Court File and Parties

COURT FILE NO.: 2224/23 DATE: 2024-02-02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Jason Nahmabin and James Armstrong Defendants

Counsel: S. LaSha and N. Godfrey, for the Crown L. Gensey, for the Defendant, Jason Nahmabin L. O’Hara, for the Defendant, James Armstrong

HEARD: January 10, 2024

Justice R. Raikes

[1] In the early morning hours of April 14, 2022, Andrew Chute was murdered in the parking lot of the Marthaville Habitat Management Area at 4749 Marthaville Road, Petrolia, in Lambton County. He died of multiple gunshot wounds to his head, neck, torso, and upper extremities. In all, eleven (11) bullets struck Mr. Chute’s body. The identities of the gunmen who shot and killed Mr. Chute are unknown. The firearms used to shoot Mr. Chute have not been found. The investigation to find his killers continues.

[2] The defendants, James Armstrong and Jason Nahmabin, were present when Mr. Chute was shot; in fact, they were instrumental in bringing Mr. Chute to the Habitat parking lot. Both were initially charged with first degree murder and conspiracy to commit murder.

[3] On September 6, 2023, the defendants each pleaded guilty to being an accessory after the fact to the murder of Andrew Chute. Separate signed and initialed Agreed Statements of Facts were read into the record and filed at the time of their guilty pleas. They acknowledged the accuracy of those facts.

[4] According to the Agreed Statement of Facts signed by Mr. Nahmabin,

• He has a criminal record. He was actively involved in trafficking controlled substances in Sarnia-Lambton in and around the time of Mr. Chute’s murder.
• Mr. Nahmabin and Mr. Chute were known to each other as members of the Sarnia-Lambton drug subculture. They had friends and associates in common. They first met in early April 2022.
• Mr. Chute, sometimes called “Chuter”, was 45 years old. He had a 21-year daughter. He was living with his mother in the weeks before his death. He was involved in the drug subculture and used controlled substances including fentanyl.
• Mr. Nahmabin was contacted by someone named “Sonny” via Facebook Messenger. Mr. Nahmabin received drugs from Sonny on two occasions although he did not meet him personally. He picked up the drugs in Chatham.
• Two or three days before the murder, Sonny asked Mr. Nahmabin to help him find a car. Mr. Nahmabin borrowed an Acura from a friend which he loaned to “Sonny’s guys”. He understood that Sonny’s guys would use the vehicle to go to Toronto to pick up drugs and take them to Chatham.
• On April 14, 2022, Sonny messaged Mr. Nahmabin to ask whether he knew Mr. Chute and asked if Mr. Nahmabin could help him find Mr. Chute. He told Mr. Nahmabin that he wanted Mr. Chute to assist with “collections”.
• Mr. Nahmabin made inquiries and learned where Mr. Chute was. He updated Sonny on Mr. Chute’s whereabouts. Sonny told him to bring Mr. Chute with him to a meet that night to do collections.
• Mr. Nahmabin then contacted James Armstrong for a ride to get Mr. Chute. He went into an apartment and told Mr. Chute that they had a “mutual friend” who wanted help with collections.
• Mr. Nahmabin observed Mr. Chute to be “on the nod” meaning sedated and tranquil after taking opiates. He provided Mr. Chute with fentanyl.
• Mr. Armstrong came back to Sarnia to pick up Mr. Nahmabin and Mr. Chute. They dropped off another man.
• Sonny sent Mr. Nahmabin the meet location via text. Mr. Nahmabin directed Mr. Armstrong to the Habitat parking lot. He told Mr. Armstrong that after the meeting, Mr. Nahmabin would take Mr. Armstrong’s vehicle back to Sarnia, and Mr. Armstrong would drive with “Sonny’s guys” back to London in the borrowed Acura. Mr. Armstrong would then drive the Acura back to Sarnia.
• Soon after they arrived at the Habitat, two black men arrived in the Acura. They were wearing masks and gloves. The passenger exited the Acura and shot Mr. Chute. The driver reached across the car to get the gun and also shot Mr. Chute.
• Mr. Nahmabin and Mr. Armstrong hid nearby after shots started. Before the shooting, Mr. Nahmabin was unaware that the men in the Acura had a firearm or that they intended to shoot Mr. Chute.
• After the shooting, everyone followed the original plan: Mr. Nahmabin left in Mr. Armstrong’s vehicle and drove back to Sarnia, and Mr. Armstrong left with the shooters in the Acura.
• Before returning the Acura to his friends, Mr. Nahmabin received a message from Sonny about a bag left by the shooters in the Acura. Mr. Nahmabin retrieved the bag from the Acura. It contained clothing worn by the shooters at the time of the murder. He turned the bag over to two unknown men at the Super 8 in Sarnia at Sonny’s direction.
• Cell phone records obtained by police show that at 7:12 a.m. on April 14, 2022, Mr. Nahmabin had communication with someone connected to the shooters. He advised that they were on their way back.
• Records show that Mr. Nahmabin told Mr. Armstrong not to talk about what happened. He also asked Mr. Armstrong to get some wipes and wipe down everything on the inside of the Acura.

[5] Thus, Mr. Nahmabin’s post-murder conduct includes driving a vehicle back to Sarnia, retrieving a bag left by the shooters in the car and delivering it to a Sarnia motel, telling Mr. Armstrong to keep quiet about what had happened, and asking Mr. Armstrong to wipe down the interior of the vehicle driven by the shooters to the Habitat. He also communicated the status of the shooters to someone shortly after 7 a.m. that day.

