R. v. Scott and Jack, 2023 MBKB 70

Date: 20230423 Docket: CR 21-01-38533 (Winnipeg Centre) Indexed as: R. v.

Scott and Jack Cited as: 2023 MBKB 70 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, ) Daniel Chaput Matthew Armstrong for the Crown ) ) ) )- and - ) ) CLARENCE RAYMON SCOTT and TYLER RYAN KENNETH JACK, ) ) ) ) ) ) Matt Gould Zach Kinahan for the Accused Scott Kevin Sneesby John RutherfordAccused.) for the Accused Jack ) ) JUDGMENT DELIVERED: ) April 20, 2023 Restriction on Publication: Please note that the Youth Criminal Justice Act, s. 110(1), which prohibits the publication of anyinformation that may identify a person as having been dealt with under this Act, applies to this judgment.

McKELVEY J. I. INTRODUCTION [1] Clarence Raymon Scott (“Scott”), 33, and Tyler Ryan Kenneth Jack (“Jack”), 24, were found guilty, after a judge alone trial, ofsecond degree murder (s. 235(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) (2022 MBQB 164). Both are Indigenousoffenders with Scott having connections to Roseau River First Nation, Cross Lake First Nation, and St. Theresa Point First Nation. Jackhas substantially been raised and resided in the City of Winnipeg. [2] Scott, Jack and a youth undertook actions that resulted in the shooting death of Nairne Chapais on May 21, 2020.

The shootingoccurred outside Mr. Chapais’s Selkirk Avenue residence (“the residence” or “Chapais residence”), in the City of Winnipeg. Scott wasthe shooter, with Jack a party to the offence by virtue of aiding/abetting the murder. The youth’s matter has proceeded separately. Thecircumstances of May 21, 2020, exhibited elements of planning, albeit other reasonable inferences were recognized so as to exclude afirst degree murder conviction (see paras. 137-139). [3] The sentence for an adult offender convicted of second degree murder is life imprisonment with no parole eligibility for between10-25 years (s. 745(

c) of the Criminal Code, R.S.C., 1985, c. C-46). The relevant case law with respect to imposing parole ineligibilityfor more than 10 years has been well set out in R. v. Shropshire, (SCC), [1995] S.C.J. No. 52 (QL): 31 If the objective of s. 744 is to give the trial judge an element of discretion in sentencing to reflect the fact that within second degree

murder there is both a range of seriousness and varying degrees of moral culpability, then it is incorrect to start from the proposition that the sentence must be the statutory minimum unless there are unusual circumstances. As discussed supra, a preferable approach would be to view the 10-year period as a minimum contingent on what the "judge deems fit in the circumstances", the content of this "fitness" being informed by the criteria listed in s. 744. As held in other Canadian jurisdictions, the power to extend the period of parole ineligibility need not be sparingly used.

In evaluating whether parole ineligibility should be increased above 10 years, it is necessary to consider the character of the offender, the nature of the offence, the circumstances surrounding its commission, and a jury recommendation, if any ( s. 745.4 of the Criminal Code ). A further consideration is the relative role and participation played by jointly convicted offenders. Those offenders who accompany and are, in some sense, led by a more active co-accused may be afforded a lower sentence.

Further factors to be evaluated include future dangerousness, age, criminal record, brutality, motive, type of assault, drugs, alcohol, and the use of a firearm. Clearly, impulsive killings are contrasted with those that are found to have elements of planning and deliberation. II. THE OFFENCE [ 4 ] On May 21, 2020, Scott, Jack and the youth gathered at a Winnipeg-based hotel and proceeded by motor vehicle to a position one block north of the Chapais residence. Jack drove the vehicle in question, with Scott in the front seat, and the youth occupying the backseat.

Jack led the group, on foot, between houses to the back lane behind Mr. Chapais’s Selkirk Avenue multi-unit residence. Jack initially had a backpack at the hotel. However, Scott had possession of that backpack and removed a firearm from it while in the back lane. The group entered the back yard of the residence and, shortly thereafter, Mr. Chapais entered from the front and was climbing the stairs to his dwelling, only to be shot five times. The group then fled, with Jack in the lead, to the parked vehicle.

