R. v. Myerion, 2023 MBKB 117

Date: 20230721 Docket: CR 22-01-39274 (Winnipeg Centre) Indexed as: R. v. Myerion Cited as: 2023 MBKB 117 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) HIS MAJESTY THE KING ) ) Carrie Ritchot - and - ) for the Crown ) JORDAN RAE MYERION, ) Aaron Braun ) Candace Olson accused. ) for the accused ) ) Judgment Delivered : ) July 21, 2023 BOCK J. Introduction [ 1 ] On January 19, 2023, the accused, Jordan Rae Myerion, pled guilty to a charge of manslaughter arising out of an attack committed by him and others on November 7, 2021. On June 19, 2023, I heard submissions on sentence.

These are my reasons for sentence. Circumstances of offence [ 2 ] Mr. Myerion spent most of November 6, 2021 and the early morning hours of November 7, 2021 drinking with friends. By the early hours of November 7, he was extremely intoxicated. At approximately 1:47 a.m. he and three of his companions found themselves outside, in the vicinity of Burrows Avenue and Aikins Street in Winnipeg. They saw the victim, Felix Bernard Chief, known to his family and friends as Bernard, riding by on his bicycle. For reasons unknown, Mr. Myerion and his companions knocked Mr.

Chief off his bicycle and beat him severely, punching and kicking him. Mr. Myerion then produced a knife, which he used to stab Mr. Chief five times. The four attackers only dispersed when a pizza delivery driver came upon them in his car. The driver called police. Mr. Chief was taken to hospital, but too late. He died of his stab wounds later that day. Circumstances of offender [ 3 ] The evidence of Mr. Myerion’s background comes to me primarily from two sources: a pre-sentence report dated February 24, 2023 (Exhibit S1) and a copy of his criminal record (Exhibit S2). [ 4 ] Mr. Myerion was born on June 18, 1998.

He is a member of the Long Plain First Nation. As I will discuss, the course of his life

has been profoundly affected by the fact of Canada’s historical mistreatment of Indigenous people. [ 5 ] Mr. Myerion’s single mother, a residential school survivor, has suffered from addictions and poor mental health since before his birth. He has not had contact with her in some years. His father’s identity is not known. His sister died in a house fire. His brother, like his mother, suffers from addictions and poor mental health. His maternal grandparents were residential school survivors, too, which led to their own struggles with alcoholism and trauma. Mr.

Myerion’s extended family is generally described in the pre-sentence report as suffering from substance abuse, involved in a “pro-criminal lifestyle” (at p. 6) including “extensive gang involvement at various levels” (at p. 12). According to Mr. Myerion, the “majority of his biological family” members with whom he has contact have a criminal record. [ 6 ] Mr. Myerion was apprehended by Dakota Ojibway Child and Family Services authorities at birth. For the first 16 months of his life he was moved from one temporary foster placement to the next.

He was then placed with his mother’s cousin and her husband, Janice and Alvin Rempel. (Janice Rempel is herself a victim of the residential school system.) He lived with them in their home in Winkler, Manitoba until he was 17. [ 7 ] The Rempels took their role seriously, and did their best to provide Mr. Myerion with a healthy, supportive and stable home. Nevertheless, he was the target of prejudice and bullying in his community, struggled with the stigma of being “the native kid in a white town that looks white”, and was pained by the lack of any meaningful connection to his biological family. [ 8 ] Mr.

Myerion often misbehaved, both in and out of school. He was suspended from school several times for possessing marijuana, being intoxicated, and possessing a pocketknife. This led to his transfer from the local high school to the “Fresh Start” program at Northlands Parkway Collegiate, where he was introduced to James Drieger, the teacher leading that program. [ 9 ] Despite showing promise and enjoying some academic success at school in Winkler, Mr. Myerion did not complete high school. His highest level of formal education is Grade 11.

He has worked intermittently in a variety of entry-level jobs, including at a pizza restaurant, a gas bar, as a painter, roofer and labourer on various construction sites, and as a snow removal operator. [ 10 ] Mr. Myerion moved to Long Plain First Nation to live with his grandmother at the age of 17. That arrangement ended after just one year, when his grandmother died. Mr. Myerion was thus left to start adulthood alone. Most of his adult life has been spent in Winnipeg, where he has lived with, and associated with, people who by all accounts have had a negative influence on him.

