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Transcript of the Reasons for Sentence

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R. v. K.M., 2017 NWTSC 33          S-1-YO-2014-000005

 

 

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 

IN THE MATTER OF:

 

 

HER MAJESTY THE QUEEN

 

 

- v -

 

 

K.M.

(A YOUNG PERSON)

__________________________________________________ _ Transcript of the Reasons for Sentence delivered by The Honourable Judge L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 20th day of April, 2017.

 

 

 

 

APPEARANCES:

 

 


Ms. A. Piche: Ms. J. Scott:


Counsel for the Crown Counsel for the Crown


Mr. C.B. Davison:          Counsel for the Accused

 

 

N O T I C E : S E C T I O N 1 1 0 P U B L I C A T I O N B A N N O L O N G E R I N

E F F E C T B y o p e r a t i o n o f P a r a g r a p h 1 1 0 ( 2 ) ( a ) o f t h e

Y o u t h C r i m i n a l J u s t i c e A c t , e f f e c t i v e M a y 1 , 2 0 1 7 , a t 4 : 0 0 P M , t h e p u b l i c a t i o n b a n r e g a r d i n g t h e y o u n g

p e r s o n w h o i s s u b j e c t t o t h e s e p r o c e e d i n g s i s n o l o n g e r i n e f f e c t .


 

1               THE COURT:             On March 22nd, 2014, K.M. beat

2                         Charlotte Lafferty to death in Fort Good Hope.

3                         He was found guilty of this crime following a

4                         jury trial that was held in Yellowknife in

5                         January and February 2016.

6                                     The Crown has applied to have him sentenced

7                         as an adult.  The hearing into that application

8                         took place a few months ago.  There was a lot of

9                         evidence and a lot of factors for me to consider

10                         in arriving at a decision.  I have prepared a

11                         written decision that is much more detailed than

12                         what I will say today.

13                                     Today, I will summarize the main reasons why

14                         I have reached the decision that I have.

15                                     It has taken some time to get to this point

16                         in these proceedings, because, as I have just

17                         said, the trial took place a long time ago.

18                                     There were a few reasons why it took so long

19                         and I want to explain that.  First of all, the

20                         evidence that needed to be gathered for this

21                         application was much more extensive than would be

22                         the case in an ordinary sentencing hearing.  The

23                         second reason is that we had the first stage of

24                         the sentencing hearing, the Victim Impact

25                         Statement hearing in Fort Good Hope and not in

26                         Yellowknife.

27                                     I decided that the Court should go to Fort


 

1                         Good Hope for that part of the hearing, because I

2                         know the impact that this crime had on that

3                         community.  I decided it was important for as

4                         many people as possible to have a chance to read

5                         their Victim Impact Statements to the Court

6                         themselves, if they wished.  And even if they did

7                         not wish to read them themselves, that they could

8                         be present and hear them read by someone else.  I

9                         also thought it was important that as many people

10                         as possible, even those who did not want to

11                         prepare a Victim Impact Statement, could be there

12                         and hear those that were being read so those

13                         people could be there for at least part of these

14                         proceedings.

15                                     I think everyone understands it would not

16                         have been possible to have this jury trial in

17                         Fort Good Hope, and I suspect everyone

18                         understands that it would have been very

19                         difficult to have the whole sentencing hearing in

20                         Fort Good Hope.  But by having the Victim Impact

21                         Statement hearing there, I felt the community

22                         could be involved, to some degree, in these

23                         proceedings.

24                                     From that hearing in Fort Good Hope, from

25                         having listened to the trial evidence over three

26                         weeks, from reading everything I have read that I

27                         have been provided, I know that Ms. Lafferty's


 

1                         death has had a profound impact on a lot of

2                         people; on her children, on her parents, on her

3                         whole family and on the community.

4                                     There is nothing that I can do to take away

5                         that pain and that loss, and I really, really

6                         wish there was.  I can only hope that as the

7                         trial and sentencing proceedings come to an end,

8                         it can be one more, perhaps small step towards

9                         healing.  We must never lose hope for healing.

