COURT FILE NO.: CR-20-0026-00
DATE: 2021-11-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
T. Jukes for the Crown
- and -
MARLENE KWANDIBENS
D. Pierce & D. Bruzzese for the Accused
HEARD: August 20, 2021 at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Reasons For Sentence
OVERVIEW:
[1] The Accused, along with Terryl Michon and Darren Oombash, was charged with second degree murder in relation to the death of 25-year old Ashley Chantel McKay on October 30, 2018.
[2] On April 1, 2021, the Accused plead guilty to manslaughter contrary to section 234 of the Criminal Code, R.S.C. 1985, c. C-46. A statement of agreed facts was reached on August 18, 2021 setting out the details of the events of October 30, 2018.
[3] The Crown and the Defence disagree as to what is a fit and appropriate sentence to be imposed. They do agree:
a. that this is a primary designated offence and a DNA order must issue pursuant to s. 487.051 of the Criminal Code;
b. that a weapons prohibition pursuant to s. 109 of the Criminal Code must issue; and
c. that the Accused is to receive enhanced credit of 1.5 days’ credit for every day of pre-sentence custody served. As of August 20, 2021, she had served 1026 days (2 years, 9 months and 22 days), or 1539 days of enhanced credit (4 years, 2 months, and 19 days).
[4] Manslaughter carries a maximum possible sentence of life imprisonment. The Crown takes the position that the appropriate range of sentence in this case is 8 to 12 years. Taking into consideration all the circumstances of this case, the Crown advocates for a sentence in the 8 to 10-year range. This will result in a penitentiary sentence.
[5] The Defence takes the position that the appropriate sentencing range in the circumstances of this case is 4 to 8 years. The Defence urges me to impose a sentence of 6 years. With enhanced credit for time served this will allow the Accused to remain in a provincial correctional facility and take advantage of substance abuse and other rehabilitative programs specific to Indigenous women. In addition, the Defence suggests a 2-year probation order with conditions including that she reports regularly to a probation officer and participates in all counselling or services recommended to address trauma, grief, and substance abuse concerns.
[6] This is a decision that has weighed heavily on me. On the one hand, the life of a vulnerable young woman was taken brutally. On the other hand, the Accused is also a vulnerable person, having suffered many traumas in her life. She has expressed remorse for her actions and taken the opportunity while incarcerated to try to address these traumas and the issues that flow from them. The sentence imposed by me has the potential to either encourage this continued positive path or derail it.
[7] As Justice H. Pierce acknowledged in R. v. Bushby, 2021 ONSC 4082 at paras. 2 and 3, judges are cognizant that sentencing a person is a life-altering event, not only for the Accused, but also for those close to her and those who have suffered loss as a result of her criminal behaviour. No sentence imposed by me can compensate for the life taken, or minimize the pain and grief felt by those who loved Ashley McKay. Nor will it minimize the pain and grief felt by the Accused and those who love and support her. There will be those who think that this sentence is too harsh, and others who feel it is not harsh enough.
[8] In determining the sentence to impose I must be guided by the principles set out in the Criminal Code, and those set out in the case law that courts have developed. These reasons will set out those principles and other factors I have considered to arrive at a sentence.
FACTS:
Circumstances of the Offence:
[9] On October 29th, 2018, Ashley consumed alcohol and possibly crack cocaine, as did Marlene Kwandibens. The two knew each other, although not well. Marlene had been consuming cocaine before Ashley arrived. Terryl Michon and Darren Oombash also came to Marlene’s apartment on October 29th. Based on Marlene’s account of events, all four were very intoxicated.
[10] Terryl was upset with Ashley and began to confront her, because she had heard that Ashley was gossiping about various things and also that Ashley may have information about Terryl’s cousin’s death.
[11] Marlene asked Ashley to leave and for Darren to physically remove her. As he was doing that, Marlene slapped Ashley. Terryl jumped on Ashley as Darren was dragging her out and continued to confront her verbally. Marlene kicked Ashley in the face. Terryl continued to confront Ashley and then physically assaulted her repeatedly. Darren also began to physically assault Ashley by stepping on her neck. Multiple other blows were delivered to Ashley.
