R. v. Winter, 2019 ONCJ 614

ONTARIO COURT OF JUSTICE CITATION: R. v. Winter , 2019 ONCJ 614 DATE: May 27, 2019 COURT FILE No.: Dryden 181006 BETWEEN: HER MAJESTY THE QUEEN — AND — JEFFREY WINTER Before Justice Sarah Cleghorn Heard on April 18, 2019 Reasons for Sentence delivered on May 27, 2019 D. Allan...................................................................................................... counsel for the Crown A.

Sieb........................................................................... counsel for the accused Jeffrey Winter Cleghorn J.: Introduction and Overview [ 1 ] On August 6, 2017, the accused, Jeffrey Winter, took the life of his girlfriend, Rosalyn Boyce, in a violent and brutal attack while he was in a state of extreme intoxication. Mr. Winter elected to be tried before me in the Ontario Court of Justice. He has entered a guilty plea to manslaughter, contrary to

section 236 (

b) of the Criminal Code . [ 2 ] The Crown and defence have proposed a joint submission for the court’s consideration, consisting of a life sentence and an order to delay Mr. Winter’s parole ineligibility, pursuant to

section 743.5 of the Criminal Code . [ 3 ] I will begin with an overview of the facts in this matter. [ 4 ] Mr. Winter and Ms. Boyce had only just started dating one another before her untimely death; they were one month into their relationship. Little is known as to what occurred between them in the early morning hours of August 6, 2017, given Mr. Winter was in what can be best described as a “blackout” from his use of intoxicants. [ 5 ] What is known is that Mr. Winter called the police to advise that someone had died. When the police arrived at his home they discovered the tragic scene of Ms.

Boyce lying face down in a pool of blood with obvious signs of trauma. She was cold to the touch. [ 6 ] The investigation revealed that the cause of death was a result of “chop” wounds to Ms. Boyce’s head and back; she had been struck with an axe a minimum of five times. Her injuries included a fracture of the second vertebrate, separation of the skull and vertebrate, a broken sternum, a fractured left arm, wounds to the side of her head in the facial bones and the jaw bone. Lastly, injuries were noted to her left shoulder blade, three ribs and one of her arms. [ 7 ] At the time of Mr.

Winter’s arrest, he had blood on his hands. It was later determined to be the blood of Ms. Boyce. The police then found an axe not far from Mr. Winter’s home. The blood on the axe was later confirmed through DNA testing to be that of Ms. Boyce. Mr. Winter’s DNA was also located on the handle. Circumstances of the Offender [ 8 ] Having outlined the facts in this matter, I will now address the personal circumstances of Mr. Winter as they are essential to understanding how his childhood has led to the person he is today.

[ 9 ] The Court has the benefit of a fulsome Gladue Report, which is marked as

schedule “A” to these reasons. [ 10 ] Mr. Winter is thirty-six years of age. His First Nation community is Wapekeka . His father has seven children from a previous marriage and three children from his relationship with Mr. Winter’s mother. Mr. Winter is the middle child from the union of his parents. His mother has one son from a prior relationship. [ 11 ] Mr. Winter’s home life consisted of him witnessing his father physically abusing his mother on what he recalls as being a frequent basis. When Mr.

Winter was seven years of age, a protection agency became involved with the family for a period that spanned twelve years. His childhood consisted of time away from the family home when his mother sought refuge in different women’s shelters. [ 12 ] Sadly, the children were also the victims of physical abuse. Mr. Winter recalls both of his parents assaulting him. [ 13 ] Mr. Winter’s mother severed her relationship with Mr. Winter’s father in 1995; Mr. Winter remained in the care of his abusive father. His mother died when Mr. Winter was just fifteen years of age. [ 14 ] Mr.

Winter’s home life during his childhood did not provide him with security, unconditional love and the guidance that all children require to thrive. At times, the necessities of food, water and heat were absent. [ 15 ] Tragically, Mr. Winter experienced many life-altering events in his adolescent years. When he was twelve years of age, one of his older-half brothers committed suicide.

