CITATION: R. v. Wabasse 2017 ONSC 1269
COURT FILE NO.: CR-15-0028
DATE: 2017-02-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Mr. Kozak for the Crown
- and -
Randel Carson Abel Wabasse
Mr. Joseph for the Accused
Accused
HEARD: February 22, 2017, at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
Reasons on Sentence
[1] Shortly after 4:00 a.m. in the early morning of May 14, 2014, the accused Randel Carson Abel Wabasse together with another person attended at an apartment complex at 122 South Cumberland in Thunder Bay. Adam Nicodemus Beaver lived at the apartment building. Mr. Wabasse was not an invited guest. Video cameras captured the entirety of the interactions between Mr. Beaver and Mr. Wabasse as they occurred in the public areas of the apartment complex. The video was played on this sentencing hearing.
[2] Mr. Beaver came down to let the other person in the building. It appears from the video Mr. Wabasse was not welcome. Mr. Beaver literally showed Mr. Wabasse the door. An altercation then occurred between Mr. Beaver and Mr. Wabasse. Mr. Wabasse did not leave and instead assaulted Mr. Beaver. Mr. Wabasse was 23 years old and Mr. Beaver was 46 years old at the time. The attack seemed to surprise Mr. Beaver and Mr. Wabasse quickly obtained the upper hand. The video showed Mr. Wabasse largely on the offence during the fight. Mr. Wabasse then used Mr. Beaver’s keys to enter the building. Mr. Beaver followed the other two into the lobby where there were elevators. While waiting for the elevator, Mr. Wabasse continued his assault on Mr. Beaver. It was a particularly vicious and prolonged assault. Mr. Wabasse used his fists and, once he had Mr. Beaver on the ground rendered a “stomp” to either Mr. Beaver’s chest or head. From the video Mr. Beaver appeared to be rendered unconscious.
[3] Mr. Wabasse then dragged Mr. Beaver on to the elevator and took him upstairs. Mr. Wabasse then dragged Mr. Beaver out of the elevator and in to his apartment. Mr. Wabasse and the other person remained in the apartment for another four hours. Finally, the other person called her mother to advise that Mr. Beaver had been severely beaten. Police attended at the apartment and found Mr. Beaver on the floor in a pool of blood, “vital signs absent.” Mr. Wabasse and the other person were found in a bedroom closet hiding behind a mattress.
[4] A postmortem examination report was filed as an exhibit on this sentencing hearing. The report dated August 14, 2014, of Dr. N.G. Escott, a Pathologist, found that Mr. Beaver died of multiple internal injuries due to the consequences of multiple blunt force injuries to the head and torso.
[5] Mr. Wabasse pleaded guilty to the offence of manslaughter today.
[6] The parties filed an agreed statement of facts on this sentencing. I have relied on these facts as the basis for my decision as to sentence. In addition, the parties have agreed that I find Mr. Wabasse to be a dangerous offender within the meaning of section 753 of the Criminal Code. Further, they have agreed that he will be subject to a determined sentence, set out below. Following the service of this sentence, Mr. Wabasse will be subject to a Long Term Supervision order for a period of ten years. The terms of the supervision order were set out in a report of a forensic psychiatrist Mark Pearce, dated March 1, 2016, filed by the Crown on this sentencing hearing. The terms were agreed by the parties and were incorporated in the long term supervision order.
[7] A Gladue Report and an updated Gladue Report were filed in respect of this matter. These reports relate the Aboriginal background and circumstances of Mr. Wabasse 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 CanLII 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. Wabasse’s background as well as useful information concerning Webequie First Nation, the indigenous community where Mr. Wabasse was raised. The updated report discloses some important revelations about Mr. Wabasse’s personal background which was a factor I have considered in crafting a just and appropriate sentence.
[8] Mr. Wabasse is now 26 years old. He had what can be best described as a horrific childhood. His parents’ relationship was tumultuous and violent. He grew up in poverty. His educational experience was not positive. He reports being bullied by teachers while at elementary school in Webequie. He was sexually abused between the ages of nine and eleven. He was placed in foster care when he was twelve. He came in to contact with the criminal justice system when he was fourteen. He fathered a child before he turned eighteen. He has had virtually no contact with his daughter as the result of his criminal activity.
[9] Mr. Wabasse’s educational record is spotty. He reported finishing grade nine. I could not determine from the materials if he progressed any further. He has never maintained gainful employment other than “labour here and there, a couple of times.”
[10] There were many references to the fact that Mr. Wabasse is a chronic abuser of alcohol. The fact that he has been found to be a dangerous offender speaks to the nature of his criminal record and his penchant for assaulting others. He has been involved with gangs. However, there is no suggestion that the offence here is gang related.
[11] The crime has had a significant impact on Mr. Beaver’s family. Recently, another member of their family died while in custody followed shortly thereafter by another death of a family member in a motor vehicle accident while she was coming to make funeral arrangements for the family member who had died while in the Thunder Bay district jail. These tragedies have otherwise occupied the family members and made it difficult for them to prepare formal victim impact statements. The Crown submitted and I readily accept that the senseless death of Mr. Beaver has had a significant impact on his family.
[12] Mr. Wabasse 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.
