Court Information

Ontario Court of Justice

Date: 2015-11-20

Court File No.: Pickle Lake, Ontario 1541 998 150699 00

Parties

Between:

Her Majesty the Queen

— And —

Janet Masakayash

Judicial Officer and Counsel

Before: Justice Peter T. Bishop

Heard on: October 8, 2015

Reasons for Judgment released on: November 20, 2015

Counsel:

• Peter Keen, counsel for the Crown
• Greg Brodsky, counsel for the defendant Janet Masakayash

BISHOP J.:

BACKGROUND

[1] Janet Masakayash was charged on or about March 7, 2014 with committing second degree murder on Frank Lawson (aka Kwandibens) contrary to Section 235 of the Criminal Code of Canada.

[2] On October 8, 2015 at the beginning of the preliminary hearing Ms. Masakayash plead guilty to one count of manslaughter on Frank Lawson (aka Kwandibens) contrary to Section 236(b) of the Criminal Code.

[3] The Crown and the defense filed a statement of agreed facts which outlined as follows:

1. The drinking party had been running at Bernard Keetash's house at 10 Houses, Mishkeegogamang for two days. Over twenty bottles of Kelly's wine had been brought to the residence and various party goers brought more alcohol. At approximately 5:00 p.m. there were many people in the residence both in the small living room and in Bernard Keetash's bedroom.

2. There is no reported history of problems between Frank Lawson and Janet Masakayash. Both of them on March 7, 2015 were at the drinking party together. Both had been consuming alcohol. Frank's blood alcohol concentration at the time of death was 266 milligrams of alcohol in 100 millilitres of blood. Janet Masakayash had been drinking, but was not intoxicated.

3. Janet Masakayash was carrying a knife, a pointed paring knife with approximately a 6 centimetre blade. She had advised that she had been carrying it for the purpose of cutting up moose meat. There was moose meat in Bernard Keetash's residence that day.

4. At approximately 5:00 p.m., Janet Masakayash and Franklin Kwandibens were in Bernard Keetash's bedroom. Janet Masakayash had a bottle of Kelly's wine. Franklin asked for a shot from the bottle and Janet refused to give him a shot. An eye witness indicated that Franklin then got up in her face and that he was intense. Franklin then pushed or elbowed Janet with one hand knocking her onto the floor or onto the bed in the room.

5. Witnesses state that Janet Masakayash immediately stood up fast and stabbed Franklin in the chest. One witness thought that she had punched him and another saw Janet stab him. Janet Masakayash told the police that "he knocked me down and I retaliated…I got up as fast as I can pulled the knife out of my pocket, and hit him with it in the centre of his chest" not exact quotes. She told one witness that she was hit, over reacted to it, and didn't have time to think about what she doing. The knife was then sticking out of Franklin Kwandibens chest.

6. Janet Masakayash immediately regretted this act and immediately left the residence. A number of people in the residence began yelling and screaming, one of whom yelled at Janet "why did you have to pull that knife on him?" Witnesses indicate that from this point on there is a great deal of yelling screaming and hysteria in the residence.

7. Franklin went out of the bedroom. Someone outside of the bedroom asked how he felt, he said "I'm okay". He also said that Janet had stabbed him. He then pulled the knife out of his chest. He then quickly became quite dizzy, collapsed and lost consciousness. Individuals in the residence then began trying to perform C.P.R. on him. The autopsy revealed that the knife had penetrated a chamber in his heart. This injury while not immediately disabling him would have caused his death very quickly. He could not have been saved by any medical treatment.

8. When Ms. Masakayash left the residence, she went to the house next door and told the people in there, including her sister and said she stabbed Mr. Lawson and she was going to call the police. She then called the O.P.P. Communications Centre and told the 911 call taker what she had done. She asked that an ambulance be called she then phoned the nursing station and advised them of what she had done. She wanted an ambulance to be called quick. She told several individuals that she had "fucked up" and that she was going to turn herself into the police.

9. Ms. Masakayash also attempted to burn clothing that linked her to the offence, burning a jacket and shoes. She removed this clothing, changed and put the clothing into a wood stove.

10. The account of the events given by Janet Masakayash is essentially the same as the account provided by the eye witnesses.