Scott and Jack were seen together at the previously mentioned Winnipeg-based hotel on May 25, 2020, and at a Theme Suite Hotel on May 27, 2020. Further, three days before the killing, Scott and the youth had parked one block north of the residence and proceeded to the back lane. At that time, Scott had carried a firearm in a backpack which he used to fire shots at the residence. III. THE OFFENDERS • Scott [ 5 ] There are, without question, unique systemic and background factors which have played a role in bringing Scott before the courts.

The defence sentencing materials have outlined Scott’s background as one of (Exhibit S4): ... dislocation, displacement, poverty, community fragmentation, and intergenerational trauma from residential schools. He is directly impacted by generations of substance abuse and his family was deeply impacted by the legacies of residential and day schools. His path to the instability he experienced in Winnipeg is marked with the impact of colonization. Scott was exposed to parental substance abuse, instability, isolation, and apprehensions by Child and Family Services.

He witnessed domestic violence, along with instability bred by substance abuse, violence and poverty. Scott experienced many unsettling and tragic circumstances as a youth, including the drowning death of a sister; physical and sexual abuse; alternating caregivers between his mother and step-mother; a lack of family support; moving communities, with resultant language issues, to escape his step-mother’s abusive relationships; endeavouring to protect his step-mother from her abusers; his mother’s substance abuse issues; and, his introduction by her to negative criminal influences.

Certain of these factors led to his association, at an early age, with a negative peer group. Scott has a Grade 8 education and had substance abuse issues, albeit he was gainfully employed for approximately two years prior to this event and was taking care of his four year old child. [ 6 ] Scott’s sister describes how he was relied upon by their mother to provide money and food for the family at a very young age. Further, her brother took care of her much of the time when they were growing up.

She, too, recounts the family’s poverty; instability; physical, mental, and substance abuses; and, the impacts of colonialism and residential schools. Scott’s family has been impacted by their attendances at residential and day schools, contact with the criminal justice system, and intergenerational trauma. [ 7 ] Scott’s father acknowledged the family’s connection with residential schools. He left the family when Scott was a young child, in part, because of his alcohol use, which he terminated after being incarcerated in the late 1990s.

Scott’s father remarried and took him into their home before separating from his wife soon after. Scott, at an age range of three to seven years, was then left with his step- mother in St. Theresa Point. The language spoken in St. Theresa Point was Oji-Cree, which was a difficult transition for Scott, who only spoke English. He also lived in Brandon and Winnipeg during his time with his step-mother. This instability inhibited social contacts and created an isolating situation for him. Scott’s step-mother characterizes him as a “good kid” who never disrespected her and was always helpful.

At approximately age 13, Scott left to live with his mother in Roseau River and in Winnipeg. It is at that point that his exposure to negative/criminal influences and the use of drugs and alcohol began. [ 8 ] Scott’s criminal record begins in 2009 and demonstrates a number of convictions including failures to comply with court orders, possessions of restricted or prohibited firearms, and assaults with a weapon (Exhibit S2). His last conviction was for aggravated assault in 2013. That assault involved the group beating of an inmate while incarcerated and resulted in a nine-year sentence.

Scott has struggled with substance abuse issues, and particularly the use of alcohol and cocaine. • Jack [ 9 ] Jack’s background involves displacement, instability, substance abuse, poverty, and apprehensions by Child and Family Services. His parents separated when he was two years old, as neither could care for him due, in part, to their alcohol issues. He and his sister lived with their paternal grandparents until Jack was five years old after which they returned to their mother’s care. His mother experienced a number of abusive relationships which resulted in relocations and exposures to criminal lifestyles.

Jack and his sister were

voluntarily placed with Child and Family Services when he was seven years old for a period before leaving the province with their mother where she again experienced abusive relationships. Jack, over the years, endeavoured to intervene between his mother and her abusers. [ 10 ] The family returned to Winnipeg in 2008 and by the time Jack was 13 years old, his mother noticed behavioural issues which, in part, were the consequences of his associations with negative peer groups.

While Jack was considered to be an intelligent youth, his attendance at school became problematic as he was exposed to the use of substances. Over the years, he has lived with a number of his family members, including his father with whom he worked in 2016-2017. Jack has been employed in labour/construction types of occupations. [ 11 ] Jack began alcohol consumption at age 12 and, thereafter, utilized marihuana on a daily basis along with prescription medications. In 2020, his alcohol and drug consumptions increased. He has a supportive partner and a young child.

