HIS MAJESTY THE KING - v. -, 2023 SKKB 149

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 149 Date: 2023 07 07 Dockets: CRM-RG-00365-2020 CRM-RG-00414-2020 CRM-RG-00149-2021 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and - DEVON WAYNE CYR Counsel: Derek J. Davidson for the Crown Adam A. Fritzler for Devon Wayne Cyr SENTENCING JUDGMENT ELSON J. July 7, 202 3

Preamble [ 1 ] On July 7, 2023, I pronounced the sentence in this matter. In doing so, I read lengthy passages from this written judgment, which had not yet been formatted and edited by the Court staff. Those tasks have now been completed and this written judgment may now issue and be published. Introduction [ 2 ] In a trial before a judge and jury, Devon Wayne Cyr, stood charged with second degree murder in relation to the death of Isaiah Allary on January 25, 2020. The undisputed evidence at the trial for the charge disclosed that Mr.

Allary’s body was discovered on the early evening of that date in the vicinity of 1265 Rae Street, in Regina. He died from a .22 calibre gunshot wound to the left upper chest. The bullet penetrated both lungs and the aorta before lodging in the soft tissue in the posterior area of the right shoulder. [ 3 ] The trial proceeded before this Court with a judge and jury. On March 1, 2023, the jury pronounced its verdict.

It found the offender not guilty of murder, but guilty of the lesser and included offence of manslaughter. [ 4 ] The Court subsequently heard counsel’s sentencing submissions related to the jury’s verdict. Concurrent with those submissions, the Court also heard sentencing submissions on two other indictments, presented on court files CRM-RG-00414-2020 and CRM-RG-00149-2021. On those indictments, Mr. Cyr entered guilty pleas to the following counts: On court file CRM-RG-00414-2020 1.

That, on January 27, 2020, at or near Regina, Saskatchewan, he did resist a peace officer in the execution of that officer’s duty to effect a lawful arrest, contrary to s. 129(1) (

a) of the Criminal Code , RSC 1985, c C-46 . On court file CRM-RG-00149-2021

1. That, on the 25th day of January 2020, at Regina, Saskatchewan, he did possess a prohibited weapon, to wit: a sawed-off .22 rifle,while he was prohibited from doing so by reason of an order made pursuant to s. 109 of the Criminal Code, contrary to s. 117.01(1) ofthe Criminal Code. It should be noted that the guilty plea on the count in the indictment on CRM-RG-00414-2020 was for a lesser and included offencefrom the count that appeared in the indictment. The Crown did not challenge this plea and it stayed a second count in that sameindictment.

After following the requirements of s. 606 of the Criminal Code, including a presentation of the facts related to the above twocounts, the Court accepted the guilty pleas. [5] The Court must now impose sentence on all three counts before it. Findings of Fact for Sentencing on the Manslaughter Verdict Applicable Law [6] In anticipation of the sentencing hearing, I wrote an unreported fiat in which I made findings of fact that werenecessary to determine a fit and proper sentence related to the jury’s manslaughter verdict.

In the interest of completeness, I repeat thosefindings here. [7] As is often the case, particularly in manslaughter verdicts, the jury’s decision, by itself, did not inform theCourt about all the facts that are relevant to crafting a fit sentence. To make the necessary findings, I followed the two-step approachrequired by s. 724(2) of the Criminal Code. This provision reads as follows: 724 …

(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either partywith respect to that fact. [8] In R v Ferguson, 2008 SCC 6, [2008] 1 SCR 96 [Ferguson], the Supreme Court of Canada discussed thespecific application of this two-step approach. There, McLachlin C.J. described both the limitations and the independence associatedwith a sentencing judge’s fact finding exercise following a jury’s verdict.

She wrote the following at paras. 16-18: 16 … The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues beforethe jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencingjudge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand. 17 Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and impliedfactual implications of the jury’s verdict”: R. v.

Brown, (SCC), [1991] 2 S.C.R. 518 (S.C.C.), p. 523. The sentencingjudge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)),and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), (MB CA), 95 C.C.C. (3d) 443 (Man.

C.A.). 18 Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow thelogical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994),1994 ABCA 402 , 162 A.R. 117 (Alta. C.A.). In so doing, the sentencing judge “may find any other relevant fact that wasdisclosed by evidence at the trial to be proven” (s. 724(2)(b)).

To rely upon an aggravating fact or previous conviction, the sentencingjudge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, thesentencing judge must be persuaded on a balance of probabilities: (ss. 724(3)(

d) and 724(3)(e); see also R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368 (S.C.C.); R. v. Lawrence (1987), (ON SC), 58 C.R. (3d) 71 (Ont. H.C.)). It follows fromthe purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposedin the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal withthose issues. [Emphasis added] [9] Guided by the comments in Ferguson, I first considered the limitations imposed by the jury’s manslaughterverdict.

That verdict reveals that the jury was persuaded, beyond a reasonable doubt, that the offender committed an unlawful act whichcaused Mr. Allary’s death. Just as importantly, it also reveals that the jury was not persuaded, beyond a reasonable doubt, that theoffender had the necessary state of mind for murder. Describing this aspect of the jury’s verdict in the context of the definition of murder,in s. 229(

a) of the Criminal Code, the jury did not find that the offender either: (1) meant to kill Mr. Allary; or (2) meant to cause Mr.Allary bodily harm that he knew was likely to kill him and was reckless whether he died or not.

[ 10 ] Of course, the jury’s verdict is necessarily very general in nature. It does not determine facts about the nature of the offender’s unlawful act or his precise state of mind at the material time. Given the wide sentencing discretion for manslaughter, it was left to me to assess the evidence and make the necessary findings to determine an appropriate sentence. More specifically, and having regard to counsel’s submissions, I had to determine whether the offender willingly caused the firearm to discharge or whether it discharged by accident while in his possession.

If the offender willingly caused the firearm to discharge, I also had to assess the offender’s state of mind at the time of the shooting. Did he intend to wound or cause bodily harm to Mr. Allary, or did he simply intend to frighten or intimidate the young man, without any intention to wound or injure? Such an assessment allows the Court to gauge the moral blameworthiness of the offender’s conduct. Evidence [ 11 ] Before making the necessary findings of fact, a brief overview of the trial evidence is in order. [ 12 ] The evidence at trial was presented exclusively by the Crown.

The defence elected not to call any evidence. Aside from the evidence of the investigating officers, the attending paramedic and the experts, the Crown’s case principally consisted of the testimony of witnesses who were in the neighbourhood immediately after the shooting, as well as the testimony of two witnesses who were in a vehicle with the offender at the time of the shooting. This testimony was supplemented with photographs, surveillance video and expert reports.

The expert reports that are of particular significance include the DNA report, the gunshot residue report and the report of the firearms expert. [ 13 ] The Crown’s theory of the case was that the gunshot that killed Mr. Allary came from the back seat of a Pontiac Sunfire [Sunfire], driven by Toni Toto, an acquaintance of the offender. Ms. Toto was one of the witnesses who testified at trial. [ 14 ] According to Ms. Toto’s evidence, she had borrowed the Sunfire from an acquaintance who had occasionally let her use the vehicle.

