R v Neepin, 2020 MBCA 55

Citation: R v Neepin, 2020 MBCA 55 Date: 20200521 Docket: AR19-30-09217 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Jennifer A. Pfuetzner Madam Justice Karen I. Simonsen BETWEEN: her majesty the queen ) G. G. Brodsky, Q.C. and ) Z. B. Kinahan ) for the Appellant Respondent ) ) R. D. Lagimodière- and - ) for the Respondent ) ) Appeal heard:BERNADETTE NANCY NEEPIN ) February 7, 2020 ) ) Judgment delivered: (Accused) Appellant ) May 21, 2020 HAMILTON JA [1] The accused appeals her ten-year sentence for manslaughter.

She stabbed Frederick Bird numerous times with akitchen knife after she thought she saw him sexually touching her four-year-old son. The jury acquitted the accused of second degreemurder. The defences of intoxication and provocation were the fundamental questions at the trial. [2] The trial judge instructed the jury on three routes of liability to convict for manslaughter. As a result, he had tointerpret the verdict by making findings of facts consistent with the verdict and the evidence at trial (see

section 724 of the CriminalCode (the Code); and R v Woodard, 2009 MBCA 42 at para 60). [3] At issue is whether the trial judge erred in principle in his findings of fact, how he addressed the accused’s moralculpability in light of those findings and the Gladue factors present in this case (see R v Gladue, (SCC), [1999] 1 SCR688), and whether the ten-year sentence is harsh and excessive and therefore demonstrably unfit. [4] I would allow the appeal. The trial judge’s findings of fact are entitled to deference, except for his finding that theaccused’s level of moral culpability was high.

In making that finding, the trial judge erred in principle by failing to consider relevantfactors material to the analysis. Because this error had an impact on the sentence imposed, I would intervene and determine a fitsentence (see R v Friesen, 2020 SCC 9 at para 27). Background [5] The accused met Mr. Bird in the afternoon of March 8, 2016, when he arrived at her home with Robert McDonald, afriend of hers, for a visit. The accused’s four-year-old son was at home with her. The three adults socialised, drank whiskey and ate ameal.

The accused’s daughter and her boyfriend came home around 8:30 p.m. and went upstairs. The accused and Mr. McDonald left tobuy another bottle of whisky and Mr. Bird stayed with the boy. After their return, they started drinking whiskey again. Mr. McDonaldleft the living room to go upstairs to use the bathroom. When he returned to the living room he saw the accused stabbing Mr. Bird. [6] Two police officers responded to the 911 call at 10:44 p.m. They saw Mr. Bird on the floor covered with a blanket andthe accused and her son on the couch crying. Her son was wearing underwear and had blood on his face and body.

His sister took himand the police arrested the accused.

[ 7 ] On the way to the cruiser car, the accused told the police officer that “he molested my son, he deserved to die”, “he was hurting my child” and “my baby’s getting hurt, and I’m supposed to protect him.” [ 8 ] The accused stabbed Mr. Bird eight times with a kitchen knife. He suffered four wounds to his chest, three on his arm and one on his forehead. The wounds to the arms were consistent with being defensive wounds. He died of two chest wounds to the heart that involved “a fairly significant amount of force”. The Trial [ 9 ] The Crown called toxicology expert evidence about Mr. Bird’s blood-alcohol level.

The expert estimated that, at the time of death, Mr. Bird had at least 20 shots of whiskey in his body and that it was more likely that he consumed more alcohol, indicating that “it could have been 40 total ounces consumed. It could have been 60.” [ 10 ] Mr. McDonald testified that he did not count the drinks he had, but that they drank a 60-ounce bottle of whiskey and a 40- ounce bottle of whiskey. He described himself as “intoxicated” but not “blacked out”. [ 11 ] The accused testified that she had three to four cups of whiskey and that she was drunk.

