Decision Content
R v Abraham, 2021 NWTSC 10 S-1-CR-2019-000080
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
WILFRED JAMES ABRAHAM
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Transcript of the Reasons for Sentence by the Honourable Justice A.M. Mahar, sitting in Yellowknife, in the Northwest Territories, delivered orally on the 9th day of February, 2021.
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APPEARANCES:
M. Fane: Counsel for the Crown
B. Green Counsel for the Crown
A. Corbett: Counsel for the Defence
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Charge under s. 235(1) of the Criminal Code
I N D E X
PAGE
RULINGS, REASONS
Reasons for Decision 3
REASONS
THE COURT: The comments that we just heard frame one of the more tragic aspects of this case. Too often the people we see as street people are seen as interchangeable and almost invisible. These are real people with histories and lives and loved ones.
A society -- not my words -- is judged on the way that it treats its weakest members. As Canadians and certainly as citizens of the Northwest Territories, we can take a certain amount of comfort in the fact that there are a lot of outreach programs and there are a lot of supports put in place, but they are still not sufficient to deal with what are typically both substance abuse and mental illness issues on the part of the homeless population.
Both Wilfred Abraham and Ralph Sifton lived at the homeless shelter in Fort Smith. They were well‑known around town. Mr. Sifton appears to have been well-liked. Mr. Abraham is up and down on that count, because Mr. Abraham unfortunately is a very aggressive and angry drunk. It is an extra curse that he has to deal with along with his alcoholism. As he said in his pre-sentence report, on a number of occasions it has driven people away from him and it has cost him friendships.
On the night in question, both men were heavily intoxicated. At some point Wilfred Abraham ended up falling asleep in the backyard of a friend that allowed him to sleep on a couch that he had set out in the backyard. At some point Mr. Sifton came along and kicked him in the face with a pair of steel-toed boots. It was not a particularly hard blow, but Mr. Abraham did suffer some injuries as a result. He had a black eye.
He got up, went to the homeless shelter, got his shoes and went back to where he had been sleeping. When he got back, Ralph Sifton was there. This seems to have been a surprise to him because witnesses heard him say "What the F are you doing here?" and they got into either an argument or a fight.
During that argument or fight, Mr. Abraham picked up a five-pound hand weight, one of the small rubber-coated weights that all of us are fairly familiar with, and struck Mr. Sifton in the head at least four times. We know this from the injuries.
It was my view, and I found as a fact, that Mr. Sifton and Mr. Abraham were both on their feet when this happened. I do not know if I need to characterize it as a fight. We are not talking about a situation where this was reasonable force used in self-defence or anything like that, but they were certainly either arguing or fighting. Mr. Sifton was not unconscious, not immobile, and one of the blows was hard enough to kill him.
He did not die right away, but he became unconscious. For the next ten minutes or so he was lying on his back in the shadows in front of the shed; over behind the other houses. Neighbours came out to see what was happening, and during those ten minutes Wilfred Abraham was enraged.
He continued hitting Mr. Sifton in the face, in the neck, in the upper chest with his hands. None of those blows contributed to the death, but they were a pattern of continuing violence that continued while Mr. Sifton was unconscious.
It was an important part of my deliberations at trial that approximately a hundred times Mr. Abraham told Mr. Sifton to get up, screamed at him to get up, and I found that despite making horrible remarks about wanting to kill him and using an axe and all kinds of threats that were directed at the neighbours and anybody who happened to come into earshot, there was no indication that Mr. Abraham was actually trying to kill Mr. Sifton at all.
It would have been no difficult thing to inflict life‑ending injuries on Mr. Sifton for ten minutes while he lay insensate and Mr. Abraham did not do that. Mr. Sifton died shortly after the police arrived, somewhere between there and an attempt to resuscitate him at the hospital.
The time of death was called at the hospital, but it appears that he was already well on his way to being gone at that point. The nurse does recall him holding her hand, but during the course of resuscitation he passed.
Mr. Abraham, still highly intoxicated, made a number of comments about having wanted to kill Mr. Sifton and being glad that he was dead and other ugly comments, many of which were nonsensical. One of the key areas of disagreement between the defence and the Crown in this case is what I am to make of those comments.