[12] While it is not known who delivered what blows, the post-mortem report reveals that Ashley sustained 85 blunt force injuries to her body: 5 to her head, 9 to her face, 6 to her neck, 8 to her mouth, 21 to her torso and 36 to her extremities. Ashley’s blood was found on the steel-toed shoes of Marlene, on Darren’s hand and shoes, and on Terryl’s hand and clothing. Ashley’s blood was found on the walls of the apartment, a fridge, items of clothing, towels and the kitchen floor. The DNA of Marlene and Darren were found on the shoelaces tied to Ashley’s body.
[13] Ashley was beaten unconscious but did not die right away. The neuropathologist report suggests it may have taken between 1 to 3 hours for Ashley to die.
[14] Ashley’s unconscious body was stripped of her clothing. Darren tied Ashley up with shoelaces around her wrists, her neck and one leg. She was then dragged towards a storage closet. Marlene was instructed by Darren to keep an eye on Ashley to make sure she did not get away, while Darren and Terryl slept.
[15] Marlene continued to drink and keep watch over Ashley while the other two slept. At some point, she noticed that Ashley was not breathing. She woke the other two but remembers nothing from that point onwards. At some point, Ashley’s body was shoved into a Rubbermaid storage tote.
[16] The post-mortem report concludes that the cause of death was “blunt force head trauma in a woman with ethanol intoxication”. It was also noted that “a component of positional asphyxia cannot be excluded as a potential contributor to death”, possibly from having been positioned in the bin in a manner that impaired her ability to breathe.
[17] In the early hours of the morning of October 30th, 2018, Shawn Maybee arrived at the apartment. Marlene showed him the body in the closet and said, “I killed her”. He tried to revive Ashley while Marlene argued with him, saying “what’s the point, she’s dead”. He was then confronted by, and had to fend off Darren, before he left and called police.
[18] Following the preliminary hearing, counsel for Marlene provided the Crown with a statement handwritten by Marlene, detailing the foregoing. The Crown acknowledges that Marlene’s statement provided important details to the police as to the events of October 29/30th and has also led to a plea of guilt to manslaughter by co-accused, Terryl.
Circumstances of the Offender:
[19] Sentencing is an individualized process. The circumstances of the offender are to be taken into consideration in determining a fit sentence.
Gladue report:
[20] A number of Gladue factors are evident and require consideration.
[21] Marlene is a 40-year old woman of Ojibway ancestry. Her home community is Mishkeegogamang (formerly known as Osnaburgh). The residents of Mishkeegogamang, and indeed Marlene’s family, have suffered from the legacy of colonialization, institutions such as residential schools, the “Sixties Scoop,” and the destruction of their traditional way of life. The Gladue report author describes the epidemic of alcohol abuse in the community and how the Globe and Mail once described the community as “the most violent community in the North”.
[22] Marlene was one of 14 children in total born to her mother. Her mother was a residential school survivor. She grew up just outside Mishkeegogamang in a cabin with no running water. Her family lived a traditional lifestyle of hunting and trapping. Her childhood was not a happy one. Her parents often drank, would not come home or if they were home, they would argue and fight. Her mother was physically abused on an ongoing basis by her father. Her parents were distant, and emotionally and physically neglectful. Older siblings were often responsible for caring for younger siblings. Marlene’s father died when she was 12 or 13 years old, following which her mother’s drinking intensified. While the siblings tried to care for each other, eventually child welfare authorities stepped in and Marlene was placed in foster care.
[23] Marlene became the victim of repeated sexual assaults at a very early age. She endured this for approximately 10 years.
[24] Marlene was also the victim of physical abuse at the hands of her father.
[25] Marlene began using substances at the age of 13 years. She experienced a troubled youth, going back and forth between foster care, a group home, her reserve and then to Thunder Bay for high school. She did not complete high school at that time.
[26] Substance abuse became a way of life for Marlene to “feel numb and to not feel pain”. She experienced the tragic losses of a sister, niece and beloved step-father. She has three children, all of whom were taken into care as toddlers by Dilico Anishinabek Family Care. Marlene does not know the whereabouts of her oldest child, but the two youngest remain in care. Her children are now 19, 17 and 13. She has not seen them since 2015 or 2016. Marlene found it too painful. She has tried counselling and treatment, without success.
