COURT FILE NO.: CR-19-13
DATE: 2022-05-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
P. Keen, for the Crown
- and -
AUSTIN WESLEY
A. Seib, for the Accused
Accused
HEARD: May 16, 2022, Delivered May 17, 2022, at Kenora, Ontario
Mr. Justice W. D. Newton
Reasons for Sentence
Overview
[1] For reasons delivered November 9, 2021[^1], I found Mr. Wesley guilty of second-degree murder in the deaths of Isaac David Gray and Tyrese Jerome Shakakeesic and guilty of attempting to murder Amy Keesickquayash.
[2] Yesterday, I received submissions on sentence from counsel for the Crown and for Mr. Wesley. Filed as exhibits on the sentencing hearing were a Pre-sentence Report as redacted on consent by counsel, a Gladue Report, victim impact statements, and a statement prepared by and read to the court by Mr. Wesley.
[3] I have considered the exhibits filed and the submissions of counsel. These are my reasons for sentence.
The Facts
Circumstances of the Offences
[4] The circumstances of the offences are as described in my reasons for the convictions.
[5] On December 6, 2017, Mr. Wesley shot and killed his father, Isaac Gray, 51, and his best friend, Tyrese Shakakeesic, 18. Mr. Wesley was also 18 at the time. He and his best friend had been drinking. Mr. Wesley argued with his father and then assaulted him. His friend intervened and restrained Mr. Wesley. A short time after that confrontation, Mr. Wesley got his rifle and fatally shot his father in his house. He then chased after his friend who was running away outside and shot him twice, fatally injuring him. Mr. Wesley then chambered another round in his rifle and re-entered the home looking for Ms. Keesickquayash and attempted to kill her. She hid. Mr. Wesley could not find her. Police arrived and Mr. Wesley was taken into custody.
Circumstances of the Offender
[6] Mr. Wesley was born on September 6, 1999. He was 18 years and three months old when he committed these crimes.
[7] Mr. Wesley is Indigenous. Both the Crown and Defence agreed that in determining a just sentence, it is important to take into consideration the Gladue factors. To this end a presentence report and a Gladue report were produced for consideration. The pre-sentence report was prepared by Jamie Ahrens, a probation and parole officer located in Sioux Lookout. The Gladue report was prepared by Wendy Capri, Gladue writer for Nishnawbe-Aski Legal Services Corporation.
The Pre-sentence Report
[8] The author of the pre-sentence report interviewed Mr. Wesley and his mother. Records, including records from Tikinagan Child and Family Services and Corrections, were reviewed.
[9] The author said this about Mr. Wesley’s community:
Cat Lake is a small First Nations reserve located in Northwestern Ontario which is considered remote as it does not have year-round road access. As with other First Nation communities, the people of Cat Lake have suffered from the impact of various government policies and practices. This has resulted in the decline of hunting and fishing grounds, undermined the influence of the family clan system, and interfered with many other aspects of the traditional way of life. The community is considered a high risk
environment. Instances of substance abuse, physical and sexual violence, child protection issues, involvement in the Criminal Justice System, and other such indicators of crisis are much higher than in other populations. A very high unemployment rate, extreme levels of poverty, inadequate and unsafe housing, low education levels and other barriers to opportunity compound these problems. The community is making slow but steady progress in positive directions, but there continues to be a lack of access to appropriate and adequate resources, including mental health services.
[10] Mr. Wesley did not complete high school, preferring to hunt and fish. He has had sporadic employment cutting wood.
[11] Mr. Wesley reports that he has not had any access to programing in the over four years that he has been in custody.
[12] The report writer summarized Mr. Wesley’s background as “unstable”, with Mr. Wesley being exposed to “violence and substance abuse throughout his upbringing, while residing in a remote First nation community, which continues to deal with the impact of colonialism and the residential school system.” Both Mr. Wesley and his mother “appeared to attribute alcohol use and systemic issues in the community as a catalyst for the offences.”
The Gladue Report
[13] For her very comprehensive report, the author interviewed Mr. Wesley on three occasions, his mother twice, and other family members including his two half-brothers. Mr. Wesley reviewed and approved this report on May 5, 2022.
[14] Key observations from the Gladue report include:
Historical or intergenerational trauma has further manifested in the Aboriginal population through the increase in prevalence of various mental health disorders such as anxiety, post-traumatic stress disorders, depression and addictions.
The effects of unresolved trauma are transmitted to successive generations through shared cultural memories, patterns of parenting, psychological memory processes and a biologically inherited predisposition to post-traumatic stress disorder.
A further component of historical trauma is the use of the numbing effects of drugs and alcohol.
The imposition of settler culture and the forced loss of language, culture, land, tradition, lifestyle, identity and self-determination has harshly affected the health and well-being of Aboriginal peoples. For some, the impact of this mass unhealed psychological trauma and these human rights violations resulted in mental health and addiction concerns, such as drug abuse as a means of coping with and providing temporary escape from difficult life circumstances and ongoing historical trauma.