[6] According to the Agreed Statement of Facts signed by Mr. Armstrong,

• He has no criminal record and at all relevant times lived with his mother.
• He often drove his mother’s car to give rides to persons involved in the Sarnia-Lambton drug subculture. Typically, he was paid in drugs or gas money. Rides were arranged through calls or text messages.
• In the days leading up to the murder of Mr. Chute, Mr. Armstrong provided rides to Mr. Nahmabin, who indicated that he was looking for Mr. Chute. He did not know why Mr. Nahmabin was looking for Mr. Chute.
• In the early hours of April 14, 2022, Mr. Armstrong drove Mr. Nahmabin and another man to an apartment building in Sarnia to look for Mr. Chute.
• Mr. Armstrong returned to the building parking lot at approximately 3:55 a.m. that day. Mr. Nahmabin, Mr. Chute, and another man, Mr. Hayes, got into Mr. Armstrong’s vehicle. According to surveillance footage, Mr. Chute appeared intoxicated.
• Mr. Armstrong dropped Mr. Hayes off in Sarnia. Mr. Armstrong thought that he was driving Mr. Nahmabin and Mr. Chute to complete a drug transaction. Mr. Armstrong had paid money to Mr. Nahmabin for cocaine but had not yet received the drugs. He understood that they were going to Chatham and that he would get the cocaine he was owed.
• Instead, Mr. Nahmabin directed Mr. Armstrong to the Habitat parking lot. Mr. Nahmabin called someone on his phone and then said they were not going to Chatham anymore. He continued texting with someone on his cell phone.
• Mr. Chute fell asleep in the backseat of the vehicle.
• At Habitat, Mr. Armstrong pulled his vehicle into the parking lot and backed into a parking spot. Mr. Armstrong was then told by Mr. Nahmabin that he was to go with the individuals in the car that was to arrive. Mr. Armstrong understood that Mr. Nahmabin needed him to leave in the vehicle arriving so that it could be returned.
• Mr. Armstrong texted Mr. Nahmabin to ask whether he was going to be jumping into the other vehicle right away. He texted because Mr. Nahmabin was trying to be “hush-hush” and not let Mr. Chute hear what they were saying.
• Mr. Armstrong, Mr. Nahmabin, and Mr. Chute exited the vehicle to have a smoke. Soon after, the Acura pulled into the parking lot. Two men got out of the Acura disguised with masks and glasses.
• The two men stayed at the back corner of the Acura and Mr. Nahmabin walked over to them. He spoke with the two men at the Acura for a short time and then signalled for Mr. Chute to come over to where he was. As Mr. Chute walked across the parking lot, one of the two men who had arrived in the Acura started firing shots at Mr. Chute using a handgun. One of the shots struck the hood of Mr. Armstrong’s mother’s car. He hid behind that car, fearing that he too might be shot.
• The two men then got back into the Acura. Mr. Armstrong got into the Acura with the two unidentified men as previously directed. Mr. Nahmabin got into Mr. Armstrong’s mother’s car and left the scene.
• None of the parties checked on Mr. Chute. There was no discussion about checking on Mr. Chute or calling 911.
• Mr. Armstrong drove with the two unidentified men to London. They stopped at a gas station approximately 4 km from the scene. When Mr. Armstrong dropped the men off in London, one of the men gave him $10 for gas.
• Mr. Armstrong drove the Acura back to Sarnia. He received a text message from Mr. Nahmabin asking him to get some wipes and wipe down everything on the inside of the car.
• Mr. Armstrong drove the Acura back to Mr. Nahmabin’s mother’s house. Mr. Nahmabin was there with Mr. Armstrong’s mother’s car. Mr. Armstrong noticed that one of the bullets had grazed the hood of that car.
• When he dropped off the Acura to Mr. Nahmabin, he was told by Mr. Nahmabin to delete messages between them from his phone. He followed that instruction. He deleted the messages from his cell phone, but they were later recovered by police through a production order.
• On the evening of April 14, 2022, Mr. Nahmabin sent a text message to Mr. Armstrong telling him not to talk about what happened. Mr. Armstrong responded, “No way would I ever man.”
• Mr. Armstrong was interviewed by OPP on three occasions. The first interview was on April 16, 2022. He denied knowing Mr. Chute. He told police that the time of the murder, he was home playing video games.
• The second interview was on April 28, 2022. He was cautioned for murder and advised of his rights to counsel. In that interview, he admitted he was present for the murder of Mr. Chute but did not tell police that he went with the shooters in the Acura to London. Instead, he told police that he went back to Sarnia in his mother’s car with Mr. Nahmabin. He indicated that he dropped Mr. Nahmabin at his home and drove home. He adopted that statement under oath.
• The third interview took place on May 31, 2022 after his arrest for first-degree murder and conspiracy to commit murder. In that interview, he admitted to police the full extent of his involvement. He indicated that after the shooting, he was shaking and traumatized. During the stop for gas, he described himself as terrified, in shock, trying to act normal, and not to appear afraid. He did not indicate that he had been threatened. He told police that he could not recall any conversation between himself and the shooters.
• On June 1, 2022, while in police custody, Mr. Armstrong showed police officers where he dropped off the two shooters in London. Surveillance footage from the area where he dropped off the shooters and from the gas station was recovered by police. The information provided to police during the third interview assisted police in narrowing the search for Mr. Chute’s killers and furthered the police investigation into Mr. Nahmabin’s involvement.

[7] Thus, Mr. Armstrong’s post-murder conduct includes driving the shooters to London, driving the Acura to Sarnia and returning that car to Mr. Nahmabin, deleting messages, remaining silent at Mr. Nahmabin’s request, and lying to police during his first and second interview.

[8] There are differences in the facts agreed to by each defendant. I am mindful that in sentencing each defendant, I must rely only on the facts of the offence contained in the Agreed Statement of Facts signed by that defendant.

Circumstances of the Offender

(a) Mr. Nahmabin

[9] Mr. Nahmabin is 44 years old. He will soon turn 45.

[10] He is a member of the Aamjinaang First Nation. His parents are members of that First Nation. He is the middle of five children. He has four sisters with whom he continues to communicate.

[11] His parents separated when he was two years old. They reconciled briefly and separated permanently when he was approximately 3 years old. When his parents first separated, he, his mother, and his siblings moved in with his maternal grandmother, Irene Bird. He continued to live with her during the period she and his father were reconciled.

[12] Mr. Nahmabin’s childhood was tumultuous and chaotic. He was exposed to domestic violence, arguments, and excessive alcohol consumption. Alcohol was a big part of his early family life. House parties were frequent. Arguments happened regularly. Those arguments led to adults screaming and physically fighting.

[13] When his parents first separated, his older sister, Penny, went to live with her biological father. He did not see her again until he was 12 years old.

[14] After his parents separated the last time, his mother married someone else then left to move to a trailer park in South Carolina. His great uncle and aunt lived in the same park. There, the defendant was again exposed to violence including racial violence between Blacks and natives. His mother moved back to Sarnia after a year in South Carolina. The defendant and one sister went with her. The other sister stayed with his great uncle in South Carolina.

[15] Mr. Nahmabin’s mother had mental health issues. Soon after they returned to Sarnia from South Carolina, she was hospitalized for a mental breakdown. She was in hospital for 4-7 months. The defendant and his sister initially lived with his maternal grandfather and his partner. The minister at the church on Reserve arranged for the defendant and his sister to live with a couple in Sarnia and Brights Grove.

[16] When his mother was released from hospital, the defendant returned to live with her. He was then in grade 2. He resided with her through to grade 6. The defendant struggled in school. He was tested for ADHD and had difficulty paying attention. His mother declined to use medication to help. At school, he was taunted and teased for being native. He characterized himself to the Gladue Report writer as hyper and hard to get along with. He recalled that one teacher taped him to a chair.

