R v Rabbit, 2023 ABKB 706

Court of King’s Bench of Alberta Citation: R v Rabbit, 2023 ABKB 706 Date: 20231208 Docket: 211267000Q1 Registry: Red Deer Between: His Majesty the King Crown - and - Benjamin Rabbit Defendant _______________________________________________________ Sentencing Judgment of the Honourable Justice Gillian D. Marriott _______________________________________________________ The following is the written version of the decision I delivered orally on December 8, 2023.

I reserved the right to make stylistic or grammatical changes, to add or complete authorities and citations, to complete quotations, and to make minor revisions. In delivering the decision, I may have omitted extensive quotations and they have been completed. As well, a

summary of the cases referred to by Crown and Defence have been added as an Appendix to the decision, and I did not provide that part of the decision orally. The written decision is the official judgment of the Court.

I. Introduction [ 1 ] Mr. Benjamin Rabbit plead guilty to the unlawful act of manslaughter of Lance Service contrary to s 236(

b) of the Criminal Code . The offence was committed on December 27, 2021. [ 2 ] An Agreed Statement of Facts was submitted and marked as an Exhibit in these proceedings. Further facts were presented and accepted in a Sentencing Circle which was held on September 6, 2023 in the Court of King’s Bench of Alberta, the Transcript of which is also an Exhibit and is subject to a Publication Ban. A Gladue Report was also received and marked as an Exhibit. [ 3 ] This Court must determine a fit sentence for Mr. Rabbit. [ 4 ] First, I would like to extend my sympathy and condolences to the friends and family of Mr. Service.

No sentence that I impose will bring back Mr. Service. I can imagine that his death has had a profoundly painful effect on their lives. I also acknowledge their participation in the Sentencing Circle. Although difficult, I hope that their participation and the sharing that took place brought them some peace. II. The Sentencing Circle [ 5 ] I would like to say a few words about the Sentencing Circle.

Both counsel agreed that the evidence from the Sentencing Circle, excluding lines 3-20 on page 18 of the Transcript, would form part of the facts for the sentencing. [ 6 ] The Sentencing Circle flows from the Indigenous tradition of the talking circle or sharing circle.

No formal rules have been adopted under the Criminal Code for the use of Sentencing Circles to receive evidence, however the parties agreed (with the exception noted above) that the information shared in the Sentencing Circle can be used as evidence: R v Monkman, 2021 ABQB 648 at paras 17 and 18 . [ 7 ] Although not specifically dealing with a Sentencing Circle, in R v Spotted Eagle, 2021 ABCA 26 , the Court of Appeal, at para 25 noted that the rules of evidence are considerably relaxed for sentencing: The sentencing judge is entitled to draw inferences from the evidence and information presented... sentencing judges often rely on unchallenged submissions by counsel, hearsay statements, “judicial notice” of and “judicial experience” with recurring circumstances, as well as evidence from experts.

That is particularly true with respect to systemic conditions underlying the Gladue/Ipeelee factors, which ... are largely incapable of formal proof... [ 8 ] Multiple people shared at the Sentencing Circle. I would specifically acknowledge the presence of the Facilitators; the Elders, Mr. Service’s family, the individuals who attended to support Mr. Rabbit, and the two investigating officers. While I may not reference all who spoke, I thank them for their participation. III.

Circumstances of the Offence [ 9 ] An Agreed Statement of Facts was read into the record, it was subsequently amended by consent of both Crown and Defence to exclude paragraph 5. I have reviewed it together with the information shared at the Sentencing Circle and find that the salient facts are as follows: [ 10 ] Mr. Service and Mr. Rabbit had known each other for approximately two years prior to the offence. Mr. Rabbit would stay in Mr. Service’s apartment from time to time when he was otherwise unsheltered. [ 11 ] The relationship between the two men was volatile. They would often argue. Mr.

Rabbit would leave Mr. Service’s home and then return when he found himself unhoused. At one point, Mr. Rabbit secured employment with Midwest Pipelines and stayed with other friends for six months. He then returned to Mr. Service’s apartment and stayed for a month. Both Mr. Rabbit and Mr. Service had alcohol addictions and alcohol formed a big part of their friendship. They drank every day. After he lost his job Mr Rabbit’s alcohol addiction worsened. [ 12 ] At the Sentencing Circle, Mr. Rabbit shared more details about the circumstances of the offence. He explained that he saw Mr. Service as a father figure.

At the time of his death, Mr. Service was 66 years old, and Mr. Rabbit was 27 years old. Mr. Service had made sexual advances towards Mr. Rabbit. Mr. Rabbit stated that he advised Mr. Service that “he was not into that”. Mr. Rabbit recalled that Mr. Service wrote letters to him referring to the fact that Mr. Rabbit would not let Mr. Service touch him sexually. [ 13 ] Mr. Rabbit suspected that Mr. Service had sexually assaulted him on at least one occasion, prior to the offence, when Mr. Rabbit was passed out from drinking. On that occasion, Mr. Rabbit woke up and his pants were undone. He told Mr.

Service to never to touch him again and left the apartment. After that, he stayed with his sister and then ended up being homeless. [ 14 ] On the evening of December 27, 2021, Mr. Rabbit had returned to Mr. Service’s apartment. The two men began drinking, with Mr. Rabbit eventually deciding it was time to go to bed. He fell asleep on the mattress that was located on the bedroom floor. Mr. Service remained on the living room couch where he usually slept. [ 15 ] Sometime later, Mr. Rabbit woke up.

He explained that “I woke up with my pants down up to here and my underwear just – with him on his knees and it...he was on his knees, like he was pulling, and I freaked out.” [ 16 ] Mr. Rabbit became angry with Mr. Service. Mr. Rabbit told Mr. Service not to touch him. Mr. Service responded with “you

liked it last time”. Mr. Rabbit saw red and “snapped”. [ 17 ] Mr. Rabbit pushed Mr. Service onto the couch and then struck Mr. Service across the neck with his forearm, holding his arm there and applying enough pressure to break Mr. Service’s hyoid bone in two places. It is undetermined for how long Mr. Rabbit applied pressure. Mr. Service died by asphyxiation. [ 18 ] When Mr. Rabbit got off Mr. Service, he realized what had happened and he describes himself as being in shock. Mr. Service was turning blue. [ 19 ] Mr. Rabbit stayed in the apartment until 6:00 pm on December 29, 2021.

During that period, he reports that he attempted to commit suicide. On December 29, while in a state of intoxication, he called 911 and reported his actions. When the police arrived, Mr. Rabbit was cooperative: as he was throughout the investigation. [ 20 ] Mr. Rabbit admits that even in his heightened emotional state and lingering level of intoxication, he had objective foreseeability of the risk of bodily harm which was neither trivial nor transitory. IV. Victim Impact Statements [ 21 ] Mr. Service’s sister participated in the Sentencing Circle. She praised Mr. Rabbit for his humbleness and bravery.

She described her upbringing with ten siblings and described a lot of alcohol abuse on both sides of her family. She said that she thought that Mr. Service would want Mr. Rabbit to “pick up, put one foot forward in front of the other and continue fighting every day”. Other than the comments shared at the Sentencing Circle there were no Victim Impact Statements provided. V. Parties’ Positions A.

