Court File and Parties

DATE: 2024·09·17 COURT FILE No.: 998 23 70000974 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

ROBERT CROPEAREDWOLF

Before: Justice David Porter Reasons for Sentence Released on: September 17, 2024

Counsel: M. Scott and T. Curley....................................................................... Counsel for the Crown T. Rodocker...................................................................................... Counsel for the Accused

Porter J.:

Introduction

[1] On May 9, 2024, Mr. Cropearedwolf entered a plea of guilty to an information charging that on or about the 24th of January, 2023 he did unlawfully cause the death of Douglas Michael Finlay, and thereby commit manslaughter contrary to s. 236 of the Criminal Code of Canada.

[2] The salient agreed facts supporting the plea were as follows:

On Tuesday January 24, 2023 at 3:30 p.m., Toronto Police communications received a 911 call for an assault outside of 777 Danforth Avenue in the city of Toronto. The victim, Michael Finlay, had been walking westbound on Danforth Avenue and observed Mr. Cropearedwolf walking eastbound on Danforth Avenue holding what appeared to be a red flame mask, with a Spitfire logo, over his face. There was a small group of people outside of 777 Danforth Ave., and as Mr. Cropearedwolf walked through the group of people, he pushed or shoved Mr. Finlay. As a result, Mr. Finlay fell into a large wooden planter on the sidewalk, hitting his rib cage area, and then fell to the ground. Mr. Cropearedwolf fled southbound through a lane way. Bystanders assisted Mr. Finlay onto a bench beside the planter and called 911.

Toronto Fire arrived on scene first and spoke to Mr. Finlay. He declined medical assistance. Police officers subsequently arrived on scene and were advised by Toronto Fire that Mr. Finlay had left. Officers located Mr. Finlay a short distance away and observed him to be in distress and transported him to Michael Garron Hospital where he was admitted. He was diagnosed with two fractured ribs and a pneumothorax. He was discharged from the hospital at 3:30 p.m. on January 26, 2023 with instructions to re-attend if his symptoms worsened. At 6:30 p.m., Mr. Finlay was having trouble breathing and called 911 from his home. EMS attended at Mr. Finlay’s home and transported Mr. Finlay back to Michael Garron Hospital. En route Mr. Finlay went into cardiac arrest and CPR was performed. Upon arrival at the hospital, he was placed on life support. On January 31, 2023, life support measures were discontinued as Mr. Finlay was determined to be brain dead, and he was pronounced deceased.

[3] On February 1, 2023, a post-mortem examination was completed by Dr. Jayantha Herath and Dr Kimberley Hamilton. The forensic pathology report concluded as follows:

“The preliminary cause of death was blunt force chest trauma in a man with atherosclerotic and hypertensive heart disease and chronic obstructive pulmonary disease. The severity of chest trauma identified at the time of autopsy was, to a degree, very unlikely to be fatal in a completely healthy individual. It was fatal in the context of this man’s significant cardiac and pulmonary disease (predominantly his atherosclerotic and hypertensive heart disease and his COPD). The mechanism of death could be due to a recurrence of the pneumothorax due to blunt chest trauma. Also, the mechanism of death, in this case, could be an arrhythmia induced by the complications of blunt force chest trauma (i.e., decreased oxygenation following a pneumothorax and increased cardiac demand in response to trauma and pain) in the context of a medically fragile heart (i.e., already prone to cardiac arrhythmia) and lungs with a chronically reduced ability to oxygenate blood. We cannot completely exclude that the pneumothorax was exacerbated by the active resuscitation measures.”

[4] Police investigation identified Mr. Finlay’s assailant as Robert Robin Cropearedwolf. A search warrant was obtained for his residence and was executed on February 2, 2023. Mr. Cropearedwolf left the jurisdiction at that time and then returned on February 28, 2023. He turned himself in to police at 52 Division and was placed under arrest.

[5] On the sentencing hearing, the Crown filed a video from Danforth Avenue which captured the assault that resulted in Mr. Finlay’s death, albeit with some obstruction, and at a distance.

[6] Mr. Cropearedwolf also filed an affidavit, which was not challenged by the Crown setting out his recollection of how the assault occurred. He stated in paragraphs 4, 9 and 10 as follows:

“…. I was walking with a newly-purchased decal held up to my face, obscuring my vision. It was not, however, my intention to bump, collide, or worse with anyone while walking along the sidewalk with the decal over my face …

As I walked along Danforth, I had a shopping bag in my left hand, weighed down by the day’s purchase: a pair of shoes. In my right hand, I held the decal up to my face, catching glimpses of the path in front of me while maintaining the mask to my face. Suddenly, a person was immediately in front of me. I twisted my torso to the right trying to achieve an open angle to pass him without contact and, with my right hand still holding the mask, I pushed outwards towards that person. My left arm, which was closer to him than my right, remained at my side.

I pushed him, the back of my right hand making contact with his upper body. I did not calculate any degree of force in making contact with him. I had no animosity towards him; I had no prior knowledge of this stranger. I made contact with him abruptly. Seeing him stumble caused me to panic.”

[7] This account was not challenged by the Crown. While aspects of the event are obscured in the video, the video is generally consistent with Mr. Cropearedwolf’s account.

