Date: 20161219
Docket: CR 16-01-35348
(Winnipeg Centre)
Indexed as: R. v. Okemow
Cited as: 2016 MBQB 240
COURT OF QUEEN’S BENCH OF MANITOBA
BETWEEN:
HER MAJESTY THE QUEEN,
- and OLIVER JAMES OKEMOW,
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Accused. )
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COUNSEL:
Mark Lafreniere and
Matthew Armstrong,
for the Crown
Theodore L. Mariash,
for the accused
Judgment delivered:
December 19, 2016
KEYSER J.
[1]
Oliver James Okemow (Okemow) has pled guilty to manslaughter. He took part
in two separate beatings of the deceased Wayne Harper (Harper) in May of 2014. The
statement of agreed facts is attached to the pre-sentence report and fully sets out the
circumstances of the offence.
It discloses in essence that all parties involved were
transients and affected by alcohol and/or drugs. Okemow and a co-accused who will
not be named as he is still before the courts, got upset with Harper for reasons that
only make sense through a cloud of alcohol. They both ended up attacking Harper
while he was sleeping in a homeless “camp” on the evening of May 24, 2014. The
2
attack included multiple blows to the head of Harper. Both counsel agree that Okemow
was the lesser involved of the two in this unprovoked attack. Afterward Harper was still
alive. The next morning they came upon Harper again. This time Okemow was with
the aforementioned co-accused and another man named Jeremy Rae, who is now
deceased. Harper was again attacked and did not fight back. He was beaten with kicks
and punches to the body and head. Again it is acknowledged that Okemow was the
least involved of the three aggressors. Harper was seen alive and walking for some
distance after this attack before he ultimately collapsed and was taken in an
unresponsive condition to the hospital where he succumbed to his injuries.
[2]
The cause of death was a large subdural hematoma which put pressure on the
brain. Harper was covered in injuries (not all from these two assaults) and was highly
intoxicated at the time of his death.
[3]
Okemow was only arrested in December of 2014 and admitted his involvement
to police. During the first beating, Okemow admitted to striking Harper in the head
three times and stomping on his stomach twice. During the second beating, Okemow
admitted to striking Harper in the face “a few times”, stomping his stomach once and
kicking him twice in the body. He received judicial interim release on two occasions,
breached both times and was returned to custody in December of 2015. Since that
time he has remained in custody.
[4]
Filed at the sentencing were the following exhibits:



The victim impact statement - S1;
The Pre-Sentence Report with Gladue component - S2; and
Letters from Winding River Therapeutic Community - S3.
3
The victim impact statement is poignant; it was written by the mother of Harper who
talks of her loss and grief. I am well aware that nothing I do today will help to ease
that pain or bring back her son.
[5]
The Crown has asked for a period of incarceration of between four to seven
years in addition to the time in custody already served by Okemow. Defence counsel
submits that the appropriate disposition would be three and a half years with a
deduction of one and a half years for time spent in custody, so that Okemow can
remain in the provincial system as well as be followed in the community for three years
after custody on probation. Both counsel agree that denunciation and deterrence are
the primary considerations in such cases.
[6]
Manslaughter remains one of the most difficult crimes for which to fashion an
appropriate sentence. This was observed by the Manitoba Court of Appeal in R. v.
Csincsa, [1993] M.J. No. 237 (QL), 85 Man.R. (2d) 241 where the court at paragraph 5
stated:
In R. v. Cascoe, [1970] 2 All E.R. 833 Salmon L.J. wrote:
As for sentence, manslaughter is, of course, a crime which varies very,
very greatly in its seriousness. It may sometimes come very close to
inadvertence. That is one end of the scale. At the other end of the scale,
it may sometimes come very close to murder. (p 837)
Freedman C.J.M., in R. v. Sinclair (1980, 3 Man.R. (2d) 257 (CA) made a similar
observation:
The offence of manslaughter presents the widest possible range for
sentencing among all the offences in the Criminal Code. A sentence of life
imprisonment may in one set of circumstances not be too much, and a
suspension of sentence may in a different set of circumstances not be too
little. (p. 257)
4
In short, the breadth of the factual circumstances in which the offence of
manslaughter may be committed is equalled only by the wide discretion given to
the judge on sentencing.