On the early evening of January 25, three people asked her for a ride to various destinations in Regina. The three people were Ms. Toto’s cousin, Kelly Stonechild, the offender and another male. Ms. Toto said that she did not know the other male’s real name. She only knew him by the nickname “Baby”. No other witness identified this person by his actual name. [ 15 ] After stopping at a convenience store, Ms. Toto was asked to drive to an apartment building in north central Regina, a short distance from the intersection of Rae Street and Dewdney Avenue.

She was told that one of the occupants wanted to pick up a “bong” from one of the tenants. She did not identify which occupant expressed this desire. Surveillance video from the rear of a Dewdney Avenue business, supplemented with testimony from one of the investigating police officers, disclosed that the address of the apartment building was 1454 Rae Street [1454 Rae]. Although Ms.

Toto had initially misdescribed the street name, she later accepted that the apartment building was on Rae Street. [ 16 ] The surveillance video depicted a side view of the front of 1454 Rae and captured some of the events that occurred there, including the arrival and departure of the Sunfire. Shortly before the Sunfire left the scene, the surveillance video depicted an interaction between two males in front of the building, one of whom was a then unidentified pedestrian seen walking northbound on Rae Street. Ms. Toto identified the male interacting with the pedestrian as Mr. Cyr.

After the interaction between Mr. Cyr and the pedestrian, the Sunfire left 1454 Rae with the same four occupants. Ms. Toto was still driving. [ 17 ] I digress from the narrative at this point to address Ms. Toto’s evidence about where the other three occupants were seated in the Sunfire after the stop at 1454 Rae. That evidence did not come forward in a straightforward way. [ 18 ] Initially, Ms. Toto testified that the two males, including Mr. Cyr, sat in the rear seats and Ms. Stonechild sat in the front passenger seat.

She then described a narrative of events from the time the vehicle left 1454 Rae until it arrived at a liquor store on Quance Street in east Regina. In answer to specific questions from Crown counsel, Ms. Toto told the Court that none of the occupants got in or out of the vehicle or switched seats. [ 19 ] Ms. Toto’s evidence changed when she was shown another surveillance video from the liquor store parking lot. After viewing that video, she accepted, with apparent surprise, that her initial evidence was mistaken. Ms.

Toto agreed that the surveillance video depicted the male known as Baby seated in the front passenger seat. It also depicted Ms. Stonechild and Mr. Cyr seated in the rear seat, with Mr. Cyr seated directly behind the front passenger seat. Ms. Toto then agreed that, when the Sunfire left 1454 Rae, the occupants were all seated in positions as shown in the surveillance video. [ 20 ] I accept Ms. Toto’s testimony, as corrected by the liquor store surveillance video.

More to the point, I am satisfied beyond a reasonable doubt, that, when the Sunfire left 1454 Rae, its occupants sat in the seats as depicted in the liquor store surveillance video, when they exited the vehicle. [ 21 ] Returning to the narrative, Ms. Toto testified that, when she drove away from 1454 Rae, Mr. Cyr told her to “follow that guy”, referring to the pedestrian with whom he had the confrontation. As for the offender’s reasons for following this person, Ms. Toto was somewhat uncertain. At trial, she said she thought Mr. Cyr said that he owed him money. [ 22 ] Ms.

Toto testified that, after driving in the neighbourhood for a few minutes, they saw the pedestrian continuing to walk along the east side of Rae Street. She said the offender asked her to slow down, which she did, coming to a stop not far from the pedestrian. Shortly after that, she heard a gunshot, which she believed came from the rear seat. At some point, Ms. Toto noticed that the rear passenger window was open, which surprised her as she earlier believed it “couldn’t open”. Immediately after the gunshot, Mr. Cyr and Baby told Ms.

Toto to drive away, which she did, eventually arriving at the liquor store. [ 23 ] Three other witnesses testified to their observations at the scene of the shooting. They included two people who were in the home at 1261 Rae Street and another person who then resided in the immediately adjacent home to the south. Of the three witnesses, only one saw events immediately before the shooting. This witness, an occupant of 1261 Rae Street, said she saw the vehicle driving around the block two or three times. The vehicle, which she believed to be a Chevrolet Cavalier, aroused her suspicion.

On the last time it drove by the house, she also noticed a male walking down the street and the vehicle stopping next to him. When she turned

away for a few seconds, she heard a loud bang. When she turned back, she saw that the rear passenger side window was open and that a male was seated there. The vehicle drove away shortly afterward. In answer to specific questions posed in both direct and cross- examination, this witness testified that she did not see a gun. When the three witnesses all went outside to see what had happened, they found the other male’s lifeless body lying in the snow. [ 24 ] The deceased male was later identified as Isaiah Allary. I am satisfied, beyond a reasonable doubt, that Mr.

Allary was also the pedestrian depicted in the surveillance video of 1454 Rae and described in the testimonies of Ms. Toto and the occupant of 1261 Rae Street. This conclusion is not inconsistent with the jury’s verdict. [ 25 ] Aside from Ms. Toto’s evidence about what she saw and heard at the time of the shooting, she also testified to subsequent conversations about the shooting, including comments made by Mr. Cyr. In this regard, she told the Court that, shortly after the shot was fired, comments were made to the effect that the shot fired from the vehicle did not hit the victim.

She said she specifically remembered Baby saying something to the effect that “he didn’t even hit the guy”. [ 26 ] Ms. Toto testified that the conversation came up again later in the basement of the house where Baby’s girlfriend lived. This was where they had spent some time drinking from the bottle of vodka purchased at the liquor store. Ms. Toto told the Court that, while they were drinking, Mr. Cyr and Baby talked about the shooting during which Mr. Cyr said that he shot the victim “in the belly”. She also said that the two men were joking about how Mr.

Allary fell over after he was shot. [ 27 ] While there are certain aspects of Ms. Toto’s evidence about this conversation that raise some uncertainty, such as whether it occurred before or after she learned about the shooting death from a Facebook post related to the shooting, I find her evidence about this conversation both credible and reliable. As I heard her testimony, this aspect of the conversation was particularly memorable because it conflicted with the two men’s earlier comment that the shot did not hit Mr. Allary. Further, Ms. Toto testified to being upset when the two men joked about the shooting.

In short, I believe her evidence about what Mr. Cyr had said. [ 28 ] Based on the evidence presented, including the evidence of Ms. Toto and the associated video surveillance in front of the apartment building at 1454 Rae, I have arrived at certain findings of fact necessary for determining an appropriate sentence. These findings, not inconsistent with the jury’s verdict, are as follows: a. On January 25, 2020, there existed, for undisclosed reasons, an animosity between Mr. Cyr and Mr. Allary. b. Possibly based on this animosity, Mr. Cyr instructed Ms. Toto to follow Mr.

Allary as he continued to walk northbound on Rae Street, after their brief confrontation at 1454 Rae. c. When the Sunfire stopped alongside Mr. Allary, in the vicinity of 1261 Rae Street, Mr. Cyr, while seated in the passenger side rear seat of the Sunfire, voluntarily discharged a firearm in the direction of Mr. Allary, thereby causing his death. d. When Mr. Cyr discharged the firearm in the direction of Mr. Allary, he did so with the intention either to wound Mr. Allary or otherwise cause him bodily harm, but not with the state of mind required for murder.