The Crown encourages me to find that, despite my findings that Mr. Abraham did not intend to cause an injury that was likely to cause death, that at some point his intentions shifted and he became homicidal, and the Crown asks me to take this into account when I assess the gravity of the mental element that he brought to this crime.
I have great difficulty doing that. Wilfred Abraham, when he drinks, is a loud, aggressive, shouting nonsense drunk. The things that he said that night and the things that he did were at odds with each other and I have to give him the benefit of the doubt when I assess that. As he sobered, his remorse became clear. I watched him in cells during the course of the trial, at least the videotape of the cells.
I watched him being interviewed by the police when he could barely keep his head up. He says a lot of things when he's drunk. Sometimes the things that people say when they are drunk should not be taken as a clear indication of what their thought processes are at that point in time.
I would need to see something more concrete in terms of Mr. Abraham's actual behaviour to draw the conclusion that the Crown asks me to with respect to a homicidal intention. I struggled with this both on the sentencing and at the trial, because the things that were said were horrendous, and I certainly do not ascribe any fault to the Crown for making these suggestions.
It is a common sense inference that when somebody says they wanted to kill someone, you would assume that they wanted to kill them. I just have a difficult time finding beyond a reasonable doubt that that was the case, given Mr. Abraham's actual behaviour.
We talked about where this case fits in what is called the LaBerge analysis. Crown is urging me to find that this case falls into the third or highest category. Defence is asking me to find that it is in the second category.
In order to find that it is in the highest category I would have to find that the act of striking someone in the head with a small hand weight during a scuffle was something that carried with it an obvious risk of death. Not that death was likely, but that an obvious risk such as a stabbing or a shooting or a striking with, for instance, a baseball bat to the head would warrant.
I am not prepared to go quite that far. This is certainly an extremely serious use of a weapon, and the force that was required to cause the fatal blow was significant. If Mr. Sifton had been lying down when that blow was struck, had been unconscious, had simply been not moving, or if I was able to come to the conclusion that he was not moving, I think my assessment of the objective foreseeability or the objective component of mens rea would be made out in terms of the third category, but I am unable to do that.
In terms of the subjective component, it is clear that Mr. Abraham intended to cause serious bodily harm. The defence has conceded that, and regardless of that concession, it is obvious from the use of the weapon. This was far in excess of what needed to be used in the course of a scuffle at that point in time, and Mr. Abraham has acknowledged this by his guilty plea, which I will get to in a moment. So I do find that this offence falls at the upper end of the second category in LaBerge.
That said, the four years suggested by the defence is simply not sufficient. There are some mitigating circumstances. As suggested by the defence, Mr. Abraham entered a guilty plea essentially at the first opportunity. He is certainly not faulted for not entering a guilty plea to murder when he was eventually found guilty of manslaughter, and he did offer up the guilty plea to manslaughter at the beginning of the trial. I give him credit for doing that.
As the Crown has pointed out, this was not a circumstantial case in terms of establishing responsibility, and the level of violence was such that a conviction for manslaughter was, in all likelihood, a foregone conclusion, but I still give him credit for the guilty plea; and, as the Crown has acknowledged, credit is warranted in this case for that.
There are some factors to be considered under section 718.2(e) of the Criminal Code. Mr. Abraham is a member of the Salt River First Nation. His upbringing did not include some of the more troubling things that we often hear about in court, but the so-called Gladue considerations take into account not only the personal circumstances of an accused person, but the social construct that has been damaged by generational trauma as a result of the colonial experience.
Mr. Abraham has a weakness for alcohol. It has been cracked open by a number of serious losses in his life. Of five siblings, he only has one alive. He lost his relationship with the mother of his child and he appears to have struggled with alcohol addiction.
To struggle with a potential for alcohol addiction in a community that itself is struggling with addictions issues as a result of trauma calls into play the Gladue factors beyond the factors that are simply apparent in the pre-sentence report and his own personal history. I take that into account in sentencing Mr. Abraham.