[7]
Further on in Csincsa, the court made reference to comments of the Alberta
Court of Appeal in R. v. Tallman (1989), 48 C.C.C. (3d) 81, where that court declined
to issue sentencing guidelines for the crime of manslaughter as they had done in R. v.
Sandercock, [1986] 1 W.W.R. 291, which established a starting point for major sexual
assault cases. This is because as Laycraft C.J.A. commented:
Where the degree of culpability of accused persons may vary so widely from
case to case, the formulation of starting-point guidelines would not, in my view,
be of assistance to sentencing courts because the proposed category of cases is
too broad.
[8]
I quote these comments because both counsel provided me with a number of
cases that are all distinct on their facts and vary in the sentences imposed from
conditional sentence orders to nine years incarceration. They were helpful to me in
crafting this sentence but certainly none was determinative.
[9]
The Crown provided the following cases:
1.
R. v. Csincsa, [1993] M.J. No. 237 (QL), 85 Man.R. (2d) 241 (MBCA) - A
sentence of eight years was imposed. The court determined that the case
was very close to murder and was an assault by a sober, young, strong
man upon a smaller, intoxicated and much older man.
2.
R. v. Abraham, 2011 MBQB 299, 272 Man.R. (2d) 216 - A sentence of
five years minus time in custody was imposed on an offender who beat
the victim and left him without assistance lying on the side of a road dying
in winter conditions.
5
3.
R. v. Abraham and Starr, 2014 MBQB 242, 311 Man.R. (2d) 310 - A
sentence of nine years minus time in custody was imposed. Both accused
beat the victim severely in a prolonged attack, then left him for dead in a
shed, and attempted to clean up the scene. Both accused had extensive
records for violence.
4.
R. v. Plowman, 2015 BCCA 423, [2015] B.C.J. No. 2167 (QL) - Three
accused swarmed the victim and one stabbed him fatally. Two accused
received sentences of seven years and one five years.
The Court of
Appeal concentrated on the prevalence of swarming incidents that needed
to be deterred. They upheld the sentences, while finding them to be on
the high side.
[10] The defence relied on the following cases:
1.
R. v. Cascisa, 2001 MBCA 168, 160 Man.R. (2d) 94 - A sentence of two
years less one day was upheld, although the court added two years’
probation. The victim was knocked out and kicked in the head and he
was left naked from the waist down.
The victim had provoked the
confrontation and the accused showed good prospects for rehabilitation.
2.
R. v. Larche, 2013 MBPC 54, 297 Man. R. (2d) 76 - The accused stabbed
his brother to death after a drunken fight. The sentence imposed was
four years minus time in custody.
3.
R. v. MacFarlane, 2012 ONCA 82, [2012] O.J. No. 447 (QL) - The
accused, having just been released from custody that day and while on
6
probation, chased the victim with another man and both beat him. The
co-accused stabbed the victim in the heart. In this case, the trial judge’s
sentence of two years less one day, after taking into account time in
custody, was upheld.
4.
R. v. Poucette, 1999 ABCA 305, [1999] A.J. No. 1226 - The accused
stabbed his cousin to death. The one-year sentence imposed at trial was
deemed insufficient. The Court of Appeal would have raised it to three
years but Poucette was not required to return to jail as he had already
been released. A probation order was added.
5.
R. v. Jack, 2008 BCCA 437, [2008] B.C.J. No. 2078 (QL) - The victim was
lured outside and beaten and kicked by Jack.
Others then took over,
although Jack was found to be the main aggressor. He received three
years’ incarceration and the co-accused two years. Although the court
upheld the sentence it was deemed to be on the low end of appropriate
sentences.
6.
R. v. McDougall, 2009 MBQB 299, 247 Man. R. (2d) 147 - The accused
stabbed her husband to death. She received three years’ incarceration.
7.
R. v. Pop, 2013 BCCA 160, [2013] B.C.J. No. 1182 (QL) - After a coaccused stabbed the victim, Pop took over and also stabbed him several
times.
He was sentenced to two years less a day and three years’
probation. This was reduced to one year and probation, partly because of
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elements of self-defence and provocation. Extensive Gladue factors were
discussed.
8.
R. v. Clemons, 2003 MBCA 51, 173 Man. R. (2d) 161 - The accused was
provoked by the deceased, sucker punched him, then got a knife away
from the deceased and stabbed him nine times with a knife and a broken
beer bottle. Because of the extreme provocation, a conditional sentence
order was found to be within the appropriate range, and was thus upheld.