Jack is considered to be a good parent and has family support. [ 12 ] While in custody, Jack has upgraded his education and is close to securing a Grade 12 standing. He has and is prepared to further access programming. Additionally, he engages in sweats, smudging and regular contact with an Elder.

It is noteworthy that then Corrections Officer Paculan, who was his case manager during Jack’s incarceration at the Manitoba Youth Centre, provided trial testimony that the young man was regarded as a trusted and respected inmate. [ 13 ] Jack’s lengthy and serious criminal record (Exhibit S3) commenced as a youth in 2012 with property crimes, break and enters, failures to comply with court orders, possession of scheduled substances for the purposes of trafficking, and possession of restricted or prohibited firearms offences. [ 14 ] Jack has, without question, been subjected to and influenced by the unique systemic and background factors which have played a role in bringing him before the courts.

IV. VICTIM IMPACT STATEMENT [ 15 ] Vernon Gott provided a victim impact statement with respect to the death of his nephew, Nairne Chapais. The statement demonstrates not only the extent to which Mr. Gott has been impacted by his nephew’s death, but also the ramifications of the killing within the family. As a consequence of Mr. Chapais’s demise, his sister committed suicide, while other family members have turned to drugs and alcohol as coping mechanisms to deal with the loss. Mr. Gott recounted his contact with his nephew and the loss experienced not only for Mr. Chapais’s life at that time, but for his future.

He also has found the ability to forgive (Exhibit S1): In the past 2 years I have spoken to many elders to try and figure out where to go from here. The most powerful gift I have received since this incident is the act of forgiveness. I have had to develop that act of forgiveness if I don’t it will eat me alive. I am stating that I forgive but I will not forget what happened to Nairne. I cannot be resentful of what you have done to my family because what I have learnt about myself is that it is better to forgive so I can carry on in my own life.

If I hold onto the resentment it will kill me, and I hope that when you meet the creator, he will greet you with open arms. [ 16 ] There are other family members, including Mr. Chapais’s grandmother who, without question, have suffered a significant loss as a consequence of what occurred on May 21, 2020. Mr. Chapais’s death is tragic, senseless and an inexplicable act of violence. V. CROWN SUBMISSIONS [ 17 ] Crown counsel are seeking a period of parole ineligibility of 18 years as regards Scott and 15 years with respect to Jack.

The nature of the murder, the character of each accused, and the circumstances surrounding the commission of the offence were argued to support the articulated terms of parole ineligibility. The nature of the crime included the methodology of parking one block from the scene, transporting a firearm and entering into the backyard of Mr. Chapais’s multi-unit residence where this unarmed and defenceless individual was ambushed. He was shot five times on his doorstep in what was characterized as a brazen daylight attack. That attack had elements of planning and was not random in nature.

It was contended that conscious choices were made by virtue of the vehicle being parked a distance away, being armed, walking together to the Chapais residence, and then fleeing the scene. Further, three days before the killing, Scott had fired numerous shots at the residence, again, in broad daylight. [ 18 ] The Crown acknowledged that both Scott and Jack have a number of operative Gladue factors, as did Mr. Chapais. [ 19 ] In terms of character, both individuals have lengthy criminal records that include firearms offences. With respect to Scott, his history demonstrates dangerous violence.

The Crown contends that both accused’s rehabilitative prospects are poor and they exhibit a high level of dangerousness. Further, they are on gang ranges while incarcerated. Scott has expressed no interest in programming or casework. [ 20 ] The Crown reviewed the case law filed and acknowledged that there is no one case directly on point; however, these circumstances warrant parole ineligibility as argued with the focus being on society’s protection. This brazen and senseless killing was described as one exhibiting “terrifying circumstances” with gun fire, during daylight hours, in a residential setting. VI.

DEFENCE SUBMISSIONS • Scott

[ 21 ] Scott is seeking a period of parole ineligibility of 13.5 years. His life circumstances and Gladue factors were argued to significantly reduce his level of moral culpability. Further, it was submitted that what happened behind the Chapais residence fence is unknown and, accordingly, the level of moral culpability of any of the participants cannot be assessed. [ 22 ] Scott is regarded in the institution as being polite and respectful. He has job responsibilities while incarcerated.