[8] Based on all the evidence, I make the following additional findings of fact:

1. Mr. Cropearedwolf intentionally pushed or shoved Mr. Finlay, causing him to fall and strike a large wooden planter box beside the sidewalk;

2. Before assaulting, Mr. Finlay in this way Mr. Cropearedwolf had no opportunity to see or know that Mr. Finlay was elderly and vulnerable due to his underlying health condition. This was not a deliberate attack on an elderly man. As Crown counsel points out, Mr. Cropearedwolf’s unawareness of the age and frailty of his victim was due to Mr. Cropearedwolf’s recklessness in walking down a busy sidewalk with a mask over his face that obscured his view. As the Crown submits, he was not in any position to ensure that if he shoved someone causing them to fall, it was not an elderly frail person. I accept this submission. Nevertheless, I also find that Mr. Cropearedwolf was unaware when he pushed or shoved Mr. Finlay that he was elderly and frail. The video of the interaction confirms that the assault happened quickly with no meaningful opportunity for Mr. Cropearedwolf to be aware of the characteristics of the person he shoved;

3. The force used in the assault was at the low end of the spectrum of the application of force found in assaults. The agreed facts confirm that, in a young healthy person, without Mr. Finlay’s underlying health conditions it may have caused bodily harm, but “was very unlikely to be fatal in a completely healthy individual.” In my opinion, while bodily harm was objectively foreseeable from this assault, death was not, and I accept that Mr. Cropearedwolf did not intend to harm Mr. Finlay in this assault.

4. I find that Mr. Cropearedwolf is truly remorseful for having caused Mr. Finlay’s death. He apologized to Mr. Finlay’s family in his affidavit, and in his statement to the court. He stated in para. 11 of his affidavit:

   “…in the time which has passed since that day, I have grappled with my irresponsibility and the recklessness which caused Mr. Finlay’s death. I have no greater regret”.

The Gladue Factors

[9] Mr. Cropearedwolf is Indigenous. He was born April 3, 1979, and was therefore 43 years old at the time of the offence.

[10] The Court received as an exhibit on sentencing a Gladue Report dated June 12, 2019 documenting Mr. Cropearedwolf’s Indigenous heritage and the significant circumstances of disadvantage of his early childhood.

[11] As noted in the Gladue Report, Mr. Cropearedwolf is an Aboriginal person as defined by section 35 of the Constitution Act 1982. He is registered as a “Status Indian” under the Indian Act from the Kainai Blood Tribe of Southern Alberta.

[12] As summarized in the Gladue report, Mr. Cropearedwolf’s mother Sheila “Molly” One Spot was Sarcee and registered to the Tssu T’ina First Nation. His father is Robert Brazeau who is Indigenous from Saskatchewan and may be Plains Cree or Métis. Robert Cropearedwolf Sr. was not involved in Mr. Cropearedwolf’s life at all. According to Mr. Cropearedwolf, his father had another family and only met Mr. Cropearedwolf once as a child.

[13] Mr. Cropearedwolf has two older sisters Shirley Cropearedwolf, aged 53, and Faye Cropearedwolf aged 51. Mr. Cropearedwolf indicated to the Gladue report writer that he did not grow up in the same household as his sisters and, at the time of the report, had not spoken to his sisters for 15 years. Shirley Cropearedwolf reported to the writer that she had met Mr. Cropearedwolf once when he was a child and had not seen him since.

[14] According to the Gladue report, Mr. Cropearedwolf’s mother Molly had an addiction to alcohol. She drank heavily during the third trimester of her pregnancy with Mr. Cropearedwolf (Gladue Report, p.16). She died in 2006 from cirrhosis of the liver when she was 56 years old. For the last 10 years of her life until 2006, she was homeless and panhandled in Calgary.

[15] When Mr. Cropearedwolf was born in Calgary on April 3, 1979, his mother Molly was a single mother. He was placed in the care of Calgary Children’s Services from around 1980 when he was a toddler until the age of 18. He moved frequently from emergency foster homes, temporary foster homes and group homes as a child. (Gladue Report, p.7).

[16] According to the Gladue report, Mr. Cropearedwolf became a permanent ward at the age of 6½. He worked with a psychologist Dr Terry Pezzot-Pearce for about 12 years. She described Mr. Cropearedwolf as having had a “chaotic and rough life”. While his mother Molly visited from time to time, her visits were “unpredictable” according to Dr. Pezzo-Pearce. (Gladue Report, p. 8).

[17] The report summarizes information from Dr. Pezzot-Pearce about the trauma experienced by Mr. Cropearedwolf as a child, in his relationship with his mother. Dr. Pezzot-Pearce stated at p. 9:

“When I first started to see him, he was quite out of control in the foster home. Stealing at school and at home. He was really struggling. When I saw him, he was starting Grade 1 in September. With me he was intense, pseudo-mature and had a sophisticated vocabulary. He was very aware and a sensitive kid. It was hard for him to see her [his mother] drink. He described her as ‘loving with me when I’m not with her, but not loving me when I’m with her’.