In cross-examination she agreed that she drank more than that and said, “I wouldn’t say I was drunk-drunk. I was intoxicated.” Mr. McDonald’s Evidence Re the Stabbing [ 12 ] Mr. McDonald testified that, on his way upstairs to use the bathroom, he heard the accused say to her son, “Did he touch you?” and her son respond, “Yeah”. When he returned downstairs, he saw the accused stabbing Mr. Bird multiple times and saying, “you touched my baby”, to which Mr.

Bird responded, “No” and “I didn’t touch your baby.” After the stabbing stopped, he heard the boy say to the accused, “I was just kidding, mommy”, and the accused then say, “Oh, mommy’s going to be gone for a while.” [ 13 ] Mr. McDonald never saw Mr. Bird touch the accused’s son. The Accused’s Evidence Re the Stabbing [ 14 ] The accused testified that while she was cleaning up in the kitchen, she heard Mr. McDonald yell, “Hey bro, what are you doing?” She looked into the living room and saw Mr. Bird and her son on the couch. Mr.

Bird’s hand was under a blanket near her son’s private area and “it was moving up and down really fast.” She described her son as “frozen in shock.” She testified that she went to the kitchen to get a knife and when she returned she asked her son, “Did he touch you?” and “[he] said ‘yes’”. She then stated, “I remember my arm going up and then I blacked out.” [ 15 ] The next thing the accused recalled was seeing her son shaking and Mr. McDonald on the floor with Mr. Bird.

She picked up her son saying that “mommy did a bad thing and I’m sorry and I’m going to be gone for a long time.” [ 16 ] In cross-examination, she could not explain why she did not go immediately to her son when she thought he was being hurt rather than going to the kitchen to get a knife. She denied hearing her son say, “just kidding.” The Instructions to the Jury [ 17 ] The trial judge ruled that the accused’s evidence raised an air of reality for the defence of provocation pursuant to

section 232 of the Code . The accused also relied on the defence of intoxication. [ 18 ] The Crown sought a conviction for second degree murder. Its position was that the accused’s behaviour was “calculated”, involving a series of steps that did not point to provocation or intoxication but to “vengeance” and an intent to kill. [ 19 ] The trial judge’s instructions to the jury provided three routes to the verdict of manslaughter: 1. Intoxication; 2.

Provocation; and 3. the cumulative effect of intoxication and provocation (the rolled-up instruction). [ 20 ] The defence of intoxication concerned whether the Crown had proved beyond a reasonable doubt the intent required for second degree murder. [ 21 ] The defence of provocation concerned whether the Crown had proved beyond a reasonable doubt that provocation did not apply to reduce a finding of second degree murder to manslaughter. See

section 232 of the Code : Murder reduced to manslaughter 232(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

What is provocation

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool. Questions of fact

(3) For the purposes of this section, the questions (

a) whether the conduct of the victim amounted to provocation under subsection (2), and (

b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being. . . . [ 22 ] The rolled-up instruction concerned whether, in all of the circumstances, including intoxication and any provocative circumstances, the Crown had proved beyond a reasonable doubt the intent required for second degree murder. [ 23 ] The trial judge’s instructions with respect to intoxication were detailed and directed the jury to focus on the evidence as to what the accused did or did not do, how she did or did not do it and what she said or did not say, as well as the evidence about how much alcohol she drank, when and for how long, and its effect on her state of mind. [ 24 ] With respect to provocation, the trial judge instructed the jury on the five conditions that must be present to find provocation pursuant to

section 232 of the Code . He stated: . . . [The accused] must be acquitted of murder, but found guilty of manslaughter on the basis of provocation, only if all of the following five conditions are present. 1. Mr. Bird engaged in conduct that constituted an indictable offence punishable by five years or more. If you find he did not, but [the accused] mistakenly but reasonably believed that Mr. Bird sexually assaulted her son; 2. Mr. Bird’s conduct was sufficient to deprive an ordinary person of the power of self-control; and 3. When [the accused] killed Mr.

Bird she had lost the power of self-control as a result of Mr. Bird’s conduct; and 4. Mr. Bird’s conduct was sudden; and 5. [The accused’s] acts that caused Mr. Bird’s death were committed suddenly and before there was time for her passion to cool.