Mr. Abraham has also made significant strides while he has been incarcerated for the last two and-a-half years. He has taken a significant amount of counselling. I will note as well that on nine prior occasions before this incident, Mr. Abraham had tried to get a handle on his drinking. He had attended at residential treatment facilities nine times, as was laid out in the pre-sentence report. I do not think I have ever seen a history like that, and I have been doing this in the North for a very long time. Mr. Abraham is clearly someone who is not content to be a drunk and angry member of the community and wants to get his life on track. He simply has not had the tools to do that.
This is the longest he has been sober since he was in his 20s. There have been some gaps in the record when he was responsible for his child, but he has always been drinking, apart from short breaks after his attendance at treatment.
Mr. Abraham is now 56 years old. He was 54 at the time of the incident. It is too easy to say that his 35-year criminal record encompassing four pages is an indication of somebody who is beyond rehabilitation. This case does call out for denunciation. The use of this level of violence in already traumatized communities is something that we see too often. It is something that cannot be countenanced and I think we are all in agreement on that.
I am unconvinced that general deterrence really comes into play all that much, although I hope that it does. If there were no serious consequences for violence when drinking we would be dealing with a worse situation, so there is always a balance to be struck when we look at these things. I typically get into conversations with lawyers when they bring up this notion that what we do here has no deterrent effect. Perhaps so, but if we did nothing here then things would be worse. So it is hard to say that this is meaningless. I do not believe it is meaningless. It simply is not all that is required. This is a very small part of a bigger puzzle, and I can only do what I can do. I cannot undo what happened. I cannot fix Mr. Abraham.
I can simply apply the law as best I can and try to be as fair as I can, recognizing both the awful loss that has occurred in this case and that I have a human being that I have to deal with, with a view to his circumstances as well. This is always the balance that a Court has to strike.
The degree of violence in and of itself in the course of a struggle, and I am talking now about the four blows with the weight, may have been -- I am not going to say minor enough, but may have been brief enough to warrant a four-year sentence, but the continuing violence after Mr. Sifton was insensate, even though it did not cause the fatal injury, is an aggravating factor of some consequence.
I believe simply on the basis of that aggravating factor -- I am not going to put a lot of weight on the ugly comments that were made, but the continuing violence is troubling, aggravating, and in my view, calls for at least an additional year, gets us to the five-year mark.
This was not a brief encounter that resulted in a fatal injury. This was a ten-minute spree of violence with the greatest violence at the beginning, and that has to be acknowledged and recognized.
We also then have to look at Mr. Abraham's history. A Court never sentences somebody for their prior criminal behaviour, and as was discussed between the lawyers and myself yesterday, it is a clear principle that being intoxicated is not an excuse. Voluntary intoxication is not an excuse. Those are both factors that are true, but somebody who has been consistently aggressive and occasionally violent when drinking carries the burden of that behaviour with him when he makes the decision to drink.
As I said at the beginning of this part of my decision about his criminal record, I am not re‑sentencing Wilfred Abraham for his criminal record, but he is a serious recidivist when it comes to drinking and acting out in violence. This is by far the most violent that he has ever been, but this was not unpredictable. This was not out of character for Mr. Abraham. Losing his temper in a rage when drinking is entirely in character for Mr. Abraham.
I am sympathetic about his struggles, but the Court has to be mindful of the protection of the public when dealing with a violent criminal, and Mr. Abraham, I am sorry to say, is a violent criminal.
When I was initially considering where all of this took me in terms of sentence, I was thinking of six years. But Mr. Abraham has made a plan and it is a good plan. I do not have a lot of faith that he is going to be able to follow through on that. He has tried so many times and he has failed so many times. I am not going to allow that plan to significantly reduce what I think is an appropriate sentence in this case.
But if I give Mr. Abraham five years and nine months, as opposed to six years, it would open the door to a three-year period of probation that would otherwise be unavailable to me, and I think that the protection of the public is better served by the longer period of control than by simply giving Mr. Abraham a longer period of custody after which he is simply free.
So the conclusion I have come to is that the sentence, as of today, taking full account of the time in remand, it is three years and nine months’ credit at this point in time, the sentence of the Court today is two years in a penitentiary.