10                         But I also understand that in this case that will

11                         be a very long road for people.

12                                     The circumstances of Ms. Lafferty's death

13                         were the subject of evidence at trial.  That

14                         evidence was referred to during the hearing of

15                         the Crown's application.  The Crown's case was a

16                         circumstantial case.  It was a very strong

17                         circumstantial case.  The evidence showed that on

18                         the night of her death, Ms. Lafferty had been

19                         socializing with a number of other people in Fort

20                         Good Hope, and K.M. was part of that group.

21                         People were drinking, but there is no evidence

22                         that either K.M. or Ms. Lafferty were grossly

23                         intoxicated.  At one point, while they were at

24                         Leanna McNeely's house, Ms. Lafferty and Miranda

25                         McNeely went back to Miranda's house to get

26                         another mickey of vodka.  K.M. went with them.

27                         Cora Rabisca, who had been babysitting at


 

1                         Miranda's house, talked her out of going back

2                         out.  Miranda gave the mickey to Ms. Lafferty,

3                         and then Ms. Lafferty and K.M. left.

4                                     It seemed clear that Ms. Lafferty was killed

5                         not very long after that.  Miranda's house is

6                         very close to the elder's complex, and it was

7                         behind that building that K.M. killed

8                         Ms. Lafferty.

9                                     The evidence about the attack itself came

10                         from Mr. Kotchile, who saw part of it, and also

11                         from observations that were made at the scene by

12                         police officers and observations made during the

13                         autopsy of Ms. Lafferty's body.  It is difficult

14                         for anyone to read about these circumstances or

15                         to think about them, and I realize it is

16                         especially painful for Ms. Lafferty's loved ones.

17                                     I have referred to those details in my

18                         written decision, reported at R. v. K.M., 2017

19                         NWTSC 26, and I do not think it is necessary to

20                         repeat all of that now.  I will say only that the

21                         evidence shows that this was a particularly

22                         violent and brutal beating and it was prolonged.

23                         It involved the use of a weapon.  It included a

24                         very high level of violence.  And it included

25                         extremely contemptuous and degrading behaviour

26                         towards Ms. Lafferty.

27                                     The officer who was first at the scene said


 

1                         that it was "almost undescribable, like the scene

2                         from a horror movie".  The evidence adduced at

3                         trial showed that this was not an exaggeration on

4                         his part.  The circumstances of this crime are

5                         shocking.

6                                     In deciding this application, I have to take

7                         those circumstances into account, but the

8                         seriousness, even shocking nature of the offence,

9                         cannot overshadow or overwhelm all the other

10                         things that I am required to consider.  And I

11                         have been very careful, very conscious of this in

12                         reaching my decision.

13                                     The difference between an adult sentence and

14                         a youth sentence is enormous.  An adult sentence,

15                         which is what the Crown is asking me to impose,

16                         is automatically life imprisonment with parole

17                         ineligibility for ten years.  The maximum youth

18                         sentence, which is what K.M.'s counsel says I

19                         should impose, is a global sentence of ten years,

20                         the first six being imprisonment, and the last

21                         four being under the scope of a community

22                         supervision order in the community.

23                                     K.M. was 17 when he killed Ms. Lafferty, and

24                         that is why these proceedings are governed by the

25                         Youth Criminal Justice ActUnder our law,

26                         youths who commit crimes are dealt with in a

27                         system separate from the adult system.  That is


 

1                         because our law recognizes that youths do not

2                         have the same level of maturity as adults.  They

3                         are more vulnerable.  Their moral judgment is

4                         less developed.  So even charged with the most

5                         serious of offences, they are dealt with

6                         differently than adults.  They are presumed to be

7                         less blameworthy, less culpable for crimes they

8                         commit.  K.M. benefits from that presumption.