[11] Each case quoted by counsel turns on its unique facts and the aggravating and
mitigating factors found by the trial judge plus the personal characteristics of the
accused.
As is often mentioned, sentencing in manslaughter cases is an art not a
science.
[12] There are a number of aggravating factors as outlined by the Crown. These
include:
1.
Okemow took part in two separate beatings as part of a group of
individuals who assaulted the deceased.
2.
Harper was defenceless; the first beating occurred while he was sleeping
and the second one while he was wounded and drunk.
3.
These assaults were unprovoked.
4.
Okemow was less involved than the others in both beatings, but was
nonetheless an active participant. Thus his actions were deliberate rather
than closer to accidental.
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5.
Although not extensive, he comes before the court with a prior criminal
record.
[13] The Crown also mentioned mitigating factors that lessened the sentence he
might otherwise have been seeking. These are as follows:
1.
The fact that Okemow pled guilty albeit after the preliminary hearing had
taken place.
2.
There were exigencies in the Crown’s case.
3.
There were extensive Gladue factors as set out in the pre-sentence
report.
[14] Defence counsel, for his part, elaborated on what he felt to be the mitigating
factors in this case:
1.
Okemow pled guilty to the charge. Counsel asserted that he should not
be faulted for having the matter proceed to preliminary inquiry first
because the evidence at the preliminary inquiry helped to resolve the
matter by pointing out the serious exigencies in the Crown’s case.
2.
Okemow possessed significant victim empathy which was not only
expressed in the pre-sentence report but was followed up by what
appeared to be a sincere apology for his actions to the court and the
mother of Harper who was present for sentencing submissions.
3.
The guilty plea was entered on the basis that Okemow did not intend to
cause death or serious bodily harm and not because of provocation or
significant alcohol consumption.
As a result, counsel stresses that this
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goes to a lower moral culpability, particularly when Okemow was less
involved than the other individuals.
4.
There were significant Gladue factors in Okemow’s background and he
had taken steady steps towards rehabilitation.
5.
Although Okemow had a criminal record, it was quite limited and quite
dated other than the breaches which occurred while he was on judicial
interim release in Winnipeg.
[15] The Gladue factors are set out in the pre-sentence report. As is frequently seen
in the sad family histories of aboriginal people who have been generationally impacted
by the residential school experience, Okemow was raised in the midst of violence and
alcohol abuse. He grew up in Oxford House with his parents and nine older siblings.
His father was very physically abusive to his mother and both parents abused alcohol.
As a result, he grew up in a chaotic environment and frequently went without food
when money was instead spent on alcohol. His immediate family still resides in Oxford
House. The pre-sentence report sets out the horrible losses that have already impacted
his family. One brother died of alcohol poisoning, one sister died in an accident on a
northern ice road and one sister was murdered in Thompson in 1997.
Before one
sister’s death, he promised that he would take care of her daughter if anything were to
happen to her. Unfortunately that niece committed suicide in 2009 and Okemow felt
that he had not kept his promise. He points to that event as the start of his downward
spiral when his alcohol use intensified.
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[16] Okemow married at the age of 29 and moved to Lake St. Martin with his wife.
He resided there with his family until he found himself displaced to Winnipeg when Lake
St. Martin was deliberately flooded to save other properties in the province. Once he
arrived in Winnipeg he was soon adrift, consuming excessive amounts of alcohol, living
as a transient on the streets of Winnipeg for the most part, and panhandling to survive.
[17] The principles of sentencing as set out in s. 718 of the Criminal Code are
well-known and include denunciation, deterrence, separation of offenders from society
where necessary, rehabilitation and promotion of a sense of responsibility in offenders.
In addition, s. 718.2 of the Criminal Code mandates a court to consider subparagraph
(e):
718.2(e) all available sanctions other than imprisonment that are reasonable in
the circumstances should be considered for all offenders, with particular
attention to the circumstances of aboriginal offenders.
[18] Courts have struggled over the years with how to interpret the mandate from the
Supreme Court of Canada to consider the unique circumstances of the aboriginal
offender. While s. 718.2(e) does not require an automatic reduction of a sentence
simply because an accused is aboriginal, the analysis must be holistic and designed to
achieve a fit sentence in all the circumstances.
