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R v King, 2019 NWTSC 6             S-1-CR-2016-000118

 

 

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 

IN THE MATTER OF:

 

 

HER MAJESTY THE QUEEN

 

 

- v -

 

 

DENECHO NOEL CALVIN KING

_________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice A.M. Mahar, sitting in Yellowknife, in the Northwest Territories, on the 26th day of November, 2018.

_________________________________________________________

 

 

APPEARANCES:

 

 


Ms. J. Andrews: Mr. A. Godfrey:


Counsel for the Crown Counsel for the Crown


Mr. J. Bran:                  Counsel for the Accused

 

 

(Charges under s. 235(1), s. 239(1)(b), s. 268 of the

Criminal Code)


 

 

1               THE COURT:             Introduction

2                                     I found Denecho King guilty after trial of

3                         the second degree murder of John Wifladt and

4                         aggravated assault on Colin Digness.  Today I

5                         must sentence him for those charges.

6                                     For the murder charge, the sentence is

7                         mandated in the Criminal CodeIt is life

8                         imprisonment.  The decision I have to make is how

9                         many years Denecho King will have to spend in

10                         jail before he is eligible for parole.  The

11                         Criminal Code says that it must be no less than

12                         10 years and no more than 25 years.  I also have

13                         to decide what sentence he should receive on the

14                         aggravated assault charge.

15                                     The Crown's position is that I should set

16                         the ineligibility period at 17 years and that the

17                         sentence for the aggravated assault should be 10

18                         years concurrent.  The Crown also seeks a number

19                         of ancillary orders.

20                                     Defence asks that I impose a period of

21                         ineligibility of between 10 and 12 years and a

22                         sentence of five years concurrent for the

23                         aggravated assault.  They do not take issue with

24                         the ancillary orders.

25                         The Circumstances of the Offences

26                                     In my decision finding Denecho King guilty

27                         of these offences, I referred to many details of


 

 

1                         the evidence adduced at trial.  This was

2                         necessary because the case presented by the Crown

3                         was circumstantial, and the interplay of the

4                         significant amount of evidence had to be

5                         addressed on the issue of who was responsible.

6                                     For the purpose of determining an

7                         appropriate sentence, however, the facts are

8                         relatively straightforward and limited.

9                                     John Wifladt, aged 39, and Colin Digness,

10                         aged 41, were lifelong friends.  They met up

11                         around midnight in the early morning of December

12                         14th, 2014.  After drinking together at one or

13                         two bars and a private party, they took a cab to

14                         Colin Digness' apartment at the Sunridge

15                         apartments in Yellowknife, arriving just after

16                         4:00 a.m.  They were both intoxicated.

17                                     Among several other decorations, Colin

18                         Digness owned a set of three ornamental swords of

19                         a Japanese design, which were displayed on a

20                         stand in his living room.

21                                     There is no evidence of any aggressive

22                         behaviour on the part of either of these men, and

23                         I wish to make it clear that I consider both of

24                         them to have been entirely innocent and without

25                         any degree of fault for what eventually occurred.

26                                     Denecho King, then 22 years old, had been

27                         drinking and partying with various people from at


 

 

1                         least the afternoon of December 13th.  There was

2                         also an indication that he may have been using

3                         cocaine.  His behaviour was, at times, erratic

4                         and violent and included throwing furniture

5                         around, breaking a window and beating up a female

6                         drinking companion in the back of a taxi.

7                                     At trial, I found that Denecho King was not

8                         sufficiently intoxicated as to be incapable of

9                         forming a specific intent.  This is a specific

10                         legal finding.  I do not mean to suggest that he

11                         was sober.  He was clearly and substantially

12                         under the influence of at least alcohol

13                         throughout the afternoon and early morning of

14          December 13th and 14th, 2014.  This does not

15                         excuse his terrible behaviour, but it does help

16                         to put it in context.

17                                     He wound up at the Sunridge apartments at

18                         about 4:00 a.m., looking for a friend of his who

19                         lived directly below Colin Digness' apartment.