[15] Mr. Wesley’s personal upbringing and challenges were reviewed. Like others in First Nation communities, he suffered crowded and inadequate shelter and food shortages. As noted in the pre-sentence report, intoxication through alcohol and drugs and violence arising from that intoxication was common.
[16] One of the few sources of pleasure and pride for Mr. Wesley was being on the land, and providing food for family and community, and sometimes, a source of income.
[17] However, selling drugs was the prime source of income for his father. That, and the association with gangs, was not a good influence upon Mr. Wesley. He witnessed frequent drug use, including the use of injection drugs, violence and sexual assault. He himself experimented with alcohol and solvents at a very young age. Later, he started selling alcohol and drugs himself, drugs he would acquire form other family members, including “weed” and morphine.
[18] According to the author, Mr. Wesley attended school to grade seven only, and was the only one of his siblings who struggled in school. Behavioral issues were noted. He preferred to be on the land and hunting like Shoomis. He told an uncle that he didn’t want to be selling drugs but “more like his Grampa.”
[19] Of his relationship with Tyrese, Mr. Wesley said, “We were close. Really close. We were like brothers.”
[20] The Gladue report writer made the following recommendations:
Actively engage in the Indigenous Integrated Correctional Core Programming available in most correctional institutions in Canada.
Work with the Indigenous Re-Integration Program consisting of Indigenous Correctional Services of Canada staff and Elders to work towards a placement in a Traditional Healing Lodge during the Preparation for Release phase of your sentence.
Impact on the Victim and Community
[21] Three people related to the victims prepared victim impact statements. Not surprisingly, all are also related to Mr. Wesley. I was also told by Mr. Keen that several members of Mr. Shakakeesic’s and Mr. Wesley’s families were present in Court or observing via ZOOM videoconference from their communities.
[22] One of Tyrese Shakakeesic’s aunts told me of the mental toil this loss took on her as she turned to alcohol and then drugs, going on, as she described, “a road to self-destruction.”
[23] One of Isaac Gray’s sisters, an aunt to Mr. Wesley and grandma/aunt to Tyrese, told me that Isaac’s sisters miss their brother and that they miss Austin and his friend, Tyrese. They recognize that Austin will be in jail likely for the rest of his grandparents’ and others’ lives. She told me that it is “sad to see what destruction alcohol leaves in its trail.” The sisters of Isaac see that removing Austin from them is a punishment for them as well. She concluded by telling me, “We hope and pray that he makes the right choices for himself – choices that are right and healthy for him.”
[24] One of Isaac Gray’s brothers told me, and Austin, that he forgives Austin, that he holds no resentments towards him, and that he could still “be like Shoomis”, his grandfather.
[25] As acknowledged by both Mr. Seib and by Mr. Keen, I know that this has had a profound and devastating impact on the family of, and friends of, Tyrese, Isaac, and Austin, indeed, upon the entire community of Cat Lake.
Mr. Wesley’s Statement
[26] Mr. Wesley prepared and read a statement to me and to his family, Tyrese’s family, and to his community. He read his statement through a river of tears shed for what he had done to his father and best friend. I accept his remorse as sincere, as real.
Legal Parameters
[27] The Criminal Code provides for the following sentences for second degree murder and attempted murder:
Punishment for murder
235 (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
Sentence of life imprisonment
745 Subject to section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be
(c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 745.4;
Attempt to commit murder
239 (1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years…
Positions of the Crown and Defence
[28] Crown and Defence jointly submit that a fit and justice sentence, taking into consideration the aggravating and mitigating factors, including Gladue factors, is a life sentence with no eligibility for parole for eighteen years, concurrent on each count of second degree murder, and a further ten year concurrent sentence for the count of attempted murder.
[29] In support of this joint submission, counsel have referred me to the following recent decisions of other judges: R. v. Koopmans[^2], a decision of the British Columbia Supreme Court; R. v. McLeod,[^3]a decision of the Manitoba Court of Queen’s Bench; R. v. Rushton,[^4] a decision of the Nova Scotia Supreme Court; R. v. Sharpe,[^5]another decision of the Manitoba Court of Queen’s Bench; and R. v. Daley,[^6] a 2021 decision of this court, the Ontario Superior Court of Justice.
[30] Counsel for Mr. Wesley also noted that Mr. Wesley has been in custody for over four years and five months, most of which has been during Covid, with little to no programming.
Gladue
[31] The Supreme Court of Canada has set out factors that the sentencing judge must consider when sentencing an Aboriginal offender. These were first enunciated in the Supreme Court of Canada case of R. v. Gladue[^7] and they have been affirmed since then as stated in the Supreme Court of Canada case of R. v. Ipeelee[^8]:
To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of higher levels of incarceration for Aboriginal peoples”.
[42] Section 718.2(e) of the Criminal Code requires the sentencing judge to consider “all available sanctions other than imprisonment that are reasonable in the circumstances… with particular attention to the circumstances of the Aboriginal offender.”
