R. v. Maytwayashing, 2023 MBKB 80

Date: 20230516 Docket: CR 20-01-38178 (Winnipeg Centre) Indexed as: R. v. Maytwayashing Cited as: 2023 MBKB 80 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING ) Danielle Y. Simard ) Monica U. Turner ) for the Crown - and - ) ) ) Matthew T. Gould PHOENIX MAYTWAYASHING, ) Zachary B. Kinahan ) for the accused accused. ) ) ) Decision Pronounced: ) May 10, 2023 at 9:00 a.m. ) Judgment Delivered: ) May 16, 2023 REMPEL J. Introduction [ 1 ] The accused is a 23-year-old male whom I convicted after trial last year on charges of second-degree murder and assault with a weapon under ss. 235(1) and 267 (

a) of the Criminal Code , R.S.C., 1985, c. C-46 (the “ Code ”). At the time of the offences the accused was 20 years of age. [ 2 ] The issue before me is the appropriate sentence. [ 3 ] Circumstances of the Offence [3] The accused stabbed Monica Chippeway to death in her home on the Lake Manitoba First Nation in the spring of 2020. Ms. Chippeway and the accused were in a boyfriend/girlfriend relationship at the time but were not living together. [ 4 ] The pathologist who testified at the trial said that during the autopsy he counted at least 32 stab wounds on Ms. Chippeway’s body.

A stab wound that severed her jugular vein was likely fatal, but she may have died from massive blood loss due to the sheer number of stab wounds that were inflicted on her. [ 5 ] Most of the stab wounds were to her face, skull and neck, but Ms. Chippeway also suffered wounds to other parts of her body. I noted at the time I rendered my verdict that the disfigurement of Ms. Chippeway’s face that was evident in the autopsy photos was particularly horrifying.

That horror was amplified by virtue of the photographs placed into evidence at the sentencing hearing that showed a smiling Monica Chippeway in the company of her friends and family. The face on the autopsy photos was not recognizable to me as the face of Ms. Chippeway in the family photos.

[ 6 ] The only eyewitness to the stabbing was the seven-year-old daughter of Ms. Chippeway (the “Child”). The evidence of the Child was that the accused continued his frenzied stabbing attack on Ms. Chippeway after she heroically wedged her body between her mother and the accused in a futile effort to protect her mother. Undeterred the accused continued to stab and slash Ms. Chippeway causing minor cuts to the head and arm of the Child. During the attack the Child heard the accused repeatedly saying to Ms. Chippeway that she was lying about something.

Ultimately the Child escaped and ran out of the house to get help. [ 7 ] On the day in question the relationship between Ms. Chippeway and the accused was strained and she emphatically rejected his repeated attempts to be invited into her home for the evening. Two separate gestures by the accused to get into the good books of Ms. Chippeway by bringing her a bottle of wine and then groceries for a home cooked meal were unsuccessful in changing her mind that she did not want to spend any time with him. The refusal of Ms. Chippeway to change her mind enraged the accused.

The accused was unable or unwilling to accept a firm “no” as an answer from Ms. Chippeway and he forced her to pay for this decision with her life. [ 8 ] The brother of Ms. Chippeway, rushed to her house after the Child reported the attack and after opening the front door he was exposed to the gruesome sight of his sister lying on her kitchen floor in a pool of blood and the house filling with smoke from some towels that were burning on the stove. [ 9 ] After pulling the towels off the stove to prevent the fire from spreading, the accused charged at Ms.

Chippeway’s brother after running down a smoke-filled hallway and tackled him to the floor. Punches were thrown and the accused fled from the house at top speed. The doorbell camera on the front porch of the house confirmed the accused fled from the house about 30 seconds after the brother of Ms. Chippeway arrived there. [ 10 ] The brother of Ms. Chippeway testified at trial that he could not call emergency services from the house as the landline telephones in the house had been smashed and there was no cell phone reception in the area. The evidence at trial was clear that Ms.