He also witnessed other close family members attempt to take their lives; one with the use of a firearm and another by hanging. [ 16 ] When he was nine years of age, some of his family members were drinking which then led to fighting. One of his brothers set the home on fire. Thankfully no one was injured or killed, but the family home was destroyed and required Mr. Winter to escape the fire and then watch his home burn to the ground. [ 17 ] His home community declared a state of emergency in 1992 as a result of the high numbers of suicide and suicide attempts. In a small community, Mr.

Winter knew many of the people who attempted suicide or who succeeded in taking their lives. Mr. Winter reports seeing individuals hanging and at different times, assisting in trying to save people who had attempted suicide by cutting them down from where they were found. [ 18 ] In short, Mr. Winter grew up in a community marked by desperation and death and in a home that provided no safety or security for him. He was raised in an environment in which substance abuse and violence became normalized. Raised in such circumstances, it is far from surprising that Mr. Winter has engaged in similar behaviour.

His sister, Victoria, told the author of the Gladue Report that, “He has always been violent, because of the way our lives were (as children).” [ 19 ] His criminal record is reflective of his upbringing. This will now be his thirty-seventh conviction. Mr. Winter has been before the justice system since the age of fourteen with minimal gaps. He has spent the majority of his adolescent and adult years either in custody or under state supervision. [ 20 ] Mr. Winter’s involvement with the criminal justice system has gone hand in hand with his severe and long-standing addiction issues.

He began drinking mouth wash at the age of eleven, followed by homebrew. Around the age of twelve, he started abusing solvents. In his later teenage years, he began using marihuana and reports daily use when not incarcerated. [ 21 ] Given all that was occurring in his early adolescence, his education was significantly impacted. His highest level of education is grade 9, which he completed while in custody. [ 22 ] Mr. Winter is described as having sporadic, short term employment opportunities. It appears that when Mr.

Winter has a daily purpose in terms of work and can remain sober, he is described as a very hard worker. He reports that his longest stretch of sobriety has been two months. [ 23 ] In terms of Mr. Winter’s relationships, he has been involved in many but they generally come to an end because of Mr. Winter substance abuse and his physically abusive behaviour. Mr. Winter has three children all from different relationships. It appears he has had minimal involvement with his children. The Appropriate Sentence [ 24 ] Having outlined the circumstances of Mr.

Winter, I will now explain why the joint submission proposed by the parties represents a fit and appropriate sentence, given the circumstances of this offence and this offender. [ 25 ] The principles and objectives of sentencing are well established and set out in

section 718 of the Criminal Code . Denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community are the objectives to be met in imposing sentence.

This is always an individualized process that takes into account both mitigating and aggravating factors. [ 26 ] The court must be mindful of the fundamental principle of sentencing, that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence must take proper account of the seriousness of the crime and the offender’s level of moral blameworthiness in its commission. [1] [ 27 ]

Section 718.2(

e) directs sentencing judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, “with particular attention to the circumstances of aboriginal offenders”. [ 28 ] In Gladue the Supreme Court explained that when sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection [ 29 ] In paragraphs 78 and 79, the Supreme Court recognized that for some offences, the sentences will be the same as those imposed for non-indigenous offenders: In describing the effect of s. 718.2(

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases.

Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.

Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [ 30 ] Here, Mr.

Winter has reached a point in his criminal offending behaviour, that the violent and serious nature of the offence warrants a sentence as proposed by counsel in their joint submission. [ 31 ] In reaching this decision, I have taken into account both the mitigating and aggravating offenders. [ 32 ] In terms of mitigating factors, in addition to the Gladue factors, Mr. Winter’s plea of guilt has spared Ms. Boyce’s family and his community the ordeal of a trial. This is very much to his credit.

He has also spared the administration of justice the time and expense of a trial. [ 33 ] There are many aggravating factors present. These include the brutal nature of this crime, the fact that Mr. Winter was in a relationship with Ms. Boyce, Mr. Winter’s lengthy and related criminal record, and profound impact of this crime for Ms. Boyce and her entire family. [ 34 ] Ms. Boyce leaves behind three children, one with special needs, extended family and a grieving community. Susan McKay, mother to Ms. Boyce, provided a victim impact statement. Ms.

