COURT FILE NO.: CR-21-0050-00 DATE: 2023-06-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING G. Fillmore, for the Crown
- and -
PETER KEEASH G. Joseph, for the Accused Accused
HEARD: April 17, 2023, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons for Sentence
Overview
[1] Following a trial by judge alone, I convicted Peter Keeash of:
a. the second degree murder of Irene Barkman; b. uttering a death threat to Emily Mamakwa; c. uttering a death threat to Troy Keeash; and d. forcibly confining Emily Mamakwa (Trial Reasons: R. v. Keeash, 2022 ONSC 6962).
[2] Section 235(1) of the Criminal Code, R.S.C. 1985, c. 46 requires that Mr. Keeash be sentenced to imprisonment for life for the second degree murder.
[3] What remains to be determined is the period of parole ineligibility and the sentences for the other convictions.
[4] The Crown submits that the period of parole ineligibility should be 18 years, that the sentence for threatening Troy Keeash should be three years, and that the sentence for threatening and unlawfully confining Emily Mamakwa should be four years to be served consecutively but concurrent to the life sentence.
[5] Counsel for Mr. Keeash submits that the period of parole ineligibility should be 12 years and that sentence for the other sentences should be three years concurrent on each of the other charges.
The Facts
Circumstances of the Offence
[6] Although these crimes were committed within a short span of time on October 29, 2018, all were brutal.
[7] Mr. Keeash stabbed his brother’s partner, Irene Barkman, an Indigenous woman, four times in the neck. One stab wound punctured her carotid artery causing her to bleed to death. He also forcibly confined and threatened death to Emily Mamakwa, his 17-year-old Indigenous half-sister, while holding a knife. He also threatened his brother, Troy, with a knife.
[8] All present, except Emily, were intoxicated.
Circumstances of the Offender
The Pre-Sentence Report
[9] To prepare the presentence report the author spoke to Mr. Keeash, his girlfriend, a cousin, a social worker with the Maamawi Counselling Centre and a nurse from the Thunder Bay District Jail.
[10] He admitted, that as a young man in Winnipeg, he was dealing drugs for a street gang. He had used drugs prior to being imprisoned at age 18 and upon his release from custody. He said that most of this time when released from prison was spent using crystal meth.
[11] Prior to this offence, Mr. Keeash was binge drinking, consuming 26 oz/day for one to two weeks at a time, and using other drugs, including intravenous drugs daily when available. It was reported that Mr. Keeash was on a waitlist for treatment. A social worker noted that Mr. Keeash appeared motivated to attend counselling, but only one appointment was completed.
[12] It is suspected that Mr. Keeash suffers from major depressive disorder and antisocial personality disorder. He admits that he has difficulty managing his anger and his physical response when angry.
[13] Despite this, his girlfriend describes him as “a kind and loving individual, who has never been violent toward her.”
[14] The report writer concluded that Mr. Keeash “suffers from unresolved issues resulting from his chaotic and unstable childhood, which appeared to have manifested itself in addictions, aggression, and criminal behaviour.”
The Gladue Report
[15] To prepare the report, the author spoke to Peter Keeash and his mother, Jessie Keeash. It was noted that Mr. Keeash had spent most of his formative years being passed between parents and various locations. His parents abused alcohol and Peter Keeash remembers witnessing his father assault his mother. Mr. Keeash described a “core memory” that his dad spent time in jail for nearly killing his mother.
[16] From about age 14 he lived with his mother in Winnipeg but recalled that his mother was not often around. By 18 he went to penitentiary for committing a robbery.
[17] The Gladue Report writer summarized Mr. Keeash’s circumstances as follows:
Peter, a 30 year-old indigenous man from Weagamow Lake Indian Reserve, has been through a great deal of adverse childhood experiences of trauma that have largely gone unsupported and unaddressed with healthy mechanisms and treatments. These trauma experiences have impacted his development and maturation from childhood, to adolescence and into adulthood. Without intervention he turned to substances to cope. Substance use turned into abuse and escalated to addiction for which he is now being treated with medication called methadone. Medication alone is not enough to treat addiction; Peter needs a therapeutic and supportive environment.