Defence Proposed Sentence [ 22 ] The Defence proposes that a fit and proper sentence is a conditional sentence of two years less a day with a focus on rehabilitation, followed by a three-year probation term. [ 23 ] Under the restorative plan, defence counsel proposes that Mr. Rabbit: 1. Uphold his ceremonial duties and make reparations to the affected community, either directly to the victim’s family or in Red Deer, Alberta where the offence took place. 2. Complete the 100 hours of community service over two years in Maskwacis, Alberta, which can be culturally related or other community contributions. 3.

Dedicate 50 hours towards making direct reparations to Mr. Service’s family (with their consent), such as crafting, working, or other time contributions. The family will discuss the specific work and sign a letter upon its completion. If the family declines, Defence counsel proposes 50 additional community service hours in Red Deer. 4.

Maintain his three-month updates to Justice Slawinsky ensuring cultural reconnection and progress, promoting accountability, and fostering restoration with the criminal justice system, [ 24 ] The three years of probation following the community sentence would facilitate continued counselling at the discretion of the probation office. It will allow ongoing supervision in the community. [ 25 ] The Defence submits that house arrest combined with stringent conditions such as continued abstinence can achieve deterrence and denunciation. This approach would still permit Mr.

Rabbit to pursue education, maintain rehabilitation and fulfill his restorative justice plan. B. Crown Proposed Sentence [ 26 ] The Crown seeks a custodial sentence of four to six years along with the ancillary orders of DNA and a firearms prohibition. VI. Circumstances of the Offender [ 27 ] In addition to the information shared at the Sentencing Circle, a Gladue Report was provided to the Court and marked as an Exhibit to assist in understanding Mr. Rabbit’s circumstances. As Mr. Rabbit was released on conditions, I have considered his personal circumstances both prior to the offence and then post offence. A.

Pre-Offence [ 28 ] Mr. Rabbit was born May 12, 1994 and was raised in one of the Four Nations that comprise Maskwacis, Alberta, by Viola Crier, who adopted him when he was three days old. At the Sentencing Circle, Mr. Rabbit described his adopted mother as a kind- hearted woman who did her best to raise him. Mr. Rabbit did not have a relationship with his biological parents who were both

Indigenous. He was unsure why his parents did not raise him. His brother told him that his birth mother had severe depression at the time of his birth, suffered from addictions, and that his father did not have the means to provide for him. It is not known if his birth parents attended residential school. Mr. Rabbit said he was upset when he found out he was adopted. [ 29 ] Viola Crier attended residential school at the Ermineskin Indian Residential School in Alberta. It was one of the larger residential schools in Canada. At the school, Viola’s hair was cut, and she was not allowed to speak her language.

She was sexually, physically, and verbally abused. Mr. Rabbit learned of the abuse from Viola directly and from reading her residential school experience letter after she passed away. The abuse Viola Crier endured deeply saddened Mr. Rabbit. [ 30 ] Mr. Rabbit was the youngest of eight children in the Crier household. The family moved constantly. Mr. Rabbit attended five different schools before leaving high school in grade 12. He did not obtain his high school diploma. [ 31 ] Throughout his youth, Ms. Crier brought Mr. Rabbit to many ceremonies and introduced him to Sundances.

He participated as a Sundancer for 13 years. When Ms. Crier passed away, he felt like he had lost not only his mother but his connection to his culture. [ 32 ] Mr. Rabbit reported that he started using alcohol when he was 13 years old. At 16, he began to use alcohol regularly. He consumed alcohol every weekend. Mr. Rabbit shared that alcohol was a constant presence in his environment when he was growing up, explaining that it was part of the community life with drinking parties every weekend.

He advised that the copious use of alcohol continues to the present day in the community adding that this way of life was normalized for him during childhood. By the time this offence occurred, he was consuming alcohol at every and any opportunity he had. [ 33 ] Growing up he often witnessed family violence which he described as “scary and traumatizing”. He advised that as he grew older the violence got worse, moving into gang violence and deaths by suicide. There were and are many deaths in his community by suicide. He reports that it is a common occurrence where he lives. Mr.

Rabbit indicated that it seems like someone passes away every week. He lost his sister last year from alcoholism. His mother died in 2016, followed by his niece, and then his brother, who both died of alcoholism. [ 34 ] Mr. Rabbit said his adoptive mother was always one to help others. She talked with those in need of help and provided good advice. Mr. Rabbit shared that she was the family rock who kept everyone together. Ms. Crier’s health was fragile for a lengthy period. She was on kidney dialysis for nine years, had triple bypass surgery and cancer. Mr.

Rabbit was her caregiver and assisted with her homecare needs, including taking her to the bathroom and taking care of her dialysis equipment, for several years prior to her death. Ms. Crier passed away when she was sixty-five. Mr. Rabbit was then 21 years old. [ 35 ] When the Gladue Report writer asked Mr. Rabbit to comment on how residential school had impacted him, Mr. Rabbit advised that the use of alcohol was normalized, and he followed a pattern set by the older generation – many of whom had attended residential school. He could see how the parenting he received from Ms.

Crier was impacted by her experience in residential school. In Mr. Rabbit’s opinion, she did her best. However, she often yelled at his older siblings, they moved frequently, and they were poor. [ 36 ] Julia Crier, Viola Crier’s best friend, shared at the Sentencing Circle. Julia is a Sundancer and cultural practitioner. She thought of Mr. Rabbit as a son. His adoptive mother, Viola, was like a sister to her. She said Mr. Rabbit was the love of “our lives”. Julia helped take care of Mr. Rabbit when he was young. She also attended residential school. Julia left Maskwacis to go and assist her mother.

This also left Mr. Rabbit without a positive influence. [ 37 ] Mr. Rabbit has held a variety of jobs. His first employment consisted of miscellaneous small jobs for cash payment. He then worked for a temporary employment agency on reserve doing odd jobs for a fire and flood restoration company. He worked in a pig slaughterhouse for six years from 2014 to 2020. After this, he moved to Edson and obtained work with Midway Pipelines. He lost this job when he lost his driver’s license due to alcohol. [ 38 ] Prior to the offence, Mr. Rabbit attempted to get help but was having difficulties.

He attempted to secure housing and had applied for the housing program through the Red Deer Friendship Centre. He did not receive a placement as this offence occurred before he was offered a placement. [ 39 ] In December 2021, he met Cassandra Curtis, a client intake and liaison caseworker at the John Howard Society. She helped Mr. Rabbit obtain ID and then income support. [ 40 ] Ms. Curtis shared her experiences with Mr. Rabbit at the Sentencing Circle. She said she would vouch for him over anyone else among her caseload of over 200 people. Ms.

Curtis indicated that it was rare, if ever, that she would take the time to provide this kind of support, but that Mr. Rabbit has stood out to her. In her view, Mr. Rabbit has experienced many barriers, but despite those barriers he is always respectful. She is always comfortable with Mr. Rabbit and has no fear in his presence. Ms. Curtis explained that Mr. Rabbit was stuck in a cycle: he did not have ID, so he could not get a bank account or income support. She explained that Mr. Rabbit is stuck when it comes to treatment and only has access to 30-day programs. Ms. Curtis described the many roadblocks Mr.