. . . [ 25 ] He instructed the jury that the Crown had to prove beyond a reasonable doubt that the defence of provocation did not apply and to do so it must prove beyond a reasonable doubt that at least one of the five conditions was absent. He then gave instructions with respect to how to address each of the conditions. [ 26 ] With respect to the first condition, his instructions included the direction to: . . . Ask yourselves whether [the accused] honestly believed that Mr.

Bird was sexually assaulting her son, then consider whether her belief was reasonable by asking yourselves whether an ordinary person in the same circumstances would have had the same belief. . . . [ 27 ] With respect to the second condition, his instructions included the direction that: . . .

In law, an ordinary person is someone who is not exceptionally excitable, combative or in a state of intoxication, who has a normal temperament and a normal level of self-control, and who has the same relevant characteristics as [the accused]. . . . [ 28 ] The trial judge stated that the relevant characteristics for the accused were that she is “an Indigenous woman and mother” and that the question was, “whether the ordinary person, confronted with Mr. Bird’s conduct in the same circumstances, would have lost the power of self-control.” [ 29 ] The rolled-up instruction was brief: . . .

Finally, you heard evidence in this trial concerning the defences of intoxication and provocation. If you reject these defences individually, you should nonetheless consider the cumulative effect of the evidence of these defences, along with all the other evidence, in deciding whether the Crown has proven beyond a reasonable doubt that [the accused] had the intent to cause death or the intent to cause bodily harm which she knew was likely to cause death, and was reckless about whether or not death ensued.

If you find or are left with a reasonable doubt about this, then you must find [the accused] not guilty of murder but guilty of the included offence of manslaughter. . . . The Sentencing [ 30 ] For the sentencing, the trial judge had a pre-sentence report (the PSR) and many victim impact statements from family and friends of Mr. Bird who described their heartbreaking loss and the devastating impact his death had on them. [ 31 ] The Crown sought a 12-year sentence.

It urged the trial judge to find that the verdict was based on the rolled-up instruction, arguing that the facts did not support a finding that a sexual assault occurred and that the accused was mistaken as to what she believed she saw because of her intoxication. [ 32 ] The accused sought a sentence that took into account her pre-sentence custody (being the equivalent of four years and approximately two months), followed by three years of supervised probation. She argued that her moral culpability was low. She urged the trial judge to find Mr.

Bird had sexually abused her son, which, she asserted, amounted to provocation pursuant to

section 232 of the Code . The PSR

[ 33 ] The PSR included a Gladue component that detailed the accused’s background. It described her upbringing as “filled with dysfunction”. [ 34 ] The accused was born in Thompson, Manitoba in 1978. She has Treaty status through the Fox Lake Cree Nation. Some family members attended residential school. She was not taught about her culture as a child but has “developed a strong connection to her culture while in custody.” [ 35 ] The accused was exposed to violence, including sexual abuse and substance abuse. Her history is one of alcohol abuse. She lost her brother to suicide.

At three years of age she was apprehended by Child and Family Services and returned to her mother’s care six months later. She went to live with her stepfather at the age of fifteen in Fox Lake Cree Nation and had little contact with her mother, who died in 2011. As stated in the PSR: . . . The [accused’s] upbringing was filled with dysfunction, substance use, and violence. Her biological father never played a significant role in her life and she was 15 years old when her mother ran away.

After her mother left, she shared she had to step up to help care for her siblings, as her step-father was frequently away working. Her responsibilities increased when she was around grade nine, as she became pregnant with her first child. By this point in her life she had experienced the loss of both her biological parents, suffered through being molested by an uncle, and experienced neglect in foster care. The dysfunction in her life persisted throughout her adulthood. . . . [ 36 ] The accused has two children; her daughter, born in 1998, and her son, born in 2011.

