CITATION: R. v. Spence & Debassige, 2017 ONSC 4749
COURT FILE NO.: CR-15-0014-00
DATE: 2017-08-04
SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
HER MAJESTY THE QUEEN
R. Kozak, for the Crown
- and -
MONICA SPENCE & DANIEL DEBASSIGE
C. Watkins, for Monica Spence F. Thatcher, for Daniel Debassige
Accused
SUBMISSIONS HEARD: August 1, 2017, at Thunder Bay
Mr. Justice W.D. Newton
Reasons For Sentence
Overview
[1] Monica Spence and Daniel Debassige were charged with second-degree murder for the death of Richard Spence.
[2] Following trial, the jury found Daniel Debassige guilty of second-degree murder and Monica Spence not guilty of second-degree murder but guilty of manslaughter.
[3] Pre-sentence reports were ordered and a Gladue report was requested for Daniel Debassige. Victim impact statements were provided to assist the court. Counsel provided very helpful submissions.
The Facts
A. Circumstances of the Offence
[4] Richard Spence, aged 62, was brutally beaten and left to die in a pool of his own blood. Crime scene photographs and blood spatter analysis suggest that Richard Spence was kicked repeatedly in the head while prone on the floor. The postmortem examination revealed 44 injuries to Richard Spence’s head and neck, three injuries to his torso, 18 injuries to his left arm, five injuries to his right arm and three injuries to his leg. Internal injuries include a hemorrhage to the right parietal lobe of his brain. Richard Spence had a blood alcohol level of 270 mg/100 mL at the time of death.
[5] Monica Spence and Daniel Debassige were drinking with Richard Spence that day. They had come to ask for money for bus fare. Monica Spence drank with Richard Spence for years. Richard Spence was convicted of sexually assaulting Monica Spence in 2007.
[6] I am satisfied on the evidence that Monica Spence was passed out due to intoxication when she came to while Richard Spence was on top of her and sexually assaulting her. I am also satisfied that Richard Spence was attempting to restrain or to confine her. Two witnesses heard Daniel Debassige say “I killed a rapist”. For reasons reported at 2017 ONSC 4408, I am satisfied that Monica Spence was intoxicated and sufficiently provoked to justify a verdict of not guilty of second-degree murder but guilty of manslaughter.
B. Circumstances of the Offenders
Monica Spence
[7] Ms. Spence is a 47-year-old Indigenous woman who is a status member of the Constance Lake First Nation. Her only convictions occurred in 1998 for theft, impaired driving and failing to comply with a recognizance. Notable by its absence is any conviction for a crime of violence.
Pre-sentence Report
Overview
[8] To prepare the pre-sentence report the probation officer interviewed Ms. Spence, two of her sisters, a social worker at the Thunder Bay Correctional Centre and a supervisor from the District Social Services Administration Board.
[9] Ms. Spence’s parents were residential school survivors. Her mother struggled with alcoholism but she was close to her father. She became pregnant at 17 and had four children between 1987 and 1991. She suffered from significant addiction issues and domestic violence which resulted in the apprehension of her four children. She discovered that her common-law partner had abused her children. At some point the children were in the care of her mother until her mother’s death in 1996 or 1997.
[10] Ms. Spence’s subsequent relationships have been problematic due to violence and addiction. She described her seven year relationship with Mr. Debassige as “on-again off-again”. They maintained separate residences. She said that they would often argue about her daily drinking and had physical fights when she was intoxicated. Mr. Debassige was convicted of assaulting Ms. Spence in 2010.
[11] Ms. Spence did not complete high school because of her pregnancy at 17. While incarcerated pending trial she has been enrolled in upgrading and is completing work towards her Ontario Secondary School Diploma. She has no formal employment experience and was eligible for Ontario Disability Support in 2010.
[12] She has significant alcohol and drug addictions and has attempted treatment on many occasions.
[13] Ms. Spence has been sexually assaulted in the past and assaulted by her domestic partners.
[14] While incarcerated, Ms. Spence’s conduct at the Thunder Bay Correctional Centre has been problematic including assaults on inmates and staff. Ms. Spence has been under the care of a psychiatrist. The diagnosis is alcohol dependency, opioid dependency and Adjustment Disorder with a depressed and anxious mood. She receives medication for anxiety, depression and insomnia. The social worker at the Correctional Centre reports that Ms. Spence does not accept responsibility for her actions and continues to express anger and resentment towards the victim rather than remorse.
Assessment and Recommendations
[15] Although prior anti-addiction programs have not been successful, should a period of incarceration be ordered, programs similar to the Algoma Treatment and Remand Centre which offers a 12 week treatment program for women with substance abuse and anger management issues are recommended. Other treatment programs are available in Thunder Bay through the Thunder Bay Indian Friendship Centre and St. Joseph’s Outpatient Mental Health program although the St. Joseph’s programs have considerable wait lists.
[16] The recommendations for community supervision include reporting to a probation officer, not possessing or consuming alcohol or nonprescription drugs, and attending for assessment and counseling as recommended.
Statement of Ms. Spence
[17] Ms. Spence did not wish to say anything in addition to her counsel’s submissions.
