COURT FILE NO.: CR-20-052-00
DATE: 2021-06-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
G. Filmore, for the Crown
- and -
SHELDON FINLAYSON
K. Matthews, for the Accused
Accused
HEARD: March 31, 2021, at Thunder Bay, Ontario
Disposition June 1, 2021
Mr. Justice W. D. Newton
Sentencing
Overview
[1] On December 18, 2020, Mr. Finlayson pleaded guilty to committing manslaughter in the death of Wade Hendry-Lee Otiquam-Joy contrary to s. 236 of the Criminal Code, R.S.C. 1985, c. C-46.
The Facts
(a) Circumstances of the Offence
[2] As there were conflicting positions with respect to the facts underlying the gravity of the offence, a Gardiner hearing (R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368) was conducted pursuant to s. 724 of the Criminal Code.
[3] In my reasons reported in R. v. Finlayson, 2021 ONSC 529, at para. 16, I concluded:
I am satisfied beyond a reasonable doubt that Mr. Finlayson meant to cause serious bodily harm to Mr. Otiquam-Joy based on the force he used in this unforeseen attack. As Mr. Otiquam-Joy was moving – attempting to sit down – when he was struck by Mr. Finlayson, I am unable to conclude, beyond a reasonable doubt, that Mr. Finlayson knew that the blow was likely to cause Mr. Otiquam-Joy death, notwithstanding Mr. Finlayson’s apparent statement to Ms. Bittern about such a similar blow. As such, the intent for culpable homicide, or murder, is not made out. Accordingly, I find that the facts support a conviction for manslaughter.
[4] I found there was insufficient evidence to establish provocation or intoxication, but I did find that alcohol consumption likely contributed to Mr. Finlayson’s belligerence. I concluded, at para. 19:
Mr. Finlayson had no reason to strike Mr. Otiquam-Joy. His belligerence unnecessarily took the life of the deceased in very aggravating circumstances.
(b) Circumstances of the Offender
[5] In addition to the submissions of counsel, I had the benefit of receiving comprehensive pre-sentence and Gladue reports.
[6] Mr. Finlayson is 47 years old and is a member of Long Lake #58 First Nation. Mr. Finlayson has a lengthy criminal record commencing in 1989 for offences as a young offender and continuing thereafter as an adult in 1992. The record discloses over 80 convictions, including 23 assaults and over 30 convictions for failing to attend court or for breach of orders. 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 ten-month sentence.
Pre-sentence Report
[7] The report writer described Mr. Finlayson’s home community as “characterized by loss of culture, violence, broken homes, and addiction.” Because of “conflict with the law,” Mr. Finlayson was removed from his family home and placed with foster families.
[8] Mr. Finlayson stopped attending school after grade 10 and worked sporadically as a labourer or equipment operator. He has had a lifelong addiction to alcohol and has attended treatment in the past. It was noted that Mr. Finlayson’s alcohol consumption is tied to his aggressive and violent behaviour. Mr. Finlayson has three teenaged children from a common law relationship. He does not reside with his current partner or children.
[9] The report writer concluded that, given Mr. Finlayson’s history of noncompliance with provisions and conditions, Mr. Finlayson would be considered a very high risk for recidivism while in the community.
[10] Recommendations for programming while incarcerated include programming that is directed at controlling violence and addiction, and it was noted that further assessment and intervention is required, as prior attempts have not been successful.
The Gladue Report
[11] Through interviews with Mr. Finlayson, family members and his former spouse, the report writer noted the following adverse impact factors that affect Indigenous people in general and Mr. Finlayson specifically:
- family breakdown due to alcohol in the family home;
- physical abuse and trauma injury during childhood;
- mental health concerns i.e. PTSD, anxiety and depression;
- substance abuse issues with alcohol; and
- lack of education and stable employment.
[12] It was noted that Mr. Finlayson turns to alcohol to cope, and that alcohol has been a factor in losing his children to care and in his criminal convictions. It was also noted that Mr. Finlayson feels remorse and understands the consequences of his actions. Recommendations included sustained treatment for alcohol issues and counselling for grief and anger management.
Impact on the Family of the Victim
[13] I also had the benefit of receiving victim impact statements from Lee’s mother, grandmothers, aunties, and cousin. All spoke of the profound impact that this senseless death of this 20-year-old young man had upon them. All suffered, and continue to suffer, pain and anguish. Lee was just starting his life, and those around him have been deprived of his companionship, friendship and the opportunity for shared experiences.