Her domestic relationships involved violence and emotional abuse. Prior to leaving her son’s father for an emergency women’s shelter in Winnipeg, she suspected that he sexually abused their son. She obtained Manitoba Housing, where she lived for three years with her children, until her arrest. [ 37 ] Her stepfather is caring for her children, with the help of her sister, in Fox Lake Cree Nation. [ 38 ] While in custody, the accused has been involved with Alcoholics Anonymous.

She started taking medication for Post- Traumatic Stress Disorder and Major Depressive Episode. [ 39 ] The accused stopped going to school in Grade 9 when she became pregnant. While in custody, she obtained her general education diploma, completed some university credits and participated in programs such as Triple P Parenting and Thinking Awareness Group. [ 40 ] The PSR assessed the accused as a low risk to reoffend, noting that she expressed remorse and understood that there are consequences for those who break the law. [ 41 ] The author of the PSR concluded: . . .

Notwithstanding the severity of the offence before the Court, given the [accused’s] lack of a criminal record, her involvement in programming while in custody, and motivation to continue to address her issues, it is this writer’s professional opinion the [accused] is a suitable candidate for community supervision.

Should the Court determine that community supervision is part of the sentence, the following conditions are respectfully recommended to safely supervise the subject in the community: • Report to a probation officer when and as directed; • Attend, participate and complete any programming and/or counselling as directed by your Probation Officer. The Reasons for Sentence [ 42 ] In the course of making findings of fact “consistent with the jury’s verdict”, the trial judge stated: . . .

The verdict of manslaughter suggests that the requisite state of mind for murder was absent, either due to [the accused’s] intoxication or as a result of the finding of provocation, or that there is reasonable doubt after considering both provocation and intoxication. . . .

[ 43 ] He reviewed the evidence of Mr. McDonald and the accused as to what occurred when Mr. McDonald went upstairs, and concluded that the facts in the case did not meet the “ Code definition of provocation”. He stated: . . . I find that due to her intoxication, [the accused] erroneously thought that Mr. Bird was assaulting her child. However, she merely had suspicions in that regard, and I do not accept her evidence that Mr. Bird was sexually assaulting her son is well founded.

It was dark in the living room area and she did not have a good vantage point from the kitchen when she was looking into the living room. I also reject her evidence that she heard Mr. McDonald say “Hey, what are you doing bro?” I do not accept her evidence in that regard because he was not cross-examined on the point. And Mr. McDonald testified he never saw Mr. Bird touching [the accused’s] son. She acted on mere suspicion and her actions were not in the nature of protecting her son. Had she seen what she said she saw from the kitchen, she would have immediately went into the living room to confront Mr. Bird.

She also would not have asked her son, “Did he touch you?” [ 44 ] After finding that the combination of intoxication and the accused’s “erroneous belief that Mr. Bird had assaulted her son resulted in the lack of requisite intent for murder”, the trial judge rejected the accused’s assertion that the verdict was based on provocation and found that there was a reasonable doubt based on the rolled-up instruction: . . .

Consequently, after considering the evidence that I have set out and the facts that I have determined, I find that [the accused] acted on the belief that she thought she saw the deceased sexually assaulting her son and her level of intoxication played a

part in her honest but mistaken belief in this regard. But her subsequent actions do not meet the test of provocation. So in this case, there is a reasonable doubt on the basis of the rolled-up plea. The location and number of stab wounds around the heart, two of which pierced the heart, would have otherwise indicated an intent to commit murder. Also, I want the record to be clear, as far as this Court is concerned [the accused] killed an innocent man. . . . [emphasis added] [ 45 ] The trial judge noted the PSR’s Gladue component: . . .

The [PSR] indicates that there are Gladue factors present in [the accused’s] background. She was apprehended by Child and Family Services when she was three years old. Her mother struggled with alcoholism. She was sexually abused as a child. She went to live with her stepfather when she was a teenager and had little contact with her mother for the balance of her adult life.

