ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
TERRYL MICHON
Mr. Justice W. D. Newton
Overview
) T. Jukes, for the Crown
) N. McCartney, for the Accused
Accused )
) HEARD: August 27, 2021,
) at Thunder Bay, Ontario
Reasons for Sentence
1Terryl Michon pleaded guilty to manslaughter, contrary to section 236(b) of the Criminal Code, in the death of Ashley McKay who died on October 30, 2018.
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The Facts:
Circumstances of the offence
2An Agreed Statement of Facts was filed as an exhibit and is attached to these reasons as Schedule 1.
3Early in the morning of October 30, 2018, police responded to a report of a dead body in
an apartment. Upon arrival, the door to the apartment was answered by Marlene Kwandibens.
4When police entered the apartment, they discovered the naked and dead body of Ashley McKay in a large Rubbermaid container in a closet. She appeared to have been beaten and there were shoelaces tied around her wrists, around her neck loosely, and around one leg. After an autopsy, the medical examiner concluded that the cause of death was “blunt force head trauma in a woman with ethanol intoxication".
5Ms. Michon and Darren Oombash were found asleep in the apartment.
6In a sworn statement to the police, Ms. Kwandibens said that she and Ms. McKay were at her apartment consuming alcohol and crack cocaine. Ms. Michon and Mr. Oombash arrived. Ms. Michon was upset with Ms. McKay. Ms. Kwandibens asked Ms. McKay to leave and asked Mr. Oombash to remove her. Ms. Kwandibens slapped Ms. McKay and Ms. Michon “jumped in”. The three of them assaulted Ms. McKay.
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7Ms. McKay was possibly unconscious and had possibly urinated, so her clothing was removed. Mr. Oombash tied Ms. McKay up with items provided by Ms. Kwandibens. I do not know who placed Ms. McKay in the Rubbermaid container.
8Ms. Michon and Mr. Oombash went to sleep while Ms. Kwandibens watched Ms. McKay to make sure that she did not get away. Ms. Kwandibens continued drinking while the other two slept. At some point, she checked Ms. McKay who was not breathing, and she woke up the other two. Ms. Kwandibens recalls no other events. No one sought medical attention for Ms. McKay.
9Ms. Michon, because of acute intoxication arising from the heavy consumption of alcohol together with illicitly obtained prescription medication (morphine and Xanax), has no coherent memory of the period during which Ms. McKay was killed. However, she admits that she participated in the beating of Ms. McKay and that the blunt force injuries inflicted by that beating were a substantial cause of Ms. McKay's death.
10Ms. McKay's blood was found on the steel toed shoes of Ms. Kwandibens, on Mr.
Oombash's hand and shoes, and on Ms. Michon's hand and sweatshirt.
11The post-mortem examination of Ms. McKay's body revealed over 80 distinct injuries consisting primarily of contusions and abrasions to the head and face, neck, torso, and extremities. The injuries also included fractures to her nose and ribs.
12Cause of death was identified as blunt force head trauma in a woman with ethanol intoxication. Ms. McKay had a blood-alcohol level of .354/ 100 ml.
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Circumstances of the offender
13I had the benefit of receiving a presentence report dated February 18, 2020, and an addendum dated May 19, 2020. The report writer interviewed Ms. Michon, her mother, and an addictions counsellor.
14Ms. Michon is 24, born January 7, 1997. She and her mother are members of Wiikwemkoong Unceded Territory in the District of Manitoulin. Her father, who was a member of Fort William First Nation, died when Ms. Michon was young. Her mother was a teacher on northern reserves. She attended elementary school in the north and then high school in Geraldton. When she was 17, she relocated to Thunder Bay and had a son for whom she cared during the first few years of his life. Her son is now cared for by Ms. Michon's mother. She gave birth to another child in 2017 who died a few days later in hospital.
15Following this death, Ms. Michon's problems with alcohol increased and she was abusing alcohol and street drugs up to the time of this offence. She has had treatment for psychiatric issues.
16She hopes to further her education and have her son back in her life.