[17] His mother had several relationships including one with a man she met while in hospital for treatment. She met and married a man, Perry, and they moved to Port Stanley for approximately two years. While there, the defendant was picked on and had fights with other kids. He felt the sting of racism again and questioned whether he wanted to be native at all.

[18] When he was twelve (12), he, his mother and sister moved back to Sarnia. CAS became involved with the family. His mother was re-admitted to hospital and he and his sister were placed in foster care. He became a Crown ward at age 12.

[19] He went to live in Belmont, Ontario. While there, he was exposed to sexual abuse.

[20] The defendant began drinking at age 12. He began drinking more frequently when he was 17. His drinking caused interpersonal problems. It ruined more than one relationship. He does not, however, consider that it reached the point where he was an alcoholic like his father.

[21] Mr. Nahmabin began experimenting with marijuana when he was 12 and continued to smoke it until his incarceration on the charge before this court. At 19, he dabbled in crystal methamphetamine. He acknowledges that he sold drugs including methamphetamines and opiates. He was using methamphetamines and occasionally crack cocaine. He does not see himself as an addict. He uses recreationally. He attended some counselling with a former girlfriend for her benefit. One former partner referred to him as a ‘great father and husband’ until drugs became part of his life.

[22] Mr. Nahmabin completed his high school education via an adult learning program. He started a college program with a view to studying environmental engineering but did not finish because of the pandemic.

[23] He has worked as a house framer, roofer, and siding installer. He worked for 11 years doing concrete work in the Ottawa-Kemptville area. He hopes to return to that area when out of custody. He was injured on a concrete job in the Sarnia area. He advises that he has a chronic knee injury which may prevent him from doing any heavy lifting, He turned to selling drugs to support himself and his family after that.

[24] He has six (6) children from four (4) prior relationships. His children range in age from 9 to 23 years old. The children reside with their mothers. Four of the children reside in the Prescott area, one in Toronto, and the other in Woodstock.

[25] The defendant was married for 8 years from which two daughters were born. The defendant has been in a number of romantic relationships. Drug use was a problem in several of them, causing separation. He continues to have consistent contact with five of his six children. He does not have much contact with his son in Toronto by mutual agreement with his son’s mother.

[26] His youngest two children were apprehended by CAS because their mother had addiction issues. He worked with CAS to obtain care and custody. He maintains that he did as required but still did not get the children.

[27] He advises that he has been involved with Georgina Scharfe of Sarnia for the past five years and plans to resume that relationship upon release from custody. He has reflected on his life and current circumstances and showed insight into what he has done wrong and what he needs to do going forward. I hope for his sake, his family’s sake, and that of our Society that he is genuine in his desire to change the path he has been on.

[28] Mr. Nahmabin expressed remorse to the family of the deceased present during sentencing submissions. He also expressed remorse to the PSR author for his actions.

[29] As mentioned, Mr. Nahmabin is an Aboriginal person. He does not speak his native language. His paternal grandmother attended Mount Elgin Residential School. His maternal grandmother attended a Federal Indian Day School. The conditions and mistreatment of Aboriginal children at those schools was deplorable. Those schools had a profound negative impact on children who attended and intergenerational effects on their families and communities.

[30] The information in the Gladue Report does not contain sufficient information to draw a straight-line causal connection between attendance by his grandmothers at those schools and the impacts on the defendants’ parents and his generation. That does not mean, however, that such impacts did not result. I acknowledge and accept the profound negative effects on Aboriginal persons, families and communities from colonialism including but not limited to Indian Residential Schools.

[31] Finally, Mr. Nahmabin has a criminal record starting in his youth. There is a 13-year gap between 2006 and 2019 where there are no convictions. That coincides with his time working in concrete and construction. Most troubling in his criminal record are convictions in April 2022 for possession of a firearm and possession of a prohibited device or ammunition for which he received a credit against time in pre-sentence custody.

(b) Mr. Armstrong

[32] Mr. Armstrong is 45 years old. He is single with no children. He is the youngest of two sons. He had a normal, positive childhood. He was not exposed to domestic violence or substance abuse growing up. His father died in January 2020. Mr. Armstrong had a great relationship with his parents and continues to have the support of his mother since these charges arose. He resides with her and has for the past six years.

[33] Mr. Armstrong graduated high school. He had no learning disabilities. He had positive relationships with teachers and classmates. He participated in school extracurricular activities including sports and music. He had no discipline or truancy issues while in school.

[34] He started working at a bank in London at age 18. He worked there for roughly 10 years. He worked at a painting company but left because of his substance abuse issues. He is currently unemployed and on social assistance. He has been on house arrest since his release from custody on June 22, 2022. He wears a GPS ankle monitor as a term of his release. He has sought employment unsuccessfully since his arrest. The charges arising from Mr. Chute’s murder have impacted his ability to seek and obtain employment.

[35] Mr. Armstrong began drinking alcohol at age 16 but denies that his use ever became problematic. He began experimenting with substances when he was 25. He started with marijuana and at age 35 began using cocaine. It started with recreational use at parties but quickly increased in frequency and dose. He describes himself as an “addict”. His drug use escalated to daily use after his father and grandmother died in 2020. He could not afford his addiction which led to his involvement in the Sarnia-Lambton drug subculture giving rides for money or drugs.

[36] Mr. Armstrong has no prior criminal record. He filed letters of support from his mother, friends, and family friends who have known him for many years. All indicate that he is a kind, helpful, and supportive person. His conduct giving rise to this conviction is out of character.

[37] He also filed an affidavit as to the impacts of house arrest since his release from custody; in particular, 1) concerns for his safety and that of his mother given his cooperation with police; 2) mental health concerns arising from isolation; and 3) difficulties obtaining employment. On the other hand, he deposes that house arrest has contributed to his sobriety and allowed him to separate himself from the negative peer group he was hanging around with before his arrest.

[38] The author of the PSR noted that Mr. Armstrong has yet to attend with a certified addictions counsellor to assess his drug use or to develop a plan to address it. Those resources are readily available in the community at no cost.

[39] Mr. Armstrong filed a letter of apology for his conduct giving rise to this conviction. When asked if he wished to say anything to the court at sentencing submissions, he advised that he stood by that letter. He apologized for his role and its impact on Mr. Chute’s family.

Victim Impact Statements

[40] Crown counsel filed Victim Impact Statements from Mr. Chute’s daughter, mother, father, and sister. They were not read into the record during sentencing submissions, but I read them.

