Court File and Parties

COURT FILE NO.: CR-22-13830 DATE: 2024/05/15

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King – and – Devon Wynne

Counsel: Julian Daller and David Rodgers, Counsel for the Crown Joseph Addelman and Samantha Robinson, Counsel for the Accused

HEARD: April 24, 2024

Sentencing Decision

Doyle J.

[1] A jury found Devon Wynne guilty of second-degree murder of Jayko Partridge (‘victim’). Mr. Partridge was killed on January 22, 2022 around 6:00 a.m. in an apartment building located on 251 Hannah Street in Vanier (‘Hannah building’).

[2] Mr. Partridge was asleep on the floor of his friend’s home when Devon Wynne entered the apartment in the wee hours of the morning. Jayko Partridge told him to leave, Mr. Wynne then proceeded to stab him 7 times. Jayko Partridge was young, he was Indigenous, and he did nothing to Mr. Wynne to provoke this attack. The last moments of his life must have been agonizing for him as he walked in the snow bleeding onto the ground trying to seek help. He knocked at the motel down the street for a while screaming that it was cold and that he was hurt. Eventually he was allowed into the motel and out of the cold.

[3] The first responders attended to him but it was too late. Mr. Partridge succumbed to his injuries and passed away that day.

[4] The facts that are not controversial are that:

• Mr. Wynne stabbed Mr. Partridge 7 times, 4 in the head and he died shortly thereafter from the stab wounds;
• There were defensive marks on Mr. Partridge’s forearms and wrists which, according to the pathologist, were signs that he was trying to ward off Mr. Wynne’s attacks; and
• Joobah Attagutsiak was the tenant of the apartment where the stabbing took place and was present at the time of the stabbing;

[5] The surveillance footage shows Mr. Wynne’s presence in the hallway in the Hannah building where units 237 and 239 are located across from each other and his movements back and forth between these two units.

[6] In a video clip, Mr. Wynne is observed entering into unit 239 followed by another individual named Molly Atagootak.

[7] Approximately 30 seconds later, Mr. Wynne is escorted out of unit 239 by Andrew Nicholson. Mr. Wynne is carrying a knife. Footage shows Mr. Partridge leaving unit 239 seconds later bleeding profusely followed by Ms. Atagootak. The victim was stabbed multiple times and died shortly thereafter.

[8] After the stabbing, on that, same day, Mr. Attagutsiak, the tenant of the apartment where the stabbing took place, provided a sworn video recorded statement to Sgt. Chris O’Brien.

[9] Mr. Attagutsiak passed away in January 2023 from unrelated causes.

[10] The victim’s cousin, Ms. Pia Akulukjuk, gave evidence at the trial as she was present during the evening of the murder but did not witness the stabbing.

[11] Molly Atagootak was also present that evening but did not testify at trial.

[12] There were no victim impact statements provided to the court.

[13] Mr. Wynne must serve a life sentence for this offence and I must consider the length of his parole ineligibility recognizing that the minimum is 10 years.

[14] Nine members of the jury recommended that Mr. Wynne be eligible for parole after 10 years and three members of the jury would not make any recommendation.

[15] In determining the term of the parole ineligibility for Devon Wynne, I must take into account all his circumstances, the impact on the victim and those involved with him, and the applicable sentencing principles.

Crown’s Position

[16] The Crown requests a 13-year parole ineligibility because of Mr. Wynne’s lengthy criminal record which includes acts of violence and non-compliance of court orders. Some offences on his record include violence against women and an assault causing bodily harm involving a victim who had his back to Mr. Wynne. In addition, he was on probation when this murder was committed.

[17] He has also had misconduct issues while imprisoned on this offence and at the time of the sentencing submissions had an outstanding assault causing bodily harm before the courts which is likely to be resolved.

[18] Mr. Wynne is Indigenous, the victim was also Indigenous and so too are the witness and others present at the apartment as well as the victim’s cousin, Pia Akulukjuk.

[19] This was a violent and unprovoked attack on the victim.

[20] Therefore, the circumstances of the offence and his criminal record along with his misconducts in prison indicate that he is ungovernable.

Defence Position

[21] The defence is requesting the minimum of 10 years parole ineligibility in line with the Supreme Court’s decision in R. v. Shropshire, [1995] 4 S.C.R. 227. The jury’s recommendations should be considered.

[22] The extensive Gladue report highlights the impact of colonialism on Mr. Wynne and his family. The legacy of the residential schools has a direct link to Mr. Wynne’s actions and specifically to his actions on Jan 2022.