[27] Since being incarcerated, Marlene has been diagnosed with depression and anxiety and reported symptoms consistent with post-traumatic stress disorder. She now takes medication for these conditions.
[28] Marlene has put her time spent incarcerated to good use. She is sober. She engages in cultural programming. She works in the laundry facilities. She has achieved her high school diploma. Restorative justice options were recommended by the report writer, including substance abuse, anger management and cultural programming, and participation in a restorative justice circle with the victim’s family.
Pre-Sentence Report:
[29] The pre-sentence report also details the impact of intergenerational trauma on Marlene and her family. It speaks to how Marlene’s grief, trauma and addictions have contributed to an unstable lifestyle and involvement with the criminal justice system. It also discusses how Marlene has repeatedly been in situations where criminal behaviour is witnessed and condoned, and that she has a lack of positive supports for a healthy way of life.
[30] Despite these challenges, Marlene has a limited criminal record for offences occurring in 2014 and 2015. Her previous involvement with the criminal justice system for various crimes including theft under $5,000, break and enter, assault and breaches of undertakings did not result in any significant periods of incarceration.
Remorse:
[31] Marlene appeared virtually and spoke at the sentencing hearing. She expressed remorse for her actions and the pain caused to Ashley’s family. She apologized. I found her expression of remorse, and her message to Ashley’s family, to be very sincere.
Victim Impact:
[32] Ashley’s father, Ian McKay, read his victim impact statement at the sentencing hearing. It helped the Court understand the profound effect of her death on her family. He has suffered a parent’s worse nightmare. His anger and grief were palpable. What was most evident from his heartfelt statement was an unfathomable pain that endures daily.
[33] Ashley was his oldest of 11 children. Mr. McKay described the joy and happiness of her birth. He spoke about how Ashley brought happiness to those she met; how she was smart and an eager learner. He spoke of Ashley’s struggles with substance use that followed the death of her mother, but how she had agreed to treatment and was scheduled to attend a treatment program in the week following her tragic death.
[34] Mr. McKay further told the court that he is a residential school survivor of physical, mental, and sexual abuse. He has been determined not to let this define him. He is a long-standing government employee and dedicated family man. He is a widowed single father, who also lost another daughter the month before the sentencing hearing to a heart ailment. He has endured much pain and trauma in his life. Despite all this pain and trauma, it has been the horrific manner by which Ashley died, and the indignities done to her body that have caused him the greatest suffering.
[35] Mr. McKay described his “unbearable” pain and how it impacts him. He talked about how in the first year following Ashley’s death he could not sleep and would not sleep for days at a time. There is still not a day goes by that he does not cry; whether he is working, tending to his other children, or talking to people, the grief continues to overwhelm him. He feels a sense of hopelessness. He is haunted by thoughts of what would have happened to Ashley if Shawn Maybee had not discovered Ashley’s body and bravely defied Marlene and Darren to call police. His other children are impacted by Ashley’s death and by having a father who is so broken-hearted. While he knows that no sentence will ever feel like enough, he has a desperate need to know that justice is done for Ashley so that he and his surviving children can try to move forward.
SENTENCING PRINCIPLES:
[36] Section 718 of the Criminal Code sets out the following principles and objectives of sentencing:
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.
[37] Denouncing unlawful conduct, also known as the principle of denunciation, refers to public condemnation of the criminal behavior. In R. v. M. (C.A.), 1996 CanLII 230 (SCC), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 81, Chief Justice Lamer wrote for the Court that “… a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law”.
[38] The principle of deterrence reflects a message to be sent to the offender (specific deterrence), or to the community (general deterrence), that breaking the law by committing a crime of this nature will attract punishment and consequences. The hope is to dissuade future criminal conduct for fear of attracting punishment.
[39] Section 718.1 requires that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In other words, the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the harsher the sentence will be: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
[40] Further sentencing principles that must guide the court are set out in s. 718.2 of the Criminal Code.
[41] Section 718.2(a) requires that a sentence be increased to account for any aggravating factors or reduced to account for any mitigating circumstances. Aggravating circumstances generally tend to make the offence more troubling while mitigating circumstances moderate the severity of the offence: R. v. Bushby, at para. 161.
