R. v. Obed, 2024 NLSC 21

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Obed , 2024 NLSC 21 Date : February 1, 202 4 Docket : 202201G1916 His Majesty the King v. Lorraine Obed Restriction on Publication: By order of this Court, there is a Publication Ban and Sealing Order on the unredacted Reports entered into evidence at the Sentencing Hearing. Before: Justice Glen L.C. Noel Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 18, 2023, January 12 and 19, and February 1, 2024

Summary: The Indigenous offender pleaded guilty to manslaughter. She inflicted a single stab wound to her intimate partner. The Defence presented a Gladue Report, Neuropsychological Assessment Report, Psychiatric Assessment and requested a Pre-Sentence Report that the Court ordered. The Defence filed an application for a publication ban and sealing order on the Gladue Report, or alternatively redactions to the Gladue Report and other reports.

Held: The Court ordered a partial Publication Ban and Sealing Order with redactions to the Reports as agreed between the Crown and Defence. The Court concluded the significant Gladue factors present reduced the offender’s moral culpability. The Court approached and tailoredan effective sentence to meet the unique circumstances of this offender. A custodial sentence of four and a half years was imposed. Withcredit for time served, the offender had a provincial sentence of 308 days (10 months, 1 week and 1 day) to serve. A Probation Orderwith a term of 36 months was ordered that included several conditions.

Ancillary Orders of a mandatory DNA Order and ten-year firearms prohibition were imposed. The Victim Surcharge was waived. Appearances: Kellie A. Cullihall and Paul J. Thistle Appearing on behalf of the Crown Jason A. Edwards and Sarah E. Evans Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; Sherman Estate v. Donovan, 2021 SCC 25; R. v.Onalik, 2022 NLSC 137; R. v. J.S., 2018 NLPC 1317A00339; R. v. Wells, 2000 SCC 10; R. v. Ipeelee, 2012 SCC 13; R. v. Chaulk, 2024NLSC 3; R. v. Clarke (2003), (ON CA), 172 O.A.C. 133, 57 W.C.B. (2d) 602 (C.A.); R. v.

Gillis, 2018 NSSC 22; R.v. Morris¸ 2006 NLTD 178; R. v. Reid, 2012 ONSC 7521; R. v. Pike, 2017 NLTD(G) 95; R. v. Abel, 2012 NLTD(G) 27; R. v. Osmond(1996), (NL SC), 140 Nfld. & P.E.I.R. 123, 438 A.P.R. 123 (Nfld. S.C.(T.D.)); R. v. Noftall, 2022 NLSC 169; R. v.Ash, 2017 NLTD(G) 139; R. v. Larson, 2017 ABQB 79; R. v. Corbett, 2015 ONSC 6118; R. v. Brisson, 2009 BCSC 1606; R. v. Ansari,2009 BCCA 381; R. v. Lampe, 2007 NLTD 116; R. v. Emard [1999] B.C.J. No. 463, 41 W.C.B. (2d) 386 (S.C.); R. v. Johnson, 2017BCSC 1240; R. v. Machiskinic, 2004 SKQB 358; R. v. Thomas, 2016 ONSC 7944; R. v. Chief, 2018 YKTC 36; R. v.

Noftall, 2023 NLPC0122A00576; R. v. Stone (SCC), [1999] 2 S.C.R. 290; R. v. Laberge, 1995 ABCA 196; R. v. Mathieu, 2008 SCC 21; R.v. Ward, 2023 NLSC 15 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Constitution Act, 1982, R.S.C. 1985, App. II, No. 44 ORAL REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] Lorraine Obed was charged with second degree murder in the death of James Corcoran. With the consent of the Crown, shere-elected to be tried by judge alone, and I accepted her guilty plea to the included offence of manslaughter, contrary to s. 236 of theCriminal Code, R.S.C. 1985, c.

C-46. [2] On August 26, 2021, Ms. Obed killed Mr. Corcoran with a single stab wound. The stabbing occurred in a downtownresidential neighborhood of St. John’s after an argument between them. Mr. Corcoran collapsed on the street. When paramedics arrivedhe had no vital signs. [3] The victim and the offender had been in an “on and off” intimate partner relationship of short duration. [4] Ms. Obed is an Indigenous offender. She was severely intoxicated when she stabbed Mr. Corcoran and caused his death. issues [5] I must decide:

What is a fit and just sentence for Ms.

Obed as an Indigenous offender for the offence of unlawful act manslaughter? [6] Before discussing and deciding the sentence to impose, I must first determine: Whether to order a Publication Ban and Sealing Order on the Gladue Report and a partial ban on other reports filed with the Court for thesentencing hearing (the “Reports”), or alternatively redactions to the Reports. background [7] Defence counsel filed an Application seeking a Publication Ban and Sealing Order on the Gladue Report and a partial ban onother Reports submitted to the Court for consideration in the sentencing of Ms.

Obed, or alternatively redactions to the Reports. [8] The Reports include: • Neuropsychological Assessment Report of clinical psychologist, Dr. Tanya Lentz, dated February 28, 2022; • Psychiatric Assessment of Dr.

Jasbir Gill, dated September 8, 2023; • Pre-Sentence Report of Regional Probation Officer Erin Russell, filed November 17, 2023; and • Gladue Report of Lyne St-Louis, dated December 12, 2023. [9] The Court ordered a Pre-Sentence Report pursuant to s. 721(1) of the Criminal Code, upon the request of Defence counsel.The Defence also requisitioned the other Reports. [10] A Gladue report is a form of pre-sentence report tailored to the specific circumstances of Aboriginal or Indigenousoffenders.[1] The name comes from the direction the Supreme Court of Canada gave in R. v.

Gladue, (SCC), [1999] 1S.C.R. 688, on the appropriate approach to sentencing Aboriginal offenders in light of s. 718.2(

e) of the Criminal Code. That provisionrequires courts to explore meaningful alternatives to incarceration, especially pertaining to the unique circumstances of Indigenousoffenders. [11] The cover of the Gladue Report carries the following caution: The information contained is privileged and confidential, and is intended for the use of the individual(

s) named below and the courthearing. The copying, distribution, or dissemination of it to third parties is prohibited. This report may contain some information that could trigger intense emotions for the [offender] if it was publicly disclosedduring the hearing. A particular attention should be taken to avoid detailing personal events in public, such as abuse andtrauma that the individual may have sustained, and that are usually explained in the

section “Personal and family history as wellas the

summary of the factors.” [12] At the commencement of the sentencing hearing on December 18, 2023, I informed the parties that I would require notice ofthe publication ban application be given to the following: the media in accordance with the Court’s policy protocol for publication bans;the author of the Gladue Report; representatives of the Nunatsiavut Government interviewed for the Gladue Report; and VictimServices. [13] I put a Temporary Publication Ban and Sealing Order on the contents of the Reports and set over the Application for hearing onJanuary 12, 2024.

On that day I heard from the author of the Gladue Report, Ms. St-Louis. I suggested to counsel to work together toachieve a less restrictive order than a complete Publication Ban and Sealing Order on the Reports by means of redactions, wherenecessary. [14] At the request of the Crown, the Publication Ban and Sealing Order Application was further set over to January 19, 2024, toallow the Crown time to make written submissions and to see if the parties could agree on redactions for the purpose proposed.

Theparties did agree on redactions to the Reports and presented the Court with redacted copies (the “Redacted Reports”). analysis PUBLICATION BAN AND SEALING ORDER [15] I have decided that a partial Publication Ban and Sealing Order, with appropriate redactions to the Gladue Report and otherReports, sufficiently accommodates the concerns expressed by the Defence and is in keeping with the constitutionally protected right ofthe open court process. [16] I endorse the redactions to the Reports that the parties agreed upon. I gave leave to counsel to file a Joint Book of RedactedReports for Sentencing.

It is to be entered as an exhibit and marked “Consent 1” in the public accessible Court file. The Law that Applies to Limit Public Access to the Reports [17] The Supreme Court of Canada has been resolute in recognizing the open court principle and “strong presumption in favour ofopen courts”: Sherman Estate v. Donovan, 2021 SCC 25, at paras. 1 and 2. The open court principle is a reflection of the protected rightof freedom of expression, as entrenched in the Charter.