He was in and out of care from what I understood, because of the mom and foster parents. At Molly’s decision, she got overwhelmed and put him in care. She had a terrible drinking problem. She was involved in a number of relationships, and the years that I saw Robert, she would get terribly beaten up. Robert was in a knot if she was going to die from drinking and abuse, it was violent. He was quite upset by it. I think he did a lot of care taking of Molly.”

[18] The Gladue report states at p. 9:

“Over the 12 years of their sessions, part of Dr. Pezzot-Pearce’s role was to engage with Molly to help Robert develop an understanding of his relationship to his mother as he moved to adoptive placement. Dr. Pezzot-Pearce said she met with Robert individually then Molly started to join the sessions. Initially the visits were good, Molly would show up when she said she was coming. During those visits Molly would ignore Robert and wanted to talk to Dr. Pezzot-Pearce which was upsetting for Robert. Dr. Pezzot-Pearce said Robert’s role was the “caretaker” for Molly and he would make excuses for her behaviour and was “taking all responsibility for her”. Eventually Robert was able to vocalize his feelings and would “call out Molly’s behaviour” which was a huge step for him.

Robert does not recall at what age he started to vocalize his feelings to his mother. Dr. Pezzot-Pearce recalls a session in February 1987 when Robert was eight years old; he was able to tell his mother that he was worried about the abuse from her partners. Dr. Pezzot-Pearce said Robert was always fearful about his mother dying from the violence.”

[19] At pp. 15-16 the report states:

“Dr. Pezzot-Pearce said every six months Robert was placed in a new foster home after Molly placed him in care. When Molly did not attend scheduled visits, Robert would get upset, his behaviour would escalate by becoming aggressive with others, he would cry easily and started stealing. While at school, Robert did not want to learn and when he was reprimanded he would shut down. When Molly did attend visits, Robert would get very excited. Dr. Pezzot-Pearce said visits with Molly were infrequent and she would often not show for the visits and the foster parents stopped telling Robert when they were scheduled.”

[20] The Gladue report states that upon learning of his mother’s death in 2006, Mr. Cropearedwolf increased his drug use, which had previously involved principally the use of marijuana and he began consuming heroin, MDMA, ecstasy and cocaine. He acknowledged to the author of the Gladue report his addiction to alcohol and drugs, but claimed that he had overcome these addictions.

[21] Counsel filed a letter from Kieran Boggs, a cousin of Mr. Cropearedwolf, in which Mr. Boggs stated:

“Robert is my cousin he was adopted into my family before I was born by my late grandmother Linda One Spot. I have known him for my entire life of 33 years over the last 15 years we have maintained regular contact, and in 2016, Robert was my roommate for a year.

Robert had a difficult childhood, having been placed into the Catholic residential school system, where he endured many years of various forms of abuse. This traumatic experience led to substance abuse later in life and subsequent legal troubles. His challenges have made it difficult for him to find steady employment, often pushing him into a life of crime as a means of survival.

Despite these hardships, Robert is an intelligent and compassionate person. He frequently puts others before himself and is always quick to lend a hand to anyone in need. He has consistently supported his family and friends, demonstrating his willingness to go out of his way to help those around him.

During his incarceration I have maintained regular communication with Robert. He has expressed deep remorse and sadness for the charges he faces. I firmly believe he would never intentionally harm another person. Throughout his life he has shown a preference for resolving conflicts through words, logic, and reason rather than through confrontation or violence.”

The Criminal Record

[22] Mr. Cropearedwolf has a lengthy criminal record spanning 29 years from August 24, 1995 to February 8, 2024. He has committed criminal offences in both Canada and the United States. The vast majority of his offences are property related, including break and enter, possession of property obtained by crime, numerous burglary convictions in the United States, and more recently numerous break-and-enter convictions in Toronto in 2019 and three convictions for break and enter on February 8, 2024 in Toronto. In 2014, he received a sentence in Illinois of eight years imprisonment for numerous residential burglary offences.

[23] He has a small number of convictions for crimes of violence. In 1999, he was convicted of assault with a weapon in Calgary. In 2010 and 2013, he was convicted in California for inflicting corporal injury on a spouse, and in 2012, he was convicted in California of battery on a school employee.

[24] In total, his prior criminal record consists of approximately 65 convictions in Canada and the United States, principally for property offences such as burglary, break and enter and theft.

Pre-Sentence Custody

[25] Mr. Cropearedwolf had 268 real days of pre-sentence custody on the date of sentencing submissions on July 15, 2024. Since that date, he has accumulated a further 64 days of actual pre-sentence custody for a total of 332 actual days, which results in enhanced pre-sentence custody credit of 332 x 1.5 = 498 days or approximately 16.6 months.

[26] Of his 268 days of actual pre-sentence custody, he was subject to lockdowns for 188 of those days in the period ending June 30,2024. Of the 188 days of lockdowns,151 were for the whole day starting at 8 a.m., and 37 were for part of the day. The vast majority of the lockdowns were caused by staff shortages.

[27] As Justice Forestell notes in R. v. Gayle, 2020 ONSC 5238 at para. 13:

“During lockdowns inmates are locked in their cells with their cellmates. There is no privacy, including while using the toilet.”

Mr. Cropearedwolf has sworn to the difficult conditions of his incarceration resulting from the frequent lockdowns he experienced, ironically due to the fact that fewer staff were utilized on Tier 4 where he was incarcerated at the Toronto South Detention Centre, an area designated for compliant and trouble-free inmates.