This seems to have contributed significantly to a problematic, though not addictive, relationship to alcohol and drugs beginning in his early adolescence, and to his involvement in anti-social and criminal activity. [ 11 ] Mr. Myerion’s criminal involvement dates to 2016, when he was still a youth. He has several convictions, but most pertain to breach of or failure to comply with recognizances, appearances and undertakings, and theft and possession of proceeds of crime under $5,000.

He was convicted for possession of a weapon in 2017, but does not otherwise have a record of violent or weapons-related offences. [ 12 ] The four people interviewed in connection with Mr. Myerion’s pre-sentence report – Mr. Drieger, his foster parents, Janice and Alvin Rempel, and his foster sister, Sherri Rempel, who is 18 years his senior – all expressed similar opinions about him. First, they are all of the view that his violent attack on Mr. Chief was completely out of character.

Not only has he never been known to have a violent side, he has demonstrated an aversion to violence of any kind, even in sports like hockey and football. Second, they all note he is eager to please and easily influenced by others. As a result, they say, he is also easily led astray and quick to take responsibility for others’ wrongdoing. Third, they all describe him as intelligent, curious and capable. [ 13 ] Those opinions are reflected in the observations of the probation officer who interviewed Mr. Myerion over two days and prepared his pre-sentence report.

She describes him as “polite and respectful” as well as “articulate, expressive, insightful and forthcoming” (at p. 15). She also notes that he has a record of being “responsive to community supervision” (at p. 2) and a demonstrated ability to comply with community sentences (at p. 19). [ 14 ] Despite the positive impression Mr. Myerion gave the probation officer, he was nevertheless assessed as a high risk to reoffend on the basis of a Level of Service/Case Management Inventory assessment. The factors leading to that conclusion are hardly surprising. In

summary: he is likely to reoffend if he abuses drugs or alcohol, associates with people who abuse drugs and alcohol, or associates with people who are pro-criminal, including peers and family. His prospects for rehabilitation would improve if he had access to a structured and supportive treatment program of the type offered by the Behavioural Health Foundation, and if he were given greater opportunity to learn and connect with his Indigenous culture and community. [ 15 ] Mr.

Myerion has expressed what seem to me to be realistic ambitions to complete high school, complete some form of post- secondary education, and obtain employment. He has been in custody since December 9, 2021. During that time, he has successfully completed every programming opportunity offered to him. [ 16 ] The pre-sentence report contains references to Mr. Myerion’s expressions of responsibility and regret for his involvement in the death of Mr. Chief. At the hearing, Mr. Myerion repeated to me and to Mr.

Chief’s family and friends in the gallery what I took to be his heartfelt and genuine remorse over his actions. Victim impact [ 17 ] Many relatives and friends of Mr. Chief attended the hearing. One member of his family, who preferred not to be named, delivered a very powerful victim impact statement, notable for its eloquence, grace, and humanity, and for its invocation of the seven teachings: truth, honesty, respect, love, courage, humility and wisdom. What follows is drawn from that statement. [ 18 ] Mr. Chief was Indigenous. Like Mr.

Myerion, he was born into a ruinous family history that included residential schools, inter- generational trauma, poverty, involvement with child welfare authorities, and substance abuse. And like Mr. Myerion, what little connection Mr. Chief had to his Indigenous culture and community was mostly lost and hard, if not impossible, to recover.

[19] For much of his childhood Mr. Chief’s mother, a residential school survivor, abused alcohol and drugs. As a result, he and hisolder siblings were placed under the authority of Child and Family Services and moved from one home to the next for several years. Achildhood accident added to Mr. Chief’s challenges, resulting in the amputation of one arm and the loss of two fingers. Despite all ofthese challenges, Mr. Chief became a talented athlete. Upon his graduation from high school, he declined a university basketballscholarship in Brandon, instead choosing to live with his family in Winnipeg.

Despite his best efforts, Mr. Chief was not always able toovercome the unfair circumstances of his birth and background. At different times he fell victim to drug and alcohol abuse. [20] But, we were told, Mr. Chief bravely persisted, and at this hearing he was remembered as a warm, caring and generous brother,uncle, nephew, cousin and friend. The world is a poorer place without him in it. Principles of sentencing [21] The Criminal Code, R.S.C., 1985, c. C-46 (the “Code”) identifies proportionality as the fundamental principle in sentencing: s.718.1.