Rehabilitation was argued to be a relevant factor in his parole ineligibility determination. [ 23 ] Scott has supportive friends and family and is connected with resources in the community. He is also regarded as a good parent. Counsel, on behalf of Scott, argued that the cases relied upon by Crown counsel make no reference to Gladue factors, while those relied upon by the defence exhibit higher levels of moral culpability than exists in Scott’s circumstances.

Accordingly, setting parole ineligibility at 13.5 years is contended to be appropriate. • Jack [ 24 ] Counsel, on behalf of Jack, are seeking a period of 12 years’ parole ineligibility. This is based upon Gladue factors, his youthfulness at the time of the killing – 21 years of age, his positive rehabilitative prospects and supports in the community. Those supports include family, his partner, and friends.

The Gladue factors were previously outlined, as was Jack’s progress while incarcerated in terms of upgrading his education and accessing tenets of his Indigenous heritage. [ 25 ] It is submitted that Jack can be rehabilitated; he is working with an Elder, there are resources within the federal prison system to assist him, and he is growing up. VII.

PURPOSE, OBJECTIVES AND PRINCIPLES OF SENTENCING [ 26 ] The fundamental purpose of sentencing is 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. [ 27 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Here, the offence of second degree murder is extremely egregious as is the heightened responsibility of both offenders in needlessly and inexplicably taking Nairne Chapais’s life. The attack on Mr.

Chapais was senseless and accomplished in an unimaginable act of violence. A motive for the killing has never been established. [ 28 ]

Section 718 of the Criminal Code sets out a number of objectives a sentencing judge should bear in mind when sentencing. The objectives of the sentence in this case include: • denouncing unlawful conduct; • deterring the offender and other persons from committing offences; • because it is necessary to do so, separating the offender from society; • assisting in rehabilitating the offender; • providing reparations for harm done to the family and to the community; and, • promoting a sense of responsibility in the offender, and acknowledging the harm done. [ 29 ] Without question, Gladue factors must be considered for each offender, along with the requirements of s. 718.2 (

e) of the Criminal Code : 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. The existence of Gladue/Ipeelee factors is extremely important in the evaluation of an appropriate determination of parole ineligibility for both Scott and Jack.

As was stated by the Supreme Court of Canada in Gladue : 80 As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community?

What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing?

What sentencing options present themselves in these circumstances? [Emphasis in original.] Further, the process for considering Gladue factors was outlined in Ipeelee :

[60] Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people inCanadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts must take judicial notice of suchmatters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lowereducational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels ofincarceration for Aboriginal peoples.

These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders.Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counselhave a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to haveit considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report,which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders.

Bringing such information to theattention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender,as it is indispensable to a judge in fulfilling his duties under s. 718.2(

e) of the Criminal Code. [30] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender. [31] The mitigating factors with respect to Scott are: • relevant Gladue factors; • support in the community and of family and friends; • past employment. [32] The aggravating factors with respect to Scott include: • an apparent lack of remorse or insight; • some degree of planning the offence; • taking advantage of an unarmed and defenceless individual; • use of a firearm when committing the offence; • a related criminal record, which includes convictions for weapons and violent offences; • undertaking this daylight attack in a residential setting; • being in possession of a firearm when restricted from doing so by a court-ordered prohibition. [33] As regards Jack, the mitigating factors are: • a youthful offender; • relevant Gladue factors; • support of family and friends; • past employment; • a willingness to undertake and access programming and supports while in custody. [34] The aggravating factors with respect to Jack include: • an apparent lack of remorse or insight; • participation in circumstances that resulted in the death of Mr.

Chapais, including handling the backpack containing the firearmand driving the vehicle to and from the area of the offence; • taking advantage of an unarmed and defenceless individual; • undertaking this daylight attack in a residential setting; • a related criminal record. [35] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. It is also recognized that R. v. Gladue, (SCC), [1999] 1 SCR 688/R. v. Ipeelee, 2012 SCC 13 factors exist with respectto both Indigenous offenders.