Chippeway used her landline telephone earlier in the day and I am satisfied that the accused destroyed those telephones deliberately. Having been in the house many times the accused would also have known that there was no cell phone reception at the house. [ 11 ] The Safety Officer of the Lake Manitoba First Nation testified at trial that by the time he arrived at Ms. Chippeway’s house Royal Canadian Mounted Police (“RCMP”) officers and emergency crews were already on the scene. There was no longer a fire danger at Ms.

Chippeway’s house at that time. [ 12 ] After being briefed by an RCMP officer about the fact that a murder investigation was underway, the Safety Officer made a call to the helicopter ambulance service to attend at the scene. On the way to the landing site to await the helicopter, it became apparent to the Safety Officer that a large billow of smoke was rising from somewhere on the First Nation.

It looked like a possible house fire was underway and the Safety Officer asked a passerby to check on this and report back to him. [ 13 ] Within minutes the Safety Officer was notified that the house where the accused lived was on fire. By the time the Safety Officer arrived at the house the fire was well underway and he noted that two men had pinned the accused to the ground in the yard and were restraining him. One of these men testified that he pulled the accused from the house and that his hands were covered in blood.

As he was applying handcuffs to the accused the Safety Officer testified that the accused said “ Take it easy on me. I am not resisting you. I know what I have done ”. [ 14 ] The evidence of a witness who shared a room in the same house as the accused confirmed that the accused left the house on two separate occasions to visit Ms. Chippeway and when he returned to the house after his second visit to her he was “drenched” in blood.

The accused offered no explanation as to what had happened and repeatedly said to no one in particular “ I fucked up ” to the group and told them in an urgent tone of voice “ to get the fuck out of here ” . By that he meant for them to leave the house and the men made no effort to get an explanation as to what happened before they quickly left and went to a neighbour’s house. [ 15 ] The accused set fire to the house sometime after the men left and was pulled out of the house as I have already mentioned.

Circumstances of the Accused [ 16 ] The accused is an Indigenous person who was born on the Lake Manitoba First Nation approximately 180 kilometers northwest of Winnipeg. The First Nation consists of about 3,700 hectares of land and has year-round roads. The population on and off the Reserve consists of about 2,000 people. The community has three different town sites with fifteen units and other homes on large lots. Families are known to watch out for one another and live close together.

The evidence of the Safety Officer confirmed that drugs are not difficult to come by in this community and everyone knows who is dealing drugs. Violent crime is not a rare thing in this community. [ 17 ] The pre-sentence report (“PSR”) indicated that the home life of the accused was toxic and marred by his parents’ alcoholism. The toxicity in his home arose from substance abuse, domestic violence and excessively harsh discipline. [ 18 ] According to the PSR, the accused never had a good relationship with his mother and the charges he faced resulting from the killing of Ms. Chippeway caused her to disown him.

The father of the accused was violent and acted on threats to commit suicide in the presence of the accused and his siblings. On one such occasion the father of the accused forced him and his siblings to watch as he placed a rope around his neck and hung himself from a tree. The sister of the accused intervened to cut the rope and saved her father’s life. [ 19 ] The accused was also sexually abused on two occasions as child by a person close to his family. Understandably, he does not want to talk in any detail about this abuse.

The accused did mention the trauma he still experiences as a result of the alcohol-induced domestic violence he witnessed in his home as a child. [ 20 ] The PSR indicates the accused is four credits short of his grade 12 diploma and has worked at various odd jobs. [ 21 ] According to the PSR, the accused was assessed as a high risk to re-offend. The significant risk factors identified in the PSR are alcohol/drug use, education/employment history and family-related issues.

[22] The first paragraph at page 14 of the PSR reads as follows: The subject has struggled with substance use since he was a teenager and acknowledged significant anxiety and depression resulting fromtrauma he has experienced. Phoenix is meeting regularly with a correctional psychologist. He was a self admitted “trouble maker” in thefamily and in school but appears to have been able to interact in a positive manner with peers and authority figures in custody.