Her stepfather was a stabilizing influence in her life. . . . [ 46 ] With respect to the accused’s moral culpability, he quoted R v McLeod , 2016 MBCA 7 quoting R v LaBerge , 1995 ABCA 196 at para 6 , explaining that “unlawful act manslaughter covers a wide range of cases extending from those which may be classified as near accident at the one extreme and near murder at the other” (at para 17) and the need for the court to determine on “what rung on the moral culpability ladder” ( ibid ) the accused should be placed. He stated that he also had to take into consideration the Gladue factors “in light of

Section 718.2 (

e) of the Criminal Code , as well as the Supreme Court of Canada decision in R. v. Ipeelee , 2012 SCC 13 ”. [ 47 ] He found that the accused’s actions brought her within a high level of moral culpability: . . .

A principal aggravating factor in this case is the brutality and the degree of violence of the stabbing. . . . [T]here were multiple stabwounds. . . . [T]wo of the wounds pierced the heart and the two others were close to the heart. This was not simply a case of [theaccused] grabbing a stray knife and stabbing Mr. Bird. [The accused] turned to the kitchen area to retrieve the knife and then proceededto come to stab Mr. Bird after she had asked her son a question as to whether Mr. Bird had touched hm. Therefore, this is a case wherethe manslaughter is one that is closer to murder.

Her actions bring her within a high legal level of moral culpability. . . . [emphasis added] [48] The trial judge then stated that “there are Gladue considerations here that are mitigating.” He also noted that the accusedhad no criminal record, she is remorseful and took responsibility for her actions (she was willing to plead to manslaughter at an earliertime) and that “Her attitude will help her rehabilitation prospects.” [49] With respect to the cases submitted by the Crown and the accused, he found that R v Parisian, 2018 MBCA 16 had“some similarities to this case”: . . .

The Gladue considerations are similar; there was an intoxication component. The nature and the extent of the stabbings are similar,although arguably worse in this case than in Parisian. However, in Parisian, the accused had a criminal record [which] included acts forviolent offences and breaches of probation. The Manitoba Court of Appeal determined that a sentence of 11 years was just in thecircumstances. . . . [50] After determining that a fit sentence was ten years’ incarceration, the trial judge imposed a go-forward sentence of fiveyears and ten months after giving credit for the pre-sentence custody.

The Parties’ Positions [51] The accused’s position is that the trial judge made findings of fact unsupported by the evidence at trial and the sentenceis harsh and excessive, and therefore unfit. She asserts that the trial judge erroneously reconstructed facts not necessary to sentence theaccused; did not appropriately consider the circumstances surrounding the commission of the offence, and her circumstances, whendetermining her level of moral blameworthiness; and did not give appropriate weight to the accused’s prospects of rehabilitation.

Shesays a sentence of no more than five years is a fit sentence. [52] The Crown’s position is that appellate intervention is unwarranted. It asserts that the trial judge’s factual findings aresupported by the evidence, he made no error in principle and the sentence of ten years, while high, is not unfit.

Standard of Review [53] The standard of review for a sentence was recently explained in Friesen (at paras 26-27): As this Court confirmed in Lacasse [R v Lacasse, 2015 SCC 64], an appellate court can only intervene to vary a sentence if (1) thesentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence(para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravatingor mitigating factor.

The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by notgiving enough weight to another, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: anappellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, atpara. 44).

If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellateintervention is justified only if the sentence is demonstrably unfit. If a sentence is demonstrably unfit or if a sentencing judge made an error in principle that had an impact on the sentence, an appellatecourt must perform its own sentencing analysis to determine a fit sentence (Lacasse, at para. 43). It will apply the principles ofsentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range.

Thus,where an appellate court has found that an error in principle had an impact on the sentence, that is a sufficient basis for it to intervene anddetermine a fit sentence. It is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or fallsoutside the range of sentences imposed in the past.