Positions of Crown and the Defence
[14] Counsel for Mr. Finlayson begins by noting that, as of today’s date, Mr. Finlayson has been in custody for 1015 days or over 3 years. With enhanced credit at 1.5 days per day of actual custody, that is equivalent to 1523 days or over 4 years of pre-sentence custody. Counsel also submit that further enhanced credit is appropriate because most of Mr. Finlayson’s pre-sentence custody has been during the COVID-19 pandemic which resulted in harsher custody conditions.
[15] Relying on cases such as R. v. Fan, 2019 ONSC 6403, R. v. Tabbara, 2009 CanLII 57453 (Ont. Sup. Ct.), R. v. Wabasse, 2017 ONSC 1269, and R. v. Henry, 2002 NSCA 33, 203 N.S.R. (2d) 40, counsel for Mr. Finlayson submits that an appropriate sentence should be in the range of imprisonment for 5 to 6 years. With credit for presentence custody, counsel for Mr. Finlayson submits that an appropriate sentence would be a sentence of two years less a day plus probation.
[16] The Crown argues that the cases submitted on Mr. Finlayson’s behalf are distinguishable as they involve younger offenders with no criminal records. The Crown submits that a sentence in the range of 8 to 12 years is appropriate and relies upon R v. Clarke (2003), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133 (Ont. C.A.), R. v. Moose, [2002] O.J. No. 5682, R. v. Warner, 2019 ONCA 1014, R. v. Garrison (1999), 1999 CanLII 2875 (ON CA), 125 O.A.C. 260 (Ont. C.A.), R. v. Gayle, 2020 ONSC 5238, and R. v. George, 2010 ONSC 6017. The Crown submits that, given Mr. Finlayson’s history of failing to comply with court orders, probation is likely to be of little benefit.
Purpose and Principles of Sentencing
[17] The following provisions of the Criminal Code guide my decision on sentence:
Purpose
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.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 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, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence, or
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to like 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 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.
[Emphasis added.]
[18] Section 718.2(e) requires that sentencing determinations consider the unique circumstances of aboriginal peoples.
[19] In R. v. F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, Epstein J.A. stated this with respect to the role of Gladue factors in sentencing:
[44] First, a sentencing judge must take judicial notice of the systemic and background factors affecting Aboriginal peoples in Canadian society. These factors include “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 peoples”: Ipeelee, at para. 60. This list is not exhaustive.
[45] Second, a sentencing judge must consider whether those systemic and background factors “bear on the [offender’s] culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing”: Kreko, at para. 23.
[47] Systemic and background factors, however, do not operate as an excuse or justification for an offence: Ipeelee, at para. 83. They are only relevant to assessing the “degree of responsibility of the offender”, and to considering whether non-retributive sentencing objectives should be prioritized. Accordingly, Gladue and Ipeelee do not detract from the “fundamental principle” that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee at para. 73. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a “different method of analysis”: Ipeelee, at para. 59. A different method of analysis does not necessarily mandate a different result: Kakekagamick, at para. 36. Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation: Gladue, at para. 78; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 44. As this court recognized in Kakekagamick, at para. 42:
To be clear, s. 718.2(e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence.
[Citations in original.]
Analysis
Case Law Review
[20] In Fan, the court imposed a sentence of five years for a similar manslaughter conviction which was described as an “ambush on an unsuspecting victim in his own home”. While the circumstances of the injury were similar, that case is distinguishable from this case as the offender was young – 19 years old at the time – and had no criminal record. Unlike Mr. Finlayson, Mr. Fan did not leave the scene but went to the hospital to support the victim.
[21] Mr. Tabbara was also convicted of manslaughter and received a sentence of two years less a day. He punched another young man in the back of the neck while the victim was walking away. The mechanism of death was similar to this case. Mr. Tabbara was 21 years old and had no criminal record. This behaviour was described as “out of character” and the court noted that it had seldom seen a more positive pre-sentence report.
[22] The Wabasse decision is also distinguishable from this case. Mr. Wabasse beat his victim and caused his death. He was sentenced to eight years for manslaughter and it was agreed that he was a dangerous offender. He was subject to a long-term supervision order for ten years after the completion of the eight-year sentence.