20                         Somehow he found himself upstairs in Colin

21                         Digness' apartment, with the two longest swords

22                         of the set in his hands.

23                                     The result was as I found at trial.  Colin

24                         Digness suffered multiple lacerations to his face

25                         and eye, including a deep 9- to 10-inch

26                         laceration to his forehead, and a 2-inch

27                         laceration above his left eye, as well as a stab


 

 

1                         wound to his abdomen.

2                                     John Wifladt suffered injuries which

3                         included two stab wounds to the left upper back

4                         of his torso, being roughly 2 inches and 8 inches

5                         in depth.  The deeper wound penetrated his chest

6                         cavity, perforated his diaphragm and penetrated

7                         his spleen, which caused massive blood loss and

8                         led to his death.  He also suffered two stab

9                         wounds to his head which did not penetrate his

10                         skull.  John Wifladt died from blood loss a few

11                         hours after arriving at the hospital.

12                                     The injuries suffered by Colin Digness have

13                         potentially permanently affected his vision,

14                         cognitive function and digestive system.

15                                     I made the following findings at trial about

16                         culpability:

17                                     However Denecho King found himself in Colin

18                         Digness' apartment, I do not believe he went

19                         there intending to hurt anyone.  The weapons used

20                         were found on site, not carried by him.  If

21                         anything, based on his behaviour at other times

22                         on the 13th and 14th, he was simply looking for

23                         people to party with.  Whatever happened,

24                         happened very quickly.

25                                     I have no way of knowing exactly what

26                         occurred in that apartment.  The most likely way

27                         in which this tragic event unfolded is that


 

 

1                         Denecho King came into contact with John Wifladt

2                         and Colin Digness as they were either entering

3                         the building or going upstairs towards the

4                         apartment.  He followed them upstairs and into

5                         the apartment, hoping to drink with them.

6                                     An argument ensued when they tried to make

7                         him leave.  He lost his temper, grabbed the

8                         swords from where they were displayed and

9                         attacked the two men.  As soon as they were

10                         incapacitated, he dropped the swords and left the

11                         apartment and the building.

12                                     It is not necessary, at this stage in the

13                         matter and dealing with non-essential facts, that

14                         this supposition be proved beyond a reasonable

15                         doubt.  Specific details aside, this is what I

16                         believe most likely happened, and in any event,

17                         it is to Denecho King's benefit as it is the

18                         least sinister interpretation of the facts.

19                                     I have no doubt, given the nature of the

20                         injuries, that in the heat of the moment Mr. King

21                         intended to cause bodily harm that he knew was

22                         likely to cause death and he was reckless as to

23                         whether death ensued.  I do have a doubt as to

24                         whether he actually intended to kill either John

25                         Wifladt or Colin Digness.  It was on this basis

26                         that the convictions for second degree murder and

27                         aggravated assault were made.


 

 

1                         The Victim Impact Statements and the People Who

2                         Testified in Court

3                                       A number of victim impact statements were

4                         given to me.  Many were read out loud in Court

5                         last week at the sentencing hearing.

6                                     John Wifladt appears to have been a gentle,

7                         thoughtful, productive and intelligent man.  He

8                         occupied a critically important place in his

9                         family and should never have been taken from them

10                         at the age of 39.  The depth of the loss suffered

11                         by those who loved him is staggering.  He was

12                         obviously deeply loved and is greatly mourned.

13                                     His death has had a terrible impact on those

14                         around him.  John Wifladt's parents and other

15                         family members are still suffering deeply.  This

16                         was obvious.  I wish there was something I could

17                         do to help with that.  I know that no matter what

18                         happens here today, nothing will make up for

19                         this.

20                                     When this process shifts, as it must, to

21                         considerations of Denecho King's circumstances,

22                         the characterization of the crime and what

23                         constitutes a just sentence, please understand

24                         that I have not forgotten you.