Secondyoungest of nine children raised in Lake Manitoba First Nation, he ventured to the city of Winnipeg, was exposed to gangs and returnedto his home community where he expected to reside for the rest of his life. The subject is cognisant that some of his family and thecommunity “hate” him and used the word “horrible” to describe his feelings. The subject believes he will never be welcome to live inthe community again, however, he has ties to Lake Manitoba First Nation through his sister Sharon with whom he has a closerelationship.

Phoenix noted his victims, the families and the community deserved better. [23] The accused has a limited criminal record and was never incarcerated prior to his arrest on these charges. In 2019 he wasconvicted of possession of a weapon and given a conditional discharge and one year of probation. A concurrent sentence was imposedon the same day with respect to a failure to appear. The Principles and Objectives of Sentencing [24] The ever present challenge in crafting a decision as to sentence is the examination of the facts of each individual case in light ofthe objectives set out in ss. 718 to 718.2 of the Code.

This challenge makes sentencing more of an art than a science because there is noone-size-fits-all rule for sentences. [25] In order to achieve the objectives established in the Code, judges must impose sentences that appropriately balance theseriousness of the circumstances of the offence with the specific circumstances of the individual offender.

The fundamental goals ofsentencing are: − To promote respect for the law and peace in society by imposing fair punishments; − To denounce criminal behaviour and dissuade others from engaging in crime; − To separate offenders from society when necessity by imposing prison sentences; and − To assist in the rehabilitation of offenders and promoting a sense of responsibility on them. [26] Further, the Code mandates that a judge consider a number of principles, including, but not limited to the following: - s. 718.1: that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”; - s. 718.2(a): that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstancesrelating to the offence or the offender …”; - s. 718.2(b): that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances” (parity); and - ss. 718.2(

d) and (e): the restraint principle. In other words, impose incarceration sparingly and only after due consideration of allother sanctions that are reasonable in the circumstances. [27] The principle of proportionality demands that the duration of the sentence be proportionate to the gravity of the offence and themoral blameworthiness of the offender in order to protect public confidence in our system of justice. Gladue and Ipeelee [28] Due to the Indigenous ancestry of the accused, I am required to view my reasons as to sentence through the lens of s. 718.2(

e) ofthe Code, which directs sentencing judges to pay attention to all available sanctions, other than imprisonment, that are reasonable in thecircumstances and to pay particular attention to the circumstances of Indigenous offenders. (See R. v. Gladue, (SCC),[1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433.) [29] These key decisions from the Supreme Court of Canada demand that sentencing judges take into account the particular systemicand background factors that may have contributed to the criminal activity of any given Indigenous offender.

Further, judges are requiredto consider all types of sentencing procedures and sanctions that may be appropriate in all of the circumstances. A key component ofthese considerations is an effort to address the negative effects of colonialism on Indigenous people in Canada, including the legacy ofresidential schools that tore apart the bonds tying many Indigenous people in Canada to the land and to their families and communities. [30] In Ipeelee, at para. 75, the Supreme Court of Canada noted that s. 718.2(

e) does not mean that Indigenous offenders are entitledto a “race-based discount on sentencing” or that “artificially reducing incarceration rates” for Indigenous offenders is appropriate. Thesentencing process for Indigenous offenders must consider their individual circumstances and life experiences while applying all of therelevant sentencing principles set out in the Code, including deterrence and denunciation. The goal of this type of sentencing process isthe development of an understanding of “the unique circumstances of [Indigenous] offenders that bear on the sentencing process”.

Animportant part of understanding the unique circumstances and life experiences of an Indigenous offender involves the consideration ofhow their individual circumstances and life experiences have impacted their moral blameworthiness. [31] The diminishment of moral blameworthiness arising from Gladue factors is explained at para. 42 of R. v. Smoke, 2014 MBCA

91 , as follows: [42] Thus, the factors related to the accused’s circumstances as an Aboriginal offender must be taken into account as mitigating factorsgoing to moral blameworthiness and weighed, together with all of the other mitigating and aggravating factors related to the offender andthe offence, in determining the appropriate sentence for each offence. This applies whether the link is direct or indirect.