Rabbit has faced due to his charges. She also spoke as to how he has continued to try and rebuild his life. B. Post-Offence [ 41 ] While in the Remand Centre, Mr. Rabbit began his journey of sobriety and started finding resources both inside and outside the institution that could help him. Mr. Rabbit said that this incident was the catalyst for him to get help. While institutionalized he was introduced to Wellbriety and the facilitator, Mr. Scott Tucker. Mr. Rabbit also did bible studies in the institution. He took an anger management and life skills course through Mount Royal University.

He reached out to Cassandra Curtis to identify community resources. He met an addictions counsellor who helped him apply to treatment centres. While incarcerated and while out on judicial interim release, he was denied access to residential addiction programs because of the serious criminal charges he faced. [ 42 ] After the current charges were laid, Mr. Rabbit considered taking his own life and indeed attempted suicide immediately after

the offence on December 29. He advises that he is slowly coming to terms with what happened. Mr. Rabbit has consistently attended mental health and addictions counselling through Mackwacis Health Services. The sessions include general addiction and mental health counselling, cultural activities, prevention and after care programming, and anger management. [ 43 ] Once released, Mr. Rabbit attended Alcoholic Anonymous meetings with his sister Erica, in Wetaskiwin. Mr. Rabbit said he has attended 89 AA meetings in total.

He shared at the Sentencing Circle that he stopped attending AA as he did not share their belief system. He did not want to relive his story every time he went to a meeting. Mr Rabbit has maintained his sobriety since the offence. [ 44 ] He secured his first treatment program, the Nayoskan Detox Treatment program, from January 11, 2023 to February 13, 2023. This program incorporates Indigenous worldviews into addictions recovery.

His positive conduct and diligent participation at the Detox Treatment Program resulted in the Program writing a positive reference letter urging other programs to allow him to participate. The letter spoke of Mr. Rabbit’s high regard for rules and policies, said that he presented no safety issues, and described him as being highly motivated and dedicated to his sobriety and rehabilitation. [ 45 ] Mr. Rabbit then attended a 30-day residential treatment program at Lionsheart Wholeness. Marion, an Elder who provides services to Lionsheart, worked very closely with Mr. Rabbit.

She shared her experience at the Sentencing Circle. She advised that Mr. Rabbit had a genuine commitment to the program. Marion shared that Mr. Rabbit challenged certain things in the Program and the Program received his feedback with an intention to improve the Program. Marion worked with administration so that Mr. Rabbit could receive additional days of treatment without payment due to his keen desire to continue treatment. [ 46 ] After the Lionsheart program, Mr. Rabbit attended a program at the Beaver Lake Amisk Healing Lodge. He was one of the few people who completed the 42-day program. [ 47 ] Mr.

Rabbit reported that he greatly benefitted from equestrian therapy coordinated by Patrick Buffalo, who uses horse spirit for healing. Mr. Rabbit shared that it was a positive experience which assisted him in his healing journey. He has now attended this program six times. [ 48 ] Mr. Rabbit said he suffers from post-traumatic stress disorder, depression and anxiety. He advised that he was diagnosed with these conditions by a psychologist last year through the support of his lawyer and the court.

Crown counsel indicated that they agree, in the absence of expert evidence, that these diagnoses are authentic, but note they are post-offence diagnoses not pre-offence diagnoses. Mr. Rabbit now receives counselling every two weeks by phone. He shared that this counselling has been of great benefit. [ 49 ] Mr. Rabbit said he attends sweat lodge ceremonies weekly. He told the Gladue Report author that he relies on the Creator for support. He has a relationship with Elders and other spiritual leaders who are a source of support for him.

Counsel for the Defence advised that participants attend sweat lodges to pray for healing, spiritual guidance, addictions and other things. The leaders and participants often share stories. [ 50 ] Mr. Rabbit has also started Sundancing again and danced two consecutive Sundances this last summer. Defence counsel provided general information on the Sundance and indicated that a Sundancer is a modern-day warrior. The Sundance may last for three to four days and may involve fasting and collecting ceremonial objects that they use in the ceremony.

All year, as well as at the Sundance, a Sundancer prays and asks for spiritual guidance for themselves, their families, and their community. [ 51 ] Mr. Rabbit is currently unemployed and is receiving income support of $354.00 per month. He earns some extra money by selling traditional beadwork. His family has also assisted him financially. [ 52 ] His education plans include completing his high school studies so he can enter a college or university program. Mr. Rabbit wants to become a mentor and life coach.

He dreams of becoming a motivational speaker as well as creating a program about “moving forward” for people who are suffering from trauma and addictions. Mr. Rabbit has identified a pathway to achieve his goals. After obtaining his high school diploma, he intends to work to achieve his degree in social work or psychology and then ultimately his masters, all of which is offered through Maskwacis Cultural College. He has applied to an online introductory Indigenous Addictions program offered through the Nechi Institute, after which he can enroll in the diploma program. C.

Surety Release [ 53 ] Since May 25, 2022, Mr. Rabbit has been on surety release with strict conditions including: a. Living with his surety b. 24-hour house arrest c. Abstinence from drugs and alcohol d. Condition to provide a bodily sample upon reasonable request e. Not allowed to leave Alberta f. Attend weekly cultural meeting or ceremony [ 54 ] At his contested bail application, Justice Slawinsky noted that bail may look different for Indigenous offenders and addressed the over-incarceration of Indigenous offenders. Justice Slawinsky imposed a further condition that Mr.

Rabbit personally write her letters every three months to advise on his progress on spiritual healing and sobriety compliance. [ 55 ] Mr. Rabbit has complied with all the conditions of his release without incident. Defence counsel noted that Mr. Rabbit went back into custody on December 2, 2022, as his surety could not continue the living arrangement. He remained in custody for 14 days.

After the 14 days, Crown Counsel consented to re-release with a new surety, his sister Vera. [ 56 ] In addition to the above incarceration, Mr. Rabbit was incarcerated from December 29, 2021, to May 25, 2022, being 158 days in total. VII. Principles of Sentencing A. Legislation [ 57 ] The overarching principles of sentencing are found in s.718 to 718.2 of the Criminal Code which states: 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) 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, (

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

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. [ 58 ] The paramount considerations are denunciation and deterrence and rehabilitation of the offender.

Section 718.2(

e) instructs me to consider all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done by the offence. [ 59 ] The fundamental principle of sentencing requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Gravity of the offence focuses on what the offender did wrong and includes the harm or likely harm caused to both the victim and to society and its values.

Degree of responsibility of the offender focuses on the moral blameworthiness of an offender and the extent to which an offender intended the consequences of his actions. B. Sentencing Principles of Manslaughter [ 60 ] The range of sentences imposed in manslaughter is very broad as it covers a spectrum of conduct extending from “near accident” to “near murder”. Different degrees of moral culpability attach along a continuum within that spectrum.