[13] The Crown submits that the appropriate sentence in this case is a term of imprisonment of 10 years, less time served, and time served is to be calculated at the rate of 1 to 1.5. The parties agree Mr. Wabasse should be credited for four years of time served to today’s date.
[14] 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, as readily evidenced from the video of the assault. It involved not a momentary but a prolonged application of force by a younger man to an older man who after all, was standing in the environs of his home. It is clear from the video Mr. Wabasse was the aggressor.
[15] The Crown urges that a significant penitentiary sentence is necessary to both denounce and deter this senseless act of violence. The Crown submits a number of sentencing authorities in support of its position.
[16] The defence agrees this is a circumstance that requires a period of incarceration. In light of the agreement to the dangerous offender designation, a penitentiary sentence is necessary to allow Mr. Wabasse to avail himself of programing that will assist in his rehabilitation. The defence submits a sentence of six years less time served is just and fit in the circumstances.
[17] The defence points to the fact Mr. Wabasse has shown genuine remorse. He has entered a plea. He has not had an easy life. It is hardly surprising he has ended up in this position today. He has come to some understanding of what his actions have meant to the Beaver family. Recently he has started a new relationship with a person who appears to want to stand by him. The defence argues a six year sentence is sufficient to denounce and deter.
[18] Both the Crown and the defence rely on the decision of the Supreme Court of Canada in R. v. Gladue. Far too often these principles are referred to in sentencing submissions in this part of the Province.
[19] In this matter, in my view, there a number of mitigating and aggravating factors. Mr. Wabasse’s upbringing, his acknowledgement of his guilt and his expression of remorse to the Court and to Mr. Beaver’s family represents mitigating factors. Aggravating this situation is violent nature by which Mr. Beaver died and the significant negative impact the commission of this offence has had on Mr. Beaver’s family.
[20] In this case, I have been directed by both counsel to, and I am mindful of, the sentencing principles contained in sections 718.1 and 718.2 of the Code. Also, I have considered the Indigenous background of Mr. Wabasse and the information contained in the Gladue report concerning conditions Mr. Wabasse has experienced growing up in Webequie. 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 CanLII 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.
[21] 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.
[22] In this matter, I am persuaded that a sentence that falls between the two specific sentences proposed by the respective parties is appropriate. Mr. Wabasse exhibits many of the very specific tragic results of the errors of the past as articulated in Ipeelee. His personal life has been difficult. He has not had a stable long term family experience. He abuses alcohol. He is a violent person
[23] 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 in a penitentiary. The issue between them was simply for how long. The designation of Mr. Wabasse as a dangerous offender will both protect the community and assist in the rehabilitation of Mr. Wabasse as the result of him being subject to a long term supervision order. The Gladue report speaks to appropriate programing that should be made available to assist in Mr. Wabasse’s rehabilitation.
[24] I have considered the authorities submitted by the Crown and the defence. I prefer the authorities submitted by the Crown as in my view they more closely reflect the circumstances presented here. For example two of the authorities submitted by the defence, R. v. Stoney, Rae and R. v. Sakanee and Mishene were circumstances of joint submissions. I acknowledge that the decisions of R. v. Emond, R. v. Brizard, and R. v. Jack involved Indigenous offenders convicted of manslaughter. However, all of these offenders were sentenced to time less than is globally proposed by the defence. They are also somewhat dated.
[25] The decision of the Court of Appeal in R. v. MacFarlane was focused on the issue of calculation of presentence custody. The sentence on appeal was one the trial Crown had asked for and the sentencing judge had imposed. Admittedly it was at the low end of the range. The R. v. Ryle decision by Justice Spivak of the Manitoba Court of Queen’s Bench dealt with a gang killing in prison. The jurisprudence relied upon in that decision were other cases involving serious offences or homicides committed by inmates. I am not persuaded that is an apt comparison here. The decision of Justice Stach in R. v. Sakakeep involved a first time offender and is distinguishable on that basis.
[26] While clearly there is no such thing as a uniform sentence for a particular crime, sentencing should take in to account contemporaneous sentences for similar types of offences. In that regard perhaps it is not a coincidence that the most recent contested sentencing decision that was placed before me by the Crown, was the matter of R. v. Wesley decided in December 2013.
[27] Taking all of this into account, in my view, a fit and just sentence is a period of eight years incarceration, less time served of four years. Accordingly, Mr. Wabasse will serve a further four years in jail from today’s date. I have previously pronounced the finding that Mr. Wabasse is to be designated a dangerous offender. Upon the completion of his sentence he will be subject to a Long Term Supervision Order upon terms previously agreed. There will be a DNA order pursuant to section 487.05(1). Further, Mr. Wabasse shall be prohibited from possessing or owing firearms for life pursuant to the provisions of section 109 of the Criminal Code. He may be exempt from this provision if he wishes to exercise his treaty or constitutional right to hunt or fish.
[28] The victim impact surcharge of $200 is imposed. It shall be payable on or before May 22, 2021.
_______”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: February 22, 2017
CITATION: R. v. Wabasse 2017 ONSC 1269
COURT FILE NO.: CR-15-0028
DATE: 2017-02-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
Randel Carson Abel Wabasse
Accused
REASONS ON SENTENCE
Fitzpatrick J.
Released: February 22, 2017
/sab