[28] The Court of Appeal has instructed in R. v. Marshall, 2021 ONCA 344 that the harshness of pre-trial detention is a mitigating factor in the overall determination of a fit sentence.

[29] In R. v. Marshall, supra, Doherty J.A., stated for the Court at paras. 50-53:

“A “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan, 2020 ONCA 279.

It is also important to appreciate and maintain the clear distinction between the “Summers” credit and the “Duncan” credit. The “Summers” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “Summers” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “Summers” credit is statutorily capped at 1.5:1. It is wrong to think of the “Summers” credit as a mitigating factor. It would be equally wrong to deny or limit the “Summers” credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.

The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. …”

The Principles of Sentencing

The Applicable Sentencing Principles

[30] The general principles of sentencing are established in the following provisions of the Criminal Code. Section 718 states:

“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 acknowledgement of the harm done to victims or to the community”

[31] Section 718.2 states:

“A court that imposes a sentence shall also take into consideration the following principles:

( a ) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, ….

( b ) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

( c ) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

( d ) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

( e ) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

[32] The fundamental principle of sentencing is the principle of proportionality. Section 718.1 of the Criminal Code states that a sentence, “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

[33] In R. v. Ipeelee, 2012 SCC 13, LeBel, J. summarized the principle of proportionality as follows at para. 37:

“The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.”

Rehabilitation

[34] While it is clear that denunciation and general and specific deterrence are the par-amount considerations in sentencing an accused in relation to manslaughter, the rehabilitation of the accused must always be considered as one of the principles of sentencing. Indeed, as noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at para. 4:

“One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.”

Sentencing for Manslaughter

[35] As noted by Justice Forestell in R. v. Gayle, supra, at para. 25:

“Deterrence and denunciation are generally the dominant sentencing objectives in sentencing for manslaughter.”

[36] The offence of manslaughter, punishable by up to a sentence of life imprisonment, reflects the principle that, notwithstanding the same moral fault of the offender, the consequence of the act, namely the death of the victim, makes the offence a serious offence. As Justice McLachlin states in R. v. Creighton, [1993] 3 S.C. R. 3, at pp. 54-55:

“Consequences can be important. As Sopinka J. put it in R. v. DeSousa (at pp. 966-67):

“No principle of fundamental justice prevents Parliament from treating crimes with certain consequences as more serious than crimes which lack those consequences …

Conduct may fortuitously result in more or less serious consequences depending on the circumstances in which the consequences arise. The same act of assault may injure one person but not another. The implicit rationale of the law in this area is that it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused. This is reflected in the creation of higher maximum penalties for offences with more serious consequences. Courts and legislators acknowledge the harm actually caused by concluding that in otherwise equal cases a more serious consequence will dictate a more serious response.”

[37] However, as McLachlin J. has noted in the Supreme Court of Canada decision in R. v. Creighton, supra, at p. 48:

“Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. This court acknowledged this in Martineau, at p.647:

The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the moral blameworthiness of the offender”.

Gladue Principles

[38] In R. v. Ipeelee, supra, at paras 56-57 the Court considered the enactment of s.718.2 (e) of the Criminal Code and its previous decision in R. v. Gladue and stated:

“Section 718.2 ( e ) of the Criminal Code directs that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders ”. This provision was introduced into the Code as part of the 1996 Bill C-41 amendments to codify the purpose and principles of sentencing. According to the then-Minister of Justice, Allan Rock, “the reason we referred specifically there to aboriginal persons is that they are sadly overrepresented in the prison populations of Canada” (House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 62, 1st Sess., 35th Parl., November 17, 1994, at p. 15).

Aboriginal persons were sadly overrepresented indeed. Government figures from 1988 indicated that Aboriginal persons accounted for 10 percent of federal prison inmates, while making up only 2 percent of the national population.”

[39] The Court stated in paras. 58-59 of R. v. Ipeelee, supra:

“The overrepresentation of Aboriginal people in the Canadian criminal justice system was the impetus for including the specific reference to Aboriginal people in s. 718.2 ( e ). It was not at all clear, however, what exactly the provision required or how it would affect the sentencing of Aboriginal offenders. In 1999, this Court had the opportunity to address these questions in Gladue. Cory and Iacobucci J.J., writing for the unanimous Court, reviewed the statistics and concluded, at para. 64:

These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2 ( e ), intended to attempt to redress this social problem to some degree. The provision may properly be seen as Parliament’s 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.

The Court held, therefore, that s. 718.2( e ) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Section 718.2( e ) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (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 (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84).”

[40] In its decision in R. v. Ipeelee, at para. 75, the Court addressed directly the criticism that Gladue principles and s. 718.2 (e) amounted to a race-based sentencing discount for Indigenous offenders. The Court stated:

“Section 718.2( e ) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has been, and continues to be, the fundamental duty of a sentencing judge. Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2( e ) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process.”

[41] In R. v. Ipeelee, supra, the Court stressed the importance of the individualized sentencing of Aboriginal offenders required by s.718.2 (e) of the Criminal Code. The Majority stated at para. 87:

“The sentencing judge has a statutory duty, imposed by s. 718.2 ( e ) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, … and a failure to do so constitutes an error justifying appellate intervention.”