It promotes accountability and provides legitimacy for court decisions. [18] An applicant seeking the Court’s exercise of discretion that in any way limits or restricts the open court presumption must

establish: 1. court openness poses a serious risk to an important public interest; 2. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and, 3. as a matter of proportionality, the benefits of the order outweigh its negative effects: Sherman Estate , (at para. 38 ). [ 19 ] Only when all three prerequisites have been met can the Court order a discretionary limit on openness through a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order.

The test applies to all discretionary limits, subject only to legislative enactments. [ 20 ] The Applicant acknowledges no statutory publication bans are applicable in this case. The Defence is therefore asking that the Court exercise its common law power restricting the public from accessing some of the material in the Reports. [ 21 ] A review of the case law has not identified cases that specifically address the issue of a publication ban and sealing order on Gladue reports. Ryan J of this Court in R. v.

Onalik , 2022 NLSC 137 , was provided with a Gladue report, from the same author of the Gladue Report in this case. Justice Ryan noted (at para. 73) that it was the first Gladue report, to her knowledge, prepared for an offender in Labrador, even though she has often had the benefit of pre-sentence reports with a Gladue perspective. [ 22 ] Ms. St-Louis in her testimony expressed admiration for the sensitive manner in which Justice Ryan dealt with the information in the Gladue report in her sentencing decision reasons.

I intend to follow Ryan J’s approach in limiting reference to only information that is necessary to support my reasons and justify the sentence imposed. I will make no reference to information in the Reports that the parties agreed to redact. [ 23 ] I note Judge Gorman in R. v. J.S ., 2018 NLPC 1317 A00339, had before him a Gladue report. The offender identified as a status member of the Qalipu First Nation Band and wanted his children to be aware of their native culture.

The issue of a publication ban did not arise, and in any event Gorman, P.C.J concluded (at para. 65) that: “the evidence presented concerning Mr. S’s Indigenous heritage does not contain any circumstances that bear on Mr. S’s moral culpability for the offences he committed or which suggest an alternative approach to sentencing.” That is not the situation with Ms. Obed and the Reports before me.

Concerns Identified Met Through Appropriate Redactions [ 24 ] I accept the Crown submissions that the concerns duly brought forward and identified by the Defence can be met by the alternative measure of a partial publication ban with appropriate redactions to the Reports. [ 25 ] Court decisions must have transparency. In the case of sentencing, especially for a serious crime, this not only gives the public confidence in the Court and an understanding of why a particular sentence was imposed, but also provides an important precedent for future sentencing decisions. [ 26 ] Ms.

Obed, and indeed any offender who submits a Gladue report, does so knowing it will be provided to the Court and with the intention that it will assist them in getting a sentence favorable to them. Courts must therefore be vigilant in any deprivation of the ability and means to justify and explain to both the parties and public when favoring or denying a proposed sentence. [ 27 ] A blanket publication ban on the Gladue Report does not satisfy the legal test that I am obligated to apply and would undermine the open court principle. [ 28 ] The Gladue Report is presented in support of Ms.

Obed seeking a sentence significantly lower than the Crown's position on sentence, and lower than any of the sentencing precedents from this province for manslaughter that have been presented. [ 29 ] There is no published case to which counsel could point the Court that supports a publication ban on a Gladue report. [ 30 ] Ms. St-Louis testified she has written 250 Gladue reports for sentencing hearings since 2012. She indicated in some cases in Nunavik and Quebec where she was involved there were full publication bans on Gladue reports.

They were all by consent with no contested applications, and no balancing of the protected interests at stake and the legal test in Sherman Estate . [ 31 ] Ms. St-Louis did express concerns, of which I share, that without redactions to the Gladue Report, re-traumatization could occur to family members and relationships that would continue to be transmitted from generation to generation.

We do not want that to happen and all appropriate efforts must be taken to avoid further trauma and victimization. [ 32 ] The redactions the parties have agreed upon, and I am ordering, address the three concerns of “serious risk to an important public interest” that the Applicant has identified.

This is a proportional approach and the benefits of my Order outweigh any negative effects. [ 33 ] The first is to ensure that future community participants in the Gladue process will feel free to come forward and speak honestly, secure in the knowledge that their personal story will be honored and protected by the Court and justice participants. [ 34 ] Participation in a Gladue report is voluntary for both the offender and for third parties.

None of them are guaranteed anonymity when they speak with the writer, and all would be aware the information is being used at the sentencing of the offender. [ 35 ] Nevertheless, the Crown agrees the names of community participants who have a personal relationship with an offender (such as family members, friends, foster and adoptive parents) should have their names redacted in such reports as well as any details that could identify them.

The Crown also agrees a partial ban can extend to particularly sensitive and personal information that does not need to be included to explain the Court’s reasoning for the sentencing decision (i.e., the specific community of where Ms. Obed intends to

live following her incarceration). [ 36 ] The second Defence concern is to prevent the further victimization of innocent third parties who are not parties to the proceeding but whose own experiences have become part of the process through this sentencing. The Crown agrees that anyone falling into this category should have their names under a publication ban in such reports as well as any details that could identify them. [ 37 ] The third Defence concern is the protection of innocent third parties, such as Ms. Obed’s children whose information should not be shared as it can impact their futures.

The Crown fully agrees and any details of the children's names, locations, or identifying factors should be under a publication ban. [ 38 ] Accordingly, I conclude that a partial ban as reflected in the Redacted Reports provides the necessary balance between the important public interests identified and the open court principle. IMPOSITION OF FIT AND JUST SENTENCE [ 39 ] I now turn to the imposition of a fit and just sentence. [ 40 ] The maximum sentence allowed for manslaughter under the Criminal Code is life imprisonment. There is no minimum sentence.

Manslaughter has one of the broadest ranges of sentence of any offences under the Code. This reflects the fact that manslaughter punishes any criminal act resulting in the death of another person that is not murder, ranging from near accidents to near murder. Position of the Parties Crown [ 41 ] The Crown submits that the appropriate range of sentence, balancing the mitigating and aggravating factors, runs from 4 – 8 years. Within that range, the Crown would suggest that a sentence in the upper-middle of the range, 6 – 7 years, would be appropriate. [ 42 ] The Crown agrees that Ms.

Obed receive credit for her time served in custody to date at a ratio of 1.5:1. At the date of sentencing, February 1, 2024, Ms.

Obed will have served 891 days and thereby be entitled to 1335 days’ credit. [ 43 ] Should the Court find that an appropriate sentence after deducting credit for time served will result in a provincial sentence of less than two years, the Crown suggests a period of 3 years of reporting probation be imposed with specific reference to attend counselling for addictions and anger management as recommended by the probation officer. [ 44 ] Given the lengthy period of imprisonment sought, the Crown does not oppose waiver of the victim fine surcharge.

Defence [ 45 ] The Defence is asking the Court to consider a sentence of time served. [ 46 ] Ms. Obed was arrested on August 26, 2021, the date of the offence. She has been in custody since that time. With remand credit of 1.5 she has served 1335 days (3 years and 8 months) . Purpose and Principles of Sentencing [ 47 ] I am required to apply the purpose and the principles of sentencing, as set out in the Criminal Code , in determining a fit and just sentence for this offence and offender considering the harm done to the victims and community. [ 48 ]

Section 718 states the fundamental purpose of sentencing is to protect society, contribute to respect for the law, and maintain a just, peaceful, and safe society. The objectives are: - denunciation of unlawful conduct; - deterrence, both general and specific; - the separation of the offender from society where necessary; - rehabilitation; - reparation for harm done to the victim(

s) or the community; and - promotion of a sense of responsibility in offenders and acknowledgement of the harm done. [ 49 ]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 50 ] There is no prescriptive range of sentence for manslaughter. However, the parity principle of sentencing means “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”: s. 718.2 (b).