Clearly, their lives have been impacted by parental issues, substance abuse, violence, periods of foster care,instability, poverty, colonialism, and intergenerational trauma from residential schools. The Gladue factors have been accordedrelevance for both offenders when determining parole ineligibility, along with applicable sentencing principles. VIII. CASE LAW [36] Crown counsel relies on the following cases:

• R. v. Schuff, 2021 MBCA 54 • R. v. Nelson, 2009 MBCA 76 • R. v. Shand, 2011 ONCA 5 • R. v. Bennight, 2012 BCCA 461 • R. v. Chambers, 2018 ONSC 2070 R. v. Schuff, 2021 MBCA 54 [37] This accused was convicted of second degree murder as a consequence of a brutal attack upon the victim. Twenty-three stabwounds were inflicted along with extensive blunt-force trauma. The principal aggravating factors involved the accused’s criminal recordand the viciousness of the assaultive behaviour. The jury recommended a range of parole ineligibility of 10 to 15 years.

The sentencingjudge imposed a 15-year parole ineligibility period, which was upheld by the Manitoba Court of Appeal, as constituting a reasonablebalance after evaluating all relevant factors, which included the accused not having a criminal record. R. v. Nelson, 2009 MBCA 76 [38] The offence of second degree murder in this case was described by the sentencing judge as a “callous, cowardly and cold-blooded” act with parole ineligibility being set at 20 years (para. 5). The victim was lured downstairs in a crack house and shot by theoffender.

The murder was found to have “... had all the hallmarks of an execution and was close to first degree murder in its severity”(para. 6). The youthful accused grew up in a violent and abusive home. Further, he was diagnosed with ADHD and was determined tobe motivated to make character-based changes. Those attributes had been discounted by the sentencing judge, resulting in the ManitobaCourt of Appeal lowering the parole ineligibility period to 15 years. R. v. Shand, 2011 ONCA 5 [39] The accused discharged a firearm in an attempt to subdue occupants of a residence during the course of a “drug rip off”.

One ofthe occupants was killed with the principle issue on appeal being whether the weapon’s discharge was accidental. A period of 15 years’parole ineligibility was ruled to be appropriate after a finding of second degree murder. R. v. Bennight 2012 BCCA 461 [40] The accused was convicted of second degree murder after violently beating the victim. The period of parole ineligibility was setat 18 years.

Justice MacKenzie, speaking for the court, outlined the appropriate principles to be considered with respect to s. 745.4 ofthe Criminal Code: [18] The following principles apply to the decision to impose an extended period of parole ineligibility: • Under s. 745.4 of the Criminal Code, the sentencing judge must consider the character of the offender, the nature of the offence, thecircumstances surrounding the commission of the offence, and the recommendation of the jury (if any). • The general sentencing principles of denunciation and deterrence and the judge’s assessment of the offender’s future dangerousnessare relevant factors: R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193. • Parole ineligibility greater than 10 years is justified when there is some particularly aggravating feature: Cerra, at para. 17 (perDonald J.A.). • There are two broad groupings of cases where parole ineligibility is extended beyond 10 years: parole ineligibility periods from 12 to15 years and parole ineligibility periods from 15 to 20 years.

The latter group of cases relates to cases at the highest order of moralculpability or dangerousness: Cerra, at para. 26 (per Donald J.A.). • The possibility of a parole ineligibility period greater than 20 years remains in exceptional circumstances: Cerra, at para. 36 (perRyan J.A.). • Orders extending the period of parole ineligibility are highly discretionary and are part of the sentence pursuant to s. 673 ofthe Criminal Code. Such orders are therefore appealed pursuant to s. 687(1). An appellant court should only interfere with a trial judge’s

sentencing order if the court is convinced it is not fit or it is clearly unreasonable: Shropshire, at paras. 47-48. • The wide discretion granted to sentencing judges is fettered by the case law and general ranges of sentences for particular offences.However, while courts must consider ranges, they are guidelines rather than strict rules. A sentence outside the regular range is notnecessarily unfit, if it is in accordance with the principles and objectives of sentencing: R. v.

Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R.206 at para. 44. • Similarly, the two groups of parole ineligibility cases described in Cerra are intended as guidelines, not as binding categories withinwhich a particular case must be placed: R. v. White, 2011 BCCA 328 at para. 24. The Court of Appeal upheld the sentencing judge’s assessment of 18 years’ parole ineligibility. R. v. Chambers, 2018 ONSC 2070 [41] The Chambers case involved two accused (Chambers and Warner) with significant criminal records. They attended a party withfirearms, despite court ordered prohibitions from possessing such weapons.