Section 236 of the Criminal Code prescribes the maximum sentence for manslaughter as life imprisonment, with a minimum of four years where a firearm is used. There is no minimum sentence in the absence of a firearm. [ 61 ] The offender’s moral blameworthiness must be assessed in accordance with the Court of Appeal’s direction in R v Laberge , 1995 ABCA 196 [ Laberge ]. The Court of Appeal divides manslaughter into three broad groups: those which are likely to put the victim at risk of, or cause, (

i) bodily injury, (ii) serious bodily injury, or (iii) life-threatening injuries. Further at para 14: Despite the fact that the Crown need not prove that an offender knew or intended that his conduct would put his victim at risk of injury in order to ground a conviction for manslaughter, whether this additional level of subjective intent has been established is important in assessing the offender’s blameworthiness for sentencing purposes.

That is because our criminal justice system is based on the premise that, all other things being equal, the more an offender’s “intention” or “awareness” approaches the point that he knew or was willfully blind to the fact that his unlawful act was not only likely to put the victim at a risk of death, but indeed to cause death, the more culpable he is.

Similarly, even absent proof of subjective mens rea, the more that the offender’s conduct, on an objective basis, approaches the point where it can be said that he ought to have known, had he proceeded reasonably, that his unlawful act would be likely to cause life- threatening injuries as opposed to simply putting the victim at risk of bodily injury, the more culpable he is. In other words, the offender’s moral blameworthiness and in turn the gravity of the offence are functions of the degree of fault.

[62] In R v Phillips, 2023 ABCA 210 [Phillips], the Court of Appeal noted that while Laberge is an instructive starting point whensentencing for manslaughter, the categories do not attempt to provide an exhaustive measurement of an offender’s moralblameworthiness nor does it suggest that an offender deserves a punishment at the high end of the scale simply because the offender’sactions fall objectively within the highest category. [63] A sentencing judge assesses moral culpability for manslaughter by considering the offender’s mental state in the context ofthe unlawful act itself and the offender’s personal characteristics, blending and balancing all in combination.

Assessment of moralculpability includes an assessment of, “…the choice of weapon..., the degree of force the offender used in perpetrating the act, the extent of the victim’s injuries, the degree ofviolence or brutality, the existence of any additional gratuitous violence, the degree of deliberation involved in the act, the extent towhich the act reflected forethought of action or planning, the complexity of the act, what, if anything provoked the act, the time taken toperpetrate the act, and the element of chance involved in the resulting death: Laberge at para 21. [64] Moral blameworthiness is assessed by reference to the offender’s mental state, and with reference to the nature of the unlawfulact itself.

In Laberge, the Court stressed the need to distinguish between fault for conviction purposes and fault for sentencing purposes.Although manslaughter only requires objective mens rea to be proven, an offender’s moral culpability increases when that offender’sconduct evinces elements of subjective intent: Laberge at para 13. In addition, the Court directed that in crafting a sentence, one mustlook beyond the offender's mental state in evaluating moral blameworthiness. At para 8, it instructed that: …the offender's level of moral culpability will be influenced by other factors.

In the case of unlawful act manslaughter, the mostimportant of these will be what the unlawful act itself involved. The nature and quality of the unlawful act itself, the method by which itwas committed and the manner in which it was committed in terms of the degree of planning and deliberation are all relevant to thisinquiry. [65] This analysis must take place on a contextual basis, looking at all the factors that influence a specific offenders’ moralculpability: Laberge at para 17. Establishing subjective knowledge is important in determining blameworthiness for sentencing purposes. C.

Provocation [66] The Defence submits that provocation is a factor that must be considered.

Section 232 of the Criminal Code provides thedefence of provocation: culpable murder that may be reduced to manslaughter if the person who committed it did so in the heat ofpassion caused by sudden provocation. Defence counsel acknowledges that she did not provide an analysis of provocation as counsel hasalready agreed to the charge of manslaughter in this case. [67] In R v Stone, (SCC), the Supreme Court held that where a jury had accepted the partial defence ofprovocation, provocation necessarily formed part of the Court’s assessment of the offender’s moral blameworthiness in determining a fitsentence. D.

Section 718.2 (e) [68]

Section 718.2(

e) was added to the Criminal Code in 1996 and mandates that a sentencing judge must consider the“circumstances of an Aboriginal offender” to ensure a sentence meets the fundamental principles of proportionality: R v Gladue, (SCC) [Gladue]; R v Ipeelee, 2012 SCC 13 [Ipeelee]. It is not a race-based discount and has been explained by the Court ofAppeal as a “partial remedy for the systemic discrimination suffered by aboriginal people which has led to their overrepresentation in thecriminal justice system”: R v Matchee 2019 ABCA 251 at para 31. [69]

Section 718.2(

e) instructs me to consider all available sanctions other than imprisonment that are reasonable in thecircumstances and consistent with the harm done. The leading cases interpreting that

section are Gladue and Ipeelee. In Gladue, theCourt stated, at para 66, that courts must consider: (

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

part in bringing this particular 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 orher particular Aboriginal heritage and connection. [70] In R v Natomagan, 2022 ABCA 48 [Natomagan], the Court of Appeal addressed the over-incarceration of Indigenous peopleat para 8: For decades, while the justice system has been exhorted to reduce the over-incarceration of Indigenous people, that over-incarcerationhas increased.

In its 1999 judgment in R v Gladue …, the Supreme Court cited studies showing that Indigenous people made up a littleover 10% of Canada’s prison population while representing only 2% of the population at large … It described this over-representation asan “acute problem” … In 2001, 17.59 % of federally incarcerated inmates were Indigenous. That percentage rose steadily over the nexttwo decades while the non-Indigenous incarcerated population fell. In 2011, only 4.3% of Canada’s population was Indigenous, but26.4% of dangerous offenders were Indigenous.

In 2020, when Indigenous people represented 5% of Canada’s population, Indigenousoffenders made up 30% of federally incarcerated inmates. In 2021, almost 50% of female inmates were Indigenous … [Citations omitted]. [71] The Alberta Court of Appeal in Phillips recently noted that the qualitative guidance provided by jurisprudence in thisprovince, such as the categorization of manslaughter offences, “operate[s] alongside and do[es] not conflict with the guidance inGladue”: Phillips at para 19. Specifically, the Court stated at para 19:

Parliament’s recognition of the experiences of Indigenous people in Canada under s 718.2(

e) of the Criminal Code must not be watered down to an artificial social statement by sentencing decisions that fail to properly engage with the unique circumstances of an Indigenous offender. Consideration of Gladue factors does not escalate the principle of individual sentencing at the expense of proportionality. Rather, the proper application of Gladue principles achieves a proportionate sentence. In Swampy at para 25: . . . the central purpose of the Gladue analysis is to achieve proportionality.

The first principle that a sentence must be proportional to the gravity of the offence and degree of responsibility of the offender has “. . . long been the central tenet of the sentencing process”: Ipeelee at para 36 . The “ constrained circumstances of Aboriginal offenders may diminish their moral culpability ”, as explained in Ipeelee at para 73 . Reduced moral culpability must also affect the proportionality analysis, since moral culpability is one component of the equation.