[42] Sections 718.2(d) and (e) require restraint in sentencing, acknowledging that sentences are not only intended to be punitive, but also remedial. Imprisonment should be the penal sanction of last resort, to be used only where no other sanction or combination of sanctions are appropriate to the offence and the offender.
[43] Section 718.2(e) also directs the sentencing judge to approach the sentencing of Indigenous offenders differently. It is a recognition that the circumstances of Indigenous people are unique, and that there are unique systemic or background factors that may have played a part in bringing the offender before the court. There should be a focus on restorative justice. See: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 (S.C.C.), at para. 93.
[44] If the circumstances warrant a period of incarceration the length of the term must be carefully considered. While in some instances the sentence of an Indigenous offender may be less than that imposed on a non-Indigenous offender, this will not always be the case, particularly for more serious and violent offences. Section 718.2(e) does not mean that the sentences of Indigenous offenders should automatically be reduced. The sentence imposed must still take into consideration all the relevant sentencing principles, factors of the offence, and circumstances of the offender. See: R. v. Gladue, at para. 93.
[45] To properly consider the factors applicable to Indigenous offenders as required by the Criminal Code and as set out in the jurisprudence, the sentencing judge requires information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting Indigenous people. In the usual course of events, additional case‑specific information is required which outlines the systemic or background factors, along with possible sentencing procedures and sanctions. This is the Gladue report referred to earlier in this decision.
[46] In each case, there may be one or more of these sentencing principles at play. Some principles may conflict with others. The job of the court is to attempt to balance all of the relevant principles with the aggravating and mitigating circumstances and the circumstances particular to the accused, while ensuring that similarly situated offenders receive similar sentences for crimes of the same nature: See R. v. Barry Matthews, 2020 ONSC 5459, at paras. 38 and 39.
Sentencing Principles for Manslaughter:
[47] The key to the determination of a fit sentence in a manslaughter case is evaluating the level of moral culpability of the offender: R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 247.
[48] The nature and quality of the unlawful act and the manner in which it was committed must be considered in determining moral blameworthiness. It is case specific. There are different degrees of moral culpability even for impulsive killings: those which are likely to put the victim at risk of, or cause, bodily injury; those which are likely to put the victim at risk of, or cause, serious bodily injury and those which are likely to put the victim at risk of, or cause, life-threatening injuries. See R. v. Roberts-Stevens, [2019] O.J. No. 103 (S.C.J.), 2019 ONSC 257 at para. 110, citing R. v. Bidesi, 2017 BCSC 198, at paras. 41 and 43, which in turn cites R. v. Laberge (1995), 1995 ABCA 196, 165 A.R. 375 (Alta. C.A.).
POSITIONS OF THE CROWN AND THE DEFENCE:
The Crown’s Position:
[49] The Crown acknowledges the mitigating factor of Marlene’s guilty plea and confession, along with the significant Gladue factors present. The Crown further acknowledges the principle of restraint and that the sentencing of Indigenous offenders often warrants a sentence that strikes a fair balance between denunciation and deterrence, and rehabilitation.
[50] Having said this, in support of a period of incarceration in the 8 to 10-year range, the Crown argues that the aggravating circumstances surrounding the offence calls for a sentence that emphasizes denunciation and deterrence. Ashley was a slight female involved in a three-on-one assault, in circumstances in which she had a high level of intoxication and heightened level of vulnerability. The suddenness and escalation of the assault that started over something as petty as gossiping, combined with her condition did not give her any opportunity to defend herself. She was beaten extensively, had her clothes removed, was tied up and left to die. The degrading and callous manner with which her unconscious body was treated is a factor that has caused additional pain to her family.
[51] The Crown also initially relied on s. 718.04 of the Criminal Code, which was enacted in response to the findings of the Missing and Murdered Indigenous Women and Girls Report. This provision requires the court to impose a sentence for an offence involving a vulnerable person, including Indigenous females, that gives primary consideration to the objectives of denunciation and deterrence. In a subsequent written addendum to oral sentencing submissions, submitted with the consent of the Defence, the Crown acknowledged that this section did not come into effect until after the date of the offence, and therefore is not applicable. Regardless, the Crown argues that the circumstances surrounding the commission of this crime against a vulnerable young woman warrants denunciation and deterrence being the most significant, if not primary considerations in sentencing.