17While noting that her past puts Ms. Michon at a higher risk to re-offend, the report writer noted that Ms. Michon would be a suitable candidate for community supervision based on her involvement with workers in the correctional system, her educational programming, her supportive mother, her desire to have her son back and her motivation to complete treatment.
Court File No: CR-20-0026-00
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Mr. Justice W D. Newton
18The supplementary report indicated some involvement with the Native Syndicate gang, and in particular, with Garnet Loon, who is currently serving a penitentiary sentence for his second manslaughter conviction. Ms. Michon hopes to leave this lifestyle behind.
19The supplementary report also indicated that Ms. Michon has applied to Confederation College and Lakehead University for postsecondary studies.
20I also had the benefit of receiving a very comprehensive Gladue report from Wiikwemkoong Justice. It was noted that Ms. Michon's maternal grandmother attended residential school. The community, at large, has experienced addictions, family breakdown, lack of parenting skills, depression, suicide, loss of cultural identity and low self esteem. Ms. Michon's grandmother had issues after residential school including entering into an abusive relationship. Her daughter described her as an alcoholic and said that she did not know how to parent. Ms. Michon 's mother was taken into care, along with her five siblings when she was four years old. She was subsequently adopted by a non-native family in Nipigon. Ms. Michon's mother was in an abusive relationship also and attempted suicide when Ms. Michon was three months old. When she ended the abusive relationship, Ms. Michon's mother pursued post secondary education and ultimately obtained a Bachelor of Education in 2003. She worked in a number of northern communities and presently works in Fort Albany First Nation.
21Ms. Michon moved with her mother to different communities for employment including to the Geraldton area for about 10 years. As an adolescent, she began using alcohol.
22At 18, Ms. Michon left home and came to Thunder Bay. According to her mother, Ms. Michon became involved in negative relationships and began using drugs. In 2015, she gave
Court File No: CR-20-0026-00
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Mr. Justice W. D. Newton
birth to her son, Nehemiah. In 2017, Ms. Michon gave birth to a daughter who died a few days later due to a cardiac valve defect. Consequently, Ms. Michon continued to use drugs. In 2018, her mother took over the care of Nehemiah who has autism with severe ADHD and epilepsy.
23Ms. Michon reported that she has been the victim of abuse from her former partner and sexual abuse as a child from one of her mother's former partners.
24She has disclosed suicidal thoughts in the past and attempted to hang herself while in custody in 2019.
25However, it is reported that she has completed high school while in custody and that she hopes to pursue post secondary education. She has expressed interest in social work and would like to become an addictions counsellor.
26The Gladue report recommended that Ms. Michon:
-undertake services with the Wiikwemkoong Gladue Aftercare Program;
-undertake updated alcohol and substance abuse assessment;
- undertake mental health counselling for grief and loss, for domestic violence and for survivors of childhood sexual abuse; and
-pursue traditional learning opportunities.
27A letter of support from her mother, Yvonne Harbison, was filed as an exhibit. Ms. Harbison stated:
During this past year, I have seen a lot of growth with my daughter. She has clearly worked on herself while being incarcerated. She now understands about being in an
Court File No: CR-20-0026-00
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Mr. Justice W D. Newton
abusive relationship, and understands the importance of choosing healthy relationships. She also has worked on her education and has graduated from high school. She recently applied to college and she was accepted in all her programs. She has decided to take the General Arts and Science Program at Confederation College.... I have also seen growth with her understanding of her drug and alcohol addictions. Terryl has shared with me that she wants to share her story with other youth and that she wants to continue to make a positive change with herself and others.
28Mary Kozorys, programme coordinator with the Elizabeth Fry Society, wrote a letter of support for this sentencing hearing. She stated:
I have personally known Ms. Michon since her incarceration in late October 2018. She has used her time in incarceration as an opportunity for not only self reflection, but to focus on self-development and self-determination. Ms. Michon has not only completed the necessary credits to achieve a secondary school diploma, but over 30 courses offered by the institution in subjects including anti-criminal thinking, self care, parenting to name a few, as well as self-directed Bible studies. She has also been an active participant in Elizabeth Fry programs including yoga, mindfulness and meditation, art, book club as well as Speakers School....