[41] By all accounts, Mr. Chute was a friendly, supportive, loving, hard-working person. He loved his family. He had addiction demons that arose after a workplace injury resulted in ongoing serious pain that was treated with pain medication. He fought those demons and at times, appeared to be winning the battle. Unfortunately, addiction is a constant struggle and any pause in the fight to stay sober may lead back to drug use. Despite those struggles, Mr. Chute remained close to his family.

[42] The heartbreak his family feels from the loss of their father, son, brother is poignantly stated. It is especially difficult for them and their loved ones because of how he died and the inability to identify and find his killers. They may never see justice done and never achieve even the modicum of closure that a criminal trial might bring.

[43] The personal impacts of his murder on each of them is profound and will be felt for the rest of their lives. It has affected their sense of security, their ability to connect with others, the way they interact with and see the world. It is a far grayer and lonelier place than it was. His death has left a hole that cannot be filled. Based on what each of you said about Mr. Chute and his character in your victim impact statement, I believe that Mr. Chute would want each of you to be happy, to be healthy, to care for and support one another.

Crown Position on Sentence

[44] Crown counsel submits that the appropriate sentence for Mr. Armstrong is:

1. Two (2) years incarceration in addition to any pre-sentence custody and credit for house arrest;
2. In the alternative, if a reformatory sentence is imposed, a term of probation to include the statutory terms and those recommended in the PSR for Mr. Armstrong;
3. A DNA order – accessory to murder is a secondary designated offence;
4. A s. 109 weapons prohibition for life;
5. A s. 743.21 order that he not communicate while incarcerated with any of Jason Nahmabin, Heather Chute, Georgina Chute, Stewart Chute, and Haley Chute; and
6. A forfeiture order in the form provided during submissions.

[45] It is undisputed that Mr. Armstrong served 23 days actual time in pre-sentence custody. That is 35 days as enhanced per Summers.

[46] Crown counsel submits that the appropriate sentence for Mr. Nahmabin is:

1. Five (5) years incarceration less credit for pre-sentence custody;
2. In the alternative, if a reformatory sentence is imposed, a term of probation to include the statutory terms and those recommended in his PSR;
3. A DNA order;
4. A s. 109 weapons prohibition for life;
5. A s. 743.21 order that he not communicate while incarcerated with any of James Armstrong, Haley Chute, Georgina Chute, Heather Chute, or Stewart Chute;
6. A forfeiture order in the form provided during submissions.

[47] Mr. Nahmabin has been in custody since April 29, 2022. That is 644 actual days in custody. With the Summers credit applied, it amounts to 966 days. That is roughly 31.5 months.

Defence Position

[48] Mr. O’Hara submits that Mr. Armstrong should receive a Downes credit for his time on house arrest while on interim release to date. He submits that I have a discretion whether to apply such a credit and the rate to use for the credit. In Downes, the credit given was one day for every four on house arrest. If that is applied here, the Downes credit is 148 days (591 divided by 4). This credit is in addition to the credit for actual time in custody pre-sentence as enhanced per Summers.

[49] He submits that the appropriate sentence is:

1. A conditional sentence of 18 months to be served in the community by way of house arrest for the entire time; and
2. The ancillary orders requested by the Crown.

[50] Ms. Gensey submits that the appropriate sentence for Mr. Nahmabin is:

1. Time served, with or without a period of probation;
2. In the alternative, 2.5-3.5 years incarceration less credit for time served as enhanced by Summers; and
3. The ancillary orders requested by the Crown.

Sentencing Principles

[51] The fundamental purpose and objectives of sentencing are set out in s. 718 of the Code.

[52] The fundamental purpose of sentencing is to protect society, and to contribute to a just, peaceful, and safe society by imposing just sanctions.

[53] The enumerated objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations, and promotion of a sense of responsibility in the offender.

[54] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is referred to as the proportionality principle. This principle requires that full consideration be given to both the gravity of the offence and the moral blameworthiness of the offender: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. In simple terms, the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[55] Section 718.2 sets out other factors that a court must take into account in determining an appropriate sentence. Subsection (a) indicates that a sentence should be increased or reduced to account for any aggravating or mitigating factors relating to the offence or offender, and sets out a non-exhaustive list of facts that, if present, constitute aggravating circumstances.

[56] The balance of s. 718.2 requires the court to ensure that:

• A sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances – the “parity principle”.
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
• An offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances – the “restraint principle”, and
• (e) “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

[57] The restraint principle requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders. It is an error, especially when sentencing a first offender, to focus exclusively on general deterrence and denunciation: R. v. Ali, 2022 ONCA 736, at para. 40, citing R. v. Batisse, 2009 ONCA 114, at paras. 32 and 34.

[58] A conditional sentence is capable of meeting the objectives of denunciation and deterrence, even where these are the primary objectives engaged: R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, (S.C.C.), at paras. 22, 102, 105, and 107. In some cases, conditional sentences may achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration: Proulx, at para. 100.

[59] It is well-established that Aboriginal people are, and have been, grossly over-represented in prisons in this country. Section 718.2(e) recognizes and emphasizes the need for courts to avail themselves of sanctions other than incarceration where it is reasonable to do so for all offenders but with particular regard to Aboriginal offenders.

[60] The Supreme Court of Canada considered the import of this provision in its seminal decision in R. v. Gladue, 1999 SCC 679, [1999] 1 S.C.R. 688. In Gladue, the court held that subsection 718.2(e) is not simply a codification of existing jurisprudence; rather, it is intended to ameliorate the problem of Aboriginal over-representation by encouraging sentencing judges to take a restorative approach to sentencing.

[61] At para. 33, Justices Cory and Iacobucci wrote:

In our view, s. 718.2(e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges to undertake the process of sentencing Aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case. It should be said that the words of s. 718.2(e) do not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. …What s. 718.2(e) does alter is the method of analysis which each sentencing judge must use in determining the nature of the fit sentence for an Aboriginal offender….

[62] In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court of Canada reaffirmed the special sentencing approach in respect of Aboriginal offenders. Section 718.2(e) requires the court to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Judges should take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case specific information must come from counsel and the pre-sentence and/or Gladue reports. “Systemic and background factors may bear on the culpability of the offender, to the extent they shed light on his or her level of moral blameworthiness”: Ipeelee, at para. 73.

[63] At para. 60, the majority in Ipeelee stated:

…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 course higher rates of incarceration for Aboriginal offenders. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. …

[64] The Supreme Court has repeatedly indicated that s. 718.2(e) does not mean an Aboriginal offender should get a more lenient sentence. There is no race-based discount: see Ipeelee at para. 75. Rather, this section aids the court in getting to a fit and appropriate sentence for the particular offender; one that takes into account his or her personal circumstances in a fair context.