9                                     To have K.M. sentenced as an adult, the

10                         Crown has the onus of showing two things:  The

11                         first is that this presumption of diminished

12                         blameworthiness has been rebutted, and the second

13                         is that a youth sentence would not be long enough

14                         to hold K.M. accountable for his actions.

15                                     The first issue, the issue of diminished

16                         responsibility, has to do with the level of

17                         maturity, vulnerability, and capacity for moral

18                         judgment that K.M. had at the time that he

19                         committed this offence.  In examining that issue,

20                         I have the benefit of two presentence reports,

21                         the psychiatric and psychological assessments

22                         that were prepared, and, to a lesser extent,

23                         other information I have about K.M. through the

24                         support letters that were filed.  There were also

25                         aspects of the circumstances of the offence, as

26                         revealed by the trial evidence, that I found

27                         relevant in examining K.M.'s level of maturity in


 

1                         March 2014.

2                                     In terms of what I have considered more

3                         specifically, I have, of course, considered the

4                         evidence of Dr. Sultana.  She is a youth forensic

5                         psychiatrist.  She was part of the team who

6                         assessed K.M. in 2016.  He was only in her unit

7                         for about three weeks, but she works with youths

8                         all the time.  The turnover rate in that unit is

9                         very high, so she sees many youths as part of her

10                         work.

11                                     Her opinion was that K.M.'s level of

12                         maturity, compared to other youths in the unit,

13                         was striking.  She said he showed logical

14                         thinking processes, he was able to weigh pros and

15                         cons, understand right from wrong, and plan

16                         logically.  She did not see him display any

17                         emotional immaturity during the time of the

18                         assessment.  And she also said that from her

19                         review of the materials that she had access to,

20                         she did not think there had been any changes in

21                         his maturity level over the course of the time he

22                         was in custody.

23                                     I am not required, of course, to accept the

24                         evidence of any witness, including an expert

25                         witness.  But Dr. Sultana's opinion was part of

26                         what I considered in arriving at my assessment.

27                                     The presentence reports support


 

1                         Dr. Sultana's conclusions in some ways.  They say

2                         that during his time at the youth facility and at

3                         the adult facility, K.M. was never a difficult

4                         inmate to manage.  He was cooperative with staff,

5                         he was polite, he was engaged in the programs

6                         available to him.  He made efforts to upgrade his

7                         schooling and succeeded in doing that.  He

8                         involved himself with a lot of other things.  And

9                         that behaviour continued when he was transferred

10                         to the adult facility.  In other words, it is not

11                         as if the correctional staff noted a great

12                         evolution or change in K.M.'s behaviour from when

13                         he was first taken into custody and as time was

14                         passing.  His behaviour and presentation seemed

15                         to be consistent throughout and consistent with

16                         what Dr. Sultana observed.

17                                     Another factor I have considered is age.

18                         K.M. was less than a month away from turning 18

19                         when this happened.  Age, of course, is not

20                         determinative of maturity, but it is not an

21                         irrelevant factor either.

22                                     I also considered K.M.'s personal

23                         circumstances and background.

24                                     At the time this happened, he had been in a

25                         long-term relationship.  His girlfriend stayed

26                         with him almost every night, and that

27                         relationship had been going on for about a year.


 

1                         That is more in the nature of an adult

2                         relationship than teenage dating or romance.

3                         K.M. had had some work experience, even if it was

4                         only with summer jobs.  He had been given

5                         vehicles by family members, which suggests they

6                         thought he was responsible and mature enough to

7                         own a vehicle.

8                                     There are things about the events the night

9                         that Ms. Lafferty died that also are helpful, in

10                         my opinion, in assessing K.M.'s level of maturity

11                         at the time.  That night, he was hanging out with

12                         young adults.  He is the one who initiated

13                         contact with Mr. Boniface, who was almost 30

14                         years old at the time.  He was spending time with

15                         people who were in their early 20s.  The trial

16                         evidence does not suggest that he was simply

17                         tagging along.  In fact, other young people who

18                         were trying to tag along were not allowed in

19                         Mr. Boniface's house.

20                                     The evidence also showed that K.M. was quite

21                         capable of being assertive with these adults.  He

22                         followed Ms. Lafferty and Miranda McNeely to

23                         Miranda's house, even though they had told him to

24                         wait.  He made it known when he was getting

25                         impatient and wanted Ms. Lafferty to hurry up

26                         when they were at Miranda's house, and he wanted

27                         to go.