[23] In Henry, the Nova Scotia Court of Appeal imposed a sentence of 4 years for a manslaughter conviction of a 31-year-old with no criminal record who had punched an intoxicated man for assaulting a woman. The punch caused the victim to fall and strike his head on the pavement, resulting in his death.
[24] The Clarke decision relied upon by the Crown was a case of manslaughter upon a frail and vulnerable victim who was attacked in his own home with a knife. The sentence imposed by the Court of Appeal was nine years.
[25] In Moose, the victim was confined to a wheelchair and sustained massive beating injuries resulting in fractures to the skull, jaw and chest. It was described as a brutal, senseless and unprovoked killing of a helpless victim. The Court imposed a sentence of 12 years before credit for pre-sentence custody.
[26] In Garrison, the Court of Appeal imposed a sentence of 10 years for the manslaughter conviction of Mr. Garrison, who threw an elderly alcoholic down, causing him to strike his head which caused his death. The Court described this as a “cowardly attack on a vulnerable person” and noted that the accused had been convicted of approximately 80 offences, 24 of which were offences of violence. The court noted that specific deterrence and protection of the public were of paramount importance in the consideration of a fit sentence.
[27] In Gayle, the court imposed a sentence of seven years for manslaughter for assaulting a vulnerable victim with one punch that caused a brain bleed. Mr. Gayle had a history of impulsive, violent acts. Of his 74 convictions, 19 were for offences involving violence. Enhanced credit of an additional three months was given because Mr. Gayle’s pre-sentence incarceration was subject to harsh conditions as a result of COVID-19.
[28] Mr. George was a 22-year-old Indigenous offender who pleaded guilty to manslaughter in the beating death of another young man. The beating included kicks to the victim’s head which resulted in a coma and the subsequent death of the victim 10 days later. A sentence of seven years was imposed. Mr. George had a criminal record which included five violent offences
Disposition
[29] In imposing this sentence, I have considered the objectives of denunciation and deterrence and, in keeping with Gladue, rehabilitation.
[30] 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. I have considered the Gladue factors and the likely causal connection between Mr. Finlayson’s life circumstances and his issues with addiction that are a factor in his criminal history.
[31] However, I have concluded that, in this case, the objectives of restorative justice and Gladue do not “weigh as favourably as those of separation, denunciation and deterrence”.
[32] 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 through Indigenous centered programming aimed at addressing Mr. Finlayson’s issues with addiction and violence.
[33] I agree with the Crown that your prior and significant violent criminal record distinguishes your circumstances from the cases relied upon by your counsel. I note your significant criminal record consisting of over 80 convictions, including 23 for assaults and 30 convictions for failing to comply with court orders. Significant is the fact that three of the assault convictions relate to occurrences in the three years immediately prior to this manslaughter, indicating that prior sentences have not changed your behaviour.
[34] I acknowledge your plea of guilty and your remorse for causing the death of this young man.
[35] I conclude that the appropriate sentence is a sentence of eight years imprisonment. Credit is given for the 1015 days of pre-sentence custody which, with enhanced credit at 1.5 days per day in custody, equals 1523 days credit. I also accept that additional credit is warranted due to the harsh conditions caused by COVID-19 and fix that extra credit at 100 days for a total of 1623 days credit. The effective sentence is therefore a further 1297 days imprisonment. It is my recommendation that you serve your term of imprisonment in an institution that allows you access to programming directed at your issues with addiction and violence that incorporates Indigenous healing principles.
[36] 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, pursuant to s. 487.051(1), you are required to submit a sample of your DNA to the DNA Data Bank. Pursuant to s. 743.21, I also order that you are prohibited from communicating, directly or indirectly, with the following witnesses and family members of Mr. Otiquam-Joy:
Rilee Christianson-Joy
Claire Joy
Lori Otiquam
Kristy Otiquam
Ann Otiquam
Sharon Ostberg
Wade Joy
Dylan Joy
Dean McColeman
[37] I appreciate the assistance of counsel in this case. I am also indebted to the family members who assisted me in understanding the impact that this crime has had upon their lives. This task is a difficult one and your assistance is appreciated.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: June 1, 2021
COURT FILE NO.: CR-20-052-00
DATE: 2021-06-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and –
SHELDON FINLAYSON
Accused
SENTENCING
Newton J.
Released: June 1, 2021
/cjj