[65] Appellate courts have consistently held that there is no requirement that the Aboriginal offender demonstrate a direct causal link between his conduct and an historic wrong such as Indian Residential schools: see R. v. Collins, 2011 ONCA 182 at paras. 32-33, cited with approval in Ipeelee at paras. 82-83. But, a bare assertion of Aboriginal heritage. without more is insufficient: R. v. Monckton, 2017 ONCA 450, at para. 115.

[66] In R. v. F.H.L., 2018 ONCA 83, at paras. 40-47, Epstein J.A. summarized the correct approach as follows:

[40] The correct approach may be articulated as follows. For an offender’s Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender’s life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender’s case. This approach finds support both in Ipeelee and decisions of this court.

[41] The Supreme Court made clear in Ipeelee, at para. 83, that systemic and background factors need to be “tied in some way to the particular offender and offence”. LeBel J. went on to note that “[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.” LeBel J. elaborated on the concept of “culpability” at para. 73, explaining that “systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness.”

[42] This court has followed LeBel J.’s guidance in multiple cases. In Kreko, Pardu J.A. explained at para. 23 that “the [systemic and background] factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing”. Watt J.A. reached a similar conclusion in Radcliffe, at para. 55: see also Monckton, at para. 116; R. v. Johnson, 2013 ONCA 177, 303 O.A.C. 111, at para. 64.

[43] From a sentencing judge’s perspective, adhering to this approach requires attention to two factors.

[44] First, a sentencing judge must take judicial notice of the systemic and background factors affecting Aboriginal peoples in Canadian society. These factors include “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 course higher levels of incarceration for Aboriginal peoples”: Ipeelee, at para. 60. This list is not exhaustive.

[45] Second, a sentencing judge must consider whether those systemic and background factors “bear on the [offender’s] culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing”: Kreko, at para. 23. This inquiry, by necessity, requires the sentencing judge to consider whether those factors have impacted the offender’s own life experiences – in other words, whether the offender has “lift[ed] his life circumstances and Aboriginal status from the general to the specific”: Monckton, at para. 117; R. v. Bauer, 2013 ONCA 691, 119 O.R. (3d) 16, at para. 13. If systemic and background factors have impacted an Aboriginal offender’s own life experiences, the sentencing judge must then consider whether they “illuminate the offender’s level of moral blameworthiness” or disclose the sentencing objectives that should be prioritized: Radcliffe, at para. 53; Kreko, at para. 23. The Supreme Court provided the following comments about moral blameworthiness in Ipeelee, at para. 73: Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability”. Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. [Underline Emphasis Added, Italic Emphasis in Original]

[46] Sentencing judges must therefore be attentive to whether the circumstances of Aboriginal offenders – viewed in the light of the systemic and background factors described above – “diminish their moral culpability”. In conducting this inquiry, however, courts must display sensitivity to the “devastating intergenerational effects of the collective experiences of Aboriginal peoples”, which are often difficult to quantify: Ipeelee, at para. 82. When inquiring into “moral blameworthiness”, courts must ensure they do not inadvertently reintroduce the same evidentiary difficulties that Ipeelee sought to remove: Kent Roach, “Blaming the Victim: Canadian Law, Causation and Residential Schools” (2014) 64 University of Toronto L.J. 566, at 588-593; Clayton Ruby, Gerald Chan, Nader R. Hasan, Annamaria Enenajor, Sentencing: Ninth Edition (Markham: LexisNexis Inc., 2017), at 712; R. v. Quinn, 2015 ABCA 250, 606 A.R. 233, at para. 49 (per Biebly J.A., dissenting). I find persuasive the following observation by the Saskatchewan Court of Appeal in Whitehead on the approach that sentencing judges should follow:

The link between systemic or background factors and moral culpability for an offence does not require a detailed chain of causative reasoning. Instead, the analysis is based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge … In applying this approach, sentencing courts must pay careful attention to the complex harms that colonisation and discrimination have inflicted on Aboriginal peoples.

[47] Systemic and background factors, however, do not operate as an excuse or justification for an offence: Ipeelee, at para. 83. They are only relevant to assessing the “degree of responsibility of the offender”, and to considering whether non-retributive sentencing objectives should be prioritized. Accordingly, Gladue and Ipeelee do not detract from the “fundamental principle” that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee at para. 73. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a “different method of analysis”: Ipeelee, at para. 59. A different method of analysis does not necessarily mandate a different result: Kakekagamick, at para. 36. Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation: Gladue, at para. 78; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 44. As this court recognized in Kakekagamick, at para. 42:

To be clear, s. 718.2(e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence.

[67] I turn now to the sentencing principles specific to the offence of accessory after the fact to murder. The starting point is the decision of Watt J., (as he then was), in R. v. Wisdom, [1992] O.J. No. 3110 (Gen. Div.), at paras. 27-29:

27. Accessoryship after the fact to a crime is an offence which constitutes an interference with the administration of justice. An offence has been committed by a principal offender, in this case the crime of murder. It is the purpose of the accessory, as it was of this accused, to enable, indeed to facilitate, the principal offender to escape detection and/or punishment for his or her criminal conduct. By the means adopted, whatever they may be, the accessory interferes with the investigation of crime and the detection of offenders. Serious crimes may go unsolved and dangerous criminals left at liberty only to re-offend. The resourceful accessory stifles the investigation and deflects attention from the true principal, as much as the suborned witness’ perjury seeks to avoid successful prosecution. The due administration of justice is defeated in the event of success, as much in the one case as it is in the other.

28. Accessoryship after the fact frustrates the legitimate investigation of crime. It is as much a part of such investigation to clear the innocent, as it is to convict the guilty. To the extent that accessories deflect the investigation and investigators from their proper or true course, the attendant risks are obvious.

29. As it would appear to me, it is of the utmost public importance that all who are knowingly in touch with criminals and who might be minded, for whatever reason, to offer or furnish their assistance, ought to be alive to and fully cognizant of the fact that should they receive, comfort or assist them in order to enable the or a principal to escape, then they, the accessories, themselves, run a substantial risk of losing their own liberty for a very significant period of time. In this respect, see, for example, R. v. Kerrigan; R. v. Panayiotou (1972), 57 Cr. App. R. 269 (CA-CD). It is a fortiori where the defence of the principal is itself grave. See R. v. Morgan (1971), 56 Cr. App. R. 181 (CA-CD).