The time that she is already served has not only contributed to respect for the law, but has met the objectives of sentencing, rehabilitation of the offender, and promotion of a sense of responsibility, and acknowledgement of the harm done being central.
29Ms. Michon also submitted a letter to be considered upon her sentencing. She wrote of her plans to attend Confederation College and described that as a "chance to turn a new leaf and move forward in life." She spoke of the assistance provided to her by the Elizabeth Fry Society and the work she has done with her drug and alcohol counsellor weekly. She concluded by stating:
I was never given a chance to prove to the courts, my family and society that I have changed and I am asking for a chance to prove that I am a different person and I want to move forward in life.
30She also read aloud a statement to Ms. McKay's family. Facing them in court, she said:
I would like to apologize to Ashley McKay's family. I am deeply sorry for what happened to her. I can't take away the pain I caused you or bring her back but I can apologize and let you know I will live with her death for the rest of my life. I did deeply care about her and I should've been a better friend. I don't expect your forgiveness but I need you to know I am truly sorry for what happened to her.
Impact on the Victim and/or Community
31Ian McKay and Genlyn McKay provided victim impact statements. Ian McKay read his statement to me.
32Mr. McKay is Ashley's father. Ashley was the firstborn of 11 children. He spoke passionately about the joy and happiness he felt at her birth. He said that Ashley brought so much happiness to those that she met. He described her as bright, smart, an eager learner, caring, loving and always thoughtful of others. He said that, before her death, she was hanging out with the wrong crowd. They were waiting for a bed to open up for her at a treatment centre. Mr. McKay said that, since Ashley 's death, it has been unbearable and that he has been filled with so much pain. He told me that this has left a severe scar in his life. He described crying and excruciating pain in his chest. He is struggling with depression and anger. He asks for justice for Ashley.
33Genlyn McKay is one of Ashley's sisters. She described how another sister died because she could not handle the grief. Since her sister was killed, she feels like she has no one to talk to anymore. She said that her heart and her family is changed. She could not bear to hear how Ashley was last treated.
Positions of Crown and Defence:
34Ms. Michon has been in custody since October 30, 2018. Counsel agree that the appropriate credit for pre-sentence custody to the date of this hearing August 27, 2021 (after reduction for an unrelated sentence) is 32 months. To today's date the total time in custody has been 34 and 2/3 months. With credit of 1.5 per day in custody that is equivalent to 52 months presentence custody or four years and four months in custody.
35The Crown submits that the appropriate range for sentence is eight to twelve years given the aggravating factors in this case. The aggravating factors include that this was a
"three on one" assault on a victim rendered vulnerable by her extreme intoxication. While the number of injuries is not directly correlated to the number of blows, the Crown submits that I should infer that this was an extensive beating of a young woman who was unable to protect herself. Rather than seeking assistance, Ms. Michon and her companions left Ms. McKay to die in a degrading and dehumanizing manner.
36Counsel for Ms. Michon suggest a sentence in the range of time served, four and one third years, is appropriate. While acknowledging Ms. Michon's actions were a significant contributing cause of death, counsel for Ms. Michon submit that the facts as admitted indicated that Ms. Michon played no part in the indignities to Ms. McKay following her beating. Counsel points to the gains made while in custody and submits that given her youth, Gladue factors and lack of prior criminal record, rehabilitation should be emphasized.
Cases relied upon by the Crown:
37In R. v. Clarke, 172 0.A.C. 133, the Court of Appeal imposed a sentence of nine years when Clarke, then 29, brutally stabbed his 47-year-old friend. Clarke had a blood- alcohol level of 200mg/l00ml. This case was described as an "aggravated manslaughter". The aggravating factors included the fact that the victim was extremely frail, vulnerable, and defenceless against this armed attack. Clarke provided assistance and care to the victim in the past. Clarke stabbed the victim seven times with considerable force. He waited 20 minutes to call 911. This death had a devastating impact on the victim's family.