A fit and appropriate sentence should be in proportion to the gravity of the offence, which includes its inherent wrongfulness andconsequences, and the degree of responsibility of the offender.

Systemic and background factors may bear on the degree of anoffender’s responsibility, and therefore deserve close attention. [22] Other sentencing principles have been codified in s. 718.2, which provides that the court shall take into consideration, amongother things, the aggravating and mitigating circumstances relating to the offence or the offender; the parity principle, which providesthat a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; theprinciple of restraint; and the circumstances of Indigenous offenders (see R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688,133 C.C.C. (3d) 385 (S.C.C.) and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433). [23]

Section 718 of the Code articulates the fundamental purpose of sentencing: to protect society and contribute to respect for the lawand maintenance of a just, peaceful and safe society. The court’s objective is to craft a sentence that denounces the offender’s criminalconduct, deters the offender and others from committing offences, separates the offender from society where necessary, assists in therehabilitation of the offender, provides reparation to the victims and the community, and instills a sense of responsibility in the offenderfor the harm done.

Positions of parties [24] The Crown submits an appropriate custodial sentence is 14 years, less credit for pre-sentence custody. Such a sentencerecognizes the circumstances of Mr. Myerion’s Indigenous identity, as well as other mitigating factors present in his case. But it alsotakes into account his criminal record, as well as the serious role he played in a vicious group attack on an unsuspecting and veryvulnerable victim. In determining Mr.

Myerion’s sentence, the Crown argued, particular emphasis ought to be placed on the principlesof denunciation and deterrence. [25] In support of its position, the Crown cites these seven sentencing decisions for manslaughter: R. v. Bell, [1993] 85 Man.R. (2d)139, (MB CA) (12 years for a 29-year-old offender who killed his victim with a bat); R. v. Csincsa, (MB CA), 1993 85 Man.R. (2d) 241, [1993] M.J. No. 237 (Man. C.A.) (eight years for a 27-year-old offender who killed hisolder, weaker victim in response to the latter’s provocative conduct); R. v. T.T.G., 2004 BCSC 1638, [2004] B.C.J.

No. 2631 (10 yearsfor an 18-year-old offender who, while intoxicated, went looking for a fight and stabbed his victim); R. v. Halkett, 2013 SKQB 41 (11years for a 47-year-old offender with a record for violence); R. v. Cioppa, 2013 ONSC 1242, [2013] O.J. No. 904 (eight years for an 18-year-old offender who, like the accused in Gold, went looking for a fight while intoxicated); R. v. McLeod, 2016 MBCA 7, 323 Man.R.(2d) 251 (QL) (an aggregate sentence of 15 years for a 39-year-old offender, comprising 11 to 13 years for manslaughter and two to fouryears for certain aggravating post-offence conduct); and R. v.

James, 2022 MBPC 15 (nine years for a 48-year-old offender with a recordfor violence). [26] In response, Mr. Myerion argues for a custodial sentence of six years less pre-sentence custody. Mr. Myerion asks me toconsider the fact of his guilty plea, made in the face of serious triable issues; his expression of remorse; his lack of violent history and theevidence that his behaviour on this occasion was out of character; his demonstrated commitment to rehabilitation since being taken intocustody; and the circumstances of his Indigenous background. [27] In support of his position, Mr.

Myerion drew my attention to six sentencing decisions for manslaughter: R. v. Duck, 2023MBKB 62, [2023] M.J. No. 101 (six years for an intoxicated 23-year-old offender); R. v. Friesen, 2016 MBCA 50, 330 Man.R. (2d) 32(four years for an intoxicated 20-year-old offender who went looking for a fight); R. v. Kurek, 2018 SKQB 168, [2018] S.J. No. 262 (sixyears for a 29-year-old offender); R. v. Morin, 2020 MBQB 4, [2020] M.J. No. 15 (seven years for a 34-year-old offender with a recordfor violence); R. v.

Nepinak, 2017 MBPC 62 (seven and six years respectively for sisters, aged 33 and 37, who both had records forviolence); R. v. Sinclair, 2012 MBCA 24, 280 Man.R. (2d) 31 (six years for a 19-year-old offender who participated in a vicious groupassault on the victim, who, having been left lying on a Winnipeg street, was later struck by a car, causing his death). Discussion and disposition [28] The sentencing range for manslaughter is very broad, reflecting the equally broad circumstances in which a conviction formanslaughter can arise, from those verging on accident at one end, to near-murder on the other.