[68] The principles of denunciation and deterrence remain paramount in sentencing accessoryship cases, particularly where the underlying defence is murder: R. v. Crawford, 2018 ONSC 7582, at para 30; R. v. Taylor, 2023 NSSC 143, at para. 46. In Crawford, Justice Di Luca wrote at para. 30:

30. … The protection of society must be fostered by a sentence that sends the message that assisting murderers in their efforts to escape or evade justice will result in significant jail time. That said, the court must nonetheless remain cognizant of the accused personal situation and rehabilitative prospects. The sentence imposed should not be crushing solely for the sake of denunciation and deterrence.

[69] In Wisdom at para. 32, Justice Watt enumerated the following non-exhaustive list of factors useful in determining the quantum of sentence in an accessoryship case:

1. the nature, extent and duration of the accessory’s involvement;
2. the age and experience of the accessory;
3. the nature, extent and duration of the relationship, if any, between the accessory and the relevant principal;
4. the presence or absence of any coercion of or threat to the accessory or others to obtain the accessory’s participation;
5. the nature of the accessory’s assistance; and
6. the antecedents, present status and realistic prospects of the accessory.

[70] The seriousness of this offence is reflected in the maximum penalty available – life. The case law provided by counsel reveal a wide range of sentences imposed in accessory after the fact cases. That is no doubt attributable in part to the variety of underlying offences, the range of conduct by which assistance was provided, the different ways that assistance came about, and the personal circumstances of the individual offender: R. v. Dow, 2003 NSSC 82, at para. 3; R. v. Zeno, 2023 ONSC 1636, at para. 32.

[71] In Crawford, at paras 31 and 32, Justice Di Luca observed that the cases provided to him supported a sentencing range of approximately 3 to 5 years. There were cases that fell below the three-year mark, but those tended to be cases where “the accused has no criminal record, has entered a guilty plea, is not involved in significant acts involving the deceased or evidence relating to the murder, and often, involve cases where pressure has been placed on the accused to participate in the events.”

Analysis

[72] I will deal first with the appropriate sentence for Mr. Armstrong.

Mr. Armstrong

[73] The primary sentencing objectives for this offence are deterrence and denunciation. Rehabilitation is also a relevant consideration for both offenders.

[74] Mr. Armstrong is a first-time offender. At the time of the murder of Mr. Chute, he was an addict. He funded his addiction by using his mother’s car to give rides to others. Some of those rides were for benign purposes like grocery shopping and others were to facilitate their purchases of drugs to support their addictions. He was paid in cash or drugs.

[75] There is nothing in the evidence to indicate that Mr. Armstrong has a propensity for violence. Despite his addiction issues, he has never run afoul of the criminal justice system until now. The letters of support, the PSR, and the Agreed Statement of Facts do not show a man intent on harming others. It appears that he was caught entirely by surprise when the murder occurred. He had no forewarning and no expectation that anything more than a routine drug transaction was going to happen.

[76] Once at the Habitat, Mr. Armstrong was told by Mr. Nahmabin that he would be driving the other two men to London and returning the car to Sarnia. There was nothing about that instruction that foreshadowed the violence that occurred.

[77] It is perhaps understandable that in the moments immediately after Mr. Chute was killed and, especially in light of how he was killed, Mr. Armstrong did as he had been told to do and drove the shooters to London. His moral blameworthiness to that point is modest.

[78] However, once the shooters were dropped off in London, there was nothing to stop him from going to police to tell them what had happened. A man was dead. He saw it happen. He drove the killers to London and knew where he had left them.

[79] But he didn’t go to police. He didn’t call in an anonymous tip to police. Instead, he drove the Acura back to Sarnia to drop it off with Mr. Nahmabin. He stayed quiet. He assured Mr. Nahmabin he would stay quiet. He deleted messages on his cell phone.

[80] When first confronted by police, he lied to them. When confronted by police a second time, he lied to them again and did so under oath. Only after he was arrested for first-degree murder and conspiracy to commit first-degree murder did he finally cooperate with police and tell them what he knew. That was on May 31, more than six weeks after Mr. Chute was killed.

[81] The following aggravating factors are present:

1. the defendant drove the car that night in the belief that Mr. Nahmabin was going to conduct a drug transaction. At the very least, he was facilitating that criminal activity; and
2. the defendant lied repeatedly to police about his involvement and his conduct.

[82] The following mitigating factors are present:

1. he has no prior criminal record;
2. he ultimately did cooperate with police and provided them with information helpful to their investigation;
3. his guilty plea;
4. the restrictive release terms that he has abided by for more than 18 months;
5. he has the support of family and friends; and
6. the remorse that he has expressed and the acceptance of responsibility and insight he has shown.

[83] Defence counsel submits that a sentence requiring actual incarceration would be very dangerous for the defendant given his cooperation with police. Simply put, he would not be safe in jail. Police have already raised concerns for his safety while on house arrest before trial.

[84] The defendant’s conduct in assisting the killers after the fact is far less than many of the cases provided by counsel. He did not assist in disposing of the body or the murder weapon. Although he deleted messages from his cell phone, those were recovered by police. Unlike his co-accused, he did not have further contact with anyone connected to the shooters after the murder. He did not recover and pass along evidence that might have assisted to identify the killers. He had no relationship with Sonny or the shooters before or after the murder.

[85] I do not, by any means, wish to minimize the wrongfulness of the defendant’s conduct but find that as compared to other cases, it falls at the lower end of the range of assistance.

[86] What makes sentencing in this case troubling is the current status of the investigation. The killers have not been identified. The weapon has not been recovered. It is difficult to know how much the defendant’s conduct and delay contributed to that outcome, if at all.

[87] I do not have concern that this defendant is likely to re-offend. I base that on his previous lack of involvement in the criminal justice system, his cooperation with police, and his compliance with the rigorous house arrest terms for his interim release. I am also mindful of his expressions of remorse and insight into his wrongdoing. He is sober and has been for quite a while. He is no longer part of the local drug subculture, or at least he has not been since his arrest. Hopefully, he never goes back to that life.

[88] The offence is a very serious one as reflected by the maximum sentence available. The degree of moral blameworthiness is high. The defendant was present and witnessed a murder. Not only did he not come forward as he should have, he provided direct and indirect assistance to the shooters through his actions.

[89] In these circumstances and having regard to this defendant, I find that a fair and fit sentence is a conditional sentence of 22 months less credit for pre-sentence custody equal to 35 days as enhanced per Summers. I decline any Downes credit for the house arrest while on interim release; rather, I have taken that into account as a mitigating factor in determining that a conditional sentence should be imposed and the length of that sentence.

[90] The conditional sentence shall be served in the community. He will be subject to house arrest for the entire term of the sentence. He is permitted to leave his home only for the following reasons: to go to and from work, to go to and from any medical or dental appointment, to go to and from any counselling for addiction, in the event of a medical emergency for him or his mother, to attend to personal needs each Saturday from noon to 2 PM, for example, a haircut, groceries, etc., or to attend court if summonsed.

