COURT FILE NO.: CR-22-0173-00/CR-22-0177-00 DATE: 2023-11-20

ONTARIO

SUPERIOR COURT OF JUSTICE

Parties

B E T W E E N:

HIS MAJESTY THE KING S. Frenette & K. Van Kessel, for the Crown

- and -

Johnathon McKay G. Labine, for the Accused Accused

Heard

HEARD: November 20, 2023, at Thunder Bay, Ontario

Judge

Mr. Justice F.B. Fitzpatrick

Reasons On Sentence

[1] While I am delivering these reasons orally, I am reading written reasons for decision. By the end of business tomorrow I will provide counsel with a copy of these written reasons for the sentencing decision I as I have read them. This final version, which reflects what I am about to read out loud to all of you, will be entered as the next Exhibit at this trial. I believe it will be Exhibit 4.

[2] During the afternoon of Tuesday November 12, 2019 Nazareth Kwandibens and Jessica Oombash were drinking in Ms. Oombash’s apartment in Current River in the north ward of Thunder Bay. Johnathon McKay, who had formerly been in an intimate relationship with Ms. Oombash, entered the apartment and found the pair together. Mr. McKay took exception to what he observed. His response was inexcusable.

[3] Mr. McKay began a prolonged period of beating Mr. Kwandibens throughout the balance of that day. Somehow both Mr. McKay and Mr. Kwandibens ended up next door in the apartment where Mr. Kwandibens was living. The fact that Mr. Kwandibens was in his home did not deter Mr. McKay from continuing to severely beat Mr. Kwandibens. Mr. Kwandibens suffered horrific injuries. Mr. Kwandibens died as the result of the injuries he sustained at the hands and boots of Mr. McKay.

[4] On November 16, 2019, a post mortem was performed on Mr. Kwandibens. He suffered three principle categories of injury; blunt force injuries to his head, torso and arms. Mr. Kwandibens had numerous broken bones, a lacerated liver and most significantly suffered an acute subdural hematoma.

[5] The events of November 12 and into November 13, 2019, were the subject of a detailed agreed statement of fact that was accepted by the court. Most significantly the parties agreed, and Mr. McKay specifically accepted the fact that he, while under the influence of a combination of alcohol and crack cocaine, repeatedly beat Mr. Kwandibens causing injuries which caused the death of Mr. Kwandibens through blunt force torso injuries.

[6] On March 3, 2023, Mr. McKay entered a plea of not guilty to the charge of second degree murder, but guilty to the lesser included offence of manslaughter. On the facts admitted and accepted by the defence I found Mr. McKay guilty of the offence of manslaughter contrary to section 236 of the Criminal Code. We did the same plea inquiry, arraignment, plea and finding of guilt today as the result of things that happened in June of this year. It is now final.

[7] On this sentencing hearing the Court has received a very thorough and detailed Gladue Report in respect of Mr. McKay. Mr. McKay is an Indigenous person. The Gladue Report goes into significant detail concerning Mr. McKay’s background and the impacts his status have had on him as they relate to a just and appropriate sentence in this matter. The Court is well aware of its obligations to consider Mr. McKay’s status, Indigenous background and circumstances as required by section 718 of the Criminal Code of Canada, and discussed in the decision of the Supreme Court of Canada in R. v. Gladue, [1999] 1 S.C.R. 688 and revisited by the Supreme Court of Canada’s decision in R. v. Ipeelee, [2012] 1 S.C.R. 433.

[8] Mr. McKay is presently 45 years old. He is a member of KI First Nation also known as Big Trout Lake. He is a father. His children are 27, 13 and 4.

[9] Mr. McKay’s parents were residential school survivors. They told him of specific memories of being beaten in school for speaking Oji-Cree. Nevertheless Mr. McKay speaks Cree and Oji-Cree.

[10] Mr. McKay witnessed and experience violence at the hands of his father. His father is now dead. Mr. McKay has no current relationship with his mother. He spent time in foster care. He began experimenting with drugs and alcohol at around fourteen years of age. He completed grade 8. He left KI for Winnipeg when he was in his late teens. Clearly intergenerational trauma has been experienced by Mr. McKay.

[11] He was able to remain sober for a significant period in his twenties. At that time, he was able to be gainfully employed. That ceased when Mr. McKay returned to alcohol and drug abuse.

[12] Mr. McKay explains to the Gladue writer that he suffers from ADHD. He comes before the Court with a lengthy criminal record. There are a number of convictions for assault. Today’s matter represents the most serious charge yet faced by Mr. McKay. He has been in custody since his arrest in November 2019. I agree with the submissions of his counsel that this has been hard time because of the effects of the pandemic.