A degree of planning was found to have existed. As aconsequence of firing their weapons, three party goers were shot with one dying. Chambers was found guilty of second degree murderand aggravated assault, while Warner was convicted of manslaughter. Chambers came from a dysfunctional family and was found to befirmly entrenched in the criminal subculture.

A period of 18 years’ parole ineligibility was imposed, in part, to exhibit the court’s strongdenunciation of firearm use. (The Warner sentencing proceeded separately.) [42] There was an absence of Gladue considerations reflected in the case law relied upon by the Crown. [43] Scott and Jack case law: • R. v. Ryle, 2018 MBQB 32 • R. v. Moar, 2021 MBQB 203 • R. v. St. Paul, 2021 MBCA 31 • R. v. Rennie, 2017 MBCA 44 • R. v. Ipeelee, 2012 SCC 13 • R. v. Gladue, (SCC), [1999] 1 SCR 688 • R. v. Grant, 2016 ONCA 639 R. v.

Ryle, 2018 MBQB 32 [44] The accused was found guilty by a jury of second degree murder for the victim’s stabbing death. The accused had broken intothe victim’s residence in order to steal property which was to be sold for rent money. After breaking in, he armed himself with a knifeand proceeded to stab the victim 38 times. The accused then made two or three trips to and from the residence taking property beforesetting it ablaze.

The principles and factors with respect to increasing parole ineligibility were well set out in the sentencing judge’sdecision who considered the accused’s personal circumstances, which included an underprivileged upbringing, age, familycircumstances, and Gladue factors (para. 10). The accused also had a youth criminal record exhibiting crimes of violence with apropensity for the use of weapons. A period of parole ineligibility of 15 years was found to constitute a fit sentence. R. v. Moar, 2021 MBQB 203 [45] The accused was found guilty of second degree murder as a consequence of the victim’s shooting death.

Gladue factors wereevaluated as were the findings in Shropshire, R. v. M.(C.A.), (SCC), [1996] 1 SCR 500, and the Nelson case. [46] Moar was found to have cognitive issues, an extensive and related criminal record, institutional misconduct, and put forth noexpression of remorse. Further, at his sentencing, he verbally threatened Crown counsel and the sentencing judge. His background wasfound to be representative of cultural disconnection and alienation due to the intergenerational impacts of colonization and residentialschooling. The period of parole ineligibility was set at 15 years. R. v. St.

Paul, 2021 MBCA 31 [47] The St. Paul decision represented a “cold and callous” revenge shooting of a 21 year old Indigenous woman who had allegedlyorchestrated a drug rip-off a week earlier. The circumstances of this case constituted what was considered by the sentencing judge to beclose to a planned first degree murder. A 15 year period of parole ineligibility was imposed. The Manitoba Court of Appeal reviewedwhether the sentencing judge had conducted a meaningful Gladue analysis. The Indigenous accused exhibited many relevant Gladue

factors, including the impact of intergenerational trauma caused by residential schools, poverty and substance abuse. His upbringing was unstable and included periods of foster care and a diagnosis, at age 14, of alcohol-related neurodevelopment disorder. The sentencing judge was found to have considered the Gladue factors, and had weighed them reasonably in assessing the accused’s moral culpability. R. v. Rennie , 2017 MBCA 44 [ 48 ] The accused appealed his sentence on the issue of whether the sentencing judge had failed to consider the application of Gladue principles.

The Court of Appeal determined that the sentencing judge had considered the relevant Gladue factors. [20] A sentencing judge cannot simply ignore the fact that an offender has an Aboriginal background, but on the other hand, she or he is not bound to find that such a background will automatically lead to a conclusion that the offender has been disadvantaged because of that background...

A sentencing judge must consider the Gladue principles when dealing with an Aboriginal offender, but there will be instances, as in the case before us, where little weight is to be attributed to those principles because of the facts surrounding the offender in question. R. v. Grant , 2016 ONCA 639 [ 49 ] The hallmarks of the Grant case involved a daylight residential drive-by shooting by those in the accused’s vehicle who fired 13 shots at the occupants of a second vehicle. One individual was killed and three wounded in the second vehicle.

The circumstances were that the occupants of the vehicle that came under fire had robbed and then taunted the co-accused. Both accused were found to have rehabilitative prospects and did not have criminal records exhibiting serious violence. The sentencing judge had imposed higher periods of parole ineligibility than had been argued by Crown counsel and afforded no weight to the relative youth and other mitigating factors of the two accused.

