the prior written permission of your probation officer or designate or the Court, or for employment purposes. g.

You will come to the door of your approved residence when asked to do so by the probation officer or designate or police officer who may be checking the residence and curfew conditions of this probation order. h. You will not possess or consume alcohol, cannabis or any drugs that have not been prescribed for you by a medical doctor. i. You will not enter or be in any place in which the main purpose is to sell alcohol or cannabis, such as bars, liquor stores or cannabis stores. j.

You will participate in assessments and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your probation officer. k. You will participate in assessments and complete such programming as told to do so by your probation officer.

l. You will see a medical doctor, psychiatrist and/or psychologist as directed, follow directions as to appointments, counselling treatment, and prescriptions, and authorize the release of information about appointment times and prescriptions to your probation officer. m. You will have no contact of any kind, in any way, directly or indirectly, with Lenny Daniels, Boden Umpherville, William Chaboyer, Joey Sauve, Jessica Keenatch, Daphne Halkett, Gerald Pocha, Carla Pedersen and Sheena Peekeekoot, except through a lawyer. n.

You shall not be at the residence, workplace or place of education of Lenny Daniels, Boden Umpherville, William Chaboyer, Joey Sauve, Jessica Keenatch, Daphne Halkett, Gerald Pocha, Carla Pedersen and Sheena Peekeekoot. o. You shall have no contact of any kind, in any way, directly or indirectly with any known gang members. Who is and who is not a gang member shall be determined by your probation officer. p. You shall seek and maintain employment or educational programming as directed by your probation officer. q.

You shall submit to a search without warrant of your person and any vehicle or residence that you own, operate or control or possess by any police officer who has reasonable grounds to believe that you are in breach of any condition of this probation order. [ 107 ] As well, ancillary orders must be made. This is a primary designated offence pursuant to s. 487.04 of the Criminal Code . Pursuant to s. 487.051(1), I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances from Ms.

Bird that are reasonably required for the purpose of DNA analysis and retention in a DNA databank. [ 108 ] Further, I make an order pursuant to s. 109 of the Criminal Code prohibiting Ms. Bird from possessing any weapons for life. [ 109 ] I exercise my discretion to waive the victim surcharge given Ms. Bird’s personal circumstances. “H.D. MacMillan-Brown” J. H.D. MACMILLAN-BROWN