 

1                                     His conduct after the offence also suggests

2                         a level of calm and maturity.  He did run away

3                         from Constable Pudsey, but his actions afterwards

4                         were not those of a panicked person.  They were

5                         logical and well-thought out things.  He went out

6                         looking for his girlfriend, not frantically all

7                         over the place, but at the last place he had seen

8                         her.

9                                     Then, when he did not find her, he went home

10                         and went to his room.  However he was feeling at

11                         that point, he was able to keep his emotions in

12                         check.  The same is true, and even more

13                         remarkable, in relation to the next day, when

14                         news of what happened started to spread and

15                         people started asking him questions.

16                                     K.M. was poised and calm enough to make up a

17                         story when confronted by his mother about why he

18                         had blood on him when he came home that morning.

19                         He was able to keep his composure, talking with

20                         Charlotte Lafferty's own mother as she was

21                         standing in front of him asking where he had last

22                         seen her daughter.  He had the presence of mind

23                         to lie to her about that to deflect attention

24                         away from himself for any involvement with her

25                         death.  And he did the same when he was

26                         questioned by his girlfriend.

27                                     K.M.'s counsel has asked me to consider


 

1                         other aspects of the evidence that he argued

2                         suggest lack of maturity and lack of adult

3                         thinking on K.M.'s part that night.  For example,

4                         that fact that the crime was impulsive; the

5                         indications in the materials that K.M. lacks

6                         empathy that he has a tendency to minimize; the

7                         fact that he made no attempt to hide

8                         Ms. Lafferty's body or the murder weapon or cover

9                         up what he had done.

10                                     I have considered these arguments carefully.

11                         As far as lack of empathy and acting impulsively,

12                         I accept that these can be features of

13                         immaturity, but they can be features of many

14                         other things; such as, antisocial behaviour.

15                         These things are not determinative of anything.

16                                     As for things that K.M. did or did not do

17                         after he killed Ms. Lafferty, on balance, I find

18                         that they point more towards maturity than lack

19                         thereof, particularly, things he did the

20                         following morning when he was questioned by

21                         people.

22                                     In the absence of any evidence about what

23                         K.M. was thinking at various points during these

24                         events, the fact is that much, much remains

25                         unknown.  And I am not permitted to speculate

26                         about any of that.

27                                     In that regard, I do not want to be


 

1                         misunderstood.  K.M. had the right not to testify

2                         at trial.  He had the right not to testify on the

3                         application.  And he had the right not to discuss

4                         the offence with any of the people who spoke to

5                         him in preparation for this hearing.  He

6                         absolutely had that right and I am not suggesting

7                         otherwise.  I simply mean that there is no

8                         evidence of his side of things, of what prompted

9                         this violence, what his motivations or thinking

10                         processes were before, during, and after

11                         Ms. Lafferty was killed.

12                                     That being the case, the simple fact that

13                         impulsive action can sometimes be a sign of

14                         immaturity is not something that I find outweighs

15                         the rest of the evidence that points to K.M.

16                         having had the moral compass of an adult back in

17                         2014.  Nor do the other things that his counsel

18                         raised during submissions.

19                                     So on the first branch of the test, I find

20                         that the Crown has met its onus.

21                                     The second thing that the Crown has to

22                         establish is that a youth sentence would not be

23                         sufficient in length to hold K.M. accountable for

24                         his crime.