A helpful discussion of the reasons forthat broad range can be found in Bell (paras. 8 – 14), and McLeod (paras. 16 and 17). Nevertheless, while the range of potential sentencefor manslaughter may make sentencing more difficult than for other crimes, the fundamental purpose of the exercise, in the words ofFraser C.J.A. in R. v. K.K.L., 1995 ABCA 196 , [1995] ABCA 196, 165 A.R. 375 (QL), remains the same: “to ensure that thesentence imposed fits the degree of moral fault of the offender for the harm done” (at para. 6). [29] The aggravating circumstances involved in Mr. Myerion’s attack on Mr. Chief are grim.

As I have already noted, Mr. Myeriontook

part in an unprovoked, group attack on a weak and unsuspecting victim. But of the four assailants, only Mr. Myerion used aweapon – a knife – which he used to stab Mr. Chief five times. Mr. Myerion hardly remembers what he did, and cannot explain hisactions. He was extremely intoxicated at the time, and seems to have been hanging out on a street corner in the middle of the night with

a group of similarly aimless young men. All of this is troubling, particularly in light of the warning sounded by his probation officer that he is likely to reoffend if he abuses drugs or alcohol, associates with people who abuse drugs and alcohol, or associates with people who are pro-criminal. [ 30 ] There are other factors that weigh in Mr. Myerion’s favour. He is young. He entered a guilty plea and accepted responsibility for his actions despite the fact that the Crown’s case against him depended in part on the evidence of certain witnesses whose credibility and reliability were open to serious question.

He is genuinely remorseful. He not only lacks a record for violence, but those close to him all maintain that his actions on this occasion were very much out of character. While in custody he has committed himself to every program made available to him, which suggests to me that he has both the capacity and willingness to change course and avoid future criminal involvement. [ 31 ] Mr. Myerion is an Indigenous offender. He has this in common with several of the offenders in the authorities referred to above: Duck , Kurek , Morin , Nepinak , Halkett and James all involved Indigenous accused. Mr.

Myerion’s blameworthiness for his crime against Mr. Chief must be assessed in light of his Indigeneity.

His story in this regard is sadly typical: a fractured family whose history was marred by, among other things, dreadful experience with Canada’s residential school system; early and regular abuse of drugs and alcohol; personal experience with prejudice, the effect of which was no doubt exacerbated by a lack of any meaningful connection to his Indigenous culture and history; loneliness and isolation; chronic exposure to anti-social behaviours and influences; limited exposure to positive influences and examples. [ 32 ] Mr. Myerion committed a grave crime, and his level of moral blameworthiness is high.

His sentence must reflect that. His sentence must also serve as a signal to him and to others – particularly his co-assailants – that such conduct will not be tolerated. Mr. Chief had a right to expect that he could travel freely and safely on Winnipeg’s streets. Mr. Myerion violated that right in a most brutal and inhumane way. [ 33 ] That said, I am unable to accept the Crown’s submission in support of a 14-year sentence. A sentence of that length would exceed, in some cases by a very wide margin, the sentence in every one of the authorities to which I have been referred.

In my view, those authorities, particularly the more recent decisions from Manitoba, suggest a range of sentence in like circumstances for offenders similar in age to Mr. Myerion of six to eight years. [ 34 ] To conclude, I find a fit and appropriate sentence is seven years less 1.5 times credit for time spent in pre-sentence custody, the precise calculation of which I leave to counsel for my approval. This sentence falls reasonably within the range of sentences in the authorities submitted by counsel, particularly given Mr.

Myerion’s youth, the circumstances of his Indigenous background, his lack of violent history, and his prospects for rehabilitation. [ 35 ] In addition, I order a lifetime weapons prohibition pursuant to s. 109 of the Code , and an order under s. 487.051 that Mr. Myerion provide a bodily sample suitable for DNA analysis and registration on the national data bank. [ 36 ] The Crown had also asked that I order Mr. Myerion not be eligible for parole until he has served at least one half his sentence.

I am not prepared to do so, preferring to leave the determination of his parole eligibility to those who, in due course, will be assigned that task, equipped as they will be with their experience, expertise and knowledge of Mr. Myerion’s relevant circumstances. J.