ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-0034-00
DATE: 2013-12-30
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. S. Frenette for the Crown
- and -
JOSEPH WESLEY
Mr. C. Watkins, for the Accused
Accused
HEARD: November 12, 2013,
at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
Reasons on Sentence
[1] During the evening of August 28th, 2012, in a wooded area in the Inter City area of Thunder Bay, Joseph Wesley aged 33, was involved in a physical altercation with Adam Yellowhead, aged 65. Both gentlemen were severely intoxicated at the time. The altercation led to Mr. Yellowhead’s death. Mr. Wesley pleaded guilty to manslaughter on September 16, 2013.
[2] According to an agreed statement of facts filed by the parties in this matter, Mr. Yellowhead died as the result of a crush injury to the neck. According to a post mortem report referring to Mr. Yellowhead:
“This 65-year-old Aboriginal male died on or about August 29, 2012, as a result of a crush injury to the anterior neck, which fractured his thyroid cartilage and hyoid bone. The resultant interstitial hemorrhages compromised his airway, but it was not completely obstructed.
Since the airway was not obstructed, it is possible that the pressure responsible for the fractures was maintained long enough to block the airway and cause asphyxia.
It is not clear what type of object was used to apply pressure to the anterior neck, since the abrasions on the skin of the neck do not fit a particular pattern.
The fresh contusions of the face and head indicate that he received several other blows, in addition to the lethal trauma to the neck.
The small cuts on the right hand may have been due to a physical altercation.
Cause of Death:
Immediate cause of death and antecedent causes:
Asphyxial due to or as the consequence of crush injury to the larynx due to or as the consequence of strangulation.
Significant conditions contributing to death but not casually related to immediate cause:
Elevated blood alcohol level (310 mg/100 ml blood), blunt force head injury”.
[3] Following Mr. Yellowhead’s death, at around 1 am in the morning of August 29th, 2012, Mr. Wesley was found asleep on a bench in front of the local movie theatre. The Emergency Services personnel attending noted a strong odor of Listerine on Mr. Wesley’s breath, he had slurred speech and was unsteady on his feet. He was placed under arrest for the safety of himself and the public.
[4] The next morning Mr. Wesley returned to the scene of the crime. He had left his blue and red jacket there. However by the time he arrived, so had the police. Mr. Wesley did not make himself known to the police at that time.
[5] What he did do, was go to visit a relation’s apartment about 3 kilometers away. While there, he appeared to be sweating and scared. He confessed to killing Mr. Yellowhead. That same day he also telephoned other relatives to tell them about his crime. These relatives did not keep the secret. They did the right thing. They called the police. A warrant was issued for Mr. Wesley’s arrest. He was arrested in Kenora in the afternoon of August 31, 2012.
[6] There was both a Gladue and Pre-Sentence Report prepared in respect of this matter. There were what I consider to be small technical amendments that were required to be made to these reports and they were done on the face of the documents, during submissions on consent. They were confirmed today. Both these reports relate the aboriginal background and circumstances of Mr. Wesley as required by section 718 of the Criminal Code of Canada, and discussed in the decision of the Supreme Court of Canada in R v. Gladue 1999 679 (SCC), [1999] 1 S.C.R. 688 and revisited recently by the Supreme Court of Canada’s decision in R v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. In the reports filed, there was a discussion of Mr. Wesley’s background as well as useful information concerning Cat Lake First Nation, the aboriginal community where Mr. Wesley was raised.
[7] Quoting directly from the presentence report; “Cat Lake is a remote northern community which is accessible by air and winter road only. The people of Cat Lake have suffered from the impact of various government policies and practices and the aftermath of the residential school legacy”. Cat Lake suffers many problems. The most significant of which is extreme levels of poverty. This poverty has spawned a high risk environment where the residents suffer physical and sexual violence and experience the damaging effects of rampant substance abuse. Life was very difficult for Mr. Wesley growing up in Cat Lake.
[8] Mr. Wesley is now 34 years old. He had what can be best described as a horrific childhood. His mother died when he was seven. He was placed in foster care and experienced what he described as “torture” for some four years. This included beatings, being deprived of food and other amenities and being forced to have sex with his other foster siblings. He now has no contact with his father who is reported to have a significant substance abuse problem. Mr. Wesley’s family is regarded as the “lowest class family” on the Cat Lake First Nation reserve.
[9] Mr. Wesley’s educational record is spotty. He finished grade 8. Apparently he did not progress any further. He had a great deal of difficulty with school. Mr. Wesley reports he was teased for “being slow minded”. Throughout both reports filed in this matter are references to cognitive difficulties being experienced by Mr. Wesley. He is reported to be illiterate in both Ojibway and English. References were also made to the possibility that Mr. Wesley has Fetal Alcohol Syndrome although no medical evidence was put forward verifying this diagnosis.
[10] There were virtually no references in either report or in the submissions of counsel about any employment history or experiences of Mr. Wesley. It appears he has never had steady work.
[11] There were many references to the fact that Mr. Wesley is a chronic substance abuser. He has been so assessed by the Ontario disability support pension program.
[12] Mr. Wesley has lived a transient life. He has lived in Sioux Lookout, Thunder Bay and Dryden. At the time of the offence it appears he could be best described as “homeless”. Mr. Wesley has a criminal record. The record is not short and involves a number of convictions for uttering threats, assault, and aggravated assault. The most recent assault conviction was in June 2010. His record also includes 22 charges of breach of probation or fail to comply with an undertaking. This matter, regrettably, represents the most serious charge ever faced by Mr. Wesley.
[13] Mr. Wesley abused alcohol during his early teens. He has also abused solvents, cocaine and cannabis. Despite being enrolled a number of times in substance abuse programing, Mr. Wesley has not been able to successfully complete any of these programs. No doubt his difficulties with literacy and cognitive impairments are a barrier to his success. His record indicates that he has had little success with community supervision orders.