Victim Impact

[42] The court received a victim impact statement from Paul Knox, a friend of Michael Finlay for over 50 years. Mr. Knox is an elderly person with a physical disability. He spoke of the fear the death of Michael Finlay has caused him to experience about the risk of random physical attacks on frail elderly people in Toronto in the course of going about their daily business. His statement highlights the harm to the public caused by random attacks of violence committed against innocent unsuspecting members of our community.

[43] The court also received from the Crown the following statement from Mr. Finlay’s brother, James Andrew Finlay, urging lenience in the sentencing of Mr. Cropearedwolf:

“Although I believe Mr. Cropearedwolf’s assault to have been a reckless and cruel act of elder abuse and although it has deprived me of my dear brother Michael, I do not believe that it was the assailant’s intention to kill Michael. Additionally my understanding is that Mr. Cropearedwolf has spent more than a year in prison since his apprehension. Were I his judge, I would not inflict further punishment upon him. I thank you for taking into consideration my point of view and wish you well in your deliberations.”

The Position of the Parties

[44] The Crown submits that a custodial sentence in the range of 6 to 8 years, less credit for pre-sentence custody is the appropriate sentence in this case. The Crown emphasizes the lengthy criminal record of Mr. Cropearedwolf, including the fact that when he committed this offence he was on release orders in relation to break-and-enter charges in Toronto for which he was subsequently convicted on February 8, 2024. The Crown submits that the lengthy criminal record of Mr. Cropearedwolf requires a sentence emphasizing specific deterrence, and the protection of the public, noting that his criminal record includes several prior offences involving assault and domestic partner assault.

[45] The defence submission is that Mr. Cropearedwolf is in a time served position, since as of September 17 he will have served the equivalent of a 16-month sentence on an enhanced credit basis. The defence stresses the minor nature of the underlying assault which caused Mr. Finlay’s death, noting that this was a push, not a punch, and that this offence is an instance of manslaughter which is “near accident”, rather than “near murder”. The defence submits that, based on the pre-sentence custody, a suspended sentence and probation would be appropriate for a period of three years.

[46] Given the unique circumstances of this offence, and this offender, the cases cited by counsel are of only limited assistance in determining the fit sentence in this case as virtually each one is distinguishable from the case at bar.

[47] The Crown relies on R. v. Bushby, 2021 ONSC 4082 in which the accused, who was 18 years of age, had been drinking heavily, and was engaged in driving around Thunder Bay yelling at sex workers. He was in possession of a heavy trailer hitch with the stated intention of throwing it through the window of an acquaintance. Rather than doing this, he threw the trailer hitch at an Indigenous woman walking by the side of the road, resulting in her death. Upon the trailer hitch hitting the Indigenous victim, he stated “Yeah I got one of them.” He was convicted of manslaughter after a trial. He was sentenced to 8 years less one month of pre-trial custody.

[48] I find this case of limited assistance as the underlying act of Mr. Bushby was far more egregious than the push engaged in by Mr. Cropearedwolf. The statement of Mr. Bushby “Yeah I got one of them” after striking an Indigenous woman with a heavy trailer hitch by throwing it at her, makes the case far closer to “near murder”, with misogynistic overtones, than the case at bar: See R. v. Bushby, supra, at paras. 172-174. Accordingly, I find it of limited assistance.

[49] The Crown also relies upon the sentencing decision in R. v. Finlayson, 2021 ONSC 529, in which an Indigenous offender with a criminal record of 80 convictions, including 23 assaults, was sentenced to eight years for manslaughter. The court notes at paragraph six that “in the three years prior to this offence, Mr. Finlayson was convicted of assault three times and most recently assault causing bodily harm for which he received a 10-month sentence”.

[50] In my opinion, the facts of this case are distinguishable from the case at bar in that, at paragraph three, the sentencing judge notes that he was satisfied beyond a reasonable doubt that Mr. Finlayson meant to cause serious bodily harm to the victim based on the force he used in his attack. As the court was not satisfied that the intention for murder was made out, the facts supported a conviction for manslaughter. The underlying offence in this case, which the court concluded was meant to cause serious bodily harm, is far more serious than the simple push or shove committed by Mr. Cropearedwolf which I am satisfied was not intended by Mr. Cropearedwolf to cause serious bodily harm to Mr. Finlay.

[51] The Crown also relies on the decision of the Ontario Court of Appeal in R. v. Garrison, [1999] O.J. No. 3782, in which the Court of Appeal reduced a 14-year sentence to a 10-year sentence after a jury trial in which the accused was convicted. The Court of Appeal stated at para. 7:

“It was the Crown’s theory at trial that the appellant encountered Mr. Croft on the street, and upon seeing him, old and somewhat inebriated, grabbed him by the lapels, and threw or pushed him to the ground causing him to strike his head. The appellant then went through Mr. Croft’s pockets and stole his wallet which included his credit card.”

[52] The offender in that case was not Indigenous, had a significant prior record for 24 offences of violence, and after assaulting the victim, stole his property, and was convicted after trial.

[53] In reducing the 14-year sentence to a 10-year sentence, the Court of Appeal referred to the fact that the accused had a criminal record of 80 offences, 24 of which were offences of violence, and that this was a deliberate attack on a clearly vulnerable person.