Daniel Debassige
[18] Mr. Debassige is a 41-year-old Anishinaabe man raised in the M’Chigeeng First Nation on Manitoulin Island. He has three convictions for assault and one conviction for assault causing bodily harm. There are no convictions after February 2010.
Pre-sentence Report
Overview
[19] The probation officer interviewed Mr. Debassige and a friend to prepare the report.
[20] Until age 13, Mr. Debassige was raised on Manitoulin Island. While he reported a positive relationship with his mother, his father, a residential school survivor, was often intoxicated and was physically and emotionally abusive. Since his mother’s death about 15 years ago, Mr. Debassige has not maintained any relationship with his family, his father, or his home community.
[21] He is the father of five children with three women. He is estranged from all of his children.
[22] In the past, he was significantly addicted to alcohol. But he reported that his use of alcohol and illicit drugs was curtailed in the year prior to this offence. He expressed remorse for the impact of this death on the family of the victim but justifies his behaviour in that he acted impulsively upon learning that his partner was sexually assaulted.
Assessment and Recommendations
[23] It is noted that despite his negative history, Mr. Debassige has been successful in employment and addressing some of his addiction issues.
[24] Recommendations include the healing unit at Stony Mountain Institution in Manitoba.
Gladue Report
[25] The writer met with Mr. Debassige and the Director of Health for Bingwi Neyaashi Anishinaabek First Nation.
[26] While his earlier years were reviewed in the pre-sentence report, more information was available to the Gladue writer about Mr. Debassige’s adult life. It was reported that during his 20s and 30s his lifestyle was “fairly dysfunctional” involving a cycle of alcohol abuse, drug experimentation and unstable relationships. While in Sioux Lookout, he became a heavy drinker and eventually became homeless with a circle of friends, like him, who lived to “numb themselves with alcohol and drugs.”
[27] It is reported that he met Ms. Spence in his 30s and formed a relationship with her. In the beginning, they drank heavily together but later he decreased the length and severity of his drinking bouts. He said that he wished that both stopped drinking but that Ms. Spence was not ready to commit to recovery.
[28] The Director of Health stated that she believes that Mr. Debassige is ready to move to a life of recovery but that it is difficult for him to do so while he was in the relationship with Ms. Spence.
[29] The Gladue report writer observes that Mr. Debassige “has struggled with resentment, problems associated with identity loss and displacement, as well as with the surface manifestations attributed to alcohol abuse as a form of numbing.”
Recommendations
[30] It is recommended that Mr. Debassige be placed in a federal institution with access to traditional medicines and elders. The rationale is that by regaining his Anishinaabe identity he will have a greater chance of success in his recovery and rehabilitation.
Statement of Mr. Debassige
[31] Mr. Debassige did not wish to say anything in addition to his counsel’s submissions.
C. Impact on the Victim and/or Community
[32] Four members of Richard Spence’s family prepared victim impact statements. Although understandably difficult to do, two sisters and one brother read their victim impact statements to the court. A statement from a niece was read by the Crown.
[33] All of these statements demonstrate that this sudden, criminal death has had a significant impact upon the lives of those who knew and loved Richard Spence. I am grateful for the insight offered by these victim impact statements.
[34] All spoke of Richard Spence’s kindness. All spoke of Richard Spence’s love for his family and their love for him. The lack of remorse on the part of Ms. Spence and Mr. Debassige was noted. As Indigenous people themselves, the family noted that the Gladue factors are factors in their lives too and not an excuse for killing another person.
Legal Parameters
[35] The following Criminal Code provisions apply:
Purpose and Principles of Sentencing
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6; 2015, c. 13, s. 23.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(d) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. 1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16.
[36] Section 718.2(e) requires that sentencing determinations take into account the unique circumstances of Aboriginal peoples (R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688).
[37] In Gladue, the Supreme Court of Canada stated:
81 The analysis for sentencing Aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to and understanding of the difficulties Aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstances in light of the aims and principles of sentencing as set out in Part XXIII of the Criminal Code and in the jurisprudence, the judge must strive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2(e), sentencing judges have been provided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration which are appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing. In this way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender. [Emphasis added].
Positions of the Crown and the Defence
Monica Spence
[38] The Crown concluded its submissions by indicating that the appropriate sentence for this manslaughter, given the operation of intoxication and provocation, should be a global sentence of five years plus the mandatory ancillary order for firearms prohibition in accordance with s. 109(1) of the Criminal Code for 10 years and the provision of a DNA sample under s. 487.05(1).
[39] The Crown notes that, as of today’s date, Ms. Spence has been in custody for 748 days and the Crown concedes that enhanced credit at 1.5 days per day in custody is appropriate. So, to date, Ms. Spence has been in custody for the equivalent of 1122 days or 3.07 years. Should a sentence of two years less a day be imposed, the Crown submits that Ms. Spence should be supervised by a probation order for a further period of time.
[40] Counsel for Ms. Spence submits that a global sentence in the range of two to three years before credit for pretrial custody is appropriate given the intoxication and extreme provocation. He submits that Ms. Spence is not a danger to the public. She has not been convicted previously of any crime of violence. He submits that release conditions that attend to her drug and alcohol issues and require continuing monitoring by a psychiatrist are in society’s and her best interest.