[14] This crime has had a significant impact on Mr. Yellowhead’s family. Three victim impact statements were provided to the Court. Mr. Yellowhead’s death followed very closely after the death of his wife. Therefore in a very short period of time, the lives of his immediate family members were overtaken by a great sense of loss and devastated by the untimely end of their father. They now experience feelings of fear for their personal safety and cannot comprehend how this happened. They have required counselling to deal with their grief.
[15] Mr. Wesley has pleaded guilty to a charge of manslaughter pursuant to section 236 of the Code. As no weapon was involved there is no minimum sentence for this offence. The maximum punishment for this offence is life imprisonment.
[16] The Crown submits that the appropriate sentence in this case is a term of imprisonment of 10 to 12 years, less time served, and time served is to be calculated at 1 to 1 to September 16th, 2013 and then at the rate of 1.5 to 1 until today’s date.
[17] The Crown acknowledges the case law in manslaughter matters varies widely as to sentence. However the Crown argues that this is a crime of violence, and involved not a momentary but a prolonged application of force by a young healthy man to an elderly man whose body was wracked by cancer. Although Mr. Wesley could not have known that Mr. Yellowhead was suffering from colon cancer, Mr. Yellowhead had lost 60 to 80 pounds in the 5 months prior to his death. He was at a distinct disadvantage during the altercation with obvious tragic results.
[18] The Crown takes exception to the argument that Mr. Wesley did a great deal to assist the police in solving the crime. Counsel argues that without the good citizenship demonstrated by members of Mr. Wesley’s family, the crime might have remained unsolved to this day. A frail aboriginal elder has died violently. A significant penitentiary sentence is necessary to both denounce and deter.
[19] The defence agrees this is a circumstance that requires a period of incarceration but argues for a sentence at the lower end of the range, specifically 3 to 6 years. Mr. Wesley has shown remorse. He has entered a plea. He suffers from significant cognitive deficits. He was raised in an environment where the legacy of colonialism and the effects of the residential school experience has led to dysfunction, poverty and a lack of hope. Within his own community his family is ridiculed. Mr. Wesley has a significant problem with substance abuse. He claims he did not intend to harm Mr. Yellowhead. His response of fleeing the city following the incident was motivated by fear and confusion rather than an attempt to cover up. The defence argues a reformatory sentence is sufficient to denounce and deter. There are opportunities for rehabilitation in the provincial reformatory system that may be of assistance to Mr. Wesley. He wants to receive any program of treatment that may be available in a provincial institution.
[20] Both the Crown and the defence rely on the decision of the Supreme Court of Canada in R v. Gladue. In particular the defence argues Gladue principles militate in favour of a custodial sentence in a range significantly less than that proposed by the Crown.
[21] In this matter, in my view, there a number of mitigating and aggravating factors. Mr. Wesley’s upbringing, his apparent cognitive difficulties, his acknowledgement of his guilt and his expression of remorse to the Court and to Mr. Yellowhead’s family represents mitigating factors. Aggravating this situation is the violent nature by which Mr. Yellowhead died and the significant negative impact the commission of this offence has had on Mr. Yellowhead’s family.
[22] In this case, I am mindful of the sentencing principles contained in sections 718.1 and 718.2 of the Code. Also I have considered the native background of Mr. Wesley and the information contained in the Pre-Sentence Report and the Gladue report concerning conditions Mr. Wesley has experienced growing up in Cat Lake. I have taken into account the principles articulated by the Supreme Court in R v. Gladue and R. v. Ipeelee. In particular, the comments of the Court regarding the necessity that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. At paragraph 37 of Ipeelee the Court said as follows:
“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 impositions 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 81 (SCC), [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, give 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”.
[23] Also I have taken judicial notice of the various factors articulated in Ipeelee which were set out at paragraph 60 as follows:
“[C]ourts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal offenders. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel”.
[24] In this matter, I am persuaded that a sentence that falls between the two ranges proposed by the respective parties is appropriate. Mr. Wesley exhibits many of the very specific tragic results of the errors of the past as articulated in Ipelee. His personal life is a shambles. He has not had a stable long term family experience. He abuses substances and solvents in particular. Although it was not referred to in the submissions of counsel, the Gladue report in this matter indicates Mr. Wesley has been subjected to additional personal ridicule as the result of some indiscreet comments which may have made by others involved with this case. There was insufficient evidence provided to me on this point such that no further comment is warranted other than to say, there has been huge collateral damage as the result of a very bad short term decision of Mr. Wesley.
[25] I recognize that the factors in Gladue suggest that alternative approaches to penalty be considered. In this case both counsel proposed a period of incarceration. The issue between them was, for how long, and upon what conditions. An aboriginal elder is dead. A family devastated. A person for whom community supervision orders have failed is again before the Court, this time on the most serious of charges. Both the presentence report and the Gladue report indicate appropriate facilities to assist in Mr. Wesley’s rehabilitation exist in the Federal system.
[26] Taking all of this into account, in my view, a fit and just sentence is a period of eight years incarceration, less time served as proposed by the Crown. There will be a DNA order pursuant to section 487.05(1). Further Mr. Wesley shall be prohibited from possessing or owning firearms for life pursuant to the provisions of section 109 of the Criminal Code.
“Original Signed By”
The Hon. Mr. Justice F. Bruce Fitzpatrick
Released: December 30th , 2013
COURT FILE NO.: CR-13-0034-00
DATE: 2013-12-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JOSEPH WESLEY
Accused
REASONS ON SENTENCE
Fitzpatrick J.
Released: December 30th, 2013
/nf