Victim Impact Statements [ 29 ] The Court received two victim impact statements, one from Mr. Allary’s sister and the other from his partner and mother of his infant daughter. Both statements were heartfelt in their expressions of loss. I accept and thank them for their statements. [ 30 ] Among other expressions of loss, Mr. Allary’s sister spoke about the loss that will be experienced by her brother’s two children. She also spoke about how proud she was of her brother, stating that the world was a better place with him in it. [ 31 ] Mr.

Allary’s partner spoke in very emotional terms about the heartbreak she experienced upon receiving the news of his death. She went on to say that, of all the people she has lost in her life, Mr. Allary is the only person she cannot let go of. Criminal Record [ 32 ] Mr. Cyr’s criminal history begins with four youth sentences under the Youth Criminal Justice Act , SC 2002, c 1 , as amended. While these sentences do not factor in the disposition of this case, they are part of the presented evidence and I will reference their particulars, which are as follows: a.

September 30, 2010: He was convicted of two counts of failure to appear and one count of failure to comply with the recognizance. He received probation of 9 months on each charge. b. June 23, 2011: He was convicted of one count of theft under $5,000, one count of assault, one count of failure to comply with a disposition, one count of failure to attend court and one count of failure to comply with a recognizance. He received a sentence of 6 months deferred custody and a supervision order, along with probation of 9 months on each charge. c.

October 29, 2012: He was convicted of one count of mischief under $5,000, one count of break and enter and commission of an indictable offence, failure to comply with a disposition and one count of failure to appear. He received another sentence of 6 months deferred custody and a supervision order, along with probation of 12 months on each charge. d. November 22, 2012: He was convicted of one count of possession of property obtained by crime under $5,000. He received a community supervision order. [ 33 ] Mr. Cyr’s criminal record as an adult begins in 2014. For someone of his age, it is not insignificant.

The particulars of that record are as follows:

a. January 13, 2014: He was convicted of one count of robbery with violence. He received a sentence of 22 months imprisonment aswell as a mandatory weapons prohibition. b. January 15, 2018: He was convicted of another count of robbery with violence. He received a sentence of 36 months imprisonmentas well as a mandatory weapons prohibition. c. March 1, 2018: He was convicted of one count of break and enter and commission of an indictable offence. He received a sentenceof 8 months imprisonment followed by one year probation. d.

August 29, 2019: He was convicted of three weapons offences, namely, one count of possession of a weapon for a dangerouspurpose, one count of carrying a concealed weapon and one count of possession of a firearm or ammunition contrary to a prohibitionorder. He received a sentence of 7 months imprisonment and a mandatory weapons prohibition. Circumstances of the Offender [34] The information about Mr. Cyr’s background and personal circumstances is largely drawn from a Gladue report(as per R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue]) that defence counsel had obtained from the Integrated JusticeProgram.

That report is authored by Dr. Michelle Stewart, an Associate Professor in the Department of Gender, Religion and CriticalStudies at the University of Regina. According to the University’s website, she also teaches in the Department of Justice Studies. Inaddition to Dr. Stewart’s report, the Court received a letter of support from the FASD Network of Saskatchewan [FASD Network]. [35] Mr. Cyr was born in on November 5, 1994, in Regina. He is now 29 years old and was 25 years old at the timeMr. Allary was killed. Mr. Cyr is not married but the history reveals that he has one child with whom he has limited contact.

Mr. Cyr’smother is from Kawacatoose First Nation [Kawacatoose] and his father is from George Gordon First Nation [George Gordon]. Bothbands are in the Touchwood Hills area of Saskatchewan, roughly 100 to 115 km north of Regina. [36] Mr. Cyr is the second oldest of the children who lived in his parents’ home at one time or another. Thesechildren consisted of three brothers and five sisters, including a niece that the parents took into their home for a time. For his first five orsix years of his life, the family lived in Kawacatoose and Quinton, Saskatchewan before relocating to Regina, where Mr.

Cyr spent mostof his youth. Dr. Stewart’s report states that Mr. Cyr did not spend all this time with his family. For various times, he was in foster care,including placements with family members. Mr. Cyr described his time in foster homes as both “good and bad”. The report alsoreferences Mr. Cyr having spent time with his maternal grandmother with whom he described having a positive and loving relationship. [37] Dr. Stewart’s report describes a much less positive relationship between Mr. Cyr and his parents, both of whomdrank heavily, leading to episodes of domestic violence. Mr. Cyr also told Dr.

Stewart about situations in which he was badly treated byone or both parents, particularly his mother. Often, the poor treatment consisted of neglect, including occasions when Mr. Cyr and hissiblings were forced to scrounge for food. [38] The report also discloses that school was rarely a pleasant experience for Mr. Cyr, who is one year short of highschool graduation. Most of his problems in school were related to his behaviour. He reported severe anger issues, which resulted inexpulsion from multiple schools. Mr. Cyr also told Dr.

Stewart that he had been diagnosed with Attention-Deficit Hyperactivity Disorder[ADHD] when he was young but that his condition went untreated. This condition led to an inability to focus on his classes andschoolwork. [39] Mr. Cyr’s first experience with substance abuse began at the age of 11, when he first smoked marijuana. Thiswas followed by his first drink of alcohol at the age of 12, and experimentation with ecstasy and cocaine at the age of 15.

By this age, hewas also drinking alcohol quite regularly, which led to affiliations with more than one gang as well as interactions with law enforcement.Some of these interactions led to Mr. Cyr serving time, as a young offender, at the Paul Dojack Youth Centre in Regina. [40] As is reflected in his criminal record, much of Mr. Cyr’s adulthood has been spent in custody. He has servedsentences in both provincial and federal facilities. [41] One incident that has had an obvious and significant impact on Mr. Cyr occurred on or about June 22, 2015, inSaskatoon. Although Dr.

Stewart’s report discusses the facts of this incident, the more accurate description is drawn from the trialjudgment of this Court in R v Ahpay, 2017 SKQB 352, and the related sentencing judgment in R v Ahpay, 2018 SKQB 147, both writtenby Danyliuk J. I am satisfied that I can take judicial notice of the findings in these judgments. [42] In the trial judgment, Dale Ahpay was found guilty of fifteen counts, with varying charges, the most serious ofwhich was the attempted murder of Mr. Cyr. The essential findings of fact made by Danyliuk J. are described at paras. 97-109 of the trialjudgment. An abbreviated

summary of these findings, insofar as they directly relate to the interaction with Mr. Cyr, appears at paras. 32-35 of the sentencing judgment. This

summary reads as follows: 32 Mr. Ahpay was addicted to drugs and was a drug dealer. He was either a member or an affiliate of a gang. On the night in questionhe was walking around, possibly high, with drug sales on his mind. 33 Mr. Ahpay was walking through some of the rougher areas of Saskatoon’s west side. For “protection” he carried with him asawed-off 12 gauge shotgun. He passed by a dwelling, and outside that building were other men. They may have been rival gangmembers or associates, or just out for trouble.