[91] During the conditional sentence he shall not use any controlled substance unless prescribed to him and then only in accordance with the directions for that prescription. He shall have no contact, direct or indirect, with any person known to him to be part of the drug subculture in Sarnia-Lambton or London.

[92] The defendant shall make himself available to police by telephone and/or in person when called upon to verify his whereabouts and compliance with this sentence. He will not use or possess a weapon while serving his conditional sentence.

[93] The defendant shall not communicate directly or indirectly with Jason Nahmabin, Haley Chute, Georgina Chute, Heather Chute, Stewart Chute during the term of the conditional sentence.

[94] Upon completion of the term of the conditional sentence, the defendant shall be on probation for a period of 18 months. In addition to the statutory conditions, he shall report to his probation officer as often and in the manner directed by the probation officer. He shall take such counselling as the probation officer may direct, including counselling for drug addiction. He will not use any controlled substance unless prescribed to him and then only in accordance with the directions for that prescription. He will use his best efforts to be lawfully employed. He will not use or possess a weapon while on probation.

[95] In addition to the conditional sentence and probation, a DNA order is made and a section 109 weapons prohibition for life is imposed. The forfeiture order is granted.

Mr. Nahmabin

[96] At the time of this incident, Mr. Nahmabin was a drug dealer. He spoke to Sonny, his supplier, and at his request, sought out and brought Mr. Chute to the Habitat parking lot where he was killed. He arranged the ride with Mr. Armstrong. While he did not expect violence or that Mr. Chute would be killed, the fact remains that Mr. Nahmabin was at that location for a drug transaction.

[97] Mr. Nahmabin had already arranged for Mr. Armstrong to drive Sonny’s guys back to London, while he drove Mr. Armstrong’s car to Sarnia. He did not deviate from that plan after the murder.

[98] Once he drove away from the Habitat parking lot, there was nothing to stop him from going immediately to police to tell them what he had seen. He knew that Mr. Armstrong was alone in a car with two men who had just shot Mr. Chute to death. Instead, he left Mr. Chute’s body lying in the parking lot to be found and simply drove home.

[99] He got a call soon after asking after the whereabouts of the shooters. He helpfully advised that they were on their way.

[100] Mr. Nahmabin later received a message from Sonny asking about a bag left by the shooters in the Acura. When Mr. Armstrong returned with the Acura, Mr. Nahmabin retrieved the bag that contained the clothing worn by the shooters that morning. He delivered that bag to a motel, thereby giving potentially vital evidence back to those involved or connected to the shooters.

[101] Mr. Nahmabin told or warned Mr. Armstrong to keep silent about what had occurred. He instructed Mr. Armstrong to get some wipes and wipe down the inside of his car, presumably to remove evidence that might have assisted police in identifying the shooters or at least corroborating the identity of the shooters once arrested. Although he did not help dispose of the body or the weapon used, he nonetheless helped the killers or their associates retrieve evidence.

[102] In doing so, Mr. Nahmabin provided active assistance to the shooters and those likely connected to the killing after Mr. Chute was murdered. There is no evidence that he was coerced. Evidence relevant to the killing has been lost because he did so. By his actions and by his directions to Mr. Armstrong, Mr. Nahmabin assisted the shooters to get away and avoid identification and arrest.

[103] In these circumstances, the degree of moral blameworthiness is very high. He had to know that his actions were helping the killers get away and avoid arrest. He had to know by what he did and what he instructed Mr. Armstrong to do that he was destroying or removing evidence that would assist police in their investigation. He knew what he was doing. He was helping his drug supplier who had just killed Mr. Chute.

[104] The following aggravating factors are present:

1. he was a drug dealer at the scene to complete a drug deal;
2. he arranged for the deceased to be present at the request of his drug supplier;
3. he gave the deceased fentanyl;
4. he put Mr. Armstrong at risk by having Mr. Armstrong drive the shooters to London;
5. he continued to communicate with Sonny after the shooting;
6. he was part of Sonny’s distribution network and referred to Sonny as “Boss” in his message to Mr. Armstrong to keep quiet;
7. he instructed a witness to the murder, Mr. Armstrong, to say nothing; and
8. he has a criminal record albeit one with a 13-year gap. That record includes a 2022 conviction for possession of a firearm and ammunition.

[105] The following mitigating factors are present:

1. he had a very difficult, troubled, and chaotic childhood;
2. he was exposed to sexual abuse;
3. he was the victim of racial taunts, teasing, and bullying;
4. his home life lacked stability;
5. he is an Aboriginal man whose family was directly or indirectly impacted by institutional abuse through attendance at an Indian Residential School and a Federal Indian Day School;
6. he has taken courses to upgrade his education while in custody;
7. his guilty plea; and
8. he has expressed remorse and insight into his wrongdoing.

[106] As indicated earlier, Mr. Nahmabin is a member of the Aamjinaang First Nation. It appears that he grew up mostly off Reserve which is not to say that he has no connection to that community.

[107] The Indian residential school system was a misguided, underfunded, abusive effort aimed at assimilation of Aboriginal children into white Christian values. It sought to sever ties between children and their language, culture, belief systems, families, and communities. Indian day schools perpetuated similar beliefs and efforts. The immediate and long-term effects of that system cannot be understated. It has had a profound impact on Aboriginals and Aboriginal communities in this country. Those effects are intergenerational.

[108] I am satisfied on the material before me including the Gladue Report that there is some basis to conclude that the defendant’s family is one that is indeed affected by the intergenerational impacts of residential schools and the Indian day school system. Thus, I accept that the Gladue factors contributed to some degree in the defendant’s unfortunate childhood and his life choices as an adult.

[109] Further, the defendant’s mother had significant mental health issues which directly and indirectly impacted the defendant. Because of her hospitalizations and challenges, his younger years were unstable and difficult. He moved a lot. He lived with other families. He became a Crown ward. Some of the placements for foster care were less than ideal. He was exposed to violence, alcohol abuse, sexual abuse, and racism.

[110] To be clear, what the defendant did in this case – helping killers get away – is criminal conduct that is not excused by his unfortunate childhood nor the intergenerational effects of residential schools. At most, they diminish the degree of moral blameworthiness slightly in the circumstances. They are relevant as mitigating factors in determining a fair and just sentence.

[111] The defendant has demonstrated that he is capable of leading a prosocial life. This is evident in the 13 year gap in his criminal record, his ongoing positive relationship with most of his children, the support he provided to one of the mothers of his children when she was going through drug addiction issues, his period of employment in construction and concrete, and the efforts made by him since his arrest while in custody to upgrade his education and to work in the kitchen in jail.