[23] He will benefit from the available programs in the federal penitentiary targeted towards the Indigenous populations.

Discussion

[24] I am governed by ss. 745(c) and 745.4 of the Criminal Code of Canada that Mr. Wynne, who has been convicted of second-degree murder, will be sentenced to imprisonment for life without eligibility for parole until he has served at least 10 years and not more than 25 years. In determining what is fair in the circumstances, I am to consider the character of the offender, the nature of the offence, the circumstances surrounding its commission and recommendations made by the jury.

[25] All the sentencing principles apply including those set out in s. 718. The Supreme Court in Shropshire confirmed that deterrence, retribution and rehabilitation must all be considered. At para. 27, Justice Iacobucci, on behalf of the court stated that “as a general rule, the period of parole ineligibility shall be for 10 years”. However, this can be ousted by the trial judge having considered the criteria in s. 744. He further stated at para. 29 that “In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second-degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability.”

Factors that weigh in favour of moderation

[26] Because Mr. Wynne is an Indigenous offender, I must consider s. 718.2(e) which requires the court to consider his circumstances as an Indigenous person. I am required to consider the principles set out in R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13. To that end, I have mentioned, I have the benefit of a Gladue report which describes in detail the impact of colonization on Mr. Wynne and his family members, including his parents and grandparents.

[27] Mr. Wynne is a young man who, along with his family has endured much hardship and many challenges. He was introduced to drugs and alcohol at a young age and became addicted early in life and unfortunately followed in his family’s footsteps making substance abuse part of his life. In fact, he stated to the author of the Gladue Report that his longest period of sobriety has been while he is in custody. His education is limited and he suffers from attention deficit hyperactivity disorder and had other learning challenges. His work history is almost non-existent.

[28] Also, during his childhood, he had multiple concussions from assaults and sporting activities, and he has had memory problems throughout his life.

[29] Mr. Wynne has serious mental health issues including suffering from depression since childhood and anger issues. He struggled with self-harm and suicidal ideation and when he was 10 years old, he tried to kill himself with a knife and was stopped by his grandmother. He also tried to self-harm by cutting his wrists. He has had family members who have committed suicide.

Factors that do not weigh in favour of moderation

[30] However, the victim here was also Indigenous, and the court must prioritize denunciation and deterrence.

[31] In addition, Mr. Wynne has a serious criminal record which includes acts of violence and violations of court orders. He was on probation when this murder was committed.

[32] He has been convicted of sexual assault on a sleeping 15-year-old girl for which he received 17 months incarceration. He has multiple convictions for assault.

[33] He has not responded to efforts from past supervisory orders in the community as he has numerous convictions for failures to comply with recognizances, probation orders, and conditions of an undertaking and failure to comply with dispositions.

[34] There have been several misconducts while incarcerated and his past conduct shows a pattern of violence.

[35] Of course, all sentences are driven by the individual facts and circumstances. However, the court notes that in R. v. Keeash, 2023 ONSC 3530, Justice Newton was dealing with an Indigenous individual and sentenced him to 14 years parole ineligibility with a life sentence for second degree murder. In that case there were also convictions for uttering threats and forcible confinement and that involved an Indigenous woman (but not intimate partner).

[36] In R. v. Newborn, 2020 ABCA 120, the Alberta Court of Appeal sentenced an Indigenous man suffering from cognitive impairments who severely beat the victim and who died two days later. There the sentence was 15 years parole ineligibility with a life sentence for second degree murder. Of note, the jury recommended parole ineligibility between 10 and 21 years.

[37] In R. v. Madison, 2022 ONSC 2537, Justice George (as he then was) sentenced a young Indigenous man to 13 years parole ineligibility. He also had mental illness and used substances. What is noteworthy in that case and distinguishes from the case currently before the court is that the facts suggested a greater reliance on denunciation and deterrence as the victim was shot at relatively close range and the offender had performed some vigilante justice as he was unsatisfied with the outcome of the prosecution which involved his sister as the victim. Another distinguishing factor from this case is that Justice George stated that in the spectrum between manslaughter and first-degree murder “this must surely fall closer to first degree murder” (para. 12).

[38] Mr. Wynne’s moral culpability is high. The circumstances of the case show a senseless and purposeless killing of an innocent man.