It follows that where there is reduced moral culpability, there is a consequential reductive effect upon the ultimate determination of a fit and proper sentence: Ipeelee at para 87 . [Emphasis in original]. [ 72 ] In Phillips , the Court stated that “while there may be three rough categories of ‘unlawful acts’, that does not mean that there are three equivalent categories of manslaughter for sentencing purposes.”: Phillips at para 23 citing R v Campbell , 2022 ABCA 410 at paras 31-33 . [ 73 ] Sections 718.1 and 718.2(

e) require a judge to “consider and engage with the unique circumstances of this Indigenous offender to determine “the degree of [his/her] responsibility.” In Phillips , the Court stated that there is no requirement for an offender to establish a causal link or “some connection” between Gladue factors and the offence committed: at para 27 citing Ipeelee at para 81 . Sentencing judges are required to assess and explain how the offender’s individual Gladue factors impacted his moral culpability in the specific context of a particular offence.

The sentencing judge must consider and engage with unique circumstances of this offender, to determine the degree of his responsibility. [ 74 ] Recently, Justice Burns affirmed in R v Lariviere, 2021 ABQB 432 at para 9 , that s 718.2 (

e) is not to be taken as a means of automatically reducing a sentence and it should not be assumed that because the offender is Indigenous the sentence is more lenient because incarceration is not imposed. E. Comparator Cases [ 75 ] Canadian courts are bound by principles of parity: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. A wide range of sentences is available for manslaughter. While I acknowledge that cases can be useful, each case must be assessed on its particular facts. [ 76 ] I have carefully reviewed all the cases submitted by both Crown and Defence and attach a

summary of some of the cases as an Appendix (“Appendix A”). [ 77 ] Each case is very dependent on the facts of the offence and the circumstances of the offender, and this is particularly apparent in the cases involving charges of manslaughter. The cases submitted by the Defence consist of primarily indigenous offenders, which included a range of sentences including CSO’s, suspended sentences and probation orders. I note that in these cases, the courts looked at denunciation and deterrence as well as rehabilitation.

Where appropriate the courts acknowledged the indigenous heritage of the offenders and applied the Gladue factors. Provocation was a factor that was considered in some of the cases and moral culpability was reduced as a result. [ 78 ] The cases presented by the Crown range from six months to nine years. Most of the cases vary widely in the circumstances of the offender and the offence and are distinguishable from the case at bar. [ 79 ] Of most assistance is the case of R v Bigstone, 2023 ABPC 13 and R v Poucette, 1999 ABCA 305 .

The Bigstone case involves an indigenous offender whose moral culpability was reduced as there was evidence she had been sexually assaulted by the deceased. I find that this case is helpful, particularly as the sentencing judge indicated that he would have given a conditional sentence under the right circumstances. The offender had no where to live at the time of the sentencing and therefore a conditional sentence could not be imposed. Like the circumstances in this case, there was provocation in issue, the offender had no criminal record and was Indigenous.

I found Poucette of assistance as it also involved a young indigenous offender. Like Mr. Rabbit, Mr. Poucette demonstrated great remorse and took extensive steps towards rehabilitation. Even though the Court of Appeal would have imposed a higher sentence, they acknowledged that by the time of the appeal, Mr. Poucette had completed many programs, and it would have an adverse effect on him if he were sent back to jail. VIII. Aggravating and Mitigating Factors [ 80 ] The Crown submits that it is aggravating that the offence occurred in Mr. Service’s home and, that although Mr.

Rabbit called the police, he waited several hours before doing so. [ 81 ] I agree that both factors are aggravating, however the fact that the offence occurred in his home, I find to be less so given that Mr. Rabbit had stayed at the house many times, he had told Mr. Service a number of times not to touch him in a sexual manner, he had thoughts that Mr. Service had done so when he was intoxicated, and further the offence occurred after Mr. Rabbit woke up to Mr. Service apparently sexually assaulting him. Mr. Service’s comment “you liked it last time” created a strong emotional reaction as it suggested Mr.

Rabbit’s suspicions about prior assaults were correct. Not knowing the extent of the sexual assaults contributed to Mr. Rabbit’s immediate emotional state. [ 82 ] There are several factors that I consider to be mitigating. Mr. Rabbit was only 27 at the time of the offence. He has strong

family and community support. The steps he has taken towards rehabilitation are, as Defence described: exceptional. He has excellent rehabilitative prospects. [ 83 ] He has expressed remorse and accepted responsibility for what happened. His sharing at the Sentencing Circle was genuine and accepted by Mr. Service’s sister. Mr. Rabbit called the police and confessed to the unlawful act. He was cooperative with the police throughout and he made an early guilty plea. [ 84 ] Mr. Rabbit has no criminal record.

Although it seems there was some minor incident in the past, Crown is not raising any record for the purpose of sentencing. [ 85 ] I find that Mr. Rabbit has been in perfect compliance with the conditions of release. There is nothing to suggest that Mr. Rabbit is a danger to the community nor that he is likely to reoffend. I note that not only has he written to Justice Slawinsky as she directed but that his letters are genuine and informative as to his progress.

The letters demonstrate an increased participation in his rehabilitative efforts and that he remains optimistic in the face of challenges in the community. IX. Conditional Sentences [ 86 ]

Section 742.1 of the Criminal Code gives a sentencing court discretion to permit offenders who meet certain criteria to serve their sentences in the community rather than in prison. [ 87 ] The decision in R v Proulx, 2000 SCC 5 [ Proulx ], continues to be the leading case on conditional sentences. Proulx reinforces that conditional sentences can provide significant denunciation and deterrence.

Section 742.1 of the Criminal Code provides as follows: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; ... [ 88 ] As Justice Tyndale noted in R v Araya , 2023 ABCJ 174 , at para 55 : Further, the increased use of Conditional Sentence Orders is consistent with Parliament’s present intent. On November 18, 2022, the date that Bill C-5 received Royal Assent, Justice Minister David Lametti issued a statement, which included the following: With this law, we have repealed the mandatory minimum penalties that have most contributed to the overincarceration of Indigenous people, Black persons and racialized Canadians.

These reforms will ensure a fairer, more effective justice system for all, while maintaining public safety. These reforms also offer the courts greater use of conditional sentences and provide for the judicial discretion needed to impose sentences that reflect the seriousness of the offence and maintain public safety, while addressing the obvious and damaging overrepresentation of Indigenous people, Black persons, racialized Canadians, and members of marginalized communities in the criminal justice system. X. Fit Sentence for Manslaughter [ 89 ] Mr.

Rabbit is before me to receive a sentence for manslaughter. [ 90 ] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 91 ] I begin by acknowledging the obvious, homicide is one of the most serious offences in the Criminal Code . Mr. Rabbit’s offence resulted in the tragic loss of Mr. Service’s life. Mr. Rabbit placed his arm over Mr. Service’s neck and choked him. The act of choking is inherently dangerous. [ 92 ] In addition to the objective risk of bodily injury, I must consider Mr.