The Defence Position:
[52] In support of a sentence of 6 years, with 2-years’ probation, the Defence agrees that denunciation and deterrence are paramount considerations but urges me to give greater weight to the Gladue factors than the Crown suggests, Marlene’s remorse, confession and guilty plea, and to the need for rehabilitation.
[53] In particular, the Defence submits that the Court cannot lose sight of the circumstances that drove Marlene to numb herself with substances to the point that she was able to contribute to the taking of a life. Specifically, a childhood characterized by neglect, a lack of love and affection, abuse, and trauma. The normalization of violence in the household and community in which she was raised. The poverty she has faced. The domestic abuse she has suffered. The trauma experienced from the premature death of loved ones and the removal of her children from her care. The untreated mental health issues that Marlene struggled to manage. Marlene was, and remains a victim and vulnerable person, who in turn victimized another vulnerable person.
[54] The Defence does not disagree with the significance of the aggravating factors in this case. The Defence does not disagree that 8 to 10 years is a possible range for this type of offence. However, the Defence argues that in weighing the various considerations of this case, the court should place considerable weight on Marlene’s handwritten statement of events and her guilty plea. Marlene’s statement has provided clarity that the police and Ashley’s family may not have otherwise had as to the events of October 29th/30th. She has spared the family the pain of a trial for Marlene and Terryl’s cases. Her heartfelt expression of remorse for her part in Ashley’s death and the pain caused to her family should also carry considerable weight, as should the fact that Marlene’s actions were heavily influenced by substances.
[55] The Defence argues that a 6-year sentence will best strike the appropriate balance between denunciation, deterrence, and rehabilitation. While the Defence does not minimize the violent nature of the crime, counsel points to the significant efforts taken by Marlene to address her addictions and mental health issues, both of which were significant contributing factors to the crime. A sentence of 6 years, after applying credit for time served will allow Marlene to remain in a provincial correctional facility and to be eligible to serve out the remainder of her sentence focusing on rehabilitation at the Algoma Treatment and Remand Facility, a facility with programming designed for Indigenous women. A 2-year probationary period will assist Marlene in maintaining her progress achieved while incarcerated.
COMPARATIVE CASES:
[56] Another important consideration in sentencing is that similar cases and similar offenders should receive similar sentences. For this reason, judges are often guided by how other cases have been decided. Having said this it must be recognized that every case is to be decided based on its own unique set of facts.
[57] The Crown and the Defence have each submitted cases for my consideration, and in support of the sentence they seek.
Defence:
[58] The Defence argues that the following cases, all decided locally, are comparable and support its position that a 6-year sentence is the most appropriate disposition.
[59] In R. v. Roberts, [2004] O.J. No. 3792, [2004] O.T.C. 810, the offender was sentenced to 6 years’ imprisonment for manslaughter related to the beating of a bar owner. The Accused delivered multiple blows to the head and face of the victim, including when the victim was on the ground unconscious. Mr. Roberts was an Indigenous offender with a criminal record, and alcohol was a significant contributing factor. It is important to note that Justice Patrick Smith indicated in paragraph 47 of the decision that the Crown had suggested a range of 4 to 6 years incarceration, but had a longer period of incarceration been requested, that request would have been given serious consideration.
[60] In R. v. George, 2010 ONSC 6017, the 22-year old offender with an extensive youth and adult criminal record, which included violent offences, was sentenced to 7 years’ imprisonment for manslaughter. Mr. George and the victim were friends who began arguing and became embroiled in a consensual fist fight. One blow caused the victim to fall to the ground, at which point Mr. George kicked him about the head, causing a subdural hematoma that resulted in death. Mr. George left the victim on the ground, returning only hours later to check on him. Alcohol was a factor and significant Gladue factors were present. Mr. George pleaded guilty and was youthful. In sentencing Mr. George, Justice H. Pierce noted specifically the ferocity of the attack and the failure to summon help as aggravating factors. She also noted the risk to society of Mr. George’s diagnosed lack of impulse control.