38In R. v. Devaney, 215 0. A.C. 253, the Court of Appeal upheld a sentence of 11 years for Devaney who was intoxicated when he stabbed his landlady 107 times. The Court of Appeal described the attack as brutal and extremely horrific. The Court noted that there were 25 defensive wounds. Stating that it was not useful to label a sub-category of manslaughter as aggravated manslaughter, the Court confirmed that the object "in each case is to impose a sentence that fits the facts and circumstances of the particular case. Part of that exercise is to impose similar sentences for similar offences and offenders." (at para. 34.)
39In R. v. Tahir (27 August 2012), Toronto, C56682 (Ont. Sup. Ct. Then J.), 2016 ONCA 136, Tahir received a sentence of 12 ½ years for a manslaughter conviction. In a "state of rage and highly intoxicated," Tahir beat the victim who died a few weeks later. In imposing sentence, the trial judge noted a number of aggravating factors including the criminal record, the victim's defenselessness, the use of a weapon, and the callous disregard in failing to render assistance or call for assistance. The Court of Appeal did not set aside the sentence for this “aggravated” manslaughter (para.2).
40In R. v. Punia, 2018 ONCA 1022, the Court of Appeal upheld a sentence of 12 years when the accused stabbed her sister-in-law in the neck while the deceased was holding her baby in her arms. Notwithstanding the progress that Ms. Punia made while in custody, the Court of Appeal concluded that the sentence was fit and proper given the factual circumstances in which it occurred.
41In R. v. Roberts-Stevens, 2019 ONSC 257, Quigley J. imposed a sentence of 10 ½ years for an accused who was found guilty of killing a former friend by firing a home-made shotgun at him from several feet away.
42In R. v. Torrezao, 2018 ONSC 2157, Sproat J. imposed a sentence of two years in the manslaughter death of Mr. Torrezao's neighbour. In arriving at the sentence, although Mr. Torrezao used a sword, Sproat J. found Mr. Torrezao’s moral culpability to be at the "low end of the scale" given that the act was over in a few seconds, there was no forethought or planning, there was no gratuitous violence or brutality and little force was used - he pulled the sword back after stabbing forward. He also found that specific deterrence was of minimal importance since Mr. Torrezao was likely to re-offend. Sproat J. also noted that, given the facts of that case, the objectives of general deterrence and denunciation were properly served by this sentence.
43In R. v. Bushby, 2021 ONSC 4082, Pierce J. sentenced Bushby to eight years for the manslaughter death of a woman he hit with a trailer hitch thrown from a moving vehicle. Aggravating factors included the fact that the victim was a vulnerable, unsuspecting victim who was attacked at night, with a dangerous weapon.
Pierce J. concluded that Mr. Bushby was "callously indifferent" and that his moral culpability was high because he was aware of the consequences of his actions. Mitigating factors included the fact that he was young, just past his eighteenth birthday and had no criminal record. His positive presentence report indicated a strong potential for rehabilitation.
44In R. v. Campbell, 1991 CanLII 11830 (MB CA), [1991] M.J. No. 31, the Manitoba Court of Appeal imposed a sentence of 10 years for an accused who was convicted of the manslaughter beating death of an older male. The accused was 25 and the victim was 59. When the victim was on the ground and defenceless, the accused punched and kicked him in the face with sufficient force to break the cheekbone away from the base of the skull. Both the accused and the victim had blood-alcohol readings slightly in excess of 200 mg/1OOml. The Court of Appeal described the magnitude of culpability as "very high" and noted that only the accused's "drunken state at the time of the offence has saved the accused from a mandatory life term."
45In R. v. Moose, [2002] 0. J. No. 5682, Kurisko J. imposed a 10-year sentence for an Indigenous man who was intoxicated and beat a defenceless victim who was confined to a wheelchair. The accused had a longstanding problem with alcohol and had a record including six prior assaults.