25                                     The examination of accountability requires

26                         that I ask two questions.  The first is:  Would a

27                         youth sentence be long enough to reflect the


 

1                         seriousness of this crime?  And the second is:

2                         Would a youth sentence be long enough to provide

3                         reasonable assurances, not guarantees, but

4                         reasonable assurances, of his rehabilitation to

5                         the point that he could be safely reintegrated

6                         into society?  And, again, to assess that, K.M.'s

7                         circumstances and the circumstances of the

8                         offence are what I must turn to.

9                                     I will look first at the second question:

10                         Would a youth sentence be long enough to provide

11                         reasonable assurances of his rehabilitation?

12                         Would a global sentence of ten years be long

13                         enough to provide reasonable assurances that he

14                         can be rehabilitated and safely reintegrated into

15                         society?

16                                     Predicting how long treatment will take and

17                         what long-term risk is, are very difficult

18                         things.

19                                     Dr. Sultana could not put a timeline on what

20                         would be required for K.M.  He has not displayed

21                         any violence while in custody, and he seems to

22                         have functioned very well within a structured

23                         environment.  And he has not had access to

24                         alcohol or drugs, so his substance abuse problem

25                         is under control at this point.

26                                     What would happen if he were free of

27                         controls is unknown, however, at this point.  Any


 

1                         treatment would have to factor in K.M.'s

2                         intellectual challenges that were identified

3                         through the testing that he underwent.  This is

4                         not an insurmountable problem, but it could mean

5                         that the treatment might take longer.

6                                     Dr. Sultana's opinion was that without

7                         significant intervention, K.M. would continue to

8                         present a risk for further violence.  She is, of

9                         course, a psychiatrist.  But even leaving aside

10                         her opinion and looking at the evidence from a

11                         lay person standpoints, I find that conclusion is

12                         inescapable.

13                                     K.M.'s actions on March 22nd, 2014 speak for

14                         themselves.  This is extreme violence and

15                         extremely disturbing behaviour for which, as of

16                         now, there is absolutely no explanation.  It is

17                         conduct that is in stark contrast with how his

18                         family members describe him and with how he has

19                         behaved while in custody.

20                                     K.M. displayed disturbing violence in

21                         November of 2013 as well, although obviously not

22                         at all to the same degree.  That was the incident

23                         that led to his conviction for assault causing

24                         bodily harm.  There were submissions at the

25                         hearing about what to make and not to make of

26                         certain comments he made to the author of the

27                         presentence report that was prepared before that


 

1                         sentencing, and whether those comments showed

2                         lack of empathy.

3                                     Defence counsel pointed out that there were

4                         earlier altercations between K.M. and the victim

5                         of that offence, the details of which were not

6                         presented to me.  Defence counsel argued that

7                         without knowing more about those details, no

8                         conclusions, really, should be drawn from what

9                         K.M. said to the author of the presentence

10                         report.

11                                     Regardless, though, of the earlier

12                         altercations, according to the facts that K.M.

13                         admitted to at the sentencing for that offence,

14                         there came a point where the victim was down,

15                         trying to protect himself, not fighting back, and

16                         K.M. continued to punch him and kick him while he

17                         was down.  People told him to stop and he did

18                         not.  He threw a bench at the victim.  And he

19                         admitted to having caused fairly significant

20                         injuries to him.  This conduct, continuing to

21                         repeatedly kick and punch someone who is down and

22                         not fighting back, is disturbing conduct.

23                                     As of now, there is no evidence about what

24                         the root causes of K.M.'s violence are.  It is

25                         very possible that some of the difficulties from

26                         his childhood, the alcohol abuse and domestic

27                         violence in the home, abuse that he may have


 

1                         suffered at a young age, and, most certainly, the

2                         tragic death of his younger sister in 2012, are

3                         part of the answer.  But we do not know.  Until

4                         the causes are identified, no treatment plan can

5                         be developed.

6                                     Dr. Sultana said K.M. was not ready for

7                         treatment when she saw him in 2016, and the

8                         evidence supports that conclusion.  It is

9                         difficult to know whether K.M. has any insight

10                         into what he has done and into the enormous

11                         amount of harm it has caused.  Perhaps, even more

12                         importantly, not knowing what caused him to act

13                         this way, not knowing what issues need to be

14                         addressed, also means not knowing what might

15                         trigger him to act in this extremely violent way

16                         again.