I debated whether that should be two years less a day or two years. I think for a couple of reasons I want it to be a penitentiary term. One, maybe technically an exercise, but saying it is still a penitentiary term I think further strikes home just how serious and awful this is. So it is two years in the penitentiary.
The other thing that that does is allow for continuing control by parole Canada, Corrections Canada, even if Mr. Abraham is released somewhat early. Typically what would happen in a territorial sentence, if I gave him two years less a day, he would go to full remission, which is two-thirds of his sentence, he would be simply set free to go on probation.
By making this a penitentiary term, he will be on parole until the end of his penitentiary term of two years, which will then be followed by three years probation. Two years is the only penitentiary term that I can give him that will allow me to attach probation.
So this is a five year and nine-month sentence, subtracting the time that he has already been in custody, adding two years of custody. The three years of probation will have the following terms, and again, I am open to further discussion about this, but first I will let everybody know what I am thinking.
I recognize that Mr. Abraham is a chronic alcoholic. That said, it is dangerous to allow him to drink and if he does not do what he needs to do, I would rather see him arrested for drinking than arrested for violence. So he is not to possess or consume any alcohol.
I would like the probation order to then follow by indicating that the Court understands that Mr. Abraham is an alcoholic and would urge Probation Services to exercise some discretion. So that will be part of the first term.
That discretion will become obvious with the second term, which is that if Mr. Abraham does consume alcohol, he is to report that consumption immediately to his probation officer and he is to report thereafter daily until otherwise directed by his probation supervisor.
I want just to be clear, he is to report within five days of his release and afterwards throughout his three years as directed by his probation supervisor.
Next condition, he is to take whatever treatment is recommended for him, and I am assuming, Mr. Abraham, that that would include in-house treatment. You are willing to do that? If they find you another program, you are willing to go? Okay. And that will include in-house treatment.
Are there any terms in the probation order, Crown, that you would like to see or that I have omitted?
M. FANE: Yes, Sir. I would suggest residing as directed. That will allow probation to have access. Perhaps their resources they wouldn't have otherwise to assist with Mr. Abraham's residency.
THE COURT: Thank you. He is to reside as directed.
M. FANE: And as well, Sir, I think an initial reporting term within seven --
THE COURT: I think I said three days or five days. I am not sure. If it was not clear, yeah, within five days he is to report.
M. FANE: Thank you, Sir.
THE COURT: Anything from you on that?
A. CORBETT: No, Sir, I'm not seeking any further terms.
THE COURT: Okay. On the warrant of committal, what it noted -- and again, I will make a comment about this. One of the reasons that I have some hope for Mr. Abraham is that his son has spoken of being willing to take Mr. Abraham in, provided he is not drinking. His son lives in Edmonton. His son also suggested that he spend some more time in jail until he has solidified his resolve to lead a better life. So his son shows some insight into the depth of Mr. Abraham's problems.
On the warrant of committal I would urge Corrections Canada to look into the possibility of perhaps a halfway house or some form of parole in the city of Edmonton to see what they can do in assisting Mr. Abraham in following through on these plans.
Ancillary orders. There will be a DNA order. There will be a section 109 firearms order for a period of ten years. I am going to make a section 113 exemption allowing him to apply for a limited permit for the purposes of sustenance or work. With Mr. Abraham's record he is going to have an uphill battle applying to firearms in order to get that permit, but if he is able to remain sober for a number of years and show that he is not someone who is a risk, perhaps he will be able to do that, and I do not want to stand in the way of him being able to get back on the land and embrace some of the very positive earlier experiences that he had growing up.
Mr. Abraham, there is no undoing this. You know that. I think the most important thing that you can do to honour Ralph is to never put yourself in a position where you are able to act out like this again. You owe him that much, and I hope you are able to do that. All right.
(REASONS CONCLUDED)
CERTIFICATE OF TRANSCRIPT
Neesons, the undersigned, hereby certify that the foregoing pages are a complete and accurate transcript of the proceedings transcribed from the audio recording to the best of our skill and ability. Judicial amendments have been applied to this transcript.
Dated at the City of Toronto, in the Province of Ontario, this 24th day of March, 2021.
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Kim Neeson
Principal