46In R. v. Norman, [2005] O.J. No. 1073, Watt J. as he was sentenced Mr. Norman to eight years when he stabbed and beat the victim to death. Mr. Norman had no prior record. Aggravating factors included what Watt J. described as gratuitous and excessive violence with
more than four dozen sharp force injuries and defensive wounds. Mitigating factors included the guilty plea and genuine remorse.
Cases relied upon by the Defence
47In R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, Gladue received a sentence of three years for manslaughter. She had stabbed her fiance once, penetrating his heart.
48In R. v. Thompson, 2010 ONCA 463, the Court of Appeal upheld a sentence of four years less a day for manslaughter. With pre-sentence custody, the effective sentence was two years less a day plus three years probation. The Court noted:
41In the present case, the respondent was nineteen at the time of the offence and was clearly very remorseful. The respondent had a relatively limited role in the homicide in that he appears to have joined an ongoing assault of the victim by others. Because the trial judge deemed the respondent to have inflicted the stab wound that neither caused nor contributed to the death of the victim, he can be considered a party rather than a principal in the offence. When comparison is made with Brizard, the two are fairly similar. In the circumstances of this case, while the four year sentence imposed is at the low end of the range, it is not, in my view, demonstrably unfit.
49In R. v. Thomas, 2016 ONSC 7944, I sentenced Thomas to four years in the manslaughter death of her partner. He had assaulted her during a fight, and she stabbed him three times with one wound penetrating the heart.
Sentence of Co-Accused
50Yesterday, November 15, 2021, my colleague, Nieckarz J. determined that the appropriate sentence for Marlene Kwandibens was eight years imprisonment which was reduced by time served with enhanced credit to an additional 1,250 days in custody in a Federal
penitentiary. In imposing that sentence, my colleague carefully reviewed the aggravating and mitigating factors. She found Ms. Kwandibens sincere in her remorse.
51Justice Nieckarz noted that Ms. Kwandibens, who is 40, had what she described as a "limited criminal record'', noting offences in 2014 and 2015 for theft under, break and enter, assaults and breaches of undertakings, none of which resulted in any significant periods of incarceration.
52Significantly, it was noted by the presentence report author that Ms. Kwandibens was at a higher risk to reoffend. Justice Nieckarz noted:
The report notes that addressing the addictions and mental health concerns facing Marlene will be key to a long-term successful outcome. 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.
53Counsel for Ms. Kwandibens had submitted that a sentence of six years would be appropriate but Justice Nieckarz concluded that, in the circumstances of this offence, a six-year sentence was inadequate to address the important principles of denunciation and deterrence.
54With respect to rehabilitation, Justice Nieckarz noted that continuing with programming while in custody has the potential " to be more effective than if Marlene is released earlier but subject to a period of probation" given the conclusions of the presentence report writer.
Principles of Sentencing:
55The following provisions of the Criminal Code guide me: Purpose
- 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
(j) 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:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(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.
Reasons:
56As the Supreme Court of Canada recently stated at paragraph 4 of R. v. Strathdee, 2021
sec 40:
In the context of group assaults, absent a discrete or intervening event, the actions of all assailants can constitute a significant contributing cause to all injuries sustained.
57While this case bears some similarity to cases relied upon by the Crown in that Ms. McKay was vulnerable and defenceless, it is dissimilar to the cases of Devaney, Tahir and Roberts-Stevens which involved weapons. Nor is it similar to the case relied upon by the defence, Thomas, who had been assaulted by her partner.
58Aggravating factors include that this was a brutal and prolonged assault on a defenceless victim, Ms. McKay. While Ms. Michon may not have actively participated in the indignities to Ms. McKay after the assault, she was aware of what was done. In failing to render or seek assistance for her friend after the beating, Ms. Michon demonstrated a callous disregard for the well being and life of Ms. McKay. The degree of moral culpability is high.
59There are also mitigating factors in this case. There is a guilty plea and what I accept as a genuine expression of remorse.
60Ms. Michon is, in essence a youthful first offender; she was 21 years old when Ms. McKay was killed. I note that she has made significant progress with her education and her rehabilitation over the last almost three years. I note the significant Gladue factors that will have contributed to her difficulties with alcohol and drugs.