[54] In my opinion, the case is distinguishable on the basis that the non-Indigenous accused in that case clearly targeted the vulnerable victim, robbed him after pushing or shoving him to the ground, had an extensive record of 24 prior convictions for violence, and did not have the mitigating effect of a guilty plea.

[55] Finally, the Crown relies on the decision of Justice Forestell in R. v. Gayle, 2020 ONSC 5238 in which Mr. Gayle, a 48-year old man diagnosed with schizophrenia plead guilty to manslaughter. The facts of the case were that Mr. Gayle had been banned from a bar and, when he attended there, he was asked to leave. He became upset and stood in the doorway and when the victim approached the door to leave, they had a verbal exchange. The victim, who was 61 years old and a frail cancer survivor, walked with a cane. He raised his cane to his waist with both hands and Mr. Gayle punched him in the face with a closed fist causing him to fall backwards. The victim hit his head on the floor, lost consciousness and died several days later.

[56] Mr. Gayle had 74 previous criminal convictions including 19 convictions for cases involved violence including a conviction for aggravated assault, three convictions for robbery, one conviction for assault resist arrest, three convictions for assault police and 11 convictions for simple assault between 2001 and 2017. He was non-compliant with the medication prescribed for his schizophrenia, had not had stable housing for 20 years, and had had no contact with his family for the last 10 years.

[57] Justice Forestell imposed a sentence of seven years, taking into account the disadvantaged background of Mr. Gayle, the fact that he was homeless, uneducated, unemployed, mentally ill and an addict that he had no family support. She stated at paragraph 38:

“It is clear that the circumstances of the offence and the circumstances of Mr. Gayle call for a significant penitentiary term. Although Mr. Gayle struck only one blow, that blow was directed at a vulnerable victim. I accept that Mr. Gayle acted impulsively but I also must consider the evidence that Mr. Gayle has a long history of impulsive violent acts.”

[58] In contrast with R. v. Gayle is the decision of Justice Forestell in R. v. Clarke, 2023 ONSC 347, in which Justice Forestell sentenced Mr. Clarke, a black man with Metis heritage, to 28 months less pre-sentence custody for manslaughter. Mr. Clarke assaulted the victim by punching him in the head. He fell backwards, hit his head, lost consciousness and died. The punch was preceded by a brief conversation. The victim showed no signs of aggression or hostility.

[59] An enhanced pre-sentence report addressed Mr. Clarke’s background as a young black man and the Aboriginal Healing Project detailed Mr. Clarke’s substantial efforts at rehabilitation. He was 46 years old at the time of the offence.

[60] In a statement equally applicable to the case at bar, Justice Forestell stated at paragraph 5:

“Offences of random violence on our streets … have an impact on the community as a whole, making members of the community feel unsafe walking the streets of this city.”

[61] At the time of the commission of the offence, Mr. Clarke was abusing alcohol, cocaine, and MDMA. He had been sober for four years by the date of sentencing. He had a substantial criminal record including offences of trafficking in substances and robberies. He was sentenced for robberies in early 2008, trafficking in later 2008, fail to comply with probation 2009, but remained offence free until an offence of assault causing bodily harm and theft shortly before the manslaughter for which he was being sentenced. At the time of the sentencing, he lived with his mother, for whom he was a caregiver. He had volunteered for work at the Salvation Army and at Anishnawbe Health as a firekeeper. Justice Forestell found, at para. 18:

“It is clear from the material before me from his community that Mr. Clarke has fully committed himself to changing his life”.

[62] While noting that circumstances place the case at the lower end of the spectrum of moral blameworthiness, since Mr. Clarke struck the victim only once, Justice Forestell noted the profoundly serious consequences of the offence. She noted that Mr. Clarke had a background as a boxer, and struck the victim without warning with considerable force, leaving the victim lying on the ground. She noted his criminal record with convictions for offences of violence, and the fact that he was on release for an offence of assault causing bodily harm at the time of the offence.

[63] Justice Forestell accepted that Gladue factors applied, and that systemic factors shaped Mr. Clark’s life in that his family was impoverished, displaced and he struggled with substance abuse. She noted that the background and circumstances of Mr. Clarke as a black man with Indigenous heritage provided context for Mr. Clarke’s offending conduct She also noted at para. 40 Mr. Clarke’s significant recovery and rehabilitation which he had achieved with the assistance of his community.

[64] In imposing a sentence of 28 months, less pre-sentence custody, Justice Forestell stated at para. 48-49:

“This was a random and violent attack on a stranger by an offender with a record for violence. Without the significant rehabilitative steps taken by Mr. Clarke and the Gladue factors at play, this offence committed by an offender with Mr. Clarke’s criminal history, would have demanded a sentence in the 4 to 5 year range. The sentence that I will impose in this case is one that falls well below that range because of the unique circumstances of Mr. Clarke …. I am satisfied that Mr. Clarke’s exceptional commitment to rehabilitation and the involvement of his Indigenous community in that rehabilitative process justify an exceptional sentence.”

[65] In light of the harsh pre-sentence custody, served and subsequent restrictive conditions of release, Justice Forestell reduced a 30-month sentence to 28 months, less pre-sentence custody.