After showing them his shotgun they went inside, but very shortly thereafter he foundhimself being pursued down an alley by three men. One took a shot at him, from what turned out to be a sawed-off rifle. Mr. Ahpayreturned fire with two shots from his own weapon, hitting the victim (Mr. Cyr) twice — although that was not known until later. Thethree men ran off, with two splitting off from Mr. Cyr. Mr. Ahpay pursued Mr. Cyr. Mr. Cyr turned from the alley into a yard,abandoning his weapon by the alley.

34 It turned out the yard was a dead end and Mr. Cyr was trapped in a corner. Shot, bleeding, Mr. Cyr was down and out. He was either crouched or on his knees, and (according to Mr. Ahpay) was crying and begging for his life. At close range, Mr. Ahpay deliberately shot Mr. Cyr in the centre of his face. In his statement Mr. Ahpay said he “executed” Mr. Cyr and at the start of that statement Mr. Ahpay was of the belief he had killed Mr. Cyr. 35 Amazingly, Mr. Cyr lived. This was likely because the shotgun shells were loaded with duck shot, as opposed to a heavier gauge load.

Slugs or larger gauge shot would almost certainly have killed him. As it was, Mr. Cyr was badly injured. [ 43 ] Despite the extent and seriousness of his injuries, the sentencing judgment notes that Mr. Cyr refused to cooperate with police and only partly cooperated with the author of Mr. Ahpay’s pre-sentence report. In his discussions with the author, as referenced by Danyliuk J. at para. 39, Mr. Cyr denied any emotional trauma or medical side effects from the shooting. Rather, he described the act of being shot as “a walk in the park”. Danyliuk J. aptly described Mr.

Cyr’s comments as “street bravado” and concluded that he would likely face significant physical and emotional consequences. [ 44 ] Dr. Stewart’s report bears out my learned colleague’s prediction. According to the report, Mr. Cyr was in a coma for three months and underwent major facial reconstruction surgery. He was left with permanent disfigurement, including the almost complete loss of his nose. [ 45 ] Aside from the physical issues associated with his injury, there have been ongoing personal and emotional issues. Mr.

Cyr found it difficult to go out in public or to be in the company of people, including members of his family. He told Dr. Stewart that he continues to struggle with emotional relationships. These problems eventually led to his addiction to crystal methamphetamine. In turn, this addiction further diminished his outlook on life such that he claims to have made a few suicide attempts. [ 46 ] In her report, Dr. Stewart opines that Mr. Cyr’s sobriety while on remand has been “transformative”. Mr. Cyr informed her that this is the longest period of sobriety that he has experienced in a long time.

He also said that sharing his story with others has provided a positive approach to his healing. On this point, Dr. Stewart referenced certain literature which addressed the impact of facial disfigurement and the importance of talking about it with others.

In this regard, she wrote the following at page 24 of her report: Returning to the impacts of a facial disfigurement, research indicates a key element that can contribute to healing is the impact of telling one’s trauma story in that the telling (and retelling) can result in six impacts: (1) feelings of shame can be addressed; (2) belief systems can be organized; (3) triggering memories can be lowered; (4) strengths and understanding can emerge; (5) the memory of the traumatic event can become more organized and contextualized; (6) meaning can be explored and the event can be “made sense” of as something that happened as part of one’s life. [ 47 ] The support letter from the FASD Network indicates that Mr.

Cyr is “connected” to the Network. That said, there is no indication in the letter of a formal diagnosis of FASD. Even so, the letter indicates that, despite the absence of a diagnosis, markers of FASD are evident through cognitive, emotional, social or sensory struggles. In many instances, people who present these markers experience significant incidents, such as school disruption or legal issues. The letter goes on to say that the FASD Network can assist Mr. Cyr in a variety of ways, including maintaining a connection with his addictions and support worker, and for reunification with his child.

Educational and employment assistance may also be available. Positions of Crown and Defence [ 48 ] The Crown contends that this is a manslaughter case that falls just short of murder – a so-called near murder/manslaughter situation. It posits that the appropriate range of sentence for such a case is for imprisonment between 12 years to life. In the context of this case, the Crown seeks a sentence of life imprisonment.

That said, Crown counsel concedes that he is not aware of any case where such a sentence has been imposed for manslaughter other than through a joint submission. [ 49 ] In making this submission, Crown counsel identified both aggravating and mitigating factors. The suggested aggravating factors involve the apparent malice in Mr. Cyr having intended to injure Mr. Allary by the shooting as well as the subsequent jocularity and disregard for injuring the victim. The only mitigating factor Crown counsel acknowledges is related to the possible Gladue factors and the circumstances associated with Mr.

Cyr’s disfigurement. Having said this, counsel does not regard these factors as carrying much mitigating force. [ 50 ] Defence counsel disagrees. He posits that a fit sentence, on a global basis for all three counts, would be for a period of 12 years imprisonment. This would be based on a 10 year sentence for manslaughter along with consecutive sentences of one year each for each of the other two offences. [ 51 ] Further, defence counsel notes that Mr. Cyr contracted COVID-19 on two occasions while in pre-sentence custody.

He posits that this circumstance justifies an enhanced remand credit of two days for every day spent in pre-sentence custody. Gladue Factors [ 52 ] Although I have already referenced multiple passages from Dr. Stewart’s 40-page report, I have not yet referred to other Gladue related factors identified in that report. I do so now. [ 53 ] As earlier mentioned, Mr. Cyr’s mother and father respectively came from Kawacatoose and George Gordon. As such, Mr. Cyr’s ancestors were Cree and Saulteaux people from the Touchwood Hills region of what is now south-central Saskatchewan.

Both bands were signatories to Treaty 4, signed in 1874.

[ 54 ] Historically, many Indigenous people from the Touchwood Hills Region attended Gordon’s Indian Residential School [Gordon’s], either as day students or as residential students after the residence was added to the school. Dr. Stewart’s report indicates that Mr. Cyr’s father attended the day school and that his maternal grandmother likely attended the residential school. No information was provided as to whether other family members attended the school. Mr. Cyr told Dr. Stewart that his family did not talk about their experiences as children or teenagers. As I read Dr.

Stewart’s report, she draws the conclusion, at least by inference, that other members of Mr. Cyr’s family did, in fact, attend Gordon’s. [ 55 ] Dr. Stewart’s report goes on to reference the infamous history associated with Gordon’s, as described in the report of the Truth and Reconciliation Commission of Canada [Commission]. This history includes the 1993 conviction, for 10 counts of sexual assault, of a man who served as a director of Gordon’s from 1968 to 1984. During that proceeding, this man admitted to having abused hundreds of male students in his time at the school. Dr.

Stewart also notes the Commission’s observation that, even after 1984, Gordon’s continued “a systemic culture of abuse-driven discipline, as well as sexual violence.” [ 56 ] As for Mr. Cyr’s connection to his Indigenous community and culture, Dr. Stewart noted the offender’s comment that he only feels connected on an occasional basis. While his ability to make this connection in custody is limited, Mr. Cyr was still able to attend the Red Feather Youth Program and has had some interaction with Elders while in custody. Mr.