61Sentencing objectives include denunciation and deterrence and promoting responsibility in offenders and acknowledgement of the harm done to victims and the community. Sentencing should also, to the extent possible, assist in rehabilitating offenders.
62In imposing this sentence, I have also considered the sentence received by Ms. Kwandibens who also pleaded guilty to manslaughter in the death of Ms. McKay. Like Ms. Michon, Ms. Kwandibens has significant Gladue factors and significant issues with alcohol and drugs. I note that Ms. Kwandibens is older, she is 40 and Ms. Michon is now 24. Ms. Kwandibens has a criminal record but not as extensive as it could have been given the very significant Gladue factors. I note that Justice Nieckarz concluded that rehabilitation had the potential to be more effective while in custody rather than in the community through probation.
63I return to what Yvonne Harbison, Ms. Michon's mother, said. She said;
During this past year, I have seen a lot of growth with my daughter. She has clearly worked on herself while being incarcerated. She now understands about being in an abusive relationship, and understands the importance of choosing healthy relationships. She also has worked on her education and has graduated from high school. She recently applied to college and she was accepted in all her programs. She has decided to take the General Arts and Science Program at Confederation College.... I have also seen growth with her understanding of her drug and alcohol addictions. Terryl has shared with me that she wants to share her story with other youth and that she wants to continue to make a positive change with herself and others.
64Mary Kozorys, of the Elizabeth Fry Society, who has known Ms. Michon since October 2018, had a similar view of Ms. Michon's progress:
She has used her time in incarceration as an opportunity for not only self reflection, but to focus on self-development and self-determination.
The time that she is already served has not only contributed to respect for the law, but has met the objectives of sentencing, rehabilitation of the offender, and promotion of a sense of responsibility, and acknowledgement of the harm done being central.
65I accept the presentence report writer's conclusion that Ms. Michon is a suitable candidate for community supervision given her progress to date.
Sentence and Ancillary Orders:
66In this case, denunciation and deterrence is an important factor in imposing sentence. Rehabilitation is also important.
67But for the significant progress shown by Ms. Michon, the appropriate sentence would be eight years imprisonment less time served. However, in the circumstances of this case, the principles of denunciation and deterrence and rehabilitation can be served by a period of additional incarceration followed by probation for three years. The effective sentence is therefore a further two years less a day to be served in a provincial institution followed by three years of probation. This is equivalent to a sentence of 6 1/3 years imprisonment after giving credit for 52 months presentence custody based on 34 2/3 months with credit of 1.5.
68In addition to the statutory conditions of probation, Ms. Michon is to report to a probation officer as directed and attend and participate in such psychological and/or psychiatric assessment and programming as directed by her probation officer.
69As a further consequence of your conviction, ancillary orders are mandated by the Criminal Code. Pursuant to section 109(1)(a), you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosives substance for a period of 10 years. Further, you are required to submit a sample of your DNA to the DNA Data Bank pursuant to s. 487.051.
70To the family of Ms. McKay, I express my sympathies to you. As stated by my colleague Justice Nieckarz yesterday: " 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 the sentence is too harsh, and others who feel it is not harsh enough."
71I express my gratitude for counsel's assistance in this difficult case.
" Original signed by" The Hon. Mr. Justice W.D. Newton
Released : November 16, 2021
The accused Terryl Michon, admits the following facts, making out the offence of Manslaughter, Criminal Code section 234:
On 30 October 2018, at 5:53 a.m., police attended 225 Cumming Street in Thunder Bay, in response to a report of a dead body in apartment 205, the report coming from a neighbouring apartment.
Police knocked at the door of apartment 205 at length without response, and were commencing efforts to force the door, when the door was answered by Marlene Kwandibens.
Police entered the apartment, and one officer discovered the naked and dead body of Ashley Mckay, in a large "Rubbermaid" container (her feet sticking out), within a closet in the apartment. She appeared beaten be in and there were shoelaces tied around her wrists, around her neck loosely, and one leg. An
autopsy ultimately concluded that the cause of death was "blunt force head trauma woman -w ith ethanol intoxication" and it was also noted, "a component of positional asphyxia cannot be excluded as a potential contributor to death''.