I will consider the case law for the range of sentences for similar, unlawful act manslaughter cases and for similar offenders, recognizing that sentencing is an inherently individualistic exercise and no two cases and offenders are truly the same. [ 51 ] As noted, I am required to give “particular attention to the circumstances of Aboriginal offenders” and consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the

community”: s. 718.2 (e). Likewise, “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate”: s. 718.2 (d). [ 52 ]

Section 718.2(

a) also requires that I consider whether the sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors, one of which applies in this case: “(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner.” Approach to Sentencing Indigenous Offenders [ 53 ] The Supreme Court of Canada in Gladue (at para. 33 ) directs sentencing judges “to undertake the process of sentencing aboriginal offenders differently.” However, the Crown submits the words of s. 718.2 (

e) do not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. Instead, the statutory provision mandates a process, not an outcome. [ 54 ] Gladue (at para. 66 ) states that the specific lens to be applied includes an awareness of: (

A) The unique systemic or background factors which may have played a

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

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. [ 55 ] The Crown emphasizes that s. 718.2 (

e) does not mean that indigenous offenders necessarily receive lighter sentences, particularly with respect to more serious offences where the primary sentencing goal is denunciation and deterrence.

The court stated ( Gladue , at para. 79 ): “Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.” [ 56 ] Gladue (at para. 88 ) establishes that being indigenous does not justify “an automatic reduction of a sentence.” Nevertheless, the court stated sentencing judges have an obligation to consider the unique circumstances pertaining to an indigenous offender.

It is my task to impose a fit sentence based “upon all the factors which must be taken into account” in the particular circumstances of this case. [emphasis original] [ 57 ] The Supreme Court returned to the

interpretation of s. 718.2(

e) and sentencing indigenous offenders in R. v. Wells , 2000 SCC 10 , and again in R. v. Ipeelee , 2012 SCC 13 . [ 58 ] The Crown notes in Wells (at para. 44 ) the court reiterated that the

section mandates an approach, not a result: s. 718.2 (

e) requires a different methodology for assessing a fit sentence; “it does not mandate, necessarily, a different result .” [emphasis original] [ 59 ] The court in its more recent pronouncement in Ipeelee reinforced the following: -

Section 718.2(

e) is a remedial provision designed to ameliorate the serious problem of overrepresentation of indigenous people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing (at para. 59). - Courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for indigenous people (at para. 60). -

Section 718.2(

e) is therefore a “direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process ” [emphasis original] (at para. 68, quoting Gladue , at para. 64 ). - Judges have a duty to apply s. 718.2 (e), “the only discretion concerns the determination of a just and appropriate sentence” (at para. 85). [ 60 ] Finally, and most significantly for the approach I am going to take in the imposition of a fit sentence for Ms.

Obed, Ipeelee (at para. 85 ) reaffirmed the comments of Iacobucci J in Wells , at para 50 , that: [t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender . [emphasis added] [ 61 ] Accordingly, I will look closely and consider the unique circumstances of Ms.

Obed and her particular indigenous heritage and connections. The sentence I impose must not only account for Ms. Obed’s moral blameworthiness and be tailored specifically to her individual circumstances, but also account for the full gamut of sentence objectives, including the paramountcy of denunciation and deterrence for such a serious crime as unlawful act manslaughter. [ 62 ] A recent decision of Murphy J of this Court in R. v.

Chaulk , 2024 NLSC 3 , (at para. 34 ) is a reminder that the first set of circumstances mandated by Gladue and Ipeelee , systemic and background factors of the aboriginal offender, bear on the offender’s moral culpability in committing the offence; and the second set of circumstances as mandated by those cases, the types of sentencing procedures and sanctions, concern “the effectiveness of the sentence” for the aboriginal offender before the Court.

Justice Murphy (at para. 35) further observed, “that a consideration of the particular types of sentencing sanctions which might be appropriate for aboriginal offenders should also include consideration of any particular types of sentencing sanctions which might not be appropriate.”

[ 63 ] Defence counsel aptly fulfilled their duty in bringing case-specific information before the Court by way of the Gladue Report and other Reports, tailored to the specific circumstances of Ms. Obed. The comprehensive information in the Reports has been indispensable in assisting me with an understanding of Ms. Obed’s unique circumstances and the assistance she needs for rehabilitation.

Circumstances of the Offence [ 64 ] The parties submitted an Agreed Statement of Facts, attached as Appendix A to these reasons. [ 65 ] At approximately 6:30 p.m. on the day of the offence, the police received multiple 911 calls concerning a stabbing in the area of Carter’s Hill and Cookstown Road. [ 66 ] Ms. Obed brought the life of 49-year-old James Corcoran to an abrupt and tragic end. She walked across Cabot Street and, with one right hand swing to the left side of Mr. Corcoran’s neck, stabbed him with a knife. Mr.

Corcoran at the moment he was stabbed was standing with another woman on the corner of Cookstown Road and Cabot Street. Video from the scene shows Mr. Corcoran stumbling down Cookstown Road and collapsing behind a parked car. The first responders pronounced him dead at 6:52 p.m. [ 67 ] The actions of Ms. Obed at the time of the stabbing and immediately after demonstrate she was exhibiting signs of severe intoxication. [ 68 ] She is seen pacing in the middle of the road, and tossing an object on the ground near the drain where the knife, having the appearance of a common “steak knife,” was recovered.

She was laughing and dancing around, and was heard to say, “I am so sick of him. I finally did it.” [ 69 ] The police detained her at the scene. They provided rights and caution for homicide, but she did not answer the police inquiry, “Do you understand?” She repeatedly asked for a cigarette. She uttered to one officer, “I fucking did it. I’ll do it again. I’m not afraid of you.” [ 70 ] The officers observed she was swaying on her feet, had glassy eyes, and smelled of alcohol. [ 71 ] They transported her to Royal Newfoundland Constabulary (RNC) Headquarters.

In searching her, the police found a crack pipe hidden on her person. [ 72 ] Attempts by the RNC’s Investigative Interviewing Unit to interview Ms. Obed failed. The officers became concerned about her level of intoxication and decided to bring her to the hospital to be medically cleared. She refused to speak to doctors or to submit to any medical tests. Back at RNC Headquarters, she again refused to speak to police. Relationship between Ms. Obed and the Victim [ 73 ] Ms. Obed and Mr. Corcoran had been in a tumultuous intimate partner relationship for less than a year. According to Ms.

Obed, they first met sometime in 2020. They often argued, drank to excess, and used cocaine. The Autopsy Report performed by the Office of the Chief Medical Examiner reveals the toxicology findings of Mr. Corcoran positive for alcohol, cocaine, and marijuana. Immediately prior to the incident, they were at a residence on Cabot Street where they were arguing, and Ms. Obed smoked weed and did crack cocaine. Circumstances of the Offender [ 74 ] Ms. Obed is a 30-year-old Inuk woman from Nain, Labrador, and holds status as a Nunavik Inuit beneficiary.

She has lived a remarkably difficult and tragic life. [ 75 ] I wish to acknowledge that I am mindful of the compelling submissions of Defence Counsel Ms. Evans that from Day One the system has failed Ms. Obed. The intergenerational trauma, her medical diagnoses, and personal trauma reflect directly on her moral blameworthiness, and the sentence must account for her needs going forward. Her Remorse and Willingness to Seek Help [ 76 ] Ms.

Obed, I want the sentence that I impose to give you hope for the future, lay the foundation for your rehabilitation and further the connection with your children, indigenous culture and community. It is indeed promising that you have demonstrated your remorsefulness for the harm caused, and you are willing to seek the help that is available to you. [ 77 ] Ms. Obed’s remorse is reflected in the Gladue Report. She regrets her actions, and she will forever live with thoughts of it. She stated: “It’s with me every day. It’s stuck with me forever. It won’t go away.” She also said, I get “flashbacks of him bleeding.

Wishing I had tried to save him. Wishing it did not happen that way.” [ 78 ] The Pre-Sentence Report also notes Ms. Obed accepted responsibility for the offence. She disclosed that at the time of the offence, she was under the influence of drugs and alcohol and was highly intoxicated. [ 79 ] Although Ms.

Obed reported to the author of the Pre-sentence Report (at page 12) that an argument took place between her and the victim, I do not accept “that her behavior was the direct result for fearing for her safety and that of her children.” The Agreed Statement of Facts simply does not permit me to make any such finding. However, Dr. Gill’s psychiatric diagnosis explains (at page 8) that Ms.

Obed “… may be prone to perceive a threat of physical harm as greater than it is, particularly where a stimulus reminds her of her past experiences and reinforces her anger, fear and helplessness.” [ 80 ] I take from this that something may not actually be real, but Ms. Obed in her own mind may perceive it to be real because of her past experiences and medical diagnoses.