Cyr acknowledged that his parents and grandparents did not observe Indigenous traditions even though he was able to participate in some of the cultural ceremonies. [ 57 ] In terms of moral blameworthiness or culpability related to Mr. Cyr’s criminal activity, Dr. Stewart addresses Gladue factors in the context of a concept she describes as “Trauma-Informed Care”. She opines that features of this concept apply to Mr. Cyr’s presentation. In this regard, Dr.

Stewart wrote the following at page 31 of her report: According to the Trauma-Informed Care Modules from Alberta Health Services, Devon has multiple, intersecting forms of trauma including: developmental, historic, intergenerational, cultural, and system-oriented. • Developmental Trauma describes the experiences of a person during their developing years into adulthood where the trauma causing event could have been just one event, or a combination of a number of events.

Devon has experienced a number of developmental traumas such as physical, emotional, and sexual abuse as a child. • Intergenerational Trauma refers to the psychological and emotional impact that can be passed on from trauma survivors to people they may have a long term connection to. Devon’s family has been impacted by day school and residential schools. Devon describes that this has impacted his family’s ability to communicate their emotions and resolve arguments. • Cultural Trauma refers to challenges or complete destruction of a culture through racism, discrimination, and poverty.

Devon’s Cree and Saulteaux ancestors have experienced a variety of cultural traumas, particularly due to the loss of traditional land, the extermination of the bison and traditional food systems, imposition of the reserve system, and assimilation-based policies. • System-Oriented Trauma refers to the implementation of policies or procedures that create triggers or new trauma. Devon has experienced trauma from the foster care system and the justice and policing systems and indicates he has triggers when in custody. [ 58 ] Near the conclusion of her report, Dr.

Stewart describes sentencing options and “ Gladue Aftercare”. This description refers to placement and programming options that may be available to Mr. Cyr in a federal correctional facility, as well as parole related approaches that can be taken when he is to be released into the community. In this regard, Dr. Stewart accepts that Mr. Cyr is not eligible for a sentence in provincial custody. While Dr. Stewart’s comments on these points are interesting, they are not germane to the type of sanction this Court can impose. Accordingly, I need not reference these comments here.

That said, they are matters that may be of interest to the relevant staff and programmers at the Correctional Service of Canada. Applicable Sentencing Principles [ 59 ] As the Supreme Court of Canada observed in R. v. M.(L.), 2008 SCC 31 , [2008] 2 SCR 163, sentencing is far from an exact science or an inflexible, predetermined procedure. Rather, it is an exercise that, by necessity, is highly individualized in nature. Described in its simplest form, a sentencing judge’s task is to determine an appropriate sentence having regard to the nature of the offence and the personal characteristics of the offender.

In doing so, the sentencing judge must also apply the considerations mandated by Parliament in the Criminal Code . These considerations include: (1) the purpose of sentencing; (2) the available objectives of any sanction designed to serve the purpose of sentencing; and (3) the principles which are to guide sentencing judges in their task. [ 60 ] The fundamental purpose of sentencing and the available objectives behind the sanctions imposed to serve that purpose, are set out in s. 718 of the Criminal Code : 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. [61] The principles intended to guide sentencing judges in crafting a just and fit disposition are set out in ss. 718.1and 718.2 of the Criminal Code. The first of these provisions articulates the fundamental principle of proportionality while the secondprovision identifies additional principles to be applied. Excluding those portions that are not relevant to Mr.

Cyr’s case, ss. 718.1 and718.2 read as follows: 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 offenceor the offender, and, without limiting the generality of the foregoing, …. (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, … 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 tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [62] It has frequently been said that the sentencing discretion for manslaughter is wider than it is for any otheroffence in the Criminal Code. Except for cases involving the use of a firearm, there is no minimum sentence. Where a firearm is used inthe commission of the offence, as is the situation here, s. 236(

a) stipulates a minimum sentence of four years. Beyond this stipulation,there is no expressly stated limit in a sentencing court’s discretion. [63] As aptly observed by Lord Salmon, of the English Court of Appeal (Criminal Division), in R v Cascoe, (1970),54 Cr App R 401 (Eng CA), the broad range of applicable sentences reflects the variations in gravity and blameworthiness that may fallwithin the definition of manslaughter. In this respect, he said the following: As for sentence, manslaughter is … a crime which varies greatly in its seriousness.

It may sometimes come very close to inadvertence.That is one end of the scale. At the other end of the scale, it may sometimes come very close to murder. [64] As dated as this observation obviously is, it remains in place. The observation has been reaffirmed, in varyingreferences, in several Canadian authorities.

This includes judgments of this Court in such cases as R v Moostoos, 2017 SKQB 12[Moostoos]; R v Stonechild, 2017 SKQB 138 [Stonechild], R v Mullen, 2017 SKQB 237 [Mullen] and, most recently, in R v Larose, 2023SKKB 24 [Larose]. [65] In Moostoos, Barrington-Foote J. (as he then was) noted the broad range of circumstances covered within theoffence of manslaughter. In doing so, he noted the comments of the Supreme Court of Canada in R v Creighton, (SCC),[1993] 3 SCR 3 [Creighton], which, in turn, referenced a decision of the same Court in R v Martineau, (SCC), [1990] 2SCR 633.

In Creighton at page 48, McLachlan J. (as she then was) noted that the variety of circumstances that called for a flexibleapproach when imposing sentence – an approach tailored to the degree of moral blameworthiness of the offender. Such an approach isconsistent with the Court’s obligation to apply the fundamental principle of proportionality. I subsequently followed that analysis inStonechild. [66] As a means of meeting this flexible approach, sentencing courts in Canada have commonly adopted the analysisarticulated by the Alberta Court of Appeal in R v Laberge, 1995 ABCA 196, 165 AR 375 [Laberge].

In Laberge, Fraser C.J.A. describeda contextual analysis for assessing moral blameworthiness at paras. 7-10. In para. 8, she noted that the most important factor in theassessment will be the unlawful act, itself. In particular, Fraser C.J.A. observed that a sentencing judge should be concerned with: (1) thenature and quality of the unlawful act; (2) the method by which the unlawful act was committed; and (3) the manner in which it wascommitted in terms of the degree of planning and deliberation.

She then described three broad categories of unlawful acts in para. 9, asfollows: 9 Unlawful acts may be divided into three broad groups: those which are likely to put the victim at risk of, or cause, bodily injury;those which are likely to put the victim at risk of, or cause, serious bodily injury and those which are likely to put the victim at risk of, orcause, life-threatening injuries.