25                                     Colin Digness has suffered a terrible impact

26                         from these events, too.  He was very seriously

27                         injured, and he is still deeply and permanently


 

 

1                         affected.  He lost his best friend.  He is

2                         profoundly traumatized by what happened.

3                                     I thank all of you for putting your sadness

4                         into words.  It took great courage.  I hope that

5                         in time you will be able to find some peace.

6                                     The victim impact statements are important

7                         because they show how much harm, pain and

8                         suffering was caused by Mr. King's actions.

9                         The Legal Framework

10                                       Section 745.4 of the Criminal Code says

11                         that in deciding the parole ineligibility period,

12                         the Court has to take into account: a) the

13                         character of the offender, b) the nature of the

14                         offence and c) the circumstances surrounding its

15                         commission.

16                                     The case of R v Shropshire provided guidance

17                         about how this provision should be applied.  Like

18                         all sentencing decisions, the decision about

19                         parole ineligibility must be made taking into

20                         account the general sentencing framework set out

21                         in the Criminal CodeIt is part of determining

22                         a fit sentence, and therefore governed by the

23                         same fundamental principles of proportionality

24                         that informs all sentencing decisions.

25                                     All the other usual sentencing principles

26                         apply as well, including the special

27                         considerations that govern the sentencing of


 

 

1                         Indigenous offenders.

2                                     In cases of serious violence, particularly

3                         murder, denunciation and deterrence, both

4                         specific and general, are paramount.  That said,

5                         the Court should never lose sight of the

6                         possibility of rehabilitation, particularly when

7                         dealing with offenders who are relatively young.

8                         Criminal Record

9                                     Denecho King has a criminal record.  He

10                         should not today be punished again for the

11                         offences on that record, but his criminal history

12                         is a relevant consideration, as it would be in

13                         any sentencing.  The offender's character is one

14                         of the factors that is specifically referred to

15                         in Section 745.5.

16                                     He has 38 previous criminal convictions, two

17                         of which occurred after the commission of these

18                         offences, 16 convictions for breaches of court

19                         orders and 10 convictions for crimes of violence.

20                                     Of note is that he was on probation at the

21                         time of this incident, having been released only

22                         25 days before, after serving an 18-month

23                         sentence for assault with a weapon.

24                                     I have been given the benefit of a thorough

25                         presentence report.  It includes useful

26                         information about Denecho King's background.  I

27                         also have a letter from his mother, which I found


 

 

1                         helpful.

2                                     I am required to take into account Denecho

3                         King's circumstances as an Indigenous offender,

4                         and I do.  He is of Chipewyan descent.  He grew

5                         up in circumstances of violence, chaos and

6                         deprivation.

7                                     He spoke in the presentence report of

8                         spending his childhood never feeling safe.  He

9                         was singled out for particular mistreatment by

10                         caregivers, which included allowing him to go

11                         hungry, and he was sent away for behaviour

12                         modification placements three times beginning

13                         when he was 10 years old.

14                                     His brother Denezah spoke of this, saying: 15

I don't think he ever felt a part of our

16              family.  He was always sent away.

17

18                                       The result was sadly predictable.  He

19                         dropped out of school at an early age.  He ended

20                         up, essentially, independent and living the life

21                         of a criminal from the time he was 14.  He

22                         developed the capacity for serious violence.  He

23                         abused drugs and alcohol.  He became someone who

24                         never wanted to show weakness.  His life hardened

25                         him.

26                                     He was very close with one of his

27                         grandmothers, by whom he felt truly loved.  She


 

 

1                         died when he was 12.

2                                     I was struck by his relationship with

3                         Lawerance Chartrand and Laura Lorenzen.  Due to

4                         his difficult home life when he was a young boy,

5                         Denecho King would often stay with friends, which

6                         included these people.  They say that they

7                         consider him to be part of their family.  While

8                         they know he has a problem with alcohol, they

9                         state that they have no concerns when he is

10                         staying with them.  They describe a kind, helpful

11                         and considerate young man, who seems to be

12                         completely at odds with the person we heard about

13                         during this trial.