Her Diminished Moral Culpability [ 81 ] The Reports filed provide the cogent evidentiary foundation on the background and circumstances of Ms. Obed, and establish the presence of Gladue factors that account for her diminished moral blameworthiness. The Reports also provide a path to the type of effective sentence that Ms. Obed needs to best suit her chances for rehabilitation. Neuropsychological Assessment Report [ 82 ] Dr. Lentz noted Ms. Obed presented with a history of prenatal alcohol exposure, significant trauma exposure, early childhood household disruption, and substance use history. Ms.

Obed's neuropsychological profile is the result of the combination of prenatal exposure to substance(s), her environments, irritable behavior, and angry outbursts. Ms. Obed reported experiencing these symptoms since childhood.

These symptoms have led to significant impairment in important areas of functioning. [ 83 ] She meets the diagnostic criteria for Fetal Alcohol Spectrum Disorder (“ FASD ”). [ 84 ] She meets diagnostic criteria for Alcohol Use Disorder of Moderate to Severe - In Sustained Remission (since incarceration) and Other Substance Use Disorder ​ In Sustained Remission (since incarceration) with use of cocaine and cannabis. Ms. Obed reported that use of alcohol and other substances has had a negative impact on her life.

She identified having strained interpersonal relationships, legal problems, and medical complications as result of substance use. [ 85 ] Ms. Obed demonstrates diagnostic criteria of an Intellectual Disability of Mild Severity . She has significant cognitive deficits in reasoning, problem solving, judgment, and learning from experience. [ 86 ] Prior to incarceration, she reported significant deficits in adaptive functioning, such as hygiene and the inability to maintain employment. [ 87 ] Dr. Lentz stated Ms.

Obed’s profile was consistent with that of individuals with challenging personality characteristics that lead to major life issues. She displayed a history of physical aggression towards others. She is quick to feel that she is being treated inequitably, and easily believes that there is a concerted effort among others to undermine her interests. [ 88 ] Still, Ms. Obed reported that her interpersonal style is warm, friendly, and sympathetic. She values harmonious relationships and derives satisfaction from the relationship.

She acknowledged having significant problems, and she appreciates that she needs support to make changes. Psychiatric Assessment Report [ 89 ] Dr. Gill diagnosed Ms. Obed with Post Traumatic Stress Disorder (“ PTSD ”). She has repeatedly been directly exposed to physical and sexual violence. She has recurrent distressing dreams with content related to trauma. She also describes dissociative symptoms like flashbacks, vivid memories, and feeling numb or dazed. [ 90 ] She became angry and wanted to end interviews with Dr. Gill when the discussion veered into her traumatic experiences or childhood in general. Ms.

Obed experienced memory difficulties, such as an inability to recount details of events. Dr. Gill noted this may also be due to her frequent intoxicated states. [ 91 ] Ms. Obed said that she had long used alcohol and cocaine to cope with her emotions.

At the age of 18, she began drinking alcohol "daily, all day long, sometimes for months at a time." Initially, she drank for enjoyment, but after an abusive incident when she was 19, it became a means of coping with abusive situations, memories of past abuse, and difficult emotions. [ 92 ] She held persistent and exaggerated negative beliefs about herself, others and the world, specifically that she is always in harm's way and that no one is there to protect her. She lives in a persistent negative emotional state, predominantly anger and sadness.

She has struggled with sleep disturbance (ruminating and worrying unless she takes a sleep aid). [ 93 ] Ms. Obed was overwhelmed by the feeling that everyone around her had hurt her somehow. She said she lived in abusive homes. She offered that she had difficulties in school due to acting out her anger and hurt feelings by fighting and breaking things. She stopped attending school as a result in grade 9 or 10. She acknowledged having anger management difficulties since childhood. [ 94 ] Ms. Obed told Dr. Gill she had no meaningful romantic relationships.

She said, "Depression made me distance myself from people." She described having difficulty connecting with people, often feeling "used" by others. She acknowledged being afraid of abandonment, and said that she had resorted to desperate means to avoid it, such as cutting herself, burning herself, or fighting with others to make them stay. She said that her emotions could overwhelm her. [ 95 ] She described a violent, drug-involved, and conflictual relationship with Mr. Corcoran. Other than Ms. Obed’s self-reporting to Dr.

Gill and the authors of the other Reports, there is no corroborating evidence in the form of criminal history, police reports or the Agreed Statement of Fact that Mr. Corcoran was violent to Ms. Obed. On the contrary, the Crown points out that at the time of the offence there was an outstanding charge that Ms. Obed had assaulted Mr. Corcoran. [ 96 ] Dr. Gill concluded that “Ms. Obed’s mental health issues are considered severe.” [ 97 ] Dr. Gill opined that the effect of intoxication and FASD on Ms. Obed’s PTSD could lead to irritability, agitation, impaired impulse control, and inappropriate behavior.

Alcohol can also worsen PTSD symptoms by increasing memory impairment, reducing the ability to cope with stress, and aggravating a loss of connection between thoughts and feelings. FASD and intellectual impairment could lead to increased impulsivity and decreased frustration tolerance, resulting in a poor ability to regulate emotions and cope effectively with stress, anxiety, anger, and perceived fear.

[ 98 ] I accept Dr. Gill’s opinion evidence in my assessment of Ms. Obed’s moral culpability for this offence. Pre-Sentence Report [ 99 ] The Pre-sentence Report was prepared from a Gladue perspective. I commend the author of the Pre-sentence Report for the attention to detail. As with the Gladue Report, it was very well done and helpful in assisting the Court in the approach to sentencing. [ 100 ] Ms. Obed described her childhood and adult life as being extremely traumatic. She reported that she began experiencing physical and verbal abuse shortly after entering into the foster care system as a young child.

She disclosed that many of her foster parents were residential school survivors and feels their behaviour toward her and the other foster kids in their care, was reflective of the trauma they themselves experienced. [ 101 ] Ms. Obed began consuming alcohol between the ages of 6 and 8. She also sniffed gasoline with other children. She reported that she witnessed friends and other individuals drinking on a regular basis and after seeing "how happy" they became, she began using alcohol herself.

She described her alcohol use as a “coping mechanism” to deal with her poor mental health and the various forms of trauma she experienced. [ 102 ] Prior to being incarcerated, she had been residing by herself in an apartment in St. John's for less than a year. And prior to that, she had been homeless for an extended period of time. During her period of homelessness, Ms. Obed noted that she “couch surfed'' between various friends’ homes and when unable to do this, she would try to find space in buildings to sleep and stay warm. [ 103 ] Her only source of income was Income Support benefits.

She experienced significant financial difficulties for a prolonged period of time as a result of substance use and limited income. She utilized local food banks on a daily basis, and availed of services from the Gathering Place regularly for clothing, personal hygiene items, and additional food. [ 104 ] Ms. Obed has limited education. She attained a Grade 9 education before leaving school. She reported no significant problems with her reading or writing skills, but disclosed that she often has difficulty with concentrating and focusing.

She also acknowledged the challenges associated with having a learning disability. [ 105 ] She has a very limited employment history. Her only employment experience was as a part-time placement with a store affiliated with Choices for Youth. Ms. Obed stated that she quit this job due to ongoing issues with substance abuse that affected her ability to maintain her employment. [ 106 ] My approach to effective alternative sentence sanctions is influenced significantly by the fact that Ms. Obed has two young children and continues to play a positive role in their lives.

Both of her children have been adopted by the same family and are residing with their adoptive parents. She has regular contact with her children and their adoptive parents and reports having excellent relationships with each party. [ 107 ] The adoptive parents have been the foster parents of the children. They have an excellent relationship with Ms. Obed, noting regular phone contact and visits with her. They make every effort to have Ms. Obed involved in the lives of her children. They believe that it is very important for each party to have a relationship with the other. Ms.

Obed is described by them as being a very loving mother who cares very much for her children and their well-being. Ms. Obed’s children love and care for her very much and still refer to her as their mother. Programs and Assistance Sought While Incarcerated [ 108 ] There is much hope and positivity for a brighter future for Ms. Obed. While incarcerated, she has sought help for her mental health issues, participated in programming related to her indigenous cultural connections, and continued her education. Her attitude is positive, and she has both specific and sensible plans for her life after her incarceration.