Only when the offender’s proven mental state at the time of the commission of the offence is evaluated inthe context of the crime itself, in other words in terms of its relative degree of seriousness, is it possible to classify for sentencingpurposes the degree of fault inherent in the crime committed. [67] The analysis in Laberge has been followed and/or favourably considered in several Saskatchewan cases,including judgments of this Court in R v Rodgers, 2012 SKQB 80, 394 Sask R 152; R v Kurek, 2018 SKQB 168; R v Sand, 2019 SKQB

123 [ Sand ], and the already referenced decisions in Moostoos , Stonechild , Mullen and Larose . It was also favourably considered by the Saskatchewan Court of Appeal in R v Shorting , 2009 SKCA 102 , 337 Sask R 134. [ 68 ] In addition to the above references, I would be remiss if I did not refer to the other decisions cited by both counsel in relation to manslaughter cases. In addition to two authorities already mentioned, Crown counsel cited the judgment of the Ontario Superior Court of Justice in R v Mendez , 2019 ONSC 4533 [ Mendez ].

Meanwhile, defence counsel cited R v Yates , 2021 SKQB 247 ; R v Gilpin , 2022 BCSC 658 [ Gilpin ]; and R v Smith , 2018 BCSC 2344 . [ 69 ] My review of the relevant cases suggests that the paramount objectives in a sentence for manslaughter are denunciation and deterrence – both general and individual deterrence. This is particularly so in cases where, as in the present instance, the offender intends to wound and/or cause bodily harm to the deceased. Such a state of mind raises serious concerns about the offender’s moral blameworthiness.

That said, where the unlawful act involves an added element of planning and deliberation, as opposed to an impulsive act, the offender’s moral blameworthiness will be even greater. [ 70 ] In the present case, the Crown argues that the circumstances of Mr. Cyr’s offence bear considerable similarity to the circumstances in Larose and Mendez , both of which resulted in sentences of 15 years imprisonment for manslaughter.

The Crown posits that parity calls for a similar or lengthier sentence. [ 71 ] In Larose , an Indigenous offender also faced a charge of second degree murder but was found guilty of manslaughter after a jury trial. The subject offence occurred shortly after the offender had been released from jail on a different conviction. Upon his release, and while on probation, he attended at the home of an acquaintance with whom he had an earlier dispute. Intent on harming the acquaintance, the offender armed himself with bear spray and a knife.

When he arrived at the home, he found five other people in the living room whereupon he sprayed the room with bear spray. This resulted in an altercation with one of the occupants (not the acquaintance) during which the offender stabbed the occupant in the torso, causing his death.

Finding that denunciation and deterrence were paramount objectives and accounting for the relevant Gladue factors, including the systemic factors that placed the offender in a somewhat different position from a non-Indigenous offender, Popescul C.J. concluded that 15 years imprisonment was a just and fit sentence. [ 72 ] In Mendez , the offender and his friend faced charges of second degree murder related to the death of the victim, another friend. They had been walking along the street near the victim’s home when the victim appeared.

Although the offender and the victim had previously been friends, an argument ensued about the offender and his late mother of being “snitches” and “rats” in relation to an incident which resulted in the victim’s arrest. It was the offender’s evidence that the victim pulled out a handgun which the offender managed to swat away and then retrieve from the snow. The offender testified that the victim then cocked his arm as if to throw a punch. The offender said that, at this point, he turned away but was able to fire three shots behind him. The victim had been shot twice in the back and once in the back of the head.

The jury acquitted the offender’s friend but found the offender guilty of manslaughter.

In addressing the necessary findings of fact, the sentencing judge made four specific findings: • Despite circumstantial evidence to the contrary, it had not been proved beyond a reasonable doubt that the offender brought the handgun to the encounter with the victim; • Being called a “snitch” or a “rat” can have serious negative consequences, and that provocation was a significant factor in the incident; • The offender had sole and complete possession of the loaded handgun after swatting it from the victim, leaving the victim unarmed when the shots were fired; and • The threatening and insulting words of the victim, directed at the offender, played a significant role in what unfolded. [ 73 ] After reviewing the aggravating factors, including the use of a firearm, the number and location of the bullet wounds, the offender’s criminal record (which included firearms offences), and the presence of a prohibition order related to firearms, O’Marra J. was satisfied that the objectives of denunciation and deterrence called for a sentence of 15 years imprisonment.

It should be noted, however, that the offender received more than 12½ years of credit for pre-trial custody. This was attributable to this being a new trial following a successful appeal from an earlier trial. [ 74 ] Defence counsel has commended the decision in Gilpin to the Court’s attention. In that case, the Indigenous offender was 23 years old when he fired a rifle three times into the bedroom where the deceased, his stepfather, was sleeping. At trial, the jury found the offender not guilty of second degree murder but guilty of manslaughter.

From the jury’s verdict, the trial judge inferred that the jury found the offender too intoxicated to have the necessary state of mind for murder. The offender did not have a criminal record but had significant Gladue factors, including an unstable childhood due to his parents’ alcoholism, domestic violence and lack of supervision. The sentencing judge also found that the offender had been struggling with alcohol addiction as a teenager, and that all the related circumstances were attributed to the multigenerational effects of colonization.

The sentencing judge was also satisfied that there were significant mitigating factors, including a pre-trial offer to plead guilty to manslaughter. There were also several aggravating factors surrounding the circumstances of the shooting, including a certain degree of deliberation involved in the unlawful act. In the end, Church J. imposed a sentence of 6½ years imprisonment for manslaughter. She also stated that, had it not been for the mitigating circumstances and the relevant Gladue factors, a sentence of nine years imprisonment, as sought by the Crown, could well have been imposed.

Gladue Considerations – s. 718.2 (e) [ 75 ] Turning to the Gladue considerations, under s. 718.2(e), this Court has received guidance from a number of Saskatchewan Court of Appeal decisions that have, in turn, considered and applied the analysis in the two leading Supreme Court of Canada authorities, namely, Gladue and R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ].

The Court of Appeal decisions I mention in this respect are R v Chanalquay , 2015 SKCA 141 , 472 Sask R 110 [ Chanalquay ]; R v Whitehead , 2016 SKCA 165 , 344 CCC (3d) 1; R v Slippery , 2015 SKCA 149 , 472 Sask R 181 [ Slippery ]; R v Delorme , 2017 SKCA 3 ; R v Lemaigre , 2018 SKCA 47 [ Lemaigre ]; and R

v Bear , 2022 SKCA 69 . These judgments, particularly the analysis in Chanalquay , call for sentencing judges to assess whether the systemic and background factors speak to the culpability of Aboriginal or Indigenous offenders in such a way that the moral blameworthiness of the offender’s conduct may be lessened. If so, such factors may impact the determination of a fit sentence. [ 76 ] In Sand , Danyliuk J. carried out a helpful review of the then leading Saskatchewan authorities that have interpreted s. 718.2(e), along with references to the judgments in Gladue and Ipeelee .

Rather than recite that review verbatim in this judgment, I think it appropriate for me to summarize, in point form, my learned colleague’s observations. That

summary is as follows: a. Subsection 718.2(

e) requires sentencing judges to take a view of sentencing that is more restorative in nature where such a view is warranted and possible. ( Sand at para 20 .) b. Subsection 718.2(

e) is neither a “get out of jail free” card nor an automatic discount in sentence. Rather, it is a direction that sentencing judges must consider additional factors in crafting a fit sentence. ( Chanalquay at para 54 ; Lemaigre at para 17 ; Sand at para 21 .) c. Two main additional factors are: (1) systemic factors, such as residential schools and the theory of colonization, of which sentencing judges are entitled to take judicial notice; and (2) alternative types of sentencing procedures or sanctions, other than incarceration, that may be best for a particular offender. ( Sand at paras 22 and 25 .) d.