14                                     What this tells me is that Denecho King has

15                         a choice.  He can choose to be a better person or

16                         he can choose not to, which means that there is a

17                         hope for his rehabilitation and reintegration

18                         into society.

19                                     Notwithstanding comments about maintaining

20                         his innocence for the purpose of appeal, Denecho

21                         King showed insight in his comments to the writer

22                         of the presentence report.  He wants to get

23                         counselling for anger and substance abuse while

24                         he is in custody.  He wants to get training in

25                         the trades so he can become a productive member

26                         of the community.

27                                     I believe that he was sincere in his closing


 

 

1          remarks to the Court when he said the following: 2

3                                     I, Denecho Noel Calvin King, am deeply sorry

... deeply sorry.  Nothing I say or do will

4                                     change the past.

5

6                         Analysis

7                                     My interpretation of the Shropshire decision

8                         and the law generally on the period of

9                         ineligibility was greatly assisted by the

10                         decision of the Alberta Court of Appeal in Ryan,

11                         2015 ABCA 286, provided in the Crown's Book of

12                         Authorities.

13                                     Justice Picard, writing for the majority at

14                         paragraph 53 stated the following: 15

16                                     I read Shropshire as recognizing that the

10 year minimum period of parole

17                                     ineligibility is a category by itself.

... I read the reference to a "median" as

18                                     simply recognizing the practical reality that the "ordinary" or "typical" period of

19                                     parole ineligibility for second-degree murder may well be 10 years. Shropshire

20                                     ... at para 27 included this: "To this end, an extension of the period of parole

21                                     ineligibility would not be "unusual", although it may well be that, in the median

22                                     number of cases, a period of 10 years might still be awarded."

23

24              Further, in the conclusion at paragraph 54: 25

26                                     The estimation in Shropshire that perhaps as many cases are likely to involve the minimum

27                                     period as result in longer periods of ineligibility is quite plausible. In fact,


 

 

1                                     it reflects common sense. It is wrong, therefore, to characterize 10 years as

2                                     simply being the minimum available disposition.

3

4                                     In paragraph 57, Justice Picard lists as

5                         examples some factors that have or might result

6                         in an increase in the period of parole

7                         ineligibility.  While it is clear that the Court

8                         of Appeal did not intend to provide an exhaustive

9                         list, the 17 factors listed do provide compelling

10                         guidance on the sorts of things a Court ought to

11                         consider.  They are: gratuitous violence;

12                         targeting or luring of the victim; additional

13                         degradation of the victim; murder committed while

14                         on bail or probation; murder committed in the

15                         presence of an innocent bystander or non-party;

16                         an abuse of power; an abuse of trust; a gang

17                         attack; circumstances of domination or control;

18                         circumstances of retaliation, revenge or

19                         enforcement; murder motivated by hostility

20                         towards a minority or vulnerable group or members

21                         of it; murder in service of obstructing justice

22                         or cover-up; profit from the murder; murder

23                         motivated by race, religion or gender; murder

24                         committed in the context of a criminal

25                         enterprise; preparatory steps leading to the

26                         murder; and, finally, murder committed in the

27                         course of committing other crimes.  Only one,


 

 

1                         murder while on bail or probation, applies in

2                         this case.

3                                     The Crown and defence are substantially

4                         apart in their positions.  I have reviewed the

5                         cases that were filed by counsel.  I will say

6                         that no two cases are exactly alike.  What was

7                         done in other cases can give some guidance, but

8                         that is as far as it goes.

9                                     Murder exists on a spectrum, with some

10                         offences occurring nearer to manslaughter and

11                         some closer to first degree murder.

12                                     The cases of Corrigal and Mantla, referred

13                         to by the Crown, are very close to first degree

14                         murder.  Both Harrison and Delorme involved the

15                         strangling of helpless victims, where killing was

16                         clearly the objective.  Ryan was a shooting in an

17                         ongoing criminal enterprise, where the victim was

18                         lured to the scene.