The sentence must reflect this and enhance her prospects for recovery. [ 109 ] Ms. Obed has been voluntarily availing of one-on-one mental health counseling since January 2023. She has met with the Mental Health Counsellor approximately 14 times. Ms. Obed has been a polite, respectful and engaged participant during sessions. Topics discussed include past trauma and victimization, her children, past relationships, and past substance use. Her feedback is described as appropriate and she appears to have an understanding of the information discussed and provided. [ 110 ] Ms.

Obed has been participating in the voluntary programming with First Light St. John's Friendship Centre. The programming includes activities such as drumming, arts and crafts, movies and information sessions. She was given the opportunity to contact a family member in efforts to promote staying connected to the community. She has attended weekly sessions consistently since her incarceration began. She has had 12 one-on-one mental health counseling sessions through First Light. Ms.

Obed is described as being an engaged and active participant who has been respectful toward staff, noting they have never had any concerns with her behavior during sessions. [ 111 ] Ms. Obed has regularly participated in the Dialectical Behavioural Therapy (DBT) Program offered by Stella's Circle. The DBT Program is a structured program of psychotherapy with a strong educational program that is designed to provide skills for managing emotions and social relationships.

The program consists of group instruction and individual therapy sessions, and specifically focuses on providing therapeutic skills in the areas of mindfulness, distress tolerance, emotional regulation, and interpersonal effectiveness. [ 112 ] Institutional records confirm that Ms. Obed has been participating in the Adult Basic Education (ABE) Program on a regular basis since being incarcerated. She is currently completing credits for Grade 10 and has been doing well. [ 113 ] Ms. Russell noted Ms.

Obed was very cooperative for the purpose of completing the Pre-Sentence Report and was very respectful and forthcoming throughout the interview. Ms. Obed advised her goals include finding work and a safe place to live. She feels St. John’s is not a safe or healthy place for her. She would like to maintain contact with her children and be involved in their lives, as she feels this would be beneficial for all of them.

Gladue Report [ 114 ] The Gladue Report is a comprehensive and enlightening piece of work consisting of 41 pages and two Appendices for a total of 48 pages. It details the Sources of Information included 10 interviews and 35 documents and websites consulted. The background of the writer, Ms. St-Louis is provided. [ 115 ] It is apparent from the Gladue Report and people interviewed that there is a lot of good in Ms. Obed. They speak of her as “a good mother.” She is quiet and observes a lot. She is very generous and appreciative. She is caring. She is described as “sweet and open.” Ms.

Obed herself says, she loves helping others. She enjoys sewing and making people laugh and feel happy. [ 116 ] Although Ms. Obed is fluent in English, her mother tongue is Inuktitut. She misses the land, fishing, and food from the land such as game, berries and fish. She is proud of her culture and strongly connects with any Inuit and First Nations activities, culture, and teachings. [ 117 ] Ms. Obed wants to deal with her pain and trauma, and heal from her past.

She had the self-awareness to identify the various supports she needs. [ 118 ] She would like to attend a treatment centre, preferably one with Inuit culture. She also wants to have supportive care services available to her. Ms. St-Louis endorses culturally appropriate treatment services, and notes “healing for Indigenous people is considered more holistic than treatment in the non-Indigenous world.” [ 119 ] It is most impressive that representatives of the Nunatsiavut Government have come forward to offer their support and assistance to Ms.

Obed, including Erin Broomfield, Regional Justice Services Manager; Michelle Kinney, Deputy Minister of the Department of Health and Social Development; and Krystal Saunders, Coordinator of Supportive Living, Department of Health and Social Development. They are seeking an Inuit treatment facility for Ms. Obed or First Nation treatment and healing centres and helping her with the application process. [ 120 ] Ms. Obed wants a follow-up plan with a counselor to deal with childhood and other trauma, including the trauma caused by her actions causing the death of Mr. Corcoran.

She understands she will need to learn to trust and learn to ask for help. She will need anger management therapy to avoid triggering situations that cause reaction and harm to others. [ 121 ] Ms. Kinney suggests that for follow-up Ms. Obed could have access to the Mobile Trauma Team who are offering more community-based support. She confirmed that if Ms. Obed required specific private counseling, that would be covered under the Non- Insured Health Benefits (NIHB) Program. She also confirmed her department has counselors available, and Ms. Obed could be connected to one of them. [ 122 ] Ms.

Broomfield outlined housing options for Ms. Obed. The best long-term option would be to live at a particular housing centre, where “tenants have access to a social worker and to activities and is a positive environment.” But she noted they most likely have a waitlist. Ms. Kinney stated, Ms. Obed can apply for supportive housing in the meantime, and the Coordinator Ms. Saunders will provide assistance in the application process. [ 123 ] Ms. Saunders confirmed that Ms. Obed would be on the high end of the scale of multi-complex needs to access supportive living and could therefore access it before others.

In supportive living there is a staff member present 24/7. Ms. St-Louis sent the application to Ms. Saunders and a worker will be contacting Ms. Obed to discuss her application and needs. [ 124 ] Ms. Kinney stated, “Lorraine has so much to give. The key for Lorraine will be to stay connected and to be busy. I am more than willing to support her, and I know [Ms. Broomfield] will too. We can assist in many ways.” [ 125 ] Her aunt would like to maintain contact with Ms. Obed and lend support, expressing, “She could come visit us. I miss her.” [ 126 ] Ms.

Broomfield confirms Holistic Haven is a one-on-one private clinic for Indigenous people that would be a good service for Ms. Obed and culturally appropriate. She confirmed the NIHB would cover the fees. Ms. Kinney says Ms. Obed can also use other psychologists or counselors from the Nunatsiavut Government that fit with her needs and reality, and they will be covered by NIHB. [ 127 ] I strongly encourage Ms. Obed to take full advantage of all the resources and assistance that the Nunatsiavut Government is offering. [ 128 ] Ms.

Obed indicated to the Gladue Report writer she wants to get help to look for employment and have more autonomy. [ 129 ] She admits that her time in jail might have served as a detox for her. She said, "All I am craving now is cigarettes, not drugs, not alcohol." [ 130 ] She indicated that she had probation in the past and collaborated well and would do the same, if probation is ordered. [ 131 ] Ms. St-Louis presents the following as a succinct

Summary of Gladue Factors : - The systemic, historic, and individual factors of Aboriginal people that may have played a

part in bringing the individual in front of the court and therefore, in this case, factors that may have impacted Ms. Obed’s life and behaviors directly or indirectly, to seek proper response to her crime. - The history of Ms. Obed’s ancestors is filled with governmental measures of assimilation aiming at eradicating Inuit culture, values, and heritage for generations. - Although Ms. Obed has not suffered directly from residential school or other traumatizing governmental measures of assimilation, as have many other Aboriginal people, she is most likely to be affected by multi-generational trauma that affected her community members

and herself, in addition to being affected by all her personal life trauma. - She lost her mother when she was 3 years old and did not have a father to take care of her. - She was placed in a foster home where she was physically abused and neglected and sexually abused, which led to PTSD. She was moved to other foster and group homes. - She was bullied at school and retaliated. She left school with only a Grade 9 education. - She has been diagnosed with FASD. - She became suicidal at an early age and suffered from depression.

She had suicidal ideation throughout her life and made a few attempts, as well as having self-mutilated. - Due to not having family or work, she lived in assisted living and was often homeless at times. - She had fights, often triggered by abusive relationship issues. She admits at times using physical force on partners when intoxicated. - She struggled with excessive consumption of alcohol early in life, as she used it to cope with her trauma. She ended up in jail in her 20s due to behaviors she demonstrated while intoxicated. - She lost a friend and a cousin to suicide. - She relocated to St.

John's to be with her father but became homeless and fell into the drug world. [ 132 ] The Gladue Report offers the following as Considerations and Alternative Options to Incarceration , if in the opinion of the Court they represent reasonable rehabilitative, restorative and healing options: • The historical, systemic, and personal Gladue factors highlighted; • Ms. Obed has accepted responsibility and has pled guilty; • She has been diagnosed with severe mental health issues; • She has identified culturally relevant and meaningful resources to help her deal with her trauma and substance use history; • Ms.