[ 54 ] When performing its own sentencing analysis to determine a fit sentence, the appellate court “will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle” ( Friesen at para 28 ). Analysis [ 55 ] Because the jury had three routes to the verdict of manslaughter, the factual implications of the jury’s verdict were ambiguous. The trial judge had the difficult task of making findings of fact consistent with the verdict and any other facts necessary to properly sentence the accused arising from the ambiguity of the verdict (see

section 724 of the Code ). [ 56 ] The task of the trial judge was explained in Woodard (at para 60 ): . . . When a guilty verdict is returned by a jury, it is impossible to know exactly which facts it accepted or rejected. In such circumstances, the sentencing judge is permitted to interpret the jury’s verdict (see s. 724 of the Code ). This

interpretation will be guided by the trial judge’s instruction to the jury, which identified the issues the jury had to decide, by the jury’s verdict and by the following two governing principles which were conveniently set out by McLachlin C.J.C. in R. v. Ferguson , 2008 SCC 6 (at paras. 17-18 ): . . . First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict” . . .

Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts . . . the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

See also R v Roncaioli , 2011 ONCA 378 at paras 7 , 58-59; and R v Landry , 2016 NSCA 53 at paras 48-49 . [ 57 ] There is no issue with respect to the express factual implication of the verdict. The jury rejected the Crown’s theory that the accused’s behaviour was calculated and involved a series of steps that pointed to vengeance.

In particular, the jury rejected that the accused had the intent to cause death or serious bodily harm which she knew was likely to cause death and was reckless as to whether death ensued or not. [ 58 ] The issues raised by the accused relate to the trial judge’s findings of fact arising from the ambiguity of the verdict. [ 59 ] She argues that the trial judge erred in not finding that the verdict of manslaughter was based on the defence of provocation.

She says that the trial judge reconstructed facts not necessary to sentence the accused and did not appropriately consider the circumstances surrounding the commission of the offence. I see no such error. [ 60 ] Although his reasoning was not stated as well as it could have been, the essence of the trial judge’s findings is that the accused honestly but mistakenly believed that Mr.

Bird was sexually assaulting her son but the Crown had proven beyond a reasonable doubt that the ordinary person, who is not intoxicated, confronted by the same circumstances, would not have lost the power of self- control as the accused did. Therefore, he found that the defence of provocation was not available to the accused and that the verdict was based on the rolled-up instruction. [ 61 ] I disagree with the accused that the trial judge erred by attempting to reconstruct the logical process of the jury ( see R v Ferguson , 2008 SCC 6 at paras 17-21 ).

Rather, in concluding that the verdict was based on the rolled-up instruction, the trial judge applied the approach required by Ferguson . He “considered all the evidence in order to make his own findings of fact consistent with the jury’s verdict to the extent they were relevant” to the verdict of manslaughter (at para 23). [ 62 ] As stated in Ferguson , “It is speculative and artificial to attribute a single set of factual findings to the jury, unless it is clear that the jury must unanimously have found those facts” (at para 22).

Furthermore, the trial judge was not required to make findings based on the most favourable view of the evidence, which, in this case, would have been the defence of provocation. See, for example, R v Gauthier (1996), 108 CCC (3d) 231 at paras 20-24 (BC CA) . [ 63 ] Therefore, the trial judge made no palpable and overriding error in finding that the accused was intoxicated and she honestly, but mistakenly, believed that Mr. Bird was sexually assaulting her son. These findings are supported by the evidence and are entitled to deference.

So too is his finding that the verdict was based on the rolled-up instruction. [ 64 ] However, in my view, the trial judge erred in his analysis with respect to the accused’s moral blameworthiness after making these findings of fact.

I see two problems with his analysis and they are interrelated: 1) he failed to consider the provocative circumstances captured by the rolled-up instruction; and 2) he failed to address appropriately the Gladue factors present in this case. [ 65 ] The trial judge based his finding of high moral culpability on the nature of the offence, which he appropriately referred to as the “brutality and the degree of violence of the stabbing.” While the nature of the offence was an important factor when assessing the accused’s moral blameworthiness, it was not the only factor that had to be considered.

More was required given the circumstances of intoxication and provocation arising from the rolled-up instruction and given the Gladue factors applicable here.