[112] Defence counsel asks that I recognize that Mr. Nahmabin’s time in custody since his arrest has been especially onerous because of frequent lockdowns at the Elgin Middlesex Detention Centre where he was incarcerated between April 30, 2022 and September 8, 2023. He has sworn an affidavit in which he estimates that he and the other prisoners in his range were locked down roughly 60% of the time, most of which was due to staffing shortages. Some lockdowns were due to Covid 19 and others due to physical altercations that occurred. During lockdowns, visits and phone calls were suspended. He was also triple bunked regularly, meaning that there were three inmates sharing a cell meant for two.

[113] Defence counsel does not suggest that he should receive a specific credit for these conditions; rather, they are a factor to be taken into account in assessing the length of his sentence. I agree.

[114] Counsel filed several accessoryship sentencing cases. Both referred to Wisdom. With regard to the factors enumerated in Wisdom,

a. Nature, extent, and duration of involvement – The defendant was involved before, immediately after and in the days following the killing. The nature of his involvement has already been summarized. b. Age and experience – The defendant was 42 years old when this offence occurred. He has a criminal record. c. Nature, extent, and duration of relationship with principal – The defendant was actively involved in drug dealing at the time. The shooters were connected in some way to his supplier, Sonny, who asked the defendant to bring Mr. Chute to the meet. The defendant had an illicit business relationship with Sonny. That ended when he was arrested. d. Presence or absence of coercion or threats – There is no evidence that Mr. Nahmabin was coerced or threatened before or after the killing. He acted voluntarily to aid Sonny and the shooters. e. Nature of his assistance – I have already set out the assistance provided by Mr. Nahmabin. f. Antecedents, present status and prospects – As mentioned, Mr. Nahmabin has a prior criminal record. He has been incarcerated since his arrest in April 2022. There is no reason he cannot live a prosocial life and he contends that that is what he will do upon release.

[115] In Wisdom, the accused was 23 at the time of sentencing and 20 when the offence occurred. The accused and victim were competing cocaine dealers. The accused was a principal to the underlying drug transaction. He took the lead role in trying to shield the principal and himself from detection. He recruited the principal to rob the victim. Their plan contemplated that the victim would be drugged. His underlying conduct was driven by greed. He was found to be fully prepared to interfere with the administration of justice by destroying all traces of the crime. To that end, he cleaned up the room and removed the body after the killing. He was a first offender. He was sentenced to five years imprisonment.

[116] In Zeno, the two principals shot the victim multiple times while he was in the driver seat of his car. They left him to bleed to death. Both men were convicted of second-degree murder. The accused, Zeno, knew they had murdered the victim shortly after the murder but ordered a cab and took them out of the neighbourhood to a motel in the other side of the city. He purchased a room for them. He did so to enable their escape from police. He bragged to an undercover officer that he had taken his “own two youths” out of the “hood”. Mr. Zeno was 25 years old at the time of sentencing and 21 at the time of the of fence. He had a limited criminal record. After reviewing the number of cases, Justice Spies sentenced Mr. Zeno to one day in jail in addition to pretrial custody of 30 months and seven days which amounted to 44 months as enhanced.

[117] In R. v. Tutin, 2004 NWTSC 20, the accused pleaded guilty. He helped the principals escape knowing that they had murdered the victim. He assisted the principles to clean up after they beat the victim to death and threatened to kill him if he did not comply. He tried to intervene in the beating to stop it and was hit himself. They told him what to say to police if questioned and initially stuck to that cover story. He eventually confessed to what really happened on arrest. The accused was 44 years old and had 18 prior convictions for various offences. He was addicted to crack cocaine at the time. The appropriate sentence was found to be 3.5 years less time served.

[118] In R. v. Corrigan, 2020 ABQB 368, B asked the accused to drive him to pick up the victim. On the way, B informed the accused that he intended to shoot the victim. The accused witnessed the shooting. He helped B dispose of the shell casings and drove B from the scene. There was significant coercion of the accused. He was concerned that B would harm him if he did not do as he was told. The accused was 40 years old. He was a drug and alcohol addict at the time of the offence. He pleaded guilty. His addiction issues appeared to be in remission when sentenced. He was credited with 963 days of presentence custody served. Justice Burrows indicated that the appropriate sentence was 30 months. The sentence imposed was time served plus 2 years probation.

[119] In R. v. Hardy-Fox, 2022 ONSC 2786, the accused was Aboriginal. He pleaded guilty to kidnapping and acting as an accessory after the fact. The victim was a drug addict. He was kidnapped by the accused and two known drug dealers because he owed money to the dealers. The accused drove the dealers to kidnap the victim and drove them back home after the victim was shot and killed. The drug dealers were convicted of first-degree murder. The accused was paid in drugs for his assistance The accused had no prior record. He testified against the drug dealers at their preliminary hearing and at trial. He showed significant remorse and had a supportive family. Both Crown and defence submitted that the appropriate sentence for accessory after the fact in that case was in the range of two years based on the specific circumstances of that case. He was sentenced to 44 months for the kidnapping and two years for accessory after the fact.

[120] In R. v. Darby, 2016 ABQB 352, the accused pleaded guilty to conspiracy to commit murder and with being an accessory after the fact. He was the treasurer of a street gang. The killing was part of a gang war. The accused rented a vehicle used in the homicide. He was part of the planning of the killing. He cleaned the vehicle after the killing was done. He was sentenced to three years for accessory after the fact consecutive to a sentence of eight years for the conspiracy offence. Thus, his global sentence was 11 years.

[121] In R. v. Steadman, 2008 BCSC 1613, Ms. Black killed her husband. The accused knew both. On the night of the murder, she arrived at his home with a bloody knife. He drove her to the mountains and helped her dispose of the victim’s body, and the knife. He later lied to police about the victim’s whereabouts. He was 54 years old with no criminal record and a lengthy, stable employment history. Numerous letters of support were filed. He testified that he only assisted the wife because of his concern for her young son. He was sentenced to four years.

[122] The cases summarized and the other cases provided by counsel are distinguishable on their facts both as to the circumstances of the offender and the nature and extent of the assistance provided by the accused after the murder was done. They are nevertheless instructive for purposes of parity and the applicable principles.

[123] Having regard to the applicable sentencing principles, the circumstances of this offender, and the facts of this offence, I find that a fair and just sentence is four years incarceration less credit for time served which is 966 days as enhanced per Summers. In addition, the ancillary orders requested by the Crown shall issue.

Justice R. Raikes

Released: February 2, 2024