Rabbit’s subjective awareness of the risk of injury. As outlined above, this involves considering certain factors of the offence, including the weapon, the degree of force, the extent of injuries, the degree of violence and whether any violence was gratuitous. There was no weapon in this case, such as a knife or a gun. However, Mr. Rabbit must have used a considerable amount of force to break Mr. Service’s hyoid bone and cause asphyxiation. I find that there was no other additional gratuitous violence. [ 93 ] Although the gravity of the offence is high, resulting in the tragic death of Mr.

Service, I find that Mr. Rabbit’s moral culpability is lowered because of the circumstances in which he found himself. At the time he committed the offence, he was somewhat intoxicated and had just woken up to what appeared to be a sexual assault. He viewed Mr. Service as a father figure and had rebuffed his sexual advances in the past. Mr. Rabbit told the court that he saw red and snapped. The crime itself was not planned or thought out; it was impulsive and reactive. I am satisfied that there was an element of provocation. Mr. Rabbit reasonably believed he had been sexually

assaulted by a person whom he considered a father figure. [ 94 ] When assessing moral culpability, it is incumbent upon the sentencing judge to assess the Gladue factors.

Section 718.2 (

e) mandates consideration of Mr. Rabbits background in any decision concerning sentencing. To be clear, Mr. Rabbit is not required to establish a causal link between any Gladue factor and the offence committed. Instead, I am required to assess and explain how Mr. Rabbit’s particular Gladue factors impact his moral culpability in the specific context of this offence. More specifically, this Court must “consider and engage with the unique circumstances” of Mr. Rabbit’s life as an Indigenous person in Canada: Phillips at para 28 . [ 95 ] Mr.

Rabbit was raised in Maskwacis, a First Nation Community that serves four reserves. His biological parents were unable to take care of him and Viola Crier adopted him, as an infant. While Ms. Crier was a loving mother, her experience as a residential school survivor clearly impacted her children. Mr. Rabbit’s early years were transitory. He grew up in poverty. Alcoholism was common and he has lost multiple family members to alcohol. When Ms. Crier died, Mr. Rabbit lost not only his mother but his connection to his Indigenous heritage.

He lost her at a relatively young age and did not have support systems in place. He became homeless. He developed an addiction to alcohol. He tried to get help but faced obstacles and setbacks. [ 96 ] In considering the Gladue factors in this case, I find that Mr. Rabbit's moral blameworthiness is on the lower end of the spectrum. Mr. Rabbit's life has been shaped by tragedies outside of his control: substance abuse, violence, poverty, and the intergenerational trauma of residential schools. [ 97 ] I have also considered mitigating factors beyond the Gladue factors. Mr. Rabbit is young and has no criminal record.

He entered an early guilty plea and is clearly remorseful for his actions. [ 98 ] Perhaps most importantly, Mr. Rabbit has demonstrated an extraordinary commitment to working on his own rehabilitation. As of the date of sentencing, Mr. Rabbit is now sober and has successfully reintegrated into society as a productive member through his own efforts. He has participated in an exceptional number of programs. As noted above, obtaining treatment became even more difficult for Mr.

Rabbit after he committed the offence, and he has been denied access to residential addiction programs because of the seriousness of this charge. [ 99 ] Despite the many obstacles Mr. Rabbit has faced, he has remained persistent and diligent in his rehabilitative work. He was able to secure his first formal treatment at the Nayoskan Detox Treatment program which provided a gateway for other programs. Mr. Rabbit has also attended extensive counselling through Maskwacis Health Services and continues to do so. [ 100 ] Mr.

Rabbit has renewed his cultural connections and returned to participating in cultural activities. He has resumed his role as a Sundancer and wishes to strengthen his connection with his culture and his community. This is evident by the many letters of support provided by the Defence and marked as Exhibits in these proceedings. [ 101 ] In addition to the aggravating and mitigating factors noted above, I have carefully reviewed all the parity cases provided to me. As acknowledged earlier, each case must be reviewed according to its own unique facts. The caselaw on sentencing for manslaughter varies widely.

Individual cases may fall within or outside of the ranges presented by the cases before me. [ 102 ] The question is whether a conditional sentence in this case would be consistent with the fundamental purposes and principles of sentencing: R v Sharma, 2022 SCC 39 [ Sharma ]. Denunciation, deterrence and rehabilitation are subordinate to the fundamental principle as set out in s 718 of the Code which is to protect society. In Sharma the Court noted that there is a link between the Gladue framework related to s 718.2(

e) and the conditional sentencing regime. The Court noted that both were adopted as part of the same legislation aimed at reducing the use of prison as a sanction and expanding the use of restorative justice principles: Sharma at para 73 . [ 103 ] A conditional sentence may only be granted if doing so does not endanger the community. I am satisfied that Mr. Rabbit is not a danger to the community. He has adhered to strict release conditions. He has not attracted any new charges. He has attended many treatment facilities.

In treatment, his diligence and commitment has made him stand out; all the program facilitators spoke very highly of his conduct and adherence to rules. He has been sober since the offence. This offence took place in large part due to Mr. Rabbit’s alcoholism. Now that he is sober, I accept that his potential for violent recidivism is decreased.

In my view, there is no indication that he will reoffend. [ 104 ] I must ask whether the punitive objectives of denunciation and deterrence can be adequately met by a conditional sentence in this case and whether such a sentence would be proportionate to the gravity of the offence and the degree of responsibility of the offender. I conclude that in the circumstance of the present case, the principles of denunciation and deterrence are appropriately addressed by imposing a conditional sentence with extensive conditions.

The length of this sentence is two years less a day, the maximum length of a conditional sentence. Mr. Rabbit will serve every single day of the sentence, as early remission is not applicable. The conditions will restrict Mr. Rabbit’s movements outside of his home and will limit his interactions with the public for two years. If he breaches his conditions, he will be incarcerated. [ 105 ] In this case, incarceration does not serve the interest of justice. Mr. Rabbit has rehabilitated and rejoined society.

Punishment and deterrence come in many forms and in this case a conditional sentence addresses denunciation and deterrence. A conditional sentence will provide an opportunity for reparation to the community, and potentially to the victim’s family. If he was incarcerated, Mr. Rabbit would not be afforded this opportunity. Furthermore, a return to jail would more than likely have an adverse effect on Mr. Rabbit’s rehabilitation and progress. [ 106 ] I would like to make some additional comments on the Gladue considerations.

There has been recent guidance from our Court of Appeal that emphasize that the Gladue analysis involves looking at the “big picture, the unique or systemic or background factors affecting the Aboriginal people”: R v Dichrow , 2022 ABCA 282 at para 47 . Mr. Rabbit’s family circumstances bear hallmarks of intergenerational harm. These hallmarks include family separation, parents struggling with addiction and parents who attended residential schools. In sentencing Mr. Rabbit, I have undertaken to balance these factors, and those discussed above, to determine his moral culpability.