Aggravating and Mitigating Factors
[32] Aggravating factors include that Mr. Wesley committed two murders, with a firearm, and attempted another, that one of the murders was of a family member, and that these crimes have had a devastating and lasting impact on the community of Cat Lake.
[33] Mitigating factors include his youth - he had just turned eighteen three months before these crimes, his lack of a prior criminal record, the Galdue factors as noted, and the forgiveness of community members.
Joint Submissions
[34] In R. v. Anthony-Cook[^9], the Supreme Court of Canada said this about joint submissions:
44 Finally, I note that a high threshold for departing from joint submissions is not only necessary to obtain all the benefits of joint submissions, it is appropriate. Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests of both the public and the accused (Martin Committee Report, at p. 287). As a rule, they will be highly knowledgeable about the circumstances of the offender and the offence and the strengths and weaknesses of their respective positions. The Crown is charged with representing the community's interest in seeing that justice is done (R. v. Power, [1994] 1 S.C.R. 601, at p. 616). Defence counsel is required to act in the accused's best interests, which includes ensuring that the accused's plea is voluntary and informed (see, for example, Law Society of British Columbia, Code of Professional Conduct for British Columbia (online), rule 5.1-8). And both counsel are bound professionally and ethically not to mislead the court (ibid., rule 2.1-2(c)). In short, they are entirely capable of arriving at resolutions that are fair and consistent with the public interest (Martin Committee Report, at p. 287).
Case Law Supporting Joint Submission
[35] I have read the decisions of other judges referred to by counsel to support the joint recommendation for sentence. These cases, and particularly, Daley, provide helpful summaries of parole eligibility in double murder cases. What distinguishes the higher end of the range sentences is the age of the accused. Important factors in this case are the Gladue issues, Mr. Wesley’s youth and his lack of criminal record.
The Sentence
[36] One of my colleagues recently stated that sentencing someone is one of the most difficult tasks a judge has to undertake. I agree. This is especially so when a young person like Mr. Wesley has murdered his father and his best friend. These crimes must be punished by a sentence that reflects the community values that lives are sacred and should not be taken by another. Denunciation and deterrence are required.
[37] I can only imagine the horror felt and the trauma experienced by Amy Keesickquayash in seeing her close friend murdered and then being hunted by Mr. Wesley. This, too, requires denunciation and deterrence.
[38] After considering the submissions of counsel and case law cited, the pre-sentence and Gladue reports, the victim and community impact, and Mr. Wesley’s statement to me, I conclude that the joint submission is a fit and just sentence in the circumstances of this case.
[39] Please stand Mr. Wesley.
[40] For the second-degree murder of Isaac David Gray, I sentence you to life imprisonment with no eligibility for parole for eighteen years.
[41] For the second-degree murder of Tyrese Jerome Shakakeesic, I sentence you to life imprisonment with no eligibility for parole for eighteen years to be served concurrently with the prior sentence.
[42] For the attempted murder of Amy Keesickquayash, while holding a rifle, I sentence you to imprisonment for ten years to be served concurrently with the prior sentences.
[43] Ancillary orders are mandated by the Criminal Code. You will be prohibited from possessing a weapon as described in section 109 of the Criminal Code for life. Further, you are ordered to submit a sample of your DNA to the DNA data bank.
[44] I also endorse the recommendations made by the Gladue report writer as set out in paragraph 20 of this decision.
[45] Mr. Wesley, you heard what your counsel, Mr. Seib, and Crown counsel, Mr. Keen, said. This is a life sentence. Whether you are eligible for parole in about thirteen and one half years or ever depends upon what you do. Starting today. You have to earn your parole. Otherwise, this is a life sentence. You read what your aunt wrote. Your aunts “hope and pray” that you make the right choices for you – “choices that are right and healthy” for you. You read what your uncle said, “You can still be like your grandfather.” It is up to you. Starting today.
[46] You may be seated.
Conclusion
[47] Counsel, thank you for your very helpful submissions in this very difficult and tragic case.
[48] To those who provided victim impact statements, I thank you for helping me to understand the impact upon your lives and the lives of those in your community. To those watching here in the courtroom or back in your community, I thank you for waiting patiently as we come to the conclusion of this case. I recognize that some, or many, of you may disagree with the decision made here today, but I hope that you understand, at least, the reasons for this decision.
The Hon. Mr. Justice W. D. Newton
Released: May 17, 2022
COURT FILE NO.: CR-19-13
DATE: 2022-05-17
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown
- and –
AUSTIN WESLEY Accused
REASONS FOR SENTENCE
Newton J.
Released: May 17, 2022
[^1]: 2021 ONSC 7264 [^2]: 2015 BCSC 2120. [^3]: 2018 MBQB 73. [^4]: 2016 NSSC 313. [^5]: 2017 MBQB 6. [^6]: 2021 ONSC 7678. [^7]: [1999] 1 SCR 668 [^8]: 2012 SCC 13, [2012] 1 SCR 433, para 60. [^9]: 2016 SCC 43, [2016] 2 S.C.R. 204.