This is what thesentencing judge failed to do in this case, resulting in a failure to consider a relevant factor, which is an error in law. [32] Although it is an error not to weigh the Gladue factors in sentencing an Indigenous offender, it has been recognized that in somecases, the seriousness of an offence may outweigh what would otherwise constitute mitigating factors under a Gladue analysis and thismay result in little if any impact on the overall sentence. This principle is set out in R. v.

Dick (K.D.), 2015 MBCA 47 , at para.26, which states in part: [26] Thus, we would agree that the sentencing judge erred in the manner in which she considered the Gladue factors. To be clear, theGladue factors are not to be considered as an automatic race-based deduction from an otherwise fit sentence. Instead, they are to beconsidered as a mitigating circumstance, together with all of the other mitigating circumstances such as youth, a lack of a criminal record,etc., in determining the appropriate sentence for the offence and offender.

The weight to be attached to the Gladue factors will vary,depending on the nature of the Gladue factors, their effect on this accused and the other circumstances of the offence and the offender.Gladue should not be considered after the sentencing judge has determined an otherwise appropriate sentence, to see whether thatsentence should be reduced to take into account the Gladue factors. Parole Ineligibility - Guiding Principles for Sentencing [33] A murder conviction attracts a mandatory life sentence.

Section 745.4 of the Code requires judges to be guided by certainprinciples and factors in determining the period of parole ineligibility for someone convicted of second-degree murder. [34] The leading authority with respect to periods of parole ineligibility is R. v.

Shropshire, (SCC), [1995] 4 S.C.R.227, which teaches that the application of the guiding principles to the 10 to 25 year range reflects “a broad range of seriousnessreflecting varying degrees of moral culpability” (para. 29) and that periods of parole ineligibility in excess of the ten-year minimumshould not be seen as exceptional or requiring unusual circumstances (para. 33). (See also R. v. Cassan (E.R.), 2012 MBCA 46, at para 78.) [35] R. v. Bennight, 2012 BCCA 461 , offers a neat

summary on parole ineligibility: [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, atpara. 17 (per Donald J.A.). • There are two broad groupings of cases where parole ineligibility is extended beyond 10 years: parole ineligibility periods from12 to 15 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, atpara. 36 (per Ryan 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’ssentencing 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. Position of the Crown [36] The Crown is seeking a period of parole ineligibility of 15 years and a two-year concurrent sentence with respect to the assaultwith a weapon on the Child. [37] The focus of the Crown’s submissions were on the sheer brutality of the attack on Ms.

Chippeway and the Child on the day inquestion that calls for the paramountcy of deterrence and denunciation in crafting the sentence of the accused. The attack on Ms.Chippeway occurred in her own home and in the presence of the Child. During the course of the attack the accused destroyed thelandline telephones in the house that made it impossible for Ms. Chippeway to call for help because there was no cell phone reception atthe house.

[38] In terms of aggravating factors, the Crown points to the statutorily aggravating factors of the vulnerability of the victimsestablished in ss. 718.04 and 718.2 of the Code that addresses acts of violence against vulnerable people, including Indigenous femalesand intimate partners. [39] The Crown also points to the fact that the accused was still on probation at the time of this offence. [40] The Crown takes the position that imposing a 15-year period of parole ineligibility in the circumstances is a just sentence andthat the ancillary relief I will address later in these reasons are appropriate.

Position of the Defence [41] In the main, the defence takes the position that a 15-year period of parole ineligibility would be crushing to a man who has notonly survived a harsh upbringing in a home environment that can be fairly described as toxic, but also a period of custody of more thanthree years prior to trial, which included the Covid lockdown years. The defence also argues that the abusive home environment theaccused was raised in and the sexual abuse he suffered as a child can be fairly linked to the lasting effects of colonialism.