[19] In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the court confirmed that
Gladue principles apply to serious offences. The court further directed sentencing
judges as follows:
72
… The methodology set out by this Court in Gladue is designed to focus
on those unique circumstances of an Aboriginal offender which could reasonably
and justifiably impact on the sentence imposed. Gladue directs sentencing judges
to consider: (1) the unique systemic and background factors which may have
played a part in bringing the particular Aboriginal offender before the courts; and
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(2) the types of sentencing procedures and sanctions which may be appropriate
in the circumstances for the offender because of his or her particular Aboriginal
heritage or connection. Both sets of circumstances bear on the ultimate question
of what is a fit and proper sentence.
[20] Since Okemow’s arrest in 2015 he has been at Winding River Therapeutic
Community at Headingly Correctional Institute. Letters filed on his behalf from there
show steady progress. The suggestion in the pre-sentence report is that he would be
well served by finishing that program and then following up with a residential treatment
program in the community.
[21] I acknowledge the aggravating factors as set out by the Crown in their oral
submission. However, I also accept the following:
1.
That the preliminary hearing helped expose the exigencies of the case and
helped to resolve it. It was apparent that there were issues of causation
in the case and that some of the witnesses had changed their testimony.
2.
Okemow’s victim empathy appears genuine. It was expressed in the presentence report and in remarks directed to the mother of Harper.
3.
He did not intend to cause death or serious bodily harm and was the least
involved in both beatings.
4.
His criminal record is limited.
He successfully completed a conditional
sentence order in 2002 and a period of probation in 2007 without reinvolvement. There have been no issues with him while in custody.
5.
While in custody at Winding River, he has taken steps towards
rehabilitation.
treatment.
Further, he has presented as amenable towards alcohol
12
[22] The pre-sentence report opines that Okemow is at a high risk to reoffend.
However, I accept counsel’s argument that that is so if he is in Winnipeg where he has
no supports. His breaches while on judicial interim release occurred in Winnipeg while
he essentially was living on the streets. It is apparent from the pre-sentence report
that he has always done much better while in Oxford House and Lake St. Martin. His
plans are to return to Oxford House when his sentence is completed, and it appears
that he has community and family support there. Okemow identifies as both a Christian
and a traditional person but has only started to investigate traditional culture since he
has been in custody. His grandfather, while eschewing traditional culture, did pass on
the importance of language. Okemow speaks Cree with his family and understands the
importance of language to identity. Reconnecting with his home community will allow
him to further explore the positive aspects of his aboriginal identity.
[23] I want to try and tailor a sentence that allows him to complete the program at
Winding River and then be supervised in the community for a number of years
afterwards. That will best protect the community and allow for the rehabilitation of
Okemow while not losing sight of the principles of denunciation and deterrence.
[24] Counsel agreed that as of the date of sentencing Okemow had spent 363 days in
custody attributed solely to this offence and not his breaches. They also agree that the
credit for this time spent should be calculated at the rate of 1.5. Since argument was
heard, he has spent another 35 days in custody for a total of 398 days. Therefore, at
1.5 his time in custody is the equivalent of 597 days or almost 20 months.
The
sentence from today’s date will be two years less one day, followed by three years’
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probation with conditions which I will outline below. This is an effective sentence of
approximately 44 months. The conditions of probation will be:
1.
That he keep the peace and be of good behaviour.
2.
That he report to and be under the supervision of a probation officer and
meet in person with him as often as the probation officer deems
appropriate.
3.
That he will attend, participate in and complete alcohol treatment
programs as required by probation including residential treatment if that is
deemed appropriate.
4.
That he abstain absolutely from the consumption and/or possession of
alcohol, drugs and non-prescription medication.
5.
That he seek and maintain employment, training or upgrading as directed
by the probation officer.
[25] In addition, there will be an order pursuant to s. 109(1) prohibiting Okemow
from possessing any firearm, crossbow or restricted weapon and explosive substances
for 10 years after his release from custody, and prohibiting him from possessing any
prohibited firearm, restricted firearm, prohibited weapon, prohibited device and
prohibited ammunition for life. There will also be a mandatory DNA order pursuant to
s. 487.051(1).
[26] I recognize that the sentence I am imposing is at the lower end of what might be
considered appropriate in similar circumstances.
I have tried to balance the
aggravating factors with the disadvantages suffered by Okemow and his prospects for
rehabilitation. In this way, I believe the safety of the community is best served and the
principles of sentencing best satisfied.
_________________________J.