Daniel Debassige
[41] The Crown and counsel for Mr. Debassige submit jointly that Mr. Debassige should receive the mandatory life sentence with no parole eligibility for 10 years. Counsel concur that his parole eligibility would commence from the date of his arrest on January 1, 2015. I note that Mr. Spence has been continuously in custody from that date or for over two and one half years. The same ancillary orders that apply to Ms. Spence are to apply to Mr. Debassige.
[42] Counsel for Mr. Debassige urged me to recommend, in the strongest terms, to Correctional Service Canada that Mr. Debassige serve his sentence in one of the three minimum security healing lodges located in Western Canada. In doing so, counsel points to the Gladue factors, the lack of any recent criminal convictions, and the fact that Mr. Debassige appears to be making real progress and is sincere in addressing his addiction issues.
[43] Counsel for Mr. Debassige also requested that I order that the Gladue report be withheld from Correctional Services Canada so that any negative information contained therein does not jeopardize Mr. Debassige’s classification. The Crown does not oppose this request.
Reasons and Sentence
Monica Spence
[44] In imposing this sentence, I have considered the objectives of denunciation and deterrence and, in keeping with Gladue, rehabilitation. I am guided by the fundamental principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[45] A custodial sentence is necessary to reflect the objectives of denunciation deterrence and the gravity of the offence. Healing and rehabilitation can also be addressed by continuing with the in custody programming that Ms. Spence has accessed to date. While I accept her counsel’s submission that Ms. Spence does not have to be incarcerated for the protection of society, I conclude that a further period of custody, beyond what she has served already, is appropriate to address her outstanding addiction and other behavioural issues. I note the apparent lack of remorse. I also note that Ms. Spence has already been in custody for 748 days which, with enhanced credit, is equivalent to 1122 days or just over three years.
[46] Please stand Ms. Spence.
[47] Ms. Spence, after considering all the relevant factors and sentencing principles, I conclude that the appropriate sentence in this case is five years and that, therefore, with credit for presentence custody, the effective sentence shall be an additional 703 days in custody in a provincial institution followed by three years of probation. I recommend that you attend the Thunder Bay Correctional Centre for programming and, if it is deemed appropriate, that you also attend the Algoma Treatment and Remand Centre as recommended for further addiction and anger counseling.
[48] In addition to the statutory terms of probation, Ms. Spence, you are to report to a probation officer as directed and attend and participate in such psychological and/or psychiatric assessment and treatment as directed by your probation officer. I am not ordering that you abstain from consuming or possessing alcohol in light of your history today. While I hope that you, with assistance, will defeat this dependence, I will not criminalize that behaviour.
[49] As a further consequence of your conviction, ancillary orders are mandated by the Criminal Code. Pursuant to s. 109(1)(a), you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substances for a period of 10 years. Further, you are required to submit a sample of your DNA to the DNA Data Bank.
[50] You may be seated.
Daniel Debassige
[51] Crown and counsel for Mr. Debassige proposed a joint submission for the mandatory term of life imprisonment with parole eligibility in 10 years from his date of incarceration which was January 1, 2015.
[52] As was stated in R. v. Anthony-Cook, 2016 SCC 43, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.
[53] I note that seven of the jurors recommended parole eligibility at 10 years, three jurors made no recommendation, one juror recommended 15 years and another juror recommended 20 years.
[54] In imposing this sentence, I have considered the objectives of denunciation, deterrence, and, in keeping with Gladue, rehabilitation. I am guided by the fundamental principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[55] Please stand Mr. Debassige.
[56] I sentence you to life imprisonment with no eligibility for parole for 10 years with eligibility calculated from the date of incarceration, January 1, 2015.
[57] I concur with your counsel’s recommendation that I should strongly urge Correctional Services Canada that you serve your sentence in one of the three minimum security healing lodges located in Western Canada. In doing so, I note that you appear prepared to address your addiction issues and move away from your past lifestyle. I am satisfied that you can benefit from Indigenous programming and services which I conclude are necessary tools for your rehabilitation. I also direct that the Gladue report is not to form part of the sentencing material sent to Correctional Services Canada.
[58] As a further consequence of your conviction, ancillary orders are mandated by the Criminal Code. Pursuant to s. 109(1)(a), you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substances for a period of 10 years. Further, you are required to submit a sample of your DNA to the DNA Data Bank.
[59] You may be seated.
Conclusion
[60] To the family of Richard Spence, I wish to express my sympathy for the loss of a brother, an uncle and a cousin. This has not been an easy path for any of you. While I appreciate that you may not agree with my decision for the reasons that you have expressed, I hope that you, at least, understand the principles that have guided my decision.
[61] To counsel, I express my gratitude for your assistance during the trial and sentencing process.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: August 4, 2017
CITATION R. v. Spence & Debassige, 2017 ONSC 4749
COURT FILE NO.: CR-15-0014-00
DATE: 2017-08-04
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MONICA SPENCE & DANIEL DEBASSIGE
Accused
REASONS FOR SENTENCE
Newton J.
Released: August 4, 2017
/sab