Systemic factors may illuminate the degree to which an Aboriginal or Indigenous offender possesses the moral blameworthiness or responsibility for the crimes committed. Even so, such factors are unlikely to eliminate moral blameworthiness or vitiate the voluntariness of an offender’s actions ( Sand at para 23 .) e.

It is not incumbent on an offender to establish any direct causal link between the so-called Gladue factors and the subject offences. ( Ipeelee at para 83 ; Slippery at paras 45 and 46 ; Sand at para 26 .) [ 77 ] In Sand , Danyliuk J. concluded his review with an observation that sentencing judges should not easily rebut or overstate the importance of the Supreme Court of Canada’s

interpretation of s. 718.2 (e). Citing comments from Chanalquay , Danyliuk J. wrote the following at para. 28: 28 However, while the importance of Gladue and Ipeelee cannot be gainsaid, neither should they be overemphasized. They do not create an entire new system of sentencing. The Criminal Code , and the cases interpreting same, simply make it incumbent upon sentencing judges to give genuine and meaningful consideration to s. 718.2(e), just as judges must give genuine and meaningful consideration to the other sentencing principles set out in the Criminal Code and in case law.

The type of crime and its effects on the victims remain to be properly considered as well. Chief Justice Richards said this in Chanalquay at paras 42 and 43 : [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. Sentencing judges must attempt to give meaningful effect to the remedial purpose of s. 718.2(

e) and must be highly alert to the ongoing problem represented by the troubling incarceration rates of Aboriginal people. But, the ultimate sentencing objective is clear: considering all of the relevant sentencing principles, including s. 718.2(e), what is a fit sentence for the offender given his or her circumstances, the nature of the crime, the situation of the victim, and the interests of the community? ( Gladue at para 75 .) [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. [Emphasis added] Remand Credit [ 78 ] The Criminal Code allows sentencing judges to take into account an offender’s pre-sentence time in custody. Subsection 719(3) stipulates that the court shall limit the credit for pre-sentence custody, commonly known as “remand credit”, to a maximum of one day for each day spent in custody. An exception to this stipulation is set out in s. 719(3.1).

Under this exception, the maximum remand credit is one and one-half days for each day spent in custody where the circumstances justify it. The justification for this greater credit is based on the belief that pre-sentence custody is more onerous than post-sentence custody. This belief, in turn, is premised on two facts. The first is that pre-sentence custody does not factor in parole considerations.

The second fact is that there are fewer educational and rehabilitation programs available to pre-sentence prisoners. [ 79 ] The question of enhanced credit for pre-sentence custody, beyond the maximum set out in s. 719(3.1), has been raised in previous cases. The frequently cited authority in this regard is the Ontario Court of Appeal judgment in R v Duncan , 2016 ONCA 754 . There, the sentencing judge concluded that, as a matter of law, credit for pre-sentence custody could not exceed the 1.5 limit.

Accordingly, she concluded that she could not provide any greater credit for lockdown conditions that existed during the offender’s remand. In a per curiam judgment, the Court of Appeal disagreed with the sentencing judge’s view that greater credit was precluded as a matter of law. Even so, the Court was not satisfied that the circumstances related to the lockdown justified enhanced credit. In this regard, the Court wrote the following at paras. 6-7: 6 On our reading of the trial judge’s reasons, we agree with counsel.

The trial judge effectively held that any credit or consideration in relation to presentence incarceration was capped at the 1.5 limit. We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence

incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in “lockdown” conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions.

Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration. 7 While the pattern of “lockdowns” endured by the appellant is worrisome, without further evidence as to the effect of those conditions, we cannot say that the appellant suffered particularly harsh treatment entitling him to additional mitigation beyond the 1.5 credit.

Consequently, although we agree that the trial judge misinterpreted the relevant provision, we would not reduce the sentence to reflect any added mitigation for the conditions of presentence incarceration. [ 80 ] In the present case, the question arises as to whether Mr. Cyr having twice contracted COVID-19 while on remand justifies enhanced credit for remand. This, however, is not the only way in which this circumstance can be recognized.

As noted in R v Mosquito , 2023 SKCA 29 [ Mosquito ] , there are cases across Canada where sentencing judgments have considered the COVID-19 pandemic either as a collateral consequence, a mitigating circumstance or a justification for enhanced remand credit. [ 81 ] Before going further, I think it important to describe what is meant by a “collateral consequence” in the context of sentencing. The term is not frequently considered or applied.

As defined by the Supreme Court of Canada in R v Suter , 2018 SCC 34 at para 47 , [2018] 2 SCR 496 , a collateral consequence “includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.” The Court went further to acknowledge that, despite the absence of a rigid formula to apply, a sentencing judge may have to consider a collateral consequence when tailoring a sentence to the circumstances of the offence and the offender.

That said, it also recognized that collateral consequences do not relate to the gravity of the offence or the responsibility of an offender. In addressing this point and describing how a collateral consequence could be considered, the Court, speaking through Moldaver J., said the following at para. 48: 48 Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2 (

a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the “personal circumstances of the offender” ( Pham [2013 SCC 15 , [2013] 1 SCR 739 ], at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid. ; s. 718.2 (

b) of the Criminal Code . The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.

Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit. [ 82 ] Returning to the decision in Mosquito , the Crown appealed a judgment in which the sentencing judge noted that the offender had twice contracted COVID-19 while on remand. In determining sentence, the judge treated this fact as a mitigating circumstance.

After reviewing the various authorities in other provinces, and noting the three different approaches that had been observed, the Court expressed its preference for the collateral consequence approach, which had been followed by the Courts of Appeal in British Columbia, Manitoba and Nunavut. Despite this expressed preference, the Court did not interfere with the sentence. The Court’s comments in this regard, through the judgment penned by Barrington-Foote J.A., appear at paras. 93-94: 93 As a general proposition, I agree with St.

Constantine [2022 BCCA 6], Caribou [2022 MBCA 95] and Kolola [2021 NUCA 11] that the effects of the Covid pandemic are properly dealt with as collateral consequences. That approach maintains the distinction between mitigating factors, which reduce the gravity of the offence or the moral blameworthiness of the offender, and factors that result from the extraordinary conditions experienced by an offender in serving their sentence or from the exceptional effect on the offender that do not.

This requires that the general and specific impacts of Covid be taken into account in a manner that respects the principles of sentencing, including the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 94 Having affirmed the propriety of this approach, it is not necessary to decide whether there are circumstances in which Covid could relate to the circumstances of the offence or the offender in a manner that is either aggravating or mitigating.

Here, the sentencing judge was entitled to take account of the effect of the Covid pandemic on Mr. Mosquito as a collateral consequence. The submissions of counsel on this point were grounded in the facts. Mr. Mosquito had had two bouts of Covid and had been impacted by protocol driven restrictions on his freedom of movement within the institution and the corresponding ability to interact with others. The weight to be given to this factor was, subject to the principles of sentencing as a whole, for the sentencing judge to determine. I am unable to say that he erred in his decision on this point.