All of thisreduces the moral blameworthiness of the accused according to the defence. [42] Apart from the Gladue factors, the defence also points to the remorse expressed by the accused and his apology to the family ofMs. Chippeway. On all other occasions, the defence maintains the accused was not abusive towards Ms. Chippeway and his love for herwas genuine. Analysis The Principles of Proportionality and Parity [43] The principle of parity set out in s. 718.2(

b) of the Code calls for the imposition of similar sentences on similar offenders forsimilar offences committed in similar circumstances. [44] In R. v. Friesen, 2020 SCC 9 , the Supreme Court discusses the principle of proportionality, which demands thatsentences be proportionate to the gravity of the offence and degree of responsibility of the offender. At para. 30, the Supreme Courtdescribes proportionality, as it is now codified in s. 718.1 of the Code, as a “fundamental principle” of sentencing.

At para. 33 ofFriesen, the Supreme Court comments on the interplay of parity and proportionality: [33] In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deducedfrom first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody thecollective experience and wisdom of the judiciary.

They are the practical expression of both parity and proportionality. [45] It goes without saying that the vulnerability of Ms. Chippeway and the Child, who are both Indigenous females, is a highlyaggravating factor.

Section 718.04 of the Code provides that “… the abuse of a person who is vulnerable because of personalcircumstances – including because the person is Aboriginal and female – …” requires denunciation and deterrence to be the primaryconsideration in sentencing. [46] The decision of Martin J. in R. v. Wood, 2021 MBQB 4 , addresses the unspeakable tragedy that the violent andsenseless deaths of Indigenous women at the hands of male perpetrators presents to all Canadians.

The following quotation from Woodis apt given the facts before me in this case: [2] The commonness of Indigenous women dying at the hands of men means, tragically, Mrs. Wood’s death is not unique. Nonetheless,it is by any measure horrible, perhaps more so because of how often these senseless deaths occur. In this case, it is the fallout of adomestic relationship, set against Gladue circumstances including poverty, isolation, alcoholism, past violence by a husband against hiswife and court orders designed to keep a husband away from his wife.

The context of the killing starkly personifies the plight of manyIndigenous families struggling with the lingering effects of Canada’s historical treatment of its First Peoples and the seeming inability, orneglect, to meaningfully repair the damage with a sense of urgency.

In the end, a mother is dead, a family is broken apart, and a fatherwill lose his freedom. [47] The decision of this court in Wood also addresses both the need to highlight the chilling fact that the homicide rate forIndigenous women in Canada is six times the rate of non-Indigenous women and how this fact bears witness to the vulnerabilityIndigenous women face by virtue of their gender and race juxtaposed to the Gladue factors that speak to the level of moralblameworthiness of the men who attack them in circumstances where those men are also Indigenous.

At para. 39 Wood cites from theAlberta Court of Appeal decision in R. v. A.D., 2019 ABCA 396 , and includes the following quotation from the A.D. decision: [39] … . . . [26] The sad fact is that Aboriginal women are disproportionately affected by domestic violence and violence in general and thisreality should inform the sentencing process if there is to be any hope of achieving the fundamental purpose of sentencing and meetingthe objectives set out in

section 718 of the Criminal Code, which include denunciation and deterrence. [27] Consideration of the victim, in this case the fact that she was an Aboriginal female, does not negate or otherwise trump thenecessity of courts, when sentencing offenders, paying particular attention to the circumstances of Aboriginal offenders (s 718.2(e)).Rather, it requires that, in having regard to the circumstances of Aboriginal offenders, the courts do not discount the lives of or harmsdone to Aboriginal victims of crime, their families and their communities …

[28] Considering the circumstances of the victim and the effects of the offence on the community does not mean that thecircumstances of the offender, in particular the circumstances of Aboriginal offenders, are disregarded or, as was argued by the appellantin R v Johnny, 2016 BCCA 61, that consideration of the victim’s circumstances effectively disentitles the offender from ameaningful Gladue analysis under s. 718.2(e).