Appendix A- Postmortem Report (Dr. Andrew Williams, 24 May 2019)
- Also found in the apartment, sleeping on a mattress in the living room area, were Terryl Michon and Darren Oombash. Police woke them and brought them out of the apartment under detention, along with Marlene Kwandibens, who stated " I'll take the rap, how long will I get?"
II 5. These three persons, and the victim, were all known to each other, on friendly
terms, and had been socializing and drinking alcohol in the apartment. It was Ms.
2
. i
Kwandibens's apartment. Ms. Michon desc1ibed Mr. Oombash as her
"boyfriend." Also, Ms. Michon and Ms. Mckay had a prior romantic relationship.
- The Autopsy Report summarizes the residence as “somewhat cluttered,” there I
, I
being “drug paraphernalia mid alcohol containers present”. .
- The victim's blood, as identified by DNA testing, was located (among other
places), on the steel-toed shoes of Ms. Kwandibens, on Mr. Oombash's hand and
shoes, and on Ms. Michon's hand and a sweatshirt she was wearing when brought
out of the apartment by police. Blood stains were also present on various walls, a mini-fridge, items of clothing, a towel, and on the kitchen floor, with. Mr.
Oombash's shoe-prints in it. The DNA of Marlene Kwandibens and Darren Oombash was detected on the shoelaces tied to the victim's body.
- The one independent civilian witness from the apartment, to testify at preliminary inquiry was Shawn Maybee. He is shown on video surveillance entering the apartment at 5:25 a.m." and leaving at 5:40 a.m. He detailed that Marlene Kwandibens showed him the body in the closet, and said "I killed her." As he made efforts to revive the victim, Ms. Kwandibens stated "what's the point, she's
dead". He quarreled with Ms. Kwandibens, and was then confronted by Mr.
Oombash, whom he fended off, Mr. Oombash having got up from a bed where he
was sleeping with Terryl Michon (who did not get up). He went to the apartment next door to call police.
- After the preliminary hearing, Marlene Kwandibens provided the Crown with a letter written by her outlining the events of 29/30 October 2018.
I
3 i
I
I
Ill 10. Ms. Kwandibens later gave a sworn statement to the police in which she indicated that:
-during the day she was with Ashley McKay at her apartment;
-they were consuming alcohol and crack cocaine;
-Terryl Michon and Darren Oombash arrived;
-Terryl was upset with Ashley because she had heard that Ashley was telling people about her relationship with Darren Oombash and also because of the death of a cousin, John Bottle;
-Marlene asked Ashley to leave and for Darren to physically remove her;
-as he was doing that, Marlene slapped Ashley and Terryl jumped in;
-Terryl, Darren, and Marlene then physically assaulted Ashley;
-Ashley was possibly unconscious, and had possibly urinated, so her clothes were removed;
-Darren tied a naked Ashley up (with items provided by Marlene) and dragged her towards storage closet;
-Terryl and Darren went to sleep; Darren had told Marlene to keep an eye on Ashley to make sure she didn't get away;
-Marlene stayed up drinking while Terryl and Darren slept in the living room;
-Marlene checked on Ashley, who was not breathing; Marlene woke Terry! and Darren;
-Marlene recalls no events afterwards.
- Ms. Michon, because of acute intoxication arising from the heavy consumption of alcohol together with illicitly-obtained prescription medication (Morphine and
•
•. _.,,
Xanax), has no coherent memory of the pe1iod in which the victim was killed. However, she admits participating in the beating of the victim, and that the blunt force injuries inflicted by that beating, were a substantial cause of the victim's death.
I ACCEPT THESE FACTS AS CORRECT.
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-20-0026-00
DATE: 2021-11-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and -
TERRYL MICHON
Accused
REASONS FOR SENTENCE
Newton J.
Released: November 16, 2021
/cjj