Discussion (Continued)

[39] As explained earlier, this is a case of systemic factors affecting Indigenous individuals in this country as experienced by Mr. Wynne and other Indigenous offenders. There are cases that support the Crown’s position. However, I also note Justice Aitken’s comments in R. v. Land, 2013 ONSC 6100 who set parole ineligibility at 10 years. She states at para. 83:

One of the factors relied on by the Crown in asserting that the period of parole ineligibility should be lengthened to 15 years is the moral culpability of Mr. Land in brutally and relentlessly attacking Mr. Doyon, an unsuspecting person who was minding his own business while on his own couch in his own home. There is no doubt that such a crime cries out for strong denunciation and forceful deterrence. However, surely society writ large must share some of the moral culpability associated with this terrible crime. How can we expect someone to be able to follow societal norms when they, and their parents and grandparents, have so clearly not been the beneficiaries of those same societal norms? How can someone who, as a child, suffered the trauma just described, be expected to behave in the same way as someone who never suffered such trauma? How can we expect a child raised in an environment of alcohol and drug abuse, physical and sexual violence, neglect, poverty, hunger, and instability to grow into a psychologically healthy adult with good impulse control and judgment?

[40] I also note that in R. v. Sharma, 2022 SCC 39, the Supreme Court was dealing with the constitutionality of restrictions on the use of conditional sentences. The appellant who was Indigenous argued that the restriction on offences with a maximum term of imprisonment of 14 years or life contributed to the over-representation of Indigenous people in the prison system.

[41] Although the majority 5-4 upheld the restriction, Justice Karakatsanis, on behalf of the dissent said this about Gladue principles and s. 718.2(e). She states at para 114:

[114] The overrepresentation of Indigenous people in Canada’s prisons is a present-day product of this country’s colonial past. As Indigenous incarceration rates have climbed, and those of Indigenous women have soared, some have compared Canadian correctional facilities to residential schools (see Truth and Reconciliation Commission, The Final Report of the Truth and Reconciliation Commission of Canada , vol. 5, The Legacy (2015), at p. 219). Like residential schools before it, this overincarceration is an ongoing source of intergenerational harm to families and communities. It is a striking sign of the discrimination that Indigenous peoples experience in “all parts of the criminal justice system” (Ewert v. Canada, [2018] 2 S.C.R. 165, at para. 57). And it remains a poignant obstacle to realizing the constitutional imperative of reconciliation.

[42] On the other hand, Mr. Wynne has serious anger management issues that have led to violence and offences against individuals and he has shown himself at times not to be governable by orders and conditions of release. He certainly has numerous issues including substance abuse and mental health which has led to lack of control and impulsive behaviour.

[43] There is available counselling and treatment programs that are culturally sensitive that Mr. Wynne has expressed an interest in pursuing while serving his life sentence. I acknowledge that he has issues and wants to get better.

Jury recommendation

[44] Nine of the 12 jurors recommended 10 years parole ineligibility and three had no recommendation. They are recommendations only and although they are aware of the evidence presented at trial, they are not aware of the particular personal circumstances of Mr. Wynne including his criminal record and past history. However, the court notes that the majority, even after hearing the evidence of the stabbing of Mr. Partridge and the circumstances of his death and last minutes of life, still felt that the minimum parole ineligibility should be 10 years.

Conclusion

[45] I have considered the circumstances surrounding the commission of this offence, Mr. Wynne’s character, nature of the offence and the jury recommendations.

[46] Mr. Wynne, please stand. For the murder of Jayko Partridge, I sentence you to life imprisonment with no eligibility for parole for a period of 10 years. I am satisfied that this is the appropriate period after which the Parole Board will determine the suitability for your release. You understand that this is not to say that you will be released after 10 years, but rather that you will be able to make an application for your release.

[47] You will also be subject to a mandatory order prohibiting you from possessing any firearms, crossbows, prohibited or restricted weapons or devices, ammunition and the other items set out in s. 109(1) of the Criminal Code, and this prohibition is for your lifetime. You are also required to provide a DNA sample under the Criminal Code. There will be an order that you are prohibited from communicating with Pia Akulukjuk pursuant to s. 743.21.

[48] The author of the Gladue Report makes recommendations that Mr. Wynne attend the Ngwaagan Gaming Recovery Centre to receive culturally based addictions treatment and services. The report also recommends that Mr. Wynne attend the Kizhaay Anishinaabe Niin (I Am a Kind Man) through Odawa Native Friendship Centre. I strongly recommend that Mr. Wynne have an opportunity to engage in the treatment programs available through the aforementioned institutions. I can only make a recommendation, but it is my hope that Mr. Wynne be able to participate in programs that would assist him in his recovery program and rehabilitation.

[49] The court waives the victim surcharge.

[50] Lastly and most importantly, I express my sympathy to those who were connected to Mr. Partridge.

[51] Thank you.

Justice A. Doyle Date: May 15, 2024