[66] The defence relies upon the decision of Justice Leroy in R. v. Louie McDonald, 2018 ONSC 4275, in which a 39-year-old Indigenous man was convicted after trial of manslaughter based on criminal negligence causing the death of two persons who he transported across the St. Lawrence River on a Seadoo which was undersized for the cargo, had no lifejackets, or accessible flotation devices, and neither of the men transported who ultimately drowned could swim.

[67] The court accepted that Gladue factors applied to the sentencing of Mr. McDonald. He had 4 prior criminal convictions in 2008, 2009, 2010 and 2014, had a solid network of family support, a reasonable work history, and as a result of his offences had sought stronger connection with his Indigenous heritage due to the trauma of the death of the two men in this offence. The Gladue report documented the severe impact of the policies of assimilation on his community and the court noted at paragraph 16 “the influence of Gladue factors on Mr. McDonald’s life are real”.

[68] At paragraph 54, Justice Leroy stated:

“The Gladue offering influenced my thinking and the result in this sentence. But for concern for failing to satisfy the objectives of denunciation and deterrence required by the Criminal Code, I would agree with the community position. Indigenous inmates do not thrive in prison. We are concerned for the disproportionate Indigenous prison population and restraint is required ….

In all the circumstances I conclude that after credit of four months and five days pretrial custody … The fit and proper sentence in respect the two manslaughter convictions is imprisonment for 13 months and 25 days followed by probation”.

[69] The defence also relies upon the decision of the British Columbia Supreme Court in R. v. Huth, 2014 BCSC 570, in which a 24-year-old accused who had been drinking struck the victim with a single blow to the head which rendered the victim unconscious. The victim fell backwards and struck his head and died a few hours later. After a trial, the accused was convicted of manslaughter. He was 24, with no criminal record, history of gainful employment and a person of otherwise good character. He had been drinking at the time of the offence, and since the offence, he had stopped consuming alcohol or drugs.

[70] To give appropriate effect to the principles of general deterrence and denunciation a sentence of two years less a day plus 3 years of probation was imposed.

[71] In R. v. Johnny a 28-year-old Indigenous offender with no prior criminal record was sentenced to six months imprisonment and three years probation after a plea of guilty to a charge of manslaughter. The circumstances of the offence were that Mr. Johnny saw the victim kissing his domestic partner in a car after they had all been drinking at a party. Mr. Johnny punched the victim once, knocking him down. The victim died of his injuries. The Court noted at para. 17:

“In the case under appeal the circumstances of the events show that the blow by which the appellant caused Landrie’s death cannot be characterized as close to accidental or careless. The appellant had started to walk away from the deceased but changed his mind and ran towards the deceased and punched him and knocked him down.”

[72] The court accepted that Mr. Johnny had a previously unblemished record, and general good behaviour in the community, but held that the principle of general deterrence required a jail sentence and upheld the 6-month sentence imposed at trial.

Analysis

[73] In the case at bar, the mitigating circumstances include the following:

1. Mr. Cropearedwolf entered a plea of guilty to the offence of manslaughter. His plea was an indication of remorse and saved court time. I also accept the defence submission that it was a significant admission on the part of Mr. Cropearedwolf as, without the admission of guilt, there was a legitimate triable issue of whether the push or shove committed by Mr. Cropearedwolf was an intentional act, or merely reflexive or accidental. In this context, the plea of guilty is significantly mitigating.
2. As previously stated, I find that Mr. Cropearedwolf was unaware of the vulnerability of Mr. Finlay, and did not push or shove him based on his age or vulnerability. This was not a deliberate assault on a person known to be elderly and vulnerable. Rather it was a deliberate push or shove of a person unknown to Mr. Cropearedwolf, who, because he was holding the mask up at the time, had no opportunity to observe Mr. Finlay before pushing him. He acted intentionally, in pushing or shoving Mr. Finlay, and was reckless with respect to the status of his victim as an elderly frail man, but I accept that he did not push Mr. Finlay with any intention to harm him or cause his death.

[74] In his statement to the court, and in his affidavit Mr. Cropearedwolf showed that he is truly remorseful for committing this offence.

[75] The aggravating circumstances include the following:

The offence of manslaughter involves the death of another person. It is therefore a serious offence requiring a sentence reflecting the principles of denunciation and general deterrence.

The victim in this case was, in fact, extremely vulnerable, and the assault occurred without regard to its potential consequences to a vulnerable victim, who was simply going about his daily business walking along a sidewalk in Toronto and was entitled to live his life without being the subject of a random assault by anyone, let alone one that had such tragic consequences for Mr. Finlay and for the community at large.

Mr. Cropearedwolf has lived a life of crime, having committed 65 criminal offences in Canada and the United States, mostly crimes of dishonesty involving theft and burglary, but with several crimes involving assault including assaults of intimate partners. He does not, however, have numerous prior convictions for serious offences of violence as are found in some of the sentencing cases referred to by counsel.