Obed has a good support network in Labrador with family connections, the adoptive parents of her children, and staff from the Nunatsiavut Government; and • She will be supported to access stable housing. Recommendations for Further Treatment, Programming, and Support [ 133 ] The road to recovery from lived trauma and substance use will not be easy, and Ms. Obed’s rehabilitation is complex and fraught with difficulty, unless Ms. Obed is compliant with the recommendations of the authors of the Reports and her treatment providers. [ 134 ] Dr. Lentz cautions that treatment may be challenging, as Ms.

Obed may feel too overwhelmed to participate meaningfully in treatment. She may be reluctant to accept that her problems may have a psychological origin. As well, she may have difficulty with the treating professional as an authority figure and she may react to the therapist in a hostile or disrespectful manner. [ 135 ] Dr. Gill recommends Ms. Obed should continue to take her prescribed medications . She could benefit from a formal, individualized trauma program . She should engage in a substance use rehabilitation and relapse prevention program .

More intensive psychotherapy is likely needed to help her talk more openly about her difficulties and begin to process her experiences. This should be open-ended over a long duration to allow Ms. Obed time and space to trust her therapist or counsellor. [ 136 ] The Pre-sentence Report recommends that Ms. Obed could benefit from further treatment and support in addictions counselling . Ms. Obed advised Ms. Russell that she participated in addictions counselling in the past (dates could not be recalled) for a brief period, but that she did not find it to be helpful. Ms.

Obed found previous addictions counseling to be difficult for her as she would be required to discuss the factors leading to substance use and the result of such, which caused her to relive traumatic experiences. [ 137 ] The Gladue Report recommends that Ms.

Obed: • Reside in [Labrador] in supportive housing with the Nunatsiavut Government or other facility they provide for her until she can access independent living; • Attend in-patient treatment and healing, preferably at an Inuit or First Nation treatment centre; • Engage in follow-up with a counselor to help deal with her trauma and losses; and • Look for work to increase her autonomy and create positive social connection, or go to school. Criminal Record and History [ 138 ] The Provincial Court records check illustrates that Ms. Obed possesses a criminal record. The following is a

summary of Ms. Obed’s criminal history:

2015 05 26 Assaulting a Peace Officer, Causing a disturbance by being drunk in public, Failure to Comply with condition of Undertaking, Resisting or obstructing a Peace Officer, Failure to Comply with condition of Undertaking or Recognizance (x3). Disposition: Jail 75 days and Probation 1 year 2014 08 13 Assault, Failure to appear or comply with Appearance Notice, Failure to attend Court and Failure to comply with condition of Undertaking or Recognizance.

Disposition: Jail 40 days (consecutive to any time presently being served, if any), Probation 12 months, Fine $1.00. 2014 07 22 Failure to comply with condition of Undertaking or Recognizance (x2). Disposition: Jail 24 days 2014 06 27 Failure to comply with condition of Undertaking or Recognizance. Disposition: Jail 10 days consecutive to any time presently being served, if any. 2014 06 06 Failure to comply with condition of Undertaking or Recognizance. Disposition: Jail 7 days. Adult probation records illustrate that Ms.

Obed has been subject to a previous term of community supervision with Adult Probation Services. On July 14th, 2015, Ms. Obed commenced a period of supervised probation for a period of 366 days. Adult probation records illustrate that Ms. Obed was compliant with maintaining her reporting requirements and did not pose any significant behavioural concerns throughout supervision. Institutional records illustrate that Ms. Obed has also served previous terms of provincial custody in the Newfoundland and Labrador Correctional system. On June 6th, 2014, Ms.

Obed was sentenced to a provincial term of incarceration of 5 days; on June 27th, 2014, she was sentenced to a provincial term of 10 days; on August 13th, 2014, she was sentenced to a provincial [term] of 41 days; and, on May 26th, 2015, she was sentenced to a provincial term of 75 days. Institutional records show that Ms. Obed did not pose any significant behavioural concerns during those previous terms of incarceration. However, it should be noted that during Ms.

Obed’s current period of incarceration, she has incurred institutional charges of: Fail to maintain good order and conduct, Disobeying an order, Fail to Comply, Assault on an inmate, and Assault on Staff. Harm Caused to the Victims – Victim Impact Statements [ 139 ] The sentence must reflect the harm caused. [ 140 ] This was a violent crime and the greatest harm is Mr. Corcoran’s life was taken unnecessarily and much too soon. The tragic loss of a loved one through a violent criminal act cannot adequately be expressed by the Court to properly reflect the magnitude of the loss of Mr. Corcoran’s life and to Mr.

Corcoran’s family. The Victim Impact Statements of Mr. Corcoran’s daughters, Sheila Garnier and Victoria Corcoran, demonstrate the extreme loss and harm experienced by them. Shelia Garnier [ 141 ] Ms. Garnier spoke of her father as a kind, funny and generous man. His smile and laugher was so contagious. He would do anything to help others in need. She acknowledged “he lived a very tough and hard life,” but he tried to give her and her siblings the best kind of life that he could provide. [ 142 ] She will never forget that night of August 26, 2021.

Since then it has been a constant reminder of how he was taken from her and his family and friends and is “nothing short of a nightmare.” She laments he will never meet his first grandchild, celebrate his 50th birthday, come to Montreal to see and meet her boyfriend for the first time that they were planning in 2022. He will never have the opportunity and joyful experience of walking her down the aisle for her wedding. [ 143 ] There were so many moments and memories that were cut off so early and will never be made. [ 144 ] Even in her grief and agony, Ms. Garnier had the fortitude and courage to say to Ms.

Obed: “I hope you get the help you so clearly need.” [ 145 ] She also said, “I hope that you never forget what you’ve done to myself, family and everyone that loved [my father] so dearly.” Victoria Corcoran [ 146 ] Ms. Corcoran is understandably angry and knowing how her father died haunts her. She finds it hard to accept the pain and loss of her dad. She longs to see him and talk with him and “tell him how much I love him.” [ 147 ] She, too, mentioned that her father had been through his fair share of hardships with the loss of three of his brothers, his parents, and the love of his life.

Despite the hardships he always found a way to make others happy and make everyone around him smile and laugh. He loved with his whole heart. [ 148 ] She is going to miss him checking on her asking “what I’m up to, if I’m okay.” But most of all, “I wish he could hug me” and “that I could give him the biggest hug right now.”

[149] Mr. Corcoran’s daughters loved him dearly. His loss cannot be replaced. I can say to both of them – you have been heard, and nosentence I can impose will ever come close to reflecting your loss and the harm done. Sentencing Precedents Crown Authorities [150] The Crown relies on the principle of parity and the case authorities summarized below as justification for the range of sentenceproposed. [151] R. v. Clarke (2003), (ON CA), 172 O.A.C. 133, 57 W.C.B. (2d) 602 (C.A.) - the offender was convicted by ajury of manslaughter after a trial for murder.

The victim was stabbed seven times in the rooming house that both men lived in. The victimwas frail and suffered numerous health problems. The killing was described as “brutal.” The Ontario Court of Appeal reduced thesentence imposed from 14 to 9 years’ imprisonment. [152] R. v. Gillis, 2018 NSSC 22 - the offender pled guilty to manslaughter having originally been charged with second-degree murder.The offender, who had injected methamphetamine, had gone to confront the victim over the victim’s sexual exploitation of the offender’sminor-aged ex-girlfriend.

The offender was in a shoving match with the victim while holding a kitchen knife and, when the victim triedto disarm him, he was stabbed. The offender fled the scene. The victim had four superficial wounds to his upper body and one fatalwound to his torso. The offender had a history of drug abuse and a lengthy and serious criminal record. The court imposed a 9-yearsentence. [153] R. v. Morris¸ 2006 NLTD 178 - the offender pled guilty to manslaughter. The Aboriginal offender and the victim had been goodfriends and had spent the day drinking heavily.

The victim had threatened the offender, placing a loaded firearm to his throat. When thevictim put the gun down, the offender picked it up and shot the victim in the head. The offender attended at the local RCMP detachmentthe same day to confess to the killing, expressing remorse and showing the police the location of the killing. The offender had no priorcriminal record. The Crown conceded that the killing had been provoked, diminishing culpability from murder to manslaughter. Theoffender was sentenced to an 8-year sentence. [154] R. v.