11. Police came to the scene in a police pick-up truck. As they were driving up Ms. Masakayash waved at them and told them that she was "over here". The officers did not realize at that time what her role was. They focused on Mr. Lawson taking over C.P.R. The officers transported Mr. Lawson to the nursing station in the back of the pick-up truck, performing C.P.R as they went. They did this because it would have taken some time for an ambulance to arrive. When Mr. Lawson arrived at the nursing station he was treated immediately, but it was apparent that he was deceased. He was pronounced dead shortly afterwards.

12. Ms. Masakayash was arrested and was show-caused out of the community and provided a full confession to the Ontario Provincial Police, repeating what she had already stated on the 911 call and to the other witnesses.

13. Proving what occurred in this matter would not have been a difficult task for the Crown. On reviewing all of the materials, it was apparent in that this is case a murder reduced to manslaughter by reason of provocation.

14. After making the admissions Ms. Masakayash asked Ester Bottle to keep her unborn child as she is going to be away in jail for long time.

GLADUE CONSIDERATIONS

[4] I have reviewed the case of R v Ipeelee, 2012 SCC 13 and R v Gladue, [1999] 1 S.C.R. 688.

[5] In that case the Supreme Court of Canada stated when sentencing an Aboriginal offender the judge must consider the factors outlined in R v Gladue, [1999] 1 S.C.R. 688 including:

(a) The unique systemic background factors which may have played a part in bringing the particular Aboriginal offender before the court, 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.

[6] Systemic and background factors may vary the culpability of the offender to some extent that they shed light on his or her level of moral blameworthiness. Failing to take these circumstances into account would violate the fundamental principal of sentencing…that the sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.

[7] A Gladue Report contains case specific information tailored to the specific circumstances to the Aboriginal offender. And further; a Gladue Report is an indispensable sentencing tool provided to the sentencing hearing for an Aboriginal offender to allow the Judge in fulfil his or her duties under Section 718(2e) of the Criminal Code.

[8] In this case the Crown and the defense agree that no presentence or Gladue report is required and they are capable of making and addressing those considerations.

[9] Both counsel are very experienced and have been involved in defending and prosecuting many Aboriginal offenders. Both the Crown and the defense outlined the Gladue considerations relating to Ms. Masakayash summarized as follows:

1. Ms. Masakayash has lived her whole life in the remote First Nations community of Osnaburgh now known as Mishkeegogamang.

2. She was neglected by both parents who were alcoholics.

3. She was raised by her grandparents.

4. Her father Richard McKay is alive but her mother Janet Masakayash is deceased.

5. Ms. Masakayash was abused by a family member and has attempted suicide on several occasions.

6. There is no place to go in Mishkeegogamang for those who have experienced physical or sexual abuse.

7. Her two former partners both beat her up continuously. She experienced despair and had no place to go to escape.

8. Her thought process was that her only option at times was suicide and she slashed her wrist and stabbed herself in the neck and has experienced overdoses with respect to alcohol consumption. She has compartmentalized her abuse.

9. Her solutions to the abuse in her situation were attempts to kill herself.

10. She has attended for alcohol counselling in St. Rose, Manitoba on a voluntary basis for a number of weeks.

11. She has lost the custodial care of her children being placed with others and is prepared to attend a treatment program to have them returned to her.

12. She has modest formal education and has only been involved in educational schooling when sober. She has attained a grade nine level with homeschooling and is working on her grade ten.

13. She started drinking at age eleven and attended the Christian Church and has also attended sweat lodges.

14. She has experienced a great deal of violence in her family and in her community and one of her partners nearly killed her by lodging an axe in the wall next to her head barely missing her.

POSITION OF THE CROWN

[10] The Crown has filed several cases with respect to an appropriate sentence. Both the Crown and the defense submit that the range should be six years to eight years custody, less time served.

[11] The Crown opines that his casebook of authorities is more appropriate as the facts in those cases deal with aggravation as a mitigating factor with all single stab wound cases where murder was reduced to manslaughter. Some of the cases deal with Aboriginal offenders and others do not.

[12] The Chief and Council have shown leadership in bringing in professional counselors to deal with this event and had filed Victim Impact Statements both with the community and individuals. There have been repeated tragic losses in Mishkeegogamang often fueled by substance abuse which has resulted in death.

[13] The Crown concedes that there is reduced moral blameworthiness because there is a real loss to the community.