Criminal Record
[18] The following chart summarizes Mr. Keeash’s criminal record:
| Level and Location of Court | Date (mmm-dd-yyy) | Offence(s) | Disposition(s) |
|---|---|---|---|
| Winnipeg, MB | Mar-08-2012 | Break, Enter & Commit Robbery, S. 348(1)(b) cc | 3 years 9 month (15 months PSC) & Mandatory Prohibition Order, S. 109 CC |
| Sep-5-2014 | Statutory Release | ||
| Winnipeg MB | Jan-14-2015 | Unlawfully at Large, S. 145(1)(b) CC | 30 days Consecutive to Sentence being served |
| Feb-02-2015 | Statutory Release Violator | Recommitted | |
| Oct-16-2015 | Statutory Release | ||
| Dec-16-2015 | Statutory Release Violator | Recommitted | |
| Winnipeg MB | Dec-08-2016 | Unlawfully at Large, S. 145(1)(b) CC | 31 days (credit for equivalent of 59 days PSC) |
| Sioux Lookout ON | June-06-2017 | Assault with a Weapon S.267 CC | 10 months |
| Weagamow Lake ON | June-22-2018 | Assault Cause Bodily Harm 2679(b) | 1 day (120 days PSC) |
Statement of Mr. Keeash
[19] Mr. Keeash told the Gladue report writer that: “if it’s true [that I did these things] then I guess I am really sorry. If it is true, then my heart goes out to the family. I feel sympathy and compassion for the family of the victim.”
[20] Mr. Keeash said similar things in court when given the opportunity to address the court but then stated that he did not “do this”. He became angry over what he perceived to be disrespectful comments from someone in the gallery and did not wish to say anything further.
Impact on the Victim and/or Community
[21] Donna Linda Barkman, the mother of the victim, Irene Barkman, her only child, read her victim impact statement to me. She spoke powerfully of the impact that the murder of her daughter has had upon her, Irene’s father, and Irene’s children. She said that they live in sadness now and that she cries every day knowing that Irene’s children will be growing up without their mom. She said that she was told by an Elder to forgive Mr. Keeash so that she can raise Irene’s children without feeling hate. She concluded by saying that she felt sadness for Mr. Keeash.
The Positions of the Crown and the Defence
[22] In submitting that the appropriate period of parole ineligibility should be 18 years the Crown relies upon a number of decisions: R. v. Overby, 2019 MBQB 102, R. v. Paul, 2017 BCSC 2203, R. v. Mucpa, 2022 NUCJ 25, R. v. Okemow, 2020 MBQB 128, and R. v. Candaele, 2022 ABKB 605. These cases involved sentences for second degree murder. Most involved a victim who was an indigenous woman. Some of the victims were domestic partners of their murderers.
[23] The Defence notes that this was not a murder in the context of a domestic relationship but acknowledges that two of the victims were Indigenous women.
General Principles of Sentencing
Applicable provisions of the Criminal Code are:
Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [Underline added.]
The Principles Applicable to Parole Ineligibility Determination
[25] Section 745 (c) of the Criminal Code provides that upon conviction for second degree murder, the offender must be sentenced to life imprisonment, without eligibility for parole for a fixed period from a minimum of 10 years to a maximum of 25 years.
[26] Section 745.4 of the Criminal Code empowers the sentencing judge to increase the parole ineligibility period from the minimum of 10 years to the period that the sentencing judge sees fit in the circumstances, up to a maximum of 25 years.
[27] Whatever minimum period of parole ineligibility I set, it is the Parole Board of Canada that will ultimately determine when parole is appropriate and on what conditions parole should be granted. Regardless of when he is paroled, he remains under the supervision and control of correctional authorities for the rest of his life including being subject to re-incarceration from parole should he breach any conditions or pose a threat to public safety.
[28] In exercising my discretion under s. 745.4 of the Criminal Code, I must consider the character of the offender and the nature of the offence and the circumstances surrounding its commission.
[29] In R. v. Shropshire, [1995] 4 S.C.R. 227, the Supreme Court observed that the determination of the parole ineligibility period is a very fact sensitive process. Unusual circumstances are not required for a sentencing judge to exercise his/her discretionary power to increase the period of parole ineligibility from the 10-year minimum. The Court observed, at para. 29, that in permitting a sliding scale of parole ineligibility, Parliament intended to recognize that within the offence of second-degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability.
[30] In Shropshire, at para. 27, the Court stated the following:
As a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 745.4, the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be “unusual”, although it may well be that, in the median number of cases, a period of 10 years might still be awarded.