[61] In R. v. Wabasse, 2017 ONSC 1269, an 8-year sentence was imposed on a 23-year old Indigenous offender with a lengthy record, in circumstances in which he was the aggressor, inflicted a prolonged beating on the victim, dragged him into an elevator and up to an apartment where he remained with the victim for approximately four hours before police arrived. Numerous Gladue factors were present, but the Accused’s record was such that it was agreed he was to be designated a dangerous offender. The Defence argues that this case supports their position that the low-end of the Crown range of 8 years is not appropriate in this case given that the Accused is not a dangerous offender.
[62] Roberts, George and Wabasse are distinguishable on the basis that they were one-on-one assaults, and while no aid was immediately or ever sought for the victims, there is nothing in those cases suggesting any indignities were done to the victims’ bodies.
[63] In R. v. Thomas, 2016 ONSC 7944, Justice W.D. Newton sentenced a 41-year old female Indigenous offender to 4 years for manslaughter committed against her spouse. Alcohol and drug consumption were significant contributing factors to Ms. Thomas stabbing her spouse three times. 911 was called, but the victim succumbed to his injuries while in hospital. Ms. Thomas had a very troubled upbringing, she had previously been the victim of physical abuse at the hands of the deceased, had successfully completed a substance abuse treatment and counselling program, and was tormented with guilt and remorse over her actions to the point that she attempted suicide. While the circumstances of the offenders are similar in Thomas and this case, I find that the circumstances of the offence are sufficiently different to distinguish the result.
[64] In R. v. Finlayson, 2021 ONSC 3953, 2021 CarswellOnt 8010 (S.C.J.), a 47-year old Indigenous accused was sentenced to 8 years’ imprisonment for manslaughter committed when Mr. Finlayson delivered one fatal blow to an unsuspecting victim. Alcohol was a factor and Gladue factors considered. Mr. Finlayson also had an extensive record of 80 offences, approximately 23 of which were for assaults. The Defence argues that given the Accused’s relatively minimal criminal record, she should receive a lesser sentence than Mr. Finlayson did. This argument ignores the significant aggravating factors surrounding the commission of the offence against Ashley McKay as compared to the one blow delivered to the victim in Finlayson.
Crown:
[65] The Crown relies on R. v. Clarke (2003), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133 (C.A.), R. v. Tahir, 2016 ONCA 136, R. v. Devaney (2006), 2006 CanLII 33666 (ON CA), 213 C.C.C. (3d) 264 (C.A.), and R. v. Punia, 2018 ONCA 1022, in support of its position that the appropriate sentencing range is 8 to 12 years’ imprisonment.
[66] The cases cited by the Crown all involve aggravating circumstances in the context of manslaughter. While not directly on point in terms of the facts, these cases discuss generally the appropriate range when there are aggravating factors present. Tahir makes it clear that sentencing ranges are not maximums or minimums. The court may impose either a lesser or greater sentence than the applicable range, if appropriate in the circumstances of the case.
[67] In Devaney at para. 34, the Ontario Court of Appeal reinforced that sentencing is an individual exercise, noting that while similar sentences should be imposed for similar offences and offenders, a court must ensure that the sentence fits the facts and circumstances of the particular case and the particular offender.
ANALYSIS:
[68] I agree with the Crown that the principles denunciation and deterrence are paramount considerations in the sentencing of the Accused. She contributed to the senseless taking of a young life. While the principles of restraint and rehabilitation must, and have been factored into the sentence, they are not the most significant considerations. The circumstances of this case are too egregious.
[69] There is no escaping the fact that this was a sudden, vicious and prolonged beating by three individuals against one other. Marlene Kwandibens delivered the first brutal blow, with the other two following suit. Even in the best of circumstances it would have been very difficult for Ashley to properly defend herself. Her compromised state made it impossible.
[70] What makes this crime even more heinous is what happened to Ashley once her three attackers had finished beating her. Ashley was left to die, and her body stripped naked. Marlene’s signed statement recalls how vegetable oil and household cleaner were poured on her and she was tied up. Terryl and Darren went and slept, and Marlene sat up and continued drinking. At no point did one of the three even suggest getting help for Ashley. In fact, they made a choice to do the opposite by tying her up so she could not escape, with Marlene tasked to watch her to be sure. If Ashley did not die from the beatings she received, the actions of her assailants following the attack sealed her fate with their extreme indifference and the degrading treatment of her body.