What it does mean is that, in arriving at a fit sentence, judges must take into account thecircumstances of the offender, the circumstances of the victim and the effect of the crime on the community in which it took place.

Thefact that a sentencing judge is required to consider one set of circumstances does not mean other circumstances are ignored(see Johnny at para 21). [48] Martin J. noted in Wood that the sheer brutality of the crime before him, which involved an Indigenous woman sufferingcatastrophic fatal injuries after being beaten by her Indigenous partner, would normally place a sentence of 15 years at the high end ofthe sentencing range for manslaughter (para. 55).

On all of the facts, Martin J. was satisfied that a sentence of 18 years which felloutside what was commonly understood to be the existing norm for that kind of offence at that time, was just. In arriving at thatconclusion Martin J. noted that the law with respect to sentencing is an evolving process and that increases for certain offences over timeare a reflection of Canadian society’s increased awareness of “... the prevalence of certain types of crime and the consequent harm”(para. 41). [49] In upholding the sentence imposed by Martin J. (see R. v.

Wood, 2022 MBCA 46 ), the Manitoba Court of Appeal atpara. 31 comments favourably on his quotations from the Alberta Court of Appeal decision in A.D. and from the Supreme Court decisionin Friesen that refer to the increased vulnerability that Indigenous women and girls face when it comes to crimes of violence. [50] The Manitoba Court of Appeal then concludes: [32] In my view, the trial judge did not err when he made the above statement.

As I explain next, sections 718.04 and 718.201 of theCode exist, in part, due to recommendations in the Canada, Reclaiming Power and Place: The Final Report of the National Inquiry intoMissing and Murdered Indigenous Women and Girls (Ottawa: NIMMIWG, 2019) (the MMIWG Report). This constitutes direct evidenceof society’s evolving understanding of harm caused by violence against, and the vulnerability of, victims of intimate partner violence andthe circumstances of victims who are Aboriginal and female.

The fact that these factors have been considered in earlier case law does notdetract from our evolving knowledge. [51] Later in its decision in Wood the Manitoba Court of Appeal comments specifically about s. 718.04 and how it impacts sentencesimposed in cases involving Indigenous female victims: [36] Thus, contrary to the argument of the accused,

section 718.04 does not merely direct a sentencing judge to consider thecircumstances of a vulnerable victim, including in circumstances where the victim is Aboriginal and female. Rather, it mandates primaryconsideration of the objectives of denunciation and deterrence, factors that often lead to a harsher sentence.

Conclusion [52] The case law presented by the defence which suggests that parole ineligibility could be as low as 12 years in circumstanceswhere extreme acts of intimate partner violence are perpetrated against vulnerable Indigenous women and girls is not persuasive in thesecircumstances. [53] I am alive to the fact that the accused came of age in a home environment where violent and abusive behaviour was the norm andthat respect for females as equals in relationships was never on display for him to see.

It is likely that he learned as child and as a youngman that violence against females was not a taboo. [54] In that sense the accused is a victim of colonialism which included various levels of government in Canada imposing policies onIndigenous people that broke down healthy communities and family structures and also deprived them of access to adequate health care,education and economic opportunities that non-Indigenous Canadians take for granted. [55] But I cannot lose sight of the fact that violence against Indigenous women and girls continues to be an ongoing crisis in Canadathat is plainly addressed in not only the Wood decision of this court and the Manitoba Court of Appeal, but also in the many cases citedas authorities in both of those decisions.

The increased understanding of intimate partner violence, particularly in Indigenouscommunities, suggests to me that the Wood decision represents a profound shift in how trial judges are to respond to facts like thosebefore me. [56] I cannot agree with the defence that the sentence of 15 years of parole ineligibility is too harsh in these circumstances. I also donot agree with the defence that 15 years of parole ineligibility does not give adequate weight to the mitigating circumstances.