[76] Furthermore, the Gladue report engages Gladue factors in understanding the tragic personal circumstances in Mr. Cropearedwolf’s early life including the dislocation, lack of a stable family connection, and lack of a stable home as he moved from foster home to foster home, lacking connection to his Indigenous heritage. I accept that he experienced serious trauma in his relationship with his alcoholic mother, who had an inconsistent and damaging presence in his life. He was in foster care in numerous non-Indigenous foster homes throughout his childhood. Upon the death of his mother he sought refuge in drugs and alcohol.

[77] I find that the circumstances of emotional deprivation that dominated his early life are important Gladue factors that must be considered in assessing the significance of Mr. Cropearedwolf’s extensive criminal record. In short, the aggravating fact of his extensive criminal record is attenuated, to some extent, by the Gladue factors, which require the criminal record to be understood in the context of the trauma, abuse, lack of connection to his family and Indigenous heritage documented in the report.

[78] I adopt Justice Forestell’s statement in R. v. Clarke, supra, as applicable in this case when she stated at para. 22:

[79] “Denunciation and deterrence are generally the predominant sentencing objectives in sentencing for manslaughter. The killing of another person by committing an unlawful act must be strongly denounced by society. However, rehabilitation remains a relevant consideration. As Chief Justice Wagner wrote in R. v. Bissonette, “The objective of rehabilitation is intimately linked to human dignity in that it reflects the conviction that all individuals carry within themselves the capacity to reform and re-enter society”.

[80] As previously noted, s. 718.2 (e) specifically requires that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”. Without the robust application of this principle to Aboriginal offenders, traumatized by their life experience of deprivation and disadvantage, Canada will continue to experience the disproportionate incarceration of Indigenous persons which s.718.2 (e) was enacted to prevent.

[81] The sentence in this case must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s.718.1 Criminal Code. It should also be similar to sentences imposed on similar offenders for similar offences in similar circumstances: s.718.2 (b).

[82] While general and specific deterrence and denunciation are the primary sentencing principles for manslaughter, restraint is important as is assisting in the rehabilitation of the offender.

[83] Of the authorities referred to by counsel, I have found the greatest assistance from Justice Forestell’s decision in R. v. Clarke. Compared to Mr. Clarke, Mr. Cropearedwolf has a longer more extensive criminal record, but the underlying unlawful act (a push or shove) rather than a punch to the head is significantly less serious and therefore at the lower end of moral culpability as the tragic result of death is less likely from a push or shove than from a punch to the head.

[84] Mr. Cropearedwolf’s criminal record is much longer than Mr. Clarke’s but is characterized by mostly property offences and fewer crimes of violence than Mr. Clarke’s. On the other hand, Mr. Clarke had more fully engaged in rehabilitative efforts than Mr. Cropearedwolf, who I am satisfied is remorseful and determined to reform but has not, as yet, accessed Indigenous or other rehabilitative resources.

[85] In my opinion, the fit sentence that is proportionate to the gravity of the offence and Mr. Cropearedwolf’s degree of responsibility for it is a custodial sentence of 3 years, or, 1095 days (less pre-sentence custody), applying all applicable sentencing principles including denunciation, general and specific deterrence, rehabilitation, restraint, the application of Gladue principles and the significant mitigating impact of the 188 days of lockdowns and harsh pre-sentence incarceration pursuant to R. v. Marshall, supra.

[86] The pre-sentence custody of 332 days is entitled to an enhanced credit of 498 days pursuant to R. v. Summers. The sentence left to be served is therefore 1095 - 498 days = 597 days, or approximately 20 months

[87] As the sentence to be served is in the reformatory range, I will impose a period of probation of 3 years with terms including the following:

[88] Report in person within 2 days of your release from custody and thereafter as required:

Take such assessments and counselling as directed by your probation officer, including for substance abuse and personal trauma;

Sign releases to permit your probation officer to monitor your compliance with any counselling ordered;

Perform 180 hours of community service, to be completed in the first 18 months of your probation period;

Make reasonable efforts to obtain and maintain employment.

[89] I have concluded that this is the sentence that is proportionate to the gravity of the offence and the degree of responsibility of Mr. Cropearedwolf.

[90] By completing a period of probation, including a requirement of counselling for substance abuse, and his personal history of trauma, I am hopeful that Mr. Cropearedwolf’s rehabilitation will be facilitated.

[91] I have also required him to perform substantial community service, to assist him in “providing reparations for the harm caused to the community by his offence” to further one of the objectives of sentencing in s.718 (e).

[92] I have ordered Mr. Cropearedwolf to make reasonable efforts to seek and maintain employment to assist him in his reintegration into society, and to assist in his rehabilitation. It is my hope that this will also promote in Mr. Cropearedwolf a sense of responsibility to the community at large, a further objective of sentencing established in s.718 (f) of the Criminal Code.

[93] As requested by the Crown, I order that Mr. Cropearedwolf provide a DNA sample today pursuant to s. 487.051 of the Criminal Code as manslaughter is a primary designated offence pursuant to s. 487.04 of the Criminal Code.

[94] I also order that Mr. Cropearedwolf is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance for life pursuant to s.109 of the Criminal Code.

[95] I welcome submissions from counsel on any additional terms that may be appropriately included in the probation order to facilitate Mr. Cropearedwolf’s rehabilitation.

[96] I thank counsel for their assistance in this matter.

Released: September 17, 2024 Justice David M. Porter