R v Wentzell, 2020 NSPC 20

The Court sentenced an Indigenous offender who stabbed her significant other, to a global sentence of a suspended sentence with a period of probation for three years with conditions. This sentence provides the best mechanism for assuring that the offender continues on her path towards a pro-social lifestyle. Society’s protection is best assured by the continued supervision and encouragement of the offender’s efforts and progress in her rehabilitation.

Indigenous Law Centre – CaseWatch Blog

Ms. Jennifer Wentzell is a 38-year-old woman of Mi’kmaq ancestry and a member of the Gold River First Nation. One night, when intoxicated, she uttered a threat to kill and then subsequently stabbed her significant other. The use of a knife and a resulting penetrative wound to the victim coupled with Ms. Wentzell’s prior criminal record must have a sentenced imposed that is proportionate to the gravity of the offence and the degree of responsibility of Ms. Wentzell.

A Gladue Report was prepared in 2019, and a sentencing circle was held in the Gold River community in 2020. At the sentencing circle, two videos were viewed regarding the events that led up to the altercation, including Ms. Wentzell being told her body was gross and some physical altercations between the couple. The victim in this matter declined to provide a Victim Impact Statement or participate in the sentencing circle.

Ms. Wentzell’s life has been marred with instability, poverty, homelessness, and a lack of education and employment opportunities. She has experienced domestic violence, sexual abuse, and the involvement of the child welfare system. She has suffered from addictions to alcohol and drugs, along with intergenerational trauma as result of the legacy of the residential school system, discrimination and colonization. She has three children from two long term relationships.

Ms. Wentzell has been attending programming at Holly House, which is run by the Elizabeth Fry Society. Ms. Wentzell has been engaging in individual addictions counselling. She has attended the Rising Sun Treatment Rehabilitation Centre on two occasions and has plans to attend again for the relapse prevention program. She has attempted to reduce her consumption of alcohol. Her plan going forward is to continue with counselling for addictions and healthy relationships. She also will be attending sweats on a regular basis and is working towards long term sober living. She would like to continue her education by attending the Nova Scotia Community College in a trades program and find part time employment.

Ms. Wentzell was involved in a volatile and abusive spousal relationship. The victim’s prior treatment, assaultive and degrading behaviour towards Ms. Wentzell along with her intoxication and impulsive reaction to the events must be taken into consideration. These events in addition, to Ms. Wentzell’s prior history of trauma and experiences of an Indigenous person, reduce her moral culpability in these offences.

The long-term protection of the community requires that Ms. Wentzell’s efforts be acknowledged and that she be allowed to continue on that path without interruption. It is hopeful that she will be able to show the community, by her example, that there is life beyond addiction and involvement in the Criminal Justice System. A suspended sentence with a significant period of probation was the reasonable alternative to incarceration in this case and is of significant consequence to Ms. Wentzell.

R v McKay, 2020 MBQB 106

The Gladue analysis in this sentencing decision included attention to both the systemic and background factors of the Indigenous offender and his victim, which in this case were significant and central enough to make rehabilitation the key sentencing principle.

Indigenous Law Centre – CaseWatch Blog

Mr. McKay, a young Indigenous man from Berens River First Nation, a remote settlement 300 km by air north of Winnipeg, pled guilty to manslaughter. Upon returning home extremely intoxicated, he severely beat his mother who did not recover from her injuries and died months later. During the time she was comatose in a Winnipeg hospital, he was overheard at her bedside, sobbing and saying he was sorry. A stepbrother confronted him and Mr. McKay admitted he had hurt his mother. After her death, he was arrested a month later. He told police that he had hit her with a “glass thing”, and could not say why he attacked her.

This decision deals with setting a fit and appropriate sentence for Mr. McKay for this crime, in these circumstances. A Probation Services Pre-sentence Report [“PSR”] and an independent Gladue report was ordered, which in part connected Canada’s historical treatment of Indigenous peoples to Mr. McKay and the killing. It is well accepted that the Government’s role, since the early days of dealing with First Nations peoples, has had the effect of isolating, infantilizing, marginalizing, and traumatizing Indigenous societies like the Ojibwe (or Anishinaabe) of Berens River. These effects on Mr. McKay’s traditional community set the context for his life and experiences.

Mr. McKay’s upbringing was horrible. He has 12 brothers and sisters that were often raised in foster homes. Intermittently, he would be returned to the custody of his mother and father, but his relationship with his family was fractured. His parents struggled with alcohol and sniffing, which he ultimately started at age 13. He is not close to his brothers or sisters, some of whom have died. Family empathy and support is non-existent. Mr. McKay’s father died of alcohol abuse, and they were not close. Mr. McKay and his mother were very close, and supported and depended upon each other. He loved her and is deeply affected by having killed her.

Mr. McKay was formally diagnosed with partial Fetal Alcohol Syndrome (“pFAS”) at 24 months. He continues to suffer physical, cognitive and intellectual disabilities. Child and Family Services files indicate that Mr. McKay was neglected because of the family’s chronic alcohol addiction, solvent sniffing, domestic abuse and family violence. He would often be the target of teasing and beatings by his brothers, and even now has been threatened by some siblings, who say they would kill him if he returned to Berens River. For the most part, while Mr. McKay has been in custody since his arrest in October 2018, he has done well, including taking many programs. Importantly, he wants a good future but does not have a real idea or plan of how to get there.

A sentence imposed on an accused for a serious crime should be tailor-made in the sense that, mindful of principles of sentencing, it is appropriate to the circumstances of the offence and the particulars of the offender. The critical issue is to determine a sentence that would benefit and protect the community, as well as provide the best prospects of rehabilitation for Mr. McKay. Gladue factors loom large, which affect the assessment of moral culpability for this grievous offense. His moral blameworthiness is high, but not as high as it would otherwise have been but for Gladue factors, including his pFAS. In balancing all of the factors, rehabilitation must be an overarching concern. While denunciation and deterrence are important factors, they are moderated by the unusual circumstances here.

Mr. Kay is sentenced to 50 months of incarceration, from which 26 months’ time-in-custody credit shall be deducted for a go-forward custody sentence of 24 months less one day, as well as three years of supervised probation with conditions.