[66] The provocative circumstances arise from the trial judge’s finding that the accused had an honest but mistaken belief thatMr. Bird was sexually assaulting her son. [67] The Crown acknowledges that there is a provocative element present in these circumstances, but says that it was aquestion of weight for the trial judge. I agree. However, a sentencing judge must consider all the circumstances of the offence,including whether it involved provocation (see R v Stone, (SCC), [1999] 2 SCR 290 at para 234).

While Stone is acase involving provocation under the Code, this principle is instructive for the provocative circumstances that exist in this case. The trialjudge’s error was that he did not address his mind to these circumstances when asssessing the accused’s moral blameworthiness, as heshould have done. [68] The Crown rightly asserts that provocation will not “always involve findings of insignificant moral culpability or that lowrange sentences can be attributed solely to the provocation factor” (Stone at para 248).

However, I do not see the choice here being onlybetween “high” and “insignificant” moral blameworthiness. The question is whether the accused’s moral culpability was reduced in lightof the provocative circumstances of the offence and her personal circumstances. [69] As for the accused’s personal circumstances, the trial judge correctly stated that the Gladue factors were mitigating,however, I see no evidence in his reasoning that he addressed these factors in the context of their impact on the accused’s moralculpability.

Tellingly, he stated they were mitigating after he found the accused’s level of moral culpability was high. [70] A sentencing judge has the statutory duty to consider the unique circumstances of Aboriginal offenders (see section718.2(

e) of the Code; and R v Ipeelee, 2012 SCC 13 at paras 60-61). [71] Systemic and background factors will bear on the culpability of the offender “to the extent that they shed light on his orher level of moral blameworthiness” (Ipeelee at para 73). They do not operate as an excuse or justification for the criminal conduct, butare “mitigating in nature in that they may have played a

part in the aboriginal offender’s conduct” (ibid). Failing to take theseconsiderations into account violates the principle of proportionality, the fundamental principal that the sentence must be proportionate tothe gravity of the offence and the degree of responsibility of the offender (see also para 83). [72] The Gladue factors present here called for such an assessment. The accused’s dysfunctional upbringing of alcohol abuse,sexual abuse and domestic violence provided important context to understand her actions when assessing her moral blameworthiness (seeIpeelee; and R v Pop, 2013 BCCA 160 at para 28).

The failure of the trial judge to do such an assessment was an error in principle. As aresult, deference is not owed to his finding of high moral blameworthiness. [73] The provocative circumstances of the offence, assessed in the context of the Gladue factors pertinent to the accused,attenuates her moral blameworthiness.

However, I would not describe her moral culpability as low, as she asserts, given the brutal andviolent nature of the offence. [74] What, then, is a fit sentence for this offence and this offender? [75] In his reasons, the trial judge highlighted this Court’s decision in Parisian for some of its similarities to the circumstanceshere. I see the distinctions with this case to be more instructive. Parisian involved a medium risk to re-offend, violent, repeat offenderwith some Gladue factors, who stabbed two victims and committed manslaughter and aggravated assault. He received a sentence of 11years.

While both cases involve stabbings, the circumstances of the offences and the offenders are very different and the accused’ssentence should reflect that. [76] The Crown acknowledges that the ten-year sentence was at the high end of the range even with the trial judge’s findingof high moral blameworthiness. [77] In my view, a sentence of seven years reflects the brutality and violence of the offence and its consequences on Mr.

Bird’sfamily, the attenuated moral blameworthiness of the accused and her positive efforts at, and prospects for, rehabilitation. [78] The accused had already served the equivalent of a sentence of four years and approximately two months at the time ofsentencing. Therefore, based on a seven-year sentence, the go-forward sentence at that time would have been two years and ten months. Conclusion [79] As explained, the trial judge erred in principle and the error materially affected the sentence.

A fit sentence is sevenyears’ incarceration. [80] Therefore, I would grant leave to appeal and allow the appeal by quashing the go-forward sentence of five years and tenmonths imposed by the trial judge to be replaced by a go-forward sentence of two years and ten months. All other ancillary orders madeby the trial judge would remain in place. JA I agree: JA

I agree: JA