[ 107 ] I have reviewed and considered the factors outlined in Proulx for the imposition of a conditional offence. A potential issue arises in this case because of Mr. Rabbit’s time served in custody before sentence. With respect to pre-sentence custody and how it affects the availability of a conditional sentence, I have reviewed R v Fice, 2005 SCC 32 . The majority in the Supreme Court held that a requirement that a conditional sentence be a sentence of imprisonment of less than two years means that an offender’s total punishment must be less than two years.

The Supreme Court stated that a sentencing judge must still proceed in two stages, first to determine if a conditional sentence is available and secondly if it is appropriate. In other words, an offender’s time in pre-trial custody cannot be used to bring an offender’s sentence below two years, such that a conditional sentence becomes available. This is not applicable to this case. [ 108 ] All of these considerations, taken together, lead me to conclude that a conditional sentence is fit and proper in these circumstances.

A properly structured conditional sentence of significant length, which contains restrictive and punitive conditions, can give sufficient weight to the fundamental principles and purposes of sentencing in this case. It will also allow for Mr. Rabbit to continue his rehabilitative efforts and provide for continued scrutiny by the Court of those efforts and reinforce his accountability to society. [ 109 ] I find that an appropriate sentence is a conditional sentence of two years less a day to be served in the community, followed by three years probation.

Having heard from counsel, the conditions of the CSO are attached as Appendix “B” and the conditions of the Probation Order are attached as Appendix “C”. XI. Ancillary Orders [ 110 ] The ancillary orders are: a. I order that Mr. Rabbit provide a DNA sample pursuant to Criminal Code s 487.051; b. I order pursuant to s 109 of the Criminal Code , that Mr. Rabbit is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life and he is prohibited from possessing any firearm for a period of 10 years.

Heard on the 18 th day of October, 2023. Dated at the City of Red Deer, Alberta this 8 th day of December, 2023 Gillian D. Marriott J.C.K.B.A. Appearances: Ann Siford for the Crown Laura Phypers for Benjamin Rabbit Appendix A Crown counsel relied on the following cases: [1] In R v Abel , 2012 NLTD(G) 27, the offender, who was Inuit, and the victim had an altercation prior to her death. Although the exact cause of the victim’s death was unclear, she died from asphyxiation of some sort. The jury was not instructed on provocation but the sentencing judge referred to it.

The sentencing judge found that bite marks on the offender’s chest from the victim could support a finding of provocation. Mr. Abel had a lengthy criminal record, including four charges of assault and one of assault causing bodily harm. Based on his prior breaches of probation and case management problems with probation in the past, the sentencing judge assessed him as being unsuitable for probation or other community supervision. He had made no steps towards rehabilitation. He received 7 years

in custody. I find that this case is distinguishable the facts. The offender had a lengthy violent criminal record, and the sentencing judgefound that efforts at rehabilitation in the past had failed. [2] In R v LaFantaisie, 2004 ABPC 106, the offender killed his mother. He was heavily involved in drugs and took morphineand crack cocaine. On the day of the offence, Mr. LaFantaisie had just returned home after a drug binge. It was the first time he had beenhome in a month. During his absence, he had withdrawn all the money from at least one of his mother’s accounts.

His mother was“badgering him” about the money when he returned home. He “lost it” and strangled her. He then stuffed her body into several largeplastic bags. There were a number of aggravating and mitigating factors. He was remorseful for his crime. Although the crime was one ofimpulsivity, a relatively high level of brutality was involved as he strangled his mother with his bare hands. The Court found that abusingthe victim’s trust by utilizing her bank funds to perpetuate a drug addiction was a serious aggravating factor.

He received a custodialsentence of eight years. [3] In R v Mullen, 2017 SKQB 237, the offender choked his wife to death after an argument. The offender was a victim ofintimate partner violence—the victim had punched and kicked him on several occasions and had kicked him in the head during theargument preceding the manslaughter. The accused had no memory of the events and woke up to find his partner dead. Mr. Mullen had alimited criminal record. Mr. Mullen accepted responsibility for the killing but rationalized and minimized his offence.

He received eightyears in prison. [4] In R v Nicholls, 2015 ONSC 8136, the Indigenous offender stabbed a 14-year-old victim. The victim was part of a group ofyoung males who came to the offender’s residence and engaged in a verbal confrontation with the offender’s foster mother. The fostermother repeatedly told the group to leave. They threatened to smash her phone. The offender heard the confrontation, grabbed a knife,and approached the group. The confrontation escalated. The group circled Mr. Nicolls and at least two males were repeatedly swingingat him. The confrontation culminated in Mr.

Nicholls stabbing the 14-year-old victim. Significant Gladue factors were taken intoaccount, including the offender’s childhood in an abusive and neglectful home. His mother subjected him to exposure to drug use andprostitution. The offender was sentenced to six years in prison. [5] In R v Poucette, 1999 ABCA 305, two intoxicated friends became involved in a fight which resulted in the offenderthrusting a knife into the victim’s chest. The accused was 19 years old with no criminal record. He was a member of the Stoney FirstNation. Mr. Poucette demonstrated immediate remorse upon arrest.

While on release pending trial, he took significant steps towards hisrehabilitation, including academic upgrading and completion of an alcohol addiction program. The trial judge gave him a one-yearsentence. The Crown appealed. The Court of Appeal determined that the sentencing judge erred by focusing on culpability and notconsidering the gravity of the offence, thereby failing to impose a proportionate sentence. The Court of Appeal believed that a highersentence of three years was appropriate.

Since the accused had been released and had completed many programs upon his release, andbecause sending him back to prison would have an adverse effect on rehabilitation, the Court of Appeal instead imposed an additionalthree years of probation. [6] While there are some similarities between Poucette and the present case, there is also a substantial difference between theunderlying offences. Mr. Poucette plunged a knife into the victim’s chest hard and deep enough to penetrate the cartilage of the fifth riband through the victim’s heart. Mr.

Rabbit pressed his forearm against the victim’s neck hard enough to break the victim’s hyoid boneand cause asphyxiation. In terms of the objectively foreseeable risk of bodily harm, stabbing someone in the chest with a kitchen knife iscloser to the high end of the spectrum than pressing against someone’s neck. Without minimizing the gravity of Mr. Rabbit’s crime, thefact he did not use a weapon lowers his moral culpability relative to Mr. Poucette. [7] In R v Shyback, 2018 ABCA 331, the offender and the deceased had been in a tumultuous and violent long-termrelationship.

On the day of the offence, the offender and the victim were in an argument that escalated into a fight. The victim picked upa knife and threatened the offender. The offender lifted his arm up to shield himself and put his right hand on the deceased’s neck andapplied pressure, causing her to asphyxiate. Mr. Shyback was not Indigenous. There were both aggravating and mitigating circumstances.It was mitigating that the respondent was defending himself at the time.

It was aggravating that the crime happened in a domestic contextand that the offender engaged in a cold and calculated cover up as he attempted to hide the victim’s body. Mr. Shyback received 5 yearsat trial. The Court of Appeal determined that sentence was unfit and imposed a sentence of 7 years. [8] In R v Spence, 2017 ONSC 4749, Richard Spence was brutally beaten by Monica Spence and Daniel Debassige. The threehad been drinking together before Monica passed out from intoxication. When she woke up, she was being sexually assaulted by RichardSpence.