McKay and her husband suffer from the darkest grief of losing one’s child. In addition to her own pain, she must support and love her grandchildren, answering the very difficult questions that are posed to her about what has happened to their mother. [ 35 ] This is situation where the community of Wapekeka does not wel​come Mr. Winter to return to their community. Chief Sainnawap has clearly expressed that Mr. Winter is a threat to the people of Wapekeka. A victim impact statement written by Brennan Sainnawap on behalf of the community was provided to the court.

Portions of Chief Sainnawap’s statement cap​tures the impact of this crime on the community: The tragic event that transpired on August 6, 2017 affected every person in the Community. It pitted family against family, as our community is inter-related with one another throughout the community. This court is foreign to our people albeit times have definitely changed. When a person took a life in the old days, the person who took a life can never come back to the community. He was banished forever. This court does not recognize that old unwritten rule and custom of our people.

Mr Jeffrey Winter has been in and out of jail or in some form of detention for most of his adult life. He has not been able to adjust to the community’s expectations or to the rules of the community. [ 36 ] Mr. Winter is a very violent man. Nothing short of a life sentence will ensure the protection of society. Hopefully, within the federal penitentiary system, Mr. Winter will start the process of rehabilitation and adjust to what may lay ahead for him. [ 37 ] In terms of delayed parole eligibility pursuant to

section 743.6 of the Criminal Code , I note that the discretion to delay Mr. Winter’s parole is an exercise in judicial authority that requires a separate and distinct consideration of the factors on sentencing. It is not a decision to be made routinely and without proper consideration of the relevant statutory factors. [ 38 ] To that end, the Supreme Court of Canada, in R. v.

Zinck [2] , clearly outlined that the priority in determining whether delayed parole is to be imposed turns on the sentencing objectives of denunciation and deterrence. [ 39 ] Before me is a joint submission, put forward by capable and experienced counsel. The issue of delayed parole formed part of the jointly proposed sentence. As such, Mr. Winter clearly had notice that delayed parole ineligibility could form part of the sentence imposed on him. [ 40 ] Mr. Winter is an individual whose criminal record speaks for itself in terms of his propensity towards violence. Mr.

Winter has chronic and severe addiction issues. His first nation community is fearful of him and does not support his return to his home community, ever. Despite Mr. Winter’s involvement with the criminal justice system for the past two decades, the loss of his liberty time and time again, Mr. Winter has failed to take any meaningful steps towards his rehabilitation. Until Mr.

Winter undertakes the necessary steps to address his violent tendencies and his substance abuse, he will remain a continuing threat to society. [ 41 ] Delayed parole, taking into account the offence and the offender, in all of the circumstances, is appropriate. Mr. Winter’s pattern of abusing his partners is inexcusable. Unless and until Mr. Winter can address his chronic substance abuse issues and what can best be described as his fits of rage, his ability to re-enter the community is questionable.

[ 42 ] The joint submission is acceded too. Mr. Winter is sentenced to life imprisonment, with his parole ineligibility set by this court at ten years. [ 43 ] In addition to the custodial sentence the following ancillary orders will also be made: • Pursuant to s.109, Mr.

Winter is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life and any firearm (other than one that is prohibited or restricted), cross-bow, restricted weapon, ammunition and explosive substance for a period beginning today for life; • The charge of manslaughter is a super-primary designated offence. As a result, an order shall issue for the taking of a blood sample from Mr. Winter for inclusion of his DNA profile in the National DNA Databank; • Pursuant to

section 743.21 of the Criminal Code , an order will issue prohibiting Mr. Winter, while he is in custody serving his sentence, from having any contact, directly or indirectly, with the following people: Susan McKay, Frank McKay, Lovelyn Paishk, Samaria Boyce, Caleb Boyce, Charles Boyce, Isack Mckay, Cheyenne McKay, Sarah McKay, and Kelly McKay. Released: May 27, 2019 Signed: “Justice Sarah Cleghorn”