Reid, 2012 ONSC 7521 - the offender pled guilty to manslaughter, having originally be charged with second degree murder.The offender had been drinking heavily and got in a physical altercation with two friends. The offender grabbed a steak knife that hadbeen stuck in a post, and fatally stabbed the victim once in the abdomen. Mr. Reid was noted to have had a troubled youth, he left schoolin grade nine and had a short but violent criminal record. The offender took steps to hide the evidence of the stabbing. He did not obtainmedical assistance for his stabbed friend promptly.

The court imposed an 8-year sentence. [155] R. v. Pike, 2017 NLTD(G) 95 - the offender pled guilty to manslaughter on the eve of her trial for first-degree murder. Theoffender and her co-offender Ms. Ash had planned to steal drugs from the deceased, their friend. They initially attempted to knock thevictim out by bludgeoning him. When that failed, Ms. Pike picked up a knife and waived it at him. There was some dispute aboutwhether there had initially been a plan to use the knife in the robbery or its use was a spur of the moment decision.

The deceased tried toget the knife, but fell, landing on the knife, which fatally stabbed him in his collarbone. Ms. Pike was highly intoxicated on Ritalin,cannabis and Dilaudid at the time of the offence. She had a history of drug addiction and a criminal record, but no record for violence.Burrage J accepted a joint submission on sentence for 7.5 years. [156] R. v. Abel, 2012 NLTD(G) 27 - the offender killed the victim, his common law partner, after she bit him. He was initially tried formurder but was convicted by the jury of manslaughter.

Notably, there were no witnesses to the offence; even the precise cause of deathwas unclear. Pathologists had testified that the killing was consistent with smothering but could not rule out some other mechanism. Insentencing Mr. Abel, Stack J noted substantial Gladue factors – Mr. Abel was an Inuk man with a serious history of intergenerationaltrauma. He also noted the provocation by the victim of the offender; she sought him out and started the fatal altercation. He noted thatMr. Abel showed remorse for his actions.

However, Justice Stack also noted that the offence occurred in the context of a domesticrelationship, that Mr. Abel was on conditions to remain away from the victim and that he had a record for violent crimes. Justice Stacknoted a range of sentence in his case running from four to eight years. He found that while the case was not a near-murder, Mr. Abel’sculpability placed him towards the higher end of the range and sentenced Mr. Abel to 7 years. [157] R. v. Osmond (1996), (NL SC), 140 Nfld. & P.E.I.R. 123, 438 A.P.R. 123 (Nfld. S.C.(T.D.)) - the offenderwas involved in a fight with the victim.

The offender had started the fight by assaulting the deceased’s brother. The deceased had abaseball bat and was assaulting the offender when he was stabbed, twice, with a knife. The offender alleged at trial that he hadaccidentally stabbed the victim in the course of the fight. Mr. Osmond was tried for second-degree murder but convicted by the jury ofmanslaughter. Easton J sentenced him to 6 years. [158] R. v. Noftall, 2022 NLSC 169 - the offender pled guilty to manslaughter.

He was involved in a physical altercation with hisstepfather, in the course of which the offender stabbed the victim four times, killing him. There were elements of provocation and self-defence in the altercation and the judge noted that had they not been present she would have assessed his act as more serious.Immediately after the stabbing the offender tried to get the victim medical attention. The offender did not have a criminal record, was ayoung man and had pled guilty.

However, the offender started the fight, introduced the knife into a physical fight, was on a release orderat the time of the offence and was assessed as a high risk to reoffend. O’Brien J (as she then was) imposed 5.5 years. [159] R. v. Ash, 2017 NLTD(G) 139, dealt with the co-offender to Ms. Pike, referred to above. Ms. Ash was convicted by a jury ofmanslaughter. Ms. Ash was also involved in the plot to rob her drug dealer. However, she was not the principal behind the plan andafterwards cooperated with police providing substantial evidence of her co-offender’s involvement.

Goulding J imposed a 5.5 yearsnoting that parity with Ms. Pike’s 7.5 years was a major factor in the sentencing. [160] R. v. Larson, 2017 ABQB 79 - the offender pled guilty to manslaughter on a charge of second-degree murder. He was sentencedto 5.5 years. In the course of a fight, the offender stabbed the deceased once in the chest, with a kitchen knife, killing him. The victimwas blocking the offender’s route of exit at the time he decided to pick up the knife and stab him, however it was the offender who

precipitated the critical chain of events. The offender had a lengthy criminal record. [ 161 ] R. v. Corbett , 2015 ONSC 6118 - the offender was convicted by a jury of manslaughter, having been charged with second-degree murder. Two men were arguing about ownership of a television that the victim had left in their formerly shared apartment. There was a confrontation between the two men on the side of the road and in the course of the fight the victim was stabbed once in the neck with a knife. The judge found that the offender had brought the knife with him from his kitchen to confront the victim outside.

The victim was larger than the offender and the judge found that the victim was acting in self-defence though he used more force than was reasonable in the circumstances. The offender tried, poorly, to hide the knife and made no effort to assist the victim after the stabbing. Instead, he fled the scene. He ultimately did turn himself in to the police, was a young man with a minor criminal record and good future prospects. The court imposed 5 years. [ 162 ] R. v. Brisson , 2009 BCSC 1606 – the offender was convicted of manslaughter after having charged with second-degree murder.

The deceased had been approaching the offender in a threatening matter with a baseball bat. The offender grabbed a knife from a kitchen counter and stabbed the victim 13 times. The court imposed 5 years. [ 163 ] Onalik - dealt with an Aboriginal offender who pled guilty to manslaughter. The offender killed his uncle. The offender applied an extreme level of violence, bringing the victim to the ground, kicking him in the face and then smashing his head into the ground. There was no provocation or apparent explanation other than that everyone involved in the offence was extremely intoxicated.

The offender had no prior criminal record. It was common ground that Gladue factors applied throughout the case. The offender was sentenced to 5 years. [ 164 ] R. v. Ansari , 2009 BCCA 381 - the British Columbia Court of Appeal upheld a sentence of 5 years for an offender convicted of manslaughter after trial. The offender had killed a former friend and business associate by stabbing him a number of times. It was not clear what prompted the attack though it appeared to relate to complex financial dealings between the two individuals.

It was shown at trial that the offender had been threatened by the victim before the incident occurred, prompting him to carry a knife for self-protection. The offender did not have a criminal record and had strong, positive antecedents. The court (at para. 41) found that the sentencing judge correctly identified the primary sentencing considerations here as retribution, denunciation, and general deterrence. [ 165 ] R. v. Lampe , 2007 NLTD 116 - dealt with an Aboriginal offender who pled guilty to manslaughter on an original charge of murder. The victim was his uncle. Both men lived together in Nain.

The victim, who was highly intoxicated, attempted to force his way into the offender’s bedroom, kicking the door down. This precipitated a physical struggle that ended with the victim on the ground. There was evidence that the offender had struck the victim several times while he was on the ground, killing him. Fowler J was satisfied that there was an element of provocation given that the deceased started the fight. The offender was youthful with no criminal record. The court imposed 4 years.

Defence Authorities [ 166 ] As support for the position that time served is a reasonable disposition for the custodial period of the sentence, Defence counsel submitted the following authorities ranging from two years less a day to five years less time served: [ 167 ] R. v. Emard [1999] B.C.J. No. 463 , 41 W.C.B. (2d) 386 (S.C.) - The offender was charged with manslaughter in the stabbing of her husband. The two were drinking and began arguing on the way home which turned into a physical altercation and the offender punching the deceased in the lip.

The offender later grabbed a knife and the two fought, the victim was stabbed once above the heart. Ms. Emard was métis so the judge considered Gladue as part of sentence factors. The offender was sentenced to two years less one day to be served in the community with conditions. The offender was responsible for looking after her five-year-old daughter. She had no criminal record. She took immediate steps to assist her husband after the fatal injury. The court found she had genuine remorse and anguish over killing her spouse. The judge concluded (at para. 16), “Ms.

Emard will not be involved in this sort of thing again.” [ 168 ] Gladue - Gladue and her boyfriend got into a fight after she suspected him of cheating on her with her sister. She was intoxicated. He ran from their apartment and she followed and stabbed him in the chest. There was also evidence that she had stabbed him more minorly in the arm while still in their apartment, and that the victim had been physically abusive towards her. He had a prior conviction for assaulting her.