[71] While I acknowledge that intoxication played a role in the commission of this crime by Marlene, I also acknowledge that the Crown accounted for this in the reduction of the charge to manslaughter.
[72] Regardless, I do not accept that there was little to no moral blameworthiness as a result of Marlene’s level of intoxication. While I recognize that her intoxication from drugs and alcohol likely played a role in some of the choices made, I do not find that it negates Marlene’s level of moral blameworthiness to the point that, combined with all other factors, it justifies the sentence sought by the Defence. Choices were made that night suggesting that despite the level of intoxication of Marlene, there was some appreciation of her actions and the consequences flowing from them. While Marlene was sufficiently intoxicated that she cannot fully recall the details of that evening, from what she does recall, she had the wherewithal to get Ashley something to clean up her bloodied face after one of the first blows were delivered. That is where her attempt to assist ended. She knew Ashley was, at the very least unconscious but still no attempt to assist her was offered. On the contrary, following the vicious beating a decision was made by the three assailants to conceal their actions rather than seek help. They chose to ensure Ashley could not leave and seek help (although I appreciate that she was not likely in a position to do so at the time this decision was made). When a mess was seen on the floor, Marlene located Mr. Clean, presumably with the intent of cleaning it. Marlene had sufficient wherewithal at one point to recognize that Ashley was not breathing (but still not seek help), later when she told Mr. Maybee his efforts to revive her were futile, and when she announced to him that she had killed Ashley. She had some appreciation of her actions despite her considerable impairment from substances.
[73] Ashley is not the only victim of this crime. Her family have been and continue to be victimized daily by her death. I extend my deepest sympathy to the McKay family.
[74] I conclude that the circumstances of this offence and the weight I must give to the principles of denunciation and deterrence render the 6-year sentence sought by the Defence inadequate. Having said this, I am cognizant of the Gladue factors present and the difficult life Marlene has been forced to endure and the impact this undoubtedly had in the commission of this crime. I am cognizant of the progress she has made while incarcerated to address the issues that factored heavily in her conduct on October 30, 2018. I acknowledge, and have factored in the mitigating factors of a guilty plea, signed statement that assisted police and Ashley’s family in knowing what happened to her, that Ashley’s family has been spared the additional trauma of a trial, and Marlene’s heartfelt expression of remorse. For these reasons, and considering the principle of restraint, I find that the 10-year higher end of the sentencing range suggested by the Crown is similarly inappropriate.
[75] With respect to rehabilitation, healing and rehabilitation can be addressed by continuing with programming available while in custody and has the potential to be more effective than if Marlene is released earlier, but subject to a period of probation. I note that the Pre-Sentence Report author assesses the Accused at a higher risk to re-offend given the multiple and complex issues facing her. The report notes that addressing the addictions and mental health concerns facing Marlene will be key to a long-term successful outcome. Rehabilitative measures will be extremely important to avoid recidivism in the community. The report further concludes that having a stable and structured environment to address addiction and mental health issues would improve the long-term outcome for Marlene. The report references the initiatives within the Federal custodial system aimed at the specialized needs of Indigenous offenders.
SENTENCE AND ANCILLARY ORDERS:
[76] After considering all of the relevant factors and principles of sentencing, both in general and specifically with respect to manslaughter cases, I conclude that the appropriate sentence is a custodial terms of 8 years, which is reduced by enhanced credit of 1670 days for time served in pre-trial custody (1539 days to August 20, 2021 calculated as 1026 x 1.5, plus 130.5 days from August 20, 2021 to November 15, 2021 calculated as 87 x 1.5, with the total rounded up). The effective sentence shall be an additional 1250 days in custody in a Federal penitentiary.
[77] In addition, ancillary orders are mandated by the Criminal Code. Pursuant to s. 109, the Accused is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosives substance for a period of 10 years. The Accused is also required to submit a sample of her DNA to the DNA Data Bank pursuant to s. 487.051.
[78] If I have made any errors in the calculation of time served and remaining, I may be spoken to.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: November 15, 2021
COURT FILE NO.: CR-20-0026-00
DATE: 2021-11-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MARLENE KWANDIBENS
Accused
REASONS FOR SENTENCE
Nieckarz J.
Released: November 15, 2021