17                                     On the evidence before me, there are no

18                         reasonable assurances that a youth sentence would

19                         be long enough to rehabilitate him and allow his

20                         safe reintegration into the community.  But even

21                         if I did think that a youth sentence would be

22                         sufficient to achieve those objectives, that is

23                         not the only thing I have to consider in deciding

24                         whether a youth sentence would be sufficient to

25                         hold him accountable for his conduct.

26                                     I also have to consider whether a youth

27                         sentence would be long enough to reflect the


 

1                         seriousness of this offence.  And having given

2                         this a lot of thought, bearing in mind the

3                         principles that I am required to follow under the

4                         Youth Criminal Justice Act, I am profoundly

5                         convinced that a youth sentence would not be

6                         sufficient to reflect the seriousness of this

7                         offence.

8                                     As I said at the beginning, and for the

9                         reasons I already mentioned, I am not going to

10                         repeat here the details of the circumstances of

11                         Ms. Lafferty's death or the details of the

12                         injuries that were inflicted on her, but it is

13                         difficult to imagine a more brutal attack.

14                                     I accept that it was impulsive and

15                         unplanned.  Still, at one point, K.M. decided to

16                         kill her.  He was not merely reckless about the

17                         consequences of what he did.  The only reasonable

18                         conclusion that can be drawn from what he did to

19                         her was that he intended to kill her.

20                                     The evidence also establishes that he

21                         intended to degrade her.  K.M. did this to

22                         someone he knew, a relative from his own

23                         community, and someone who, just shortly before,

24                         he had been socializing with and getting along

25                         with.  This is a senseless gratuitous act and it

26                         defies any comprehension.

27                                     I have not overlooked the positive things


 

1                         about.

2                                     K.M.'s background, the efforts that he has

3                         made while in custody, and the support that he

4                         has from his family.  But given the circumstances

5                         of this offence, I am convinced that a youth

6                         sentence would not reflect the seriousness of the

7                         offence.  It would simply not be a just sentence.

8                                     As I have said, the evidence does include

9                         positive things about K.M.  He has a lot of

10                         skills and he has a lot of support from quite a

11                         few people.  He is going to need that support for

12                         a long time.  And I can only hope that in time he

13                         will come to terms with what he has done.

14                                     I feel compelled to add this:  In my

15                         respectful view, those who want to support K.M.

16                         and help him through the long process ahead, must

17                         also come to terms with what he has done.  They

18                         must support him, when the time comes, in trying

19                         to understand where the terrible violence that he

20                         is capable of comes from, and help him find ways

21                         to address those issues with the assistance of

22                         professionals.

23                                     Wanting to protect a loved one is

24                         understandable, but the starting point for truly

25                         helpful support has to be an acknowledgement of

26                         the truth.  Support based on anything other than

27                         the truth is not going to help K.M. in the long


 

1                         run.

2                                     Because I have concluded that the Crown's

3                         application to have K.M. sentenced as an adult

4                         should be granted, the sentence that I must

5                         impose today is mandatory.

6                                     K.M., please stand up.  K.M., for the murder

7                         of Charlotte Lafferty, I sentence you to life

8                         imprisonment with no eligibility for parole until

9                         you have served ten years. 10

11                  CERTIFICATE OF TRANSCRIPT

12

13                         I, the undersigned, hereby certify that the

14               foregoing pages are a complete and accurate

15               transcript of the proceedings taken down by me in

16               shorthand and transcribed from my shorthand notes

17               to the best of my skill and ability.

18                         Dated at the City of Edmonton, Province of

19               Alberta, this 7th day of May, 2017. 20

21                                     Certified Pursuant to Rule 723

22                                     of the Rules of Court 23

24

25                             __________________________

26                                                                        Leanne Harcourt, CSR(A)

27                                                                        Court Reporter

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.