I amsatisfied that there are significant mitigating circumstances here, particularly due to the Gladue factors and that without the presence ofthese mitigating factors a sentence higher than 15 years of parole ineligibility would have been appropriate. The seriousness of theoffences in this case significantly outweigh the mitigating factors presented by the Gladue analysis and cannot result in a significantimpact on the overall sentence. [57] The fact remains that Ms.

Chippeway was killed in cold blood in the presence of the Child, merely because she asserted her rightto say “no” to whatever the accused was demanding of her. Ms. Chippeway was murdered because she wanted her right to say “no” to berespected. In short, Ms. Chippeway wanted to be treated as an equal in her relationship with the accused and that was not only a bridgetoo far for the accused – it was a demand that justified a response involving extreme violence.

Given the nature and circumstances of theoffence and the significant danger this offender represents to the community, I am satisfied that a 15-year period of parole ineligibility isjust and fair in the circumstances.

Aggravating and Mitigating Factors [ 58 ] In my view the aggravating factors in this case are:

a) Ms. C hippeway and the Child were both in a highly vulnerable state. They were unarmed and had no way of defending themselves against a determined and relentless attacker armed with a knife;

b) The determination of the accused that I have mentioned was evident in his destruction of the landline telephones that made any call for help by Ms. Chippeway impossible and his subsequent failed effort to burn down the house before he fled the scene. These facts can leave no doubt that the accused is an extremely dangerous person;

c) The fact that the accused was willing to inflict catastrophic injuries on Ms. Chippeway by the use of a weapon and he conducted his attack in the presence of the Child which resulted in the Child suffering injuries too;

d) Ms. C hippeway was an intimate partner of the accused and she had every right to believe the accused would not harm her or the Child;

e) The knife attack was prolonged and vicious, resulting in ghastly injuries to Ms. C hippeway and such extensive disfigurement to her face that the viewing of her body at the funeral would pose an even greater ordeal for her family than it already was. This fact also points to how dangerous a person the accused is;

f) The willingness of the accused to set fire to Ms. Chippeway’s house after fleeing the scene and the house he was living in, which points to a willingness to place the extended community in danger;

g) The accused was on probation for a conviction of possession of a weapon and a failure to appear, which are the only convictions on his criminal record; and

h) The high risk of the accused to reoffend that is identified in the PSR. [ 59 ] The mitigating factors in this case are the accused’s:

a) Relatively young age (now aged 23);

b) Lack of violent offences on his criminal record and the fact that the accused has never been imprisoned as a result of those offences;

c) Expression of remorse at the sentencing hearing;

d) Participation in counselling programs and other treatment that were made available to him while he was incarcerated prior to trial and his good record of behaviour while incarcerated; and

e) Reduced level of moral blameworthiness resulting from an analysis of the Gladue factors. Sentence Imposed [ 60 ] The Code demands that deterrence and denunciation must be in the forefront of my thinking in sentencing this accused, who committed acts of extreme violence against two vulnerable Indigenous females that resulted in the death of his intimate partner. The violence in this case was so extreme that the injuries to the face of Ms. Chippeway rendered her unrecognizable and caused harm to the Child who was present and witnessed the attack.

The crime also exposed the community to risk as the accused set fire to two houses after he fled the scene. [ 61 ] The Code demands a sentence of life imprisonment in these circumstance and in my view, a fit and appropriate sentence with respect to parole ineligibility is 15 years. The accused is entitled to a pre-sentence credit for his period of incarceration since his arrest on these charges on a one-to-one basis.

At present he has been in custody for over three years. [ 62 ] There will also be a two-year concurrent sentence for the assault causing bodily harm to the Child. [ 63 ] I am also issuing the following ancillary orders:

a) Primary DNA order under s. 487.051 of the Code ;

b) Mandatory life weapons prohibition s. 109 of the Code ; and

c) Non-communication with the family of victim while incarcerated under s . 743.21 of the Code . _________________________ REMPEL J.