The shooter had his ineligibility period reduced by the Ontario Court of Appeal from 18 years to 13 years, while the party to the offence had his parole ineligibility lowered from 14 years to 11 years. IX. SENTENCE • Scott [ 50 ] There is no question that Scott’s life has been significantly impacted by Gladue factors. This affords a rationale into the systemic and background factors for the criminal activity that have brought him before the courts.

Scott and his family/background are illustrative of being victims of systemic and discriminatory factors which include dislocation, poverty, foster care, substance abuse, violence, observations of domestic abuse, and intergenerational trauma born from the residential school experience. His life has been unstable and there is, without question, a marked impact rooted in colonialization. Those factors, and those previously outlined, assist in delineating Scott’s character. Additionally, he has a serious criminal record involving violence and the use of firearms.

To date, Scott has not demonstrated strong rehabilitative potential, albeit, it is acknowledged that he has family, community, and friends’ support, a child, along with engaging in gainful employment prior to this incident occurring. Scott’s lifestyle and criminal record demonstrates a dangerous character. Further, he exhibits an apparent lack of interest in rehabilitation and programming, at this time. [ 51 ] I am satisfied that Scott was the shooter of Mr. Chapais in what can be characterized as an ambush of an unarmed and defenseless victim.

As earlier articulated, there was a planning element in the unfolding of the May 21, 2020 events, as well as what occurred on May 18, 2020, when Scott fired upon the Chapais residence. [ 52 ] The use of firearms is inherently dangerous and must be denounced and deterred: R. v. McMillan , 2016 MBCA 12 . This is particularly so in these circumstances of a daylight attack occurring in a residential area. It is also noteworthy that at the time of the commission of this offence, Scott was subject to a court ordered weapons prohibition.

This is, without question, a serious aggravating factor. [ 53 ] There is no on-point case law addressing similar facts to those that transpired on May 21, 2020, as all have distinguishing features, as do the circumstances of both offenders. That said, the case law provided delineates a parole ineligibility range of 15-18 years.

I am satisfied, based on an evaluation of the case law, the Gladue factors, Scott’s criminal record, character, family, community, and friends’ supports, being regarded as a good parent, and his respectful attitude while in custody, that his appropriate period of parole ineligibility is one of 15 years. I have concluded that this period also best reflects the nature and circumstances of what transpired on May 21, 2020, including the fact that he was the shooter. There is a clear need for society’s protection, along with deterrence and denunciation.

I do not discount the possibility of Scott’s rehabilitation, but after a review, in particular of the s. 745.4 criteria, I believe that 15 years is an appropriate period of parole ineligibility. • Jack [ 54 ] Jack was 21 years old at the time of the Chapais killing, albeit, he had accumulated a serious and significant criminal record by that time. That criminal record includes property crimes, weapons possession, drug activity, and failures to comply with court orders. Jack also has experienced the ramifications of Gladue factors in terms of himself and his family background.

Those factors include contact with the residential school system, substance abuse, and observing incidences of domestic violence. His family was required to relocate on many occasions and he became involved in a negative peer group at an early age. Jack has also experienced substance abuse. That said, he has supportive family and friends and is considered to be a good parent. Further, while in custody, Jack has upgraded his education, accessed programming and engages in Indigenous cultural activities, including working with an Elder.

He was regarded, while at the Manitoba Youth Centre, as a trusted and model inmate. [ 55 ] I am satisfied that Jack was a party to what occurred on May 21, 2020. He drove the vehicle to and from the area of the Chapais residence, led the group on foot to and from the residence, and handled the backpack that contained the firearm. He was an aider/abettor

to the killing. He, as is Scott, is situated on a gang range while incarcerated. Again, denunciation, deterrence, and society’s protection are paramount in the determination of his parole ineligibility. However, not to be forgotten are Jack’s rehabilitation prospects, along with the operative Gladue factors.

As a consequence, I am satisfied that the appropriate period of parole ineligibility to be set for Jack is one of 12 years. [ 56 ] Other orders for both Scott and Jack include: • a waiving of the victim fine surcharge; • a mandatory lifetime firearm prohibition (s. 109); • an order under s. 487.051 for the taking of samples for DNA analysis – mandatory for a primary designated offence. J.