Gladue was charged with second degree murder but plead guilty to manslaughter and was sentenced to 3 years imprisonment which was upheld on appeal. [ 169 ] R. v. Johnson , 2017 BCSC 1240 - Johnson and the victim were both very intoxicated at a house party and an argument ensued. Johnson stabbed the victim once in the side with a knife, in an unprovoked incident, leading to his death. Johnson plead guilty to manslaughter. Johnson was of Aboriginal descent, being a member of the Selkirk First Nation, and was sentenced to four years imprisonment. [ 170 ] R. v.

Machiskinic , 2004 SKQB 358 - the offender stabbed her common-law husband during a drunken altercation. She was 22 years old at the time of the offence, was aboriginal with a young child and newborn baby, the offender had a difficult childhood, including being sexually assaulted in foster care. The offender accepted responsibility for the offence and was very remorseful. The offender had 14 previous convictions, including one for assault. The offender pleaded guilty to manslaughter.

She received a sentence in the range of three and a half years to four years (at para. 85) with credit for double the time she spent in custody while on remand (six months). She was sentenced to a further term of two and a half years in a federal institution. [ 171 ] R. v. Thomas , 2016 ONSC 7944 - the offender was a 41 year old woman of Ojibway ancestry who pleaded guilty to manslaughter. During an argument in their home the offender stabbed her common-law spouse. As per Gladue , effect was given to aboriginal emphasis upon healing and restoration and her isolation was not necessary to keep others safe.

Healing and rehabilitation could also be addressed by continuing with in custody programming that the offender had accessed already. The offender was sentenced to 657 days which was four years’ less time served, plus three years’ supervised probation. [ 172 ] Defence counsel also cited the Lampe and Onalik cases, and because Ms. Obed has been diagnosed with FASD cited the following two additional cases:

[173] R. v. Chief, 2018 YKTC 36 – the offender plead guilty to manslaughter. The victim died after being struck multiple times in analtercation with the offender, there had been heavy drinking. The offender was diagnosed with FASD, and a Gladue report wascompleted which showed a very difficult life for the offender. At paragraph 57 the court details a number of cases when looking at therange for sentence. The court also discusses how to address FASD and substance use as factors for consideration. The court consideredthat an appropriate sentence for Mr. Chief was in the five-year custodial range.

The effective sentence (at para. 77) was four years,seven and a half months. The court gave Mr. Chief credit for his two years and seven and a half months in custody, and sentenced him toan additional period of custody of two years less one day and a Probation Order of three years following his release with severalconditions (at para. 79). [174] R. v. Noftall, 2023 NLPC 0122A00576 - The offender entered guilty pleas to a number of offences, including arson. The offendersuffered from FASD and intellectual disability, Orr PCJ discussed these relevant considerations for sentence.

At paragraph 13, Judge Orrdiscusses the difficulties of sentencing persons diagnosed with FASD, which needs to strike a balance of recognizing their diminishedlevel of responsibility while at the same time protecting the public. Other Salient Considerations in Sentencing for Manslaughter [175] The Supreme Court of Canada in R. v. Stone (SCC), [1999] 2 S.C.R. 290, discussed the framework forsentencing manslaughter.

The court recognized (at para. 233) “that punishment must be meted out with regard to the moral culpability orblameworthiness of an offender.” This involves (at para. 247) both the consideration of the ‘personal characteristics of the offender,” andthe “circumstances surrounding the offence, such as the manner and method by which it was carried out.” Binnie J went on to quote R. v.Laberge, 1995 ABCA 196, saying the range of considerations “include the choice of weapon used to effect the unlawful act, the degreeof force the offender used in perpetrating the act, the extent of the victim's injuries, the degree of violence or brutality, the existence ofany additional gratuitous violence, the degree of deliberation involved in the act, the extent to which the act reflected forethought ofaction or planning, the complexity of the act, what, if anything, provoked the act, the time taken to perpetrate the act and the element ofchance involved in the resulting death.” [176] In Noftall, a decision from this Court discussed above, O’Brien J (as she then was) noted a similar set of considerations insentencing unlawful act manslaughter: [36] In assessing the nature of the unlawful act, courts consider factors such as: a.

The degree of planning or deliberation b. The degree of violence used c. The amount of time over which the unlawful act took place d. Whether a weapon was used, with firearm use generally considered to be the most serious e. Whether there was any element of provocation or defensive action f. The degree of chance involved in the resulting death [37] Courts also regularly consider other factors, such as: a. Whether the offender left the scene or stayed to offer help b. Whether the offender took responsibility, particularly at an early stage c. Whether the offender was remorseful d.

Whether the offender cooperated with police e. Whether the offender was under a court order at the time f. The criminal record of the offender, including whether there is a history of violent crime g. Whether the offender had a history of being abused by the victim h. Other personal circumstances of the offender Aggravating and Mitigating Factors Aggravating [177] The Crown’s submissions highlight certain aggravating factors. Some are clearly aggravating factors, while others are less so andmust be viewed from the lens and my finding of Ms.

Obed’s reduced moral culpability for her actions. [178] First, I accept the Crown’s position that Ms. Obed started the fatal altercation and continued it. The evidence of James Wheelerwas that Ms. Obed “immediately took a swing at Mr. Corcoran” when he arrived at Mr. Wheeler’s residence. Outside the residence,video shows Ms. Obed approach Mr. Corcoran and Ms. Smith while they are standing by the stop sign at the corner of Cabot Street andCookstown Road. At no point in the evidence from the videos or the witness statements does Mr. Corcoran do anything to antagonizeMs. Obed.

This distinguishes the present case from those in which both parties were active participants in an altercation before a death

occurred. [ 179 ] I find there is no element of self-defence or provocation present. Ms. Obed and the victim were arguing over something, however, Mr. Corcoran was unarmed and did not attack Ms. Obed. Mr. Obed may have perceived a threat of harm from Mr. Corcoran, but the evidence does not support Mr. Corcoran either threatened or provoked Ms. Obed. [ 180 ] Second, while Ms. Obed and Mr.

Corcoran’s intimate partner relationship was “on and off” for perhaps less than a year, an intimate partner relationship is nevertheless a statutorily aggravating factor. [ 181 ] Third, the use of a weapon is an aggravating factor. It is particularly aggravating that Ms. Obed introduced the knife to the altercation and walked across the street to attack Mr. Corcoran using the knife as a weapon. The evidence suggests that Ms. Obed obtained the knife from within Mr. Wheeler’s residence. Mr. Wheeler believed Ms.

Obed had something in her hand when she left his residence and he “believed it was a knife.” On the Cabot Street and Cookstown video, Ms. Obed appears to be rummaging in her shirt as she approaches Mr. Corcoran. That distinguishes this from cases where the offender simply picked up a nearby weapon. [ 182 ] Fourth, Ms. Obed struck a vital area of the victim’s body. Mr. Corcoran was stabbed in the collarbone. Even if the intention was not to stab the neck, this was a swing toward the head and torso and could reasonably be expected to catch some vital area of the body.

That separates this case from some cases discussed, where in the course of a physical altercation a victim is stabbed. [ 183 ] Fifth, Ms. Obed stabbed Mr. Corcoran in broad daylight in a busy residential neighborhood witnessed by several people going about their daily lives. In addition to the profound personal harm to Mr. Corcoran’s family and friends, members of the community should not have to live with the shock and memory of the taking of a life right before their very eyes.

The community has an expectation that the Court denounce the gravity of having to experience a homicide on the street in their neighborhood. [ 184 ] The Crown also contends it is aggravating that Ms. Obed attempted to dispose of the knife in a drain on the street, and that she failed to render assistance to the victim. [ 185 ] I do not consider Ms. Obed’s attempt to dispose of or hide evidence of the offence as an aggravating factor. On the contrary, I find she exhibited an advanced state of intoxication in the manner of her bizarre behavior after the stabbing.

In full view of the residents and the police officers that were on the scene, her actions were not of a rational thinking person trying to hide evidence. Her advanced intoxication also accounts for her failure to render assistance to Mr. Corcoran. Mitigating [ 186 ] There are significant mitigating factors. [ 187 ] Ms. Obed entered a guilty plea, saving court time and p

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