[13] This crime has had a significant impact on Mr. Kwandibens’ family. The family has experienced a profound sense of shock, grief and disbelief concerning his death. A treasured brother, twin brother and father lost his life in his own home. The family is having a very difficult time understanding why. They must live with the results of this senseless death for the rest of their lives. They have experienced true loss. They are experiencing ongoing pain, grief and a difficulty “unseeing” and “unhearing” the horrific images that have been presented thus far in this court process. The prolonged agony that Mr. Kwandibens needlessly suffered has been seared in their memories. However, the court heard and respects Anishinaabe learning about pain. It must be felt, it must be used to grow but it has to be put aside, it has to be let go.

[14] The Court appreciates the courage and clarity of the family who came today to give their victim impact statements directly. It thanks Crystal, Nadia, Jesse Anne, Lira and also those who attended today. It is not an easy process. I hope it will do something to assist all who knew and loved Mr. Kwandibens in their healing journey.

[15] Mr. McKay has pleaded guilty to a charge of manslaughter. Pursuant to section 236 of the Code, as no firearm was involved there is no minimum sentence for this offence. The maximum punishment for this offence is life imprisonment.

[16] The parties have made a joint submission as to penalty. They submit a global sentence of 8 years incarceration with credit for time served for the period November 13, 2019, to June 26, 2023, of 1,322 days enhanced at the rate of 1 to 1.5 for a total of 1,983 days plus additional time served from June 27, 2023, to November 20, 2023, of 147 actual days, 1 to 1, is a fit, just and appropriate sentence in these circumstances. I agree, and accept this joint submission. I do so for the following reasons.

[17] The case law in regards to manslaughter matters varies widely as to sentence. Sentencing is always fact specific. No doubt this was a crime of violence, and involved a prolonged and brutal application of force. Mr. McKay should have turned around and left Ms. Oombash’s place that afternoon. But he did not. However, he is owning up to it. Finally. I appreciate this may not be sufficient to satisfy Mr. Kwandibens family. They are right when they say no length of sentence will bring Mr. Kwandibens back.

[18] The acts committed by Mr. McKay were so seriously violent and incomprehensible that a significant penitentiary sentence is required to both denounce and deter the conduct of Mr. McKay.

[19] Mr. McKay has shown remorse. He has instructed his counsel to submit that he has changed his life. This is the right thing to do. He has entered a plea. He was raised in an environment where the legacy of colonialism and the effects of the residential school experience has led to dysfunction, drug addiction, a lack of hope and now this violent and inexplicable behaviour which has created a huge tragedy. Mr. McKay apparently gave in to blind and unmitigated anger in November 2019. He will live with this for the rest of his life.

[20] Mr. McKay has a significant problem with substance abuse. He needs treatment. A further period of incarceration will allow him to seek this treatment.

[21] In this matter, in my view, there a number of mitigating and aggravating factors. He has a positive work history. He has the support of a former employer. He has sought to gain personal insight in to his behaviour. He has used his time while incarcerated, as difficult as it was to try to change for the better. Mr. McKay’s upbringing, his struggles with substance abuse, issues with domestic violence in his life and his acknowledgement guilt and his taking of responsibility through the submissions of his counsel to the Court and to Mr. Kwandiben’s family represents mitigating factors. Aggravating this situation is the violent nature by which Mr. Kwandibens died and the significant negative impact the commission of this offence has had on Mr. Kwandibens’s family.

[22] In this case, I am mindful of the sentencing principles contained in sections 718.1 and 718.2 of the Code. Also, I have considered the Indigenous background of Mr. McKay and the information contained in the Gladue Report. I have taken into account the principles articulated by the Supreme Court in R v. Gladue and R. v. Ipeelee. In particular, the comments of the Court regarding the necessity that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I agree with the joint submission of counsel that there are systemic and background factors that have affected Mr. McKay’s degree of responsibility. These have been adequately reflected in the joint position of the parties.

[23] In this matter, I am persuaded that the joint submission falls within an appropriate range of sentence for the offence at issue.

[24] Taking all of this into account, in my view, a fit and just sentence is a period of eight years incarceration, less total time served of 2,130 days calculated at both an enhanced and non enhanced rate. This sentence means Mr. McKay has 790 days, or 2 years, 2 months and 5 days left to serve on his sentence. This is the joint submission that I accept.

[25] There will be a DNA order pursuant to section 487.05(1). Further Mr. McKay shall be prohibited from possessing or owning weapons for life pursuant to the provisions of section 109 of the Criminal Code. However, there shall be a section 113 exception in this order for those occasions, once Mr. McKay has finished the period of the warrant of committal, in the event Mr. McKay requires firearms or weapons for the purpose of exercising his constitutional or treaty rights to hunt of fish for sustenance.

[26] The victim impact surcharge waived.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: November 20, 2023