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.
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.