[31] When assessing the s. 745.4 criteria and in deciding whether to increase the period of parole ineligibility beyond the 10-year minimum, appropriate weight must also be placed on the fundamental purpose and principles of sentencing and on all relevant objectives of sentencing, as set out in s. 718 of the Criminal Code. (R. v. McKnight, [1999] O.J. No. 1321, R. v. Arashvand, 2012 ONSC 5852, para. 9, R. v. Keene, 2020 ONCA 635, para. 69).
Reasons
[32] Mr. Keeash’s is an Indigenous person. The unique systemic and background factors which bring him before the court, including his mental health and addiction issues at the time of the offences are relevant in determining the level of his moral blameworthiness. (R. v. Ipeelee, 2023 SCC 13 (“Ipeelee”) at para. 73)., but they are not determinative. These are factors that must be considered in the context of all the other relevant factors in determining the appropriate period of parole ineligibility.
[33] The Supreme Court has directed sentencing judges to apply Gladue principles in every case involving an Aboriginal offender, even for the most serious offences. (Ipeelee at para. 84).
[34] As a child, Mr. Keeash witnessed the domestic abuse of his mother. He spent his formative years with little supervision or role modelling. He was physically and sexually abused in his youth. Mr. Keeash was surrounded by alcohol during his childhood, and began drinking at age 10 or 11. He has attempted suicide on several occasions. These are important considerations that I take into account in imposing sentence.
[35] I also consider the fact that Ms. Barkman and Ms. Mamakwa are Indigenous women. This requires me to give primary consideration to the objectives of denunciation and deterrence in imposing sentence.
[36] The cases relied upon by the Crown for the imposition of a period of 18 years of parole ineligibility are not analogous to the circumstances of these offences before me. Mucpa was a case of “near first-degree murder” as it was not an impulsive act. Paul and Candaele involved murders of domestic partners. Okemow and Overby involved situations in which the crime was concealed. None of those factors are present in this case. This was a seemingly single act of rage spurred by anger and fuelled by alcohol. It was Mr. Keeash who called 911 and waited outside until EMS arrived.
[37] I accept, as noted by the authors of the presentence and Gladue reports, and as admitted by Mr. Keeash that he has anger issues. I accept that his Gladue factors no doubt have contributed to or are responsible for his anger and addiction issues, and to some measure mitigate his moral blameworthiness. It is hoped that he may benefit from programming during his lengthy period of imprisonment to address these issues.
[38] In the six years preceding these crimes, Mr. Keeash was imprisoned or unlawfully at large for four years. The most recent offences in 2017 and 2018, preceding these crimes, were serious assaults: assault with a weapon and assault causing bodily harm. These current offences are also serious assaults: forcible confinement, threats to cause death while holding a knife, and, most serious of all, murder. Separation from society is required to protect the public.
[39] The period of parole ineligibility runs from the date of Mr. Keeash’s arrest on October 30, 2018. He has had little in the way of appropriate counselling and rehabilitation over the last four and one half years. A lengthy period of imprisonment will provide opportunities for rehabilitation.
[40] In imposing sentence, I have considered the circumstances of the offence, particularly that two the victims were Indigenous women, and Mr. Keeash’s difficult background.
Sentence
[41] Mr. Keeash, please stand.
[42] Mr. Keeash you have been convicted of second degree murder in relation to the death of Irene Barkman on October 29. 2018. For this offence, I sentence you to life in prison. I further order, pursuant to s. 745.4 of the Criminal Code, that you serve 14 years in custody before being eligible to apply for parole.
[43] You have also been convicted of uttering threats to cause death to and the forcible confinement of Emily Mamakwa and I sentence you to five years imprisonment for these offences to be served concurrently with the other sentences. For the conviction of the threat to cause death to Troy Keeash, I sentence you to imprisonment for three years to be served concurrently with the others sentences.
Ancillary Orders
[44] As a further consequence of your conviction, ancillary orders are mandated by the Criminal Code for these convictions. Pursuant to section 109(1) (a), you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substance for life. Further, you are required to submit a sample of your DNA to the DNA Data Bank pursuant to section 487.051.
[45] Thank you counsel for your helpful submissions.
[46] Thank you Ms. Barkman for sharing your victim impact statement with me.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: June 14, 2023