Monica and Daniel attacked Richard Spence, inflicting dozens of injuries to his head, neck, torso, and arms, and causing a brainhemorrhage. Monica Spence was a 47-year-old Indigenous offender. The Court found that Monica was intoxicated and sufficientlyprovoked to justify a verdict of manslaughter as opposed to second degree murder. Gladue factors included intergenerational trauma; bothof Monica’s parents were residential school survivors. Monica suffered from significant addiction issues and had unsuccessfullyattempted treatment on many occasions. While incarcerated, Monica assaulted staff and other inmates.

A social worker reported thatMonica did not accept responsibility for her actions and continued to express anger and resentment towards the victim. The Courtimposed a five-year prison sentence. [9] In R v Simcoe, (ON CA), the offender, Ms. Simcoe, was visiting her father at his home, together with anold school friend of the family, Mr. Keleman. Mr. Keleman left to retrieve something. When he returned, Mr. Keleman found Ms.Simcoe’s father on top of his daughter, naked. Mr. Keleman yelled at Mr. Simcoe and struck him. Ms. Simcoe woke up and joined inyelling at Mr. Simcoe. Mr.

Simcoe was shouting obscenities and taunting Ms. Simcoe. Ms. Simcoe was intoxicated, and used a kitchenknife to repeatedly stab Mr. Simcoe. During this time, she phoned 911 and told them if they did not get their quickly, he would be dead.There was clear provocation. Ms. Simcoe’s father had a history of sexually abusing her. Her moral culpability was reduced because ofher alcohol use, and the extreme provocation of the sexual assault, which was amplified by the victim’s taunting and obscenities. Ms.Simcoe had no criminal record.

The trial judge stated erroneously that minor provocation by the victim is not enough to reduce this typeof sentence, before imposing a sentence of four years incarceration. By the time of the appeal, the offender had served one year incustody following sentencing as well as 8 months pretrial custody which was credited as 16 months. The Court of Appeal held that themitigating factors in the case should have resulted in a sentence in the “upper reformatory range”, and accordingly reduced the sentenceto time served plus two years of probation and 100 hours of community service.

[10] In R v Bigstone , 2023 ABPC 13 , the 20-year-old offender stabbed her stepfather once in the neck, killing him. There was evidence that that the victim had sexually assaulted the offender. The offender was Indigenous, and she had mental health issues. The sentencing judge found that the sexual abuse which she had been subject to by the victim was mitigating. The judge found that Ms. Bigstone’s moral culpability was reduced by the circumstances she found herself in. By the time of the sentencing, Ms. Bigstone had been in custody for 730 enhanced days (according to an agreement between counsel).

The sentencing judge said that he would have given her a conditional sentence or time served in probation, but ultimately decided that a CSO was not available because the offender had nowhere to go and would become homeless upon her release. The offender’s lack of housing meant that a conditional sentence would put both the offender and public safety in jeopardy, which would not satisfy the fundamental purposes of sentencing. Ms. Bigstone’s biological father stepped up and said he could come and stay with her, but it would take 6 months to set up housing.

The judge imposed a further sentence of six months. [11] Defence counsel provided the following cases: [12] In R v Murphy, 2016 YKSC 48 , the offender plead guilty to manslaughter. She was an Indigenous woman who was 28 years old at the time of the offence. Her history involved abuse, foster homes and substance abuse. This case involved a brutal and violent beating followed by the drowning of a vulnerable victim. The specific details of the offence were not outlined in the sentencing decision.

The offender had difficulties with her time in pre-sentence custody and was involved in assaults on correctional officers and other inmates. However, she responded well to dialectical behaviour therapy. The offender had long periods of remaining clean and sober in custody and was described as a hard worker. There was a joint submission of nine years. The sentencing judge gave her full credit for her pre-sentence custody as being the equivalent of the nine-year sentence. The Court then imposed a three-year probation term. [13] In R v Longe , 2019 BCSC 2514 , Ms.

Longe fatally stabbed her husband and was sentenced to five months (after credit for presentence custody of one year and seven months). She was a 24-year-old Indigenous woman. Ms. Longe had a volatile relationship with her husband and had been a victim of his assaults, including on the night of the offence. She had a troubled upbringing in which she suffered various forms of abuse. She stabbed her husband during a heated argument. The death was due to a single stab wound.

She demonstrated remorse and sought rehabilitation post-arrest. [14] In R v Clemons , 2003 MBCA 51 , the Court imposed a conditional sentence on an offender, Mr. Clemons, who had stabbed someone during a confrontation at a party. The victim threatened Mr. Clemons before striking him three or four times in the face. Mr. Clemons did not react. The victim continued to taunt Mr. Clemons. Mr. Clemons punched the victim. The victim then pulled a knife. Mr. Clemons was able to get the knife away from the victim and proceeded to stab the victim several times. Mr. Clemons had no history of violent offences.

The Court noted that the incident was spontaneous and a reaction to provocation. The Court of Appeal upheld the CSO, emphasizing the wide range of possible sentences for manslaughter. [15] In R v DL , 2023 MBPC 16 , a 23-year-old Indigenous man believed his uncle was sexually assaulting his girlfriend. He confronted his uncle, who denied the assault. They jointly determined that the way to resolve the situation was to have the offender punch the uncle one time. The punch rendered the uncle unconscious, leading to his death. The offender had a difficult childhood.

He was sentenced to an 18-month CSO. [16] In R v Manik, 2021 NUCJ 1 , the offender stabbed the victim after an altercation following a night of drinking. The two had been dating for about a month and the offender was living with the victim. The offender told the police that the victim had become violent and started punching her in the head. He blocked her from leaving. The autopsy showed multiple stab wounds. The court considered the mitigating circumstances which included the offender’s guilty plea, lack of criminal record, and remorse.

The court found that a sentence at the low end of the scale was not appropriate because the offender stabbed the victim not once but numerous times.. The offender spent 678 days in jail and was entitled to one and a half days for every day for a total of 1017. She was then in a time served position. The court then imposed three years of probation with strict conditions. [17] In R v Capistrano, 2001 MBQB 60 , the court sentenced the offender to a two-year CSO followed by a lengthy period of closely supervised probation.

Several people including the offender were drinking together when the victim made demeaning comments about the offender. After a brief verbal altercation, the victim left the premises and returned with a pipe wrench. A scuffle ensued, during which the victim was disarmed and pushed to the ground. The victim left again. The offender went inside and retrieved a “kiddie” size baseball bat. When the victim returned, the offender confronted him and struck him in the head with the bat. The offender did not know how badly the victim was hurt until she discovered him the next morning in a comatose or semi-comatose state.

The medical evidence indicated that the victim had been struck twice with the bat. The offender was a 32-year-old Aboriginal woman with a history of addiction, trauma, and was a survivor of sexual abuse. She had a record for assault and possession of a weapon. The court found that allowing her to serve her sentence in the community would serve to promote her rehabilitation. The court was satisfied that the CSO contained conditions that were sufficiently punitive. Appendix B

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