19                                     As I stated in my decision at trial, I was

20                         unable to find beyond a reasonable doubt that

21                         Denecho King actually intended to kill anyone,

22                         while clearly intending, as I said, in the heat

23                         of the moment, to cause grievous bodily harm that

24                         was likely to cause death.  In this sense, this

25                         murder falls closer to the manslaughter end of

26                         the spectrum, which argues in favour of

27                         restraint.


 

 

1                                     Dealing with the aggravated assault against

2                         Colin Digness, this analysis leads to a different

3                         conclusion.

4                                     The events that constitute an aggravated

5                         assault also fall in a spectrum of both damage

6                         and intention.  If Colin Digness had succumbed to

7                         his injuries, I would have found Denecho King

8                         guilty of second degree murder in his death, not

9                         manslaughter.

10                                     Defence counsel is correct when he states

11                         that cases of manslaughter involving a knife

12                         often result in terms of imprisonment in the

13                         range of five years.  Those offences, however, do

14                         not typically involve the intention to cause the

15                         sort of harm that I have found was intended in

16                         this case.  My findings on intention place this

17                         aggravated assault at the very high end of the

18                         spectrum.

19                                     This event was spontaneous.  There is no

20                         evidence that any sort of violence was

21                         contemplated beforehand.  Intoxication is not a

22                         defence or, frankly, a mitigating factor, except

23                         to the extent that it bolsters the impression of

24                         spontaneity and allows the Court to consider more

25                         fully the possibility of rehabilitation.

26                                     Every murder is violent and heartbreaking.

27                         This is why Parliament has mandated a life


 

 

1                         sentence with a minimum period of parole

2                         ineligibility for those offenders found guilty of

3                         it.

4                                     Considering the nature of this offence and

5                         the circumstances of its commission, I find

6                         virtually none of the sort of factors I referred

7                         to earlier when I quoted the Alberta Court of

8                         Appeal in Ryan the type of factors that are

9                         typically found when Courts impose a period of

10                         ineligibility greater than 10 years.  The

11                         character of the offender, however, causes me far

12                         greater concern.

13                                     Denecho King was on probation on a serious

14                         offence of violence for less than a month when he

15                         committed these offences.  He has a lengthy

16                         criminal record, with numerous convictions for

17                         violence.

18                                     These aspects have to be balanced, to some

19                         extent, against his young age and by the

20                         extremely difficult circumstances of his early

21                         years, to which I pay particular attention given

22                         his status as an Indigenous offender.  Despite

23                         these considerations, I still believe that a

24                         period of ineligibility greater than the minimum

25                         is warranted in this case.

26                                     A number of ancillary orders will be made.

27                         They are not opposed.


 

 

1                                     There will be a DNA order as this a primary

2                         designated offence;

3                                     There will be a lifetime firearms

4                         prohibition order;

5                                     There will be a victim of crime surcharge in

6                         the amount of $400.00.

7                                     Please stand up, Mr. King.

8                                     For the murder of John Wifladt, I sentence

9                         you to life imprisonment, without eligibility for

10                         parole for 12 years.

11                                     For the aggravated assault of Colin Digness,

12                         I sentence you to 10 years' imprisonment

13                         concurrent.

14                                     Close court.

15      _____________________________________________________

16      PROCEEDINGS CONCLUDED

17      _____________________________________________________

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1                  CERTIFICATE OF TRANSCRIPT

2

3                         I, the undersigned, hereby certify that the

4               foregoing transcribed pages are a complete and

5               accurate transcript of the digitally recorded

6               proceedings taken herein to the best of my skill and

7               ability.

8                         Dated at the City of Sault Ste. Marie, Province

9                         of Ontario, this 17th day of December, 2018. 10

11                                     Certified Pursuant to Rule 723

12                                     of the Rules of Court 13

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16                             _________________________

17                                                                        Kerri Francella

18                                                                        Court Transcriber

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