• Lewis Waring

Mitigating Indigenous Sentencing Factors Outweighed - Sophie Collier

The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just and peaceful society. This can be done by imposing sanctions that serve to:

  • denounce unlawful conduct;

  • deter the offender and any others from committing offences;

  • separate offenders from society;

  • assist in rehabilitation; and

  • provide reparation for harm and promote a sense of responsibility in offenders.

Sentences should also be tailored to the offender and proportionate to the gravity of the offence and moral culpability of the offender. The Criminal Code (“the Code”) also lays out several factors that may be considered aggravating or mitigating in sentencing, including evidence that the offenders abused their spouse in committing the offense (section 718.2(a)(ii)).


Section 718.2(e) of the Code states that all available sanctions other than imprisonment must be considered, especially in regard to Indigenous offenders. The requirement arising from this subsection has resulted in a number of sentencing principles, originally set out in R v Gladue (“the Gladue factors”). When sentencing Indigenous offenders, the judge must take into account the unique systemic or background factors that have played a role in bringing the particular offender before the court, as well as culturally relevant sentencing alternatives. The application of these and other sentencing principles can be seen in R v Wood (“Wood”), a 2021 decision of the Manitoba Court of Queen’s Bench (“the MBQB”).


This decision of the MBQB lays out the sentence imposed on Wood, who was previously convicted of manslaughter for the death of his wife. The Crown sought a sentence of twenty years, less time-in-custody credit of four-and-a-half years, for a go-forward of fifteen-and-a-half years. while the defence sought a sentence of twelve years, for a go-forward of seven-and-a-half years.


A husband’s fatal attack results in manslaughter conviction


Wood was sentenced to 18 years less four-and-a-half years of time-in-custody credit for a go-forward of thirteen-and-a-half years after being convicted of manslaughter in the death of his wife.


Wood and his wife were both Indigenous and lived at St. Theresa Point First Nation, an isolated community in northeastern Manitoba. They were married in 2010, and had been together since 2004. They were both 35 years of age at the time of the incident and had three children together as well as a child from a previous relationship of Mrs. Wood’s. Mr. Wood had been convicted of assaulting Mrs. Wood four times since 2012. In the latter three assaults, Mr. Wood was on some form of bail or probation aimed at reducing his chance of reoffending. When he assaulted and killed her in 2018, he was bound by two probation orders that stipulated that he was not to have contact with Mrs. Wood and imposed restrictions when he was drinking. He had been ordered not to return to St. Theresa Point until he had completed a residential alcohol treatment program, which he did not do. Following a 2017 assault in Winnipeg, he was released on a recognizance requiring him to reside at Garden Hill First Nation, not to communicate with Mrs. Wood, and not to travel to St. Theresa Point. The charges from the 2017 assault were dropped following Mrs. Wood’s death.


In January 2018, Mr. Wood travelled to St. Theresa Point in violation of the court orders. Mr. and Mrs. Wood went to Mr. Wood’s brother’s home where they consumed home-brewed alcohol, snorted crushed Percocets, and smoked marijuana. As the evening progressed, an argument ensued between Mr. and Mrs. Wood, and Mr. Wood began to assault his wife. This was witnessed by Mr. Wood’s brother and his brother’s girlfriend. At approximately 11 pm, the brother wanted to check on Mrs. Wood; Mr. Wood insisted that she was fine and had just passed out. The brother went next door for help and returned moments later, but Mrs. Wood was dead. At trial, it was determined that there was reasonable doubt as to whether he had the necessary intent to cause harm that would kill her, and so Mr. Wood was convicted of manslaughter.


A heavy sentence despite mitigating factors


The judge considered how the Gladue factors applied in determining Mr. Wood’s sentence. Mr. Wood left school in grade nine and likely had only a grade-six education. He had not been gainfully employed for over a decade and was either on income assistance through St. Theresa Point or in jail. The intergenerational effects of colonialism are prevalent in the community; overcrowding, poverty, and substance abuse are very common. Domestic violence is a major concern within the community, with no specific services or facilities to help victims.


Mr. Wood’s father attended a day-school where he suffered abuse; Mr. Wood suffered abuse during his upbringing and witnessed domestic violence between his parents. He began abusing drugs and alcohol at age eleven and became addicted. Despite the assaults, Mr. Wood described his relationship with his wife as good and expressed deep remorse for killing her.


Mr. Wood is aware of his alcoholism, having sought treatment and been turned away from the limited resources available to him. During his previous time in custody, Mr. Wood participated in various programs, including anger management, parenting skills, and healthy relationships.


The judge then considered the sentences that have been imposed in similar cases, noting that there is no minimum penalty for manslaughter and that the maximum is life in prison. The range of sentences for spousal manslaughter is broad but typically attracts a higher sentence than other types. The high-end range for a case usually does not exceed 15 years, and life sentences are rare.


There were many aggravating factors in Mr. Wood’s case. He had beat his spouse in a brutal fashion, resulting in a multitude of injuries from an assault that occurred intermittently over hours. Mrs. Wood, especially as an Indigenous woman, was vulnerable as she was smaller in stature than Mr. Wood and grossly intoxicated. Mr. Wood had breached court orders by visiting St. Theresa Point and engaged in drinking and using drugs, factors that had been present in his previous assaults of Mrs. Wood. Mr. Wood had a criminal record for domestic assault.


The judge identified denunciation and deterrence as paramount in cases involving domestic violence, particularly due to the elevated risk of violence based by Indigenous women. He also cited the need to separate Mr. Wood from his community so that he did not pose a threat.


Due to the gravity of the crime, the circumstances of the offender, and balancing the sentencing principles and factors, the judge determined a just sentence to be eighteen years, with a go-forward of thirteen-and-a-half years.


A just sentence


This case demonstrates how the many sentencing principles and provisions must be taken into consideration when determining what the appropriate sentence for a particular offender is. While the Gladue factors have been criticized as automatically resulting in lesser sentences for Indigenous offenders, this case shows what the Supreme Court of Canada (“the Court”) stated in R v Ipeelee (“Ipeelee”). In Ipeelee, the Court addressed that particular criticism of the Gladue factors, emphasising that their consideration merely provided the sentencing judges with context to determine the appropriate sentence and attempted to address the failing of the Canadian court system to take into consideration Indigenous understandings of sentencing.


In Wood, the judge discussed the unique systemic and background factors facing Mr. Wood at some length and nonetheless arrived at a relatively lengthy sentence. This decision shows that these factors are still considered in relation to the other principles of sentencing, and I believe that it is a just sentence. Given Mr. Wood’s criminal record of assault and domestic abuse and previous attempts at rehabilitation through alternate methods than imprisonment, this is a sentence that reflects the gravity of the offence and the degree of responsibility of the offender.

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