Analysis [ 83 ] Having reviewed the relevant evidence and the applicable principles of law, I must now apply those principles to that evidence. In doing so, I must endeavour to craft a fit and proper sentence in this sad and tragic case. [ 84 ] Turning first to the circumstances surrounding the shooting of Isaiah Allary, I agree with Crown counsel that there are multiple aggravating circumstances in this case, some of which meld with others.

At the outset, and considering the findings of fact the Court has made, the mere discharge of a firearm with the intention to wound or cause bodily harm is sufficiently aggravating that it elevates the gravity of Mr. Cyr’s actions to a “near murder” form of manslaughter. A further aggravating factor is the fact that the firearm Mr. Cyr used in this shooting, was possessed by him in flagrant disregard of the law and the prohibition order to which he was subject. Finally, I also accept that, irrespective of the firearm having been pointed at Mr.

Allary, the mere discharge of this firearm in a residential neighbourhood is, in itself, somewhat of an aggravating factor. In short, all these circumstances, when considered in the context of Mr. Cyr’s criminal record as an adult, present as aggravating.

[ 85 ] As for mitigating factors, I find there are few. Defence counsel, in his submission, suggested there were two circumstances the Court could take into account. The first circumstance involved the likelihood that Mr. Cyr was under the influence of crystal methamphetamine at the time of the shooting. Although the evidence in this regard is far from definitive, counsel suggests the relevant evidence, including the video surveillance of 1454 Rae, reveals that Mr. Cyr and his colleagues attended that address for the purpose of retrieving a “bong”, an accessory used to smoke crystal methamphetamine.

The second circumstance involved the initial confrontation between Mr. Cyr and Mr. Allary. Having regard to the circumstances surrounding that confrontation and the events that occurred later on, counsel invites the court to infer that Mr. Allary made disparaging comments about Mr. Cyr’s disfigurement. [ 86 ] In my view, these circumstances are not compellingly mitigating. With respect to the first circumstance, there was no clear evidence that Mr. Cyr was under the influence of any substance at the time of the shooting.

While the behaviour in seeking a bong and the use of illicit substances after the shooting might raise suspicions, I cannot comfortably conclude that Mr. Cyr was under the influence of anything at the time of the shooting. [ 87 ] As for the inference that Mr. Allary had made a disparaging comment about Mr. Cyr’s appearance, I accept that this is not an unreasonable inference to draw. Moreover, while it is not fully consistent with Ms. Toto’s evidence, it is consistent with the evidence given by Ms. Stonechild, as questionable as that evidence was. Even so, and while I accept that Mr.

Cyr’s disfigurement has had a significant emotional impact on him, there is little evidence to support the view that a disparaging comment would amount to a strong mitigating circumstance. [ 88 ] Turning to the objectives of an appropriate sentence, I accept and agree with the authorities that have identified denunciation and deterrence, both individual and general, as paramount. Any form of homicide is a serious crime.

Moreover, where it occurs in the context of a senseless act to wound or cause bodily harm, the gravity and moral blameworthiness of an offender’s conduct calls for a significant but proportionate sentence. [ 89 ] Having regard to the Gladue factors in this case, I found Dr. Stewart’s report very interesting. I expect that the programming staff at the Correctional Service of Canada will also find it interesting and of some assistance in assessing the programming Mr. Cyr will require in the penitentiary. I found the observations about Trauma-Informed Care to be of particular interest.

Although they were presented in the context of Gladue factors that Dr. Stewart found to be in play, they could quite easily apply to the circumstances of non-Indigenous offenders with similar traumatic histories. [ 90 ] Even so, the sad reality is that these observations are more prominent in the Indigenous communities across this province. Moreover, I accept that the forms of trauma identified in the modules referenced in Dr.

Stewart’s report provide some context to the understanding of how systemic factors in Indigenous communities, related to residential schools and colonialization, place Indigenous offenders on a more disadvantaged footing than most non-Indigenous offenders. That disadvantaged footing has historically diminished an Indigenous offender’s ability to cope and to break the cycle of despair, substance abuse, lack of impulse control, and – worst of all – violence.

These elements speak directly to the concept of moral blameworthiness. [ 91 ] Despite these reflective comments, I must also recognize that even the most compelling Gladue factors cannot vitiate the voluntariness and malice of Mr. Cyr’s conduct and the pain it has brought upon Mr. Allary’s family. That conduct calls for a substantial penitentiary sentence, one falling within the range of 12 to 16 years. [ 92 ] Turning to the circumstances of Mr.

Cyr’s pre-sentence custody, the Crown did not challenge the suggestion that he contracted COVID-19 on two occasions during his remand, and that the circumstances associated with that illness while in custody were not insignificant. That said, I do not agree with defence counsel’s suggestion that this circumstance should be accounted for with enhanced remand credit.

Rather, I agree with the suggestion, in Mosquito , that the circumstance amounts to a collateral consequence which I can consider in the context of all the circumstances relating to this particular offender. [ 93 ] In the end, and having regard to all the circumstances before me, including the circumstances of the offence, the circumstances of the offender, the relevant Gladue factors, and the applicable law related to sentencing, I am satisfied that a sentence of 14 years imprisonment for the offence of manslaughter is a just and fit sentence. Sentence Imposed [ 94 ] Mr.

Cyr, please stand. [ 95 ] Devon Wayne Cyr, in respect of the offence of manslaughter, in the death of Isaiah Allary, I sentence you to a term of imprisonment of 14 years. For the offence of resisting a peace officer in the execution of that officer’s duty to effect a lawful arrest, I sentence you to a term of imprisonment of six months, concurrent to the sentence for manslaughter.

For the offence of possession of a prohibited weapon, to wit: a sawed-off .22 rifle, while you were prohibited from doing so by reason of an earlier order pursuant to s. 109 of the Criminal Code , I sentence you to a term of imprisonment of one year, concurrent to the sentence for manslaughter. [ 96 ] The aggregate sentence imposed amounts to 5,110 days. Mr. Cyr has been in custody since the early morning of January 26, 2020. Calculated to today’s date, that amounts to 1,258 days.

With credit at one and one-half days for each day in custody, this amounts to a remand credit of 1,887 days, leaving a net sentence going forward of 3,223 days. [ 97 ] In addition, I direct the following ancillary orders: a. Pursuant to s. 487.051 of the Criminal Code , there shall be an order in Form 5.03 authorizing the taking of the number of samples of bodily substances from Mr. Cyr that is reasonably required for the purpose of forensic DNA analysis and retention in the DNA information databank; and b. Pursuant to s. 109 of the Criminal Code , that Mr.

Cyr be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition and explosive substance for life.

[ 98 ] With respect to the victim surcharges, the evidence is that Mr. Cyr has no assets or financial resources with which to pay these surcharges. Accordingly, I am satisfied that the imposition of a victim surcharge would cause undue hardship to Mr. Cyr. It is therefore waived pursuant to s. 737 (2.1) (

a) of the Criminal Code . J. R.W. ELSON