[14] It has been the experience of this Court, presiding in many remote communities, that the majority of community members want to forgive and move on with the exception in this case MaryAnne Kwandibens who is very angry and upset and not forgiving.

[15] The Crown has summarized the aggravating factors with respect to Janet Masakayash as follows:

(a) She was armed with a weapon but her possession of the paring knife was not for defense but rather for cutting up moose meat. There was moose meat in the premises. This cuts both ways and cannot, in the courts mind, be considered as aggravating.

(b) There was provocation but Ms. Masakayash's response outweighed the push or the shove to the ground at the hands of the deceased.

(c) She has four old convictions; one for aggravated assault, one for assault simplictor and two for assault with a weapon.

(d) The impact of this assault weighs heavily on the community.

(e) There was low-end provocation.

(f) She burned her clothes to destroy evidence.

[16] The Crown concedes that there are mitigating factors as follows:

(a) She has been arrested for public intoxication in 2009 and 2011 but by-and-large she has not been regularly before the court.

(b) She has expressed remorse and immediately called an ambulance and the police and confessed to what she had done. She turned herself in.

(c) She was pregnant at the time which may have contributed to her reaction in inflicting one stab wound. She did not tell the police that she was pregnant but that is not unusual as many individuals do not tell the police everything. It is noted that she, upon arrest, called Ester Bottle to try and arrange for her to look after her unborn child.

[17] The sentencing of this Aboriginal offender has to be concomitant to the harm done to the victim and the community. The Crown submits that a lengthy prison term should be at the higher end of the range after taking into account the Gladue factors.

[18] I must compliment the Chief and Council for the efforts that they have made to bring closure to this tragic event.

[19] I agree that the suggested range of between six and eight years is appropriate in these circumstances.

[20] Sentencing is specific to the accused.

[21] Ms. Masakayash's situation demonstrates all of the Gladue considerations as she herself has been the victim of both sexual and physical abuse. The degree of violence that exists in Mishkeegogamang is greater than many of the Aboriginal communities that I have served as a Northern Circuit Judge in the last twenty years. At one time, court used to sit in Pickle Lake to serve Mishkeegogamang once a month or every six weeks. Now, court sits regularly every two weeks and other occasions in Pickle Lake.

[22] On October 8, 2015 the Court suggested that sentencing take place in Mishkeegogamang as there were approximately sixty (60) individuals to observe the proceedings. The Crown, the defense and Chief Connie Gray-McKay agreed to that recommendation.

[23] The Crown then received communication from Chief Connie Gray-McKay and forwarded an email to the court on October 27, 2015 indicating that the Chief and Council and other members of the community had great concerns about the safety of individuals attending in court in Mishkeegogamang for this sentencing. For those reasons, the court directed that sentencing take place in Pickle Lake. This fact in itself demonstrates another dysfunction and a Gladue factor which must be addressed in the disposition for Ms. Masakayash. If the general public and band leadership have concerns about safety, this raises a concern about safety for this accused, and the court itself in adjudicating cases there.

[24] The accused immediately after the stabbing thought of her circumstances relating to her unborn child and made efforts to phone Ester Bottle to take care of that child as she knew that she would be incarcerated. She gave birth to that child while in custody which is another mitigating factor and Gladue consideration which this court experiences from time to time. Ms. Masakayash has been both the victim and perpetrator of violence which is unfortunately is reflective of Mishkeegogamang itself. Mishkeegogamang is dysfunctional with respect to alcohol and substance abuse and exhibits a degree of violence, clan rivalry and gang violence which is nothing less than endemic. There are very few internal resources except the continued and concerned leadership of the Chief Connie Grey-McKay and the elected Council.

[25] Ms. Masakayash overreacted to the push to the ground. The fact that she was pregnant at the time of the assault on her and her reaction which resulted in the death of Mr. Lawson and her giving birth to a child while in custody is extremely mitigating.

[26] I am of the view that because of the Gladue considerations and the facts in this case the lower end of the range is appropriate and I sentence Ms. Masakayash to six years in prison less the time served which on an increased, enhanced level is approximately twelve (12) months. So in these circumstances from today's date forward this sentence will be five (5) years in the penitentiary.

Released: November 20, 2015

Signed: "Justice Peter T. Bishop"