Family of homicide victim must wait longer for sentence

The family of Adam Yellowhead will have to wait another six weeks to find out how long the man who killed him will spend in jail.

Joseph Wesley, 34, pleaded guilty to manslaughter in Yellowhead's August 2012 death.

A Thunder Bay court heard on Wednesday that the two were drinking mouthwash in the intercity area of Thunder Bay.

According to the statement of facts read out in court, Wesley told police they got into an altercation and he put Yellowhead in a headlock. Yellowhead died of strangulation.

Wesley said it was an accident and on Wednesday, he asked the family for forgiveness.

His lawyer, Christopher Watkins, proposed a sentence of three to six years, less 14 months of time already served.

The prosecution said it wants a 10- to 12-year prison sentence.

The judge is expected to hand down the sentence on Dec. 30.

Family looking for closure

Francine Kwandibens said she hoped the sentencing hearing on Tuesday would bring her family some closure.

The family was upset the sentence wasn't delivered the same day. Kwandibens left the courtroom in tears, saying loudly to Wesley, "You better hear my cries."

This isn't the first time Wesley's sentencing has been delayed.

He was supposed to be sentenced in September in Thunder Bay Superior Court, but Watkins had just received the Gladue report. The report, which outlines unique background factors and circumstances in the offender's life, is something the courts must take into consideration when sentencing First Nations offenders.

Watkins asked the court for time to review the Gladue report with his client, so the sentencing hearing was postponed to Wednesday. 

The first delay was upsetting, Kwandibens said.

“I want it to be done with so my dad could be rested,” she said. “He will not be rested until it really actually is done and over with. Then he can go at peace."

Kwandibens said Wednesday's hearing would be the first time she'd hear specific details about how her father died.

"I'm going in there strong, but I know I'm going to come out in tears because [of] everything I'm going to hear about what happened to my father,” she said.

“I want the truth and it's closure for me and it's going to be closure for my brothers as well."

Kwandibens has two younger brothers.

Details on Yellowhead's death

The statement of fact read during Wednesday’s hearing in Thunder Bay Superior Court revealed the following details about the circumstances around Yellowhead's death:

• A group of people found Yellowhead's body shortly before 8:45 a.m. on Aug.  29, 2012.
• The scene strewn with garbage, including many empty mouthwash bottles and hairspray bottles.
• Meanwhile, seven hours before Yellowhead's body was discovered, Thunder Bay police found Wesley passed out on a bench outside the Silver City movie theatre
• Police said Wesley was very intoxicated, and detox was full, so police took him into custody.
• Wesley spent the night in a cell at the police station and was released around 9:30 a.m., after he had sobered up
• Wesley later told police he went back to the scene where the fight with Yellowhead happened, but saw police there.
• Wesley then went to a cousin's house and said he had killed a man. He later left Thunder Bay.
• Police issued a warrant for Wesley's arrest after interviewing that cousin. Police found him in Kenora and charged him with second degree murder.
• Wesley pleaded guilty to the lesser charge of manslaughter.
• The two men had been drinking mouthwash in that wooded intercity area the night before Yellowhead's body was found.
• Wesley said, while they were drinking, they got into a fight and he put Yellowhead in a headlock from behind.
• Wesley said he heard a crack and Yellowhead fell backward on him.
• Wesley said he didn't mean to hurt him. He said he was scared and fled the scene.

Defence and Crown weigh in

In his court submission on Wednesday, Watkins said several mitigating factors justify a lighter sentence.

He said Wesley has cognitive deficiencies and likely has fetal alcohol spectrum disorder.

Watkins also told the court that Wesley's mother had died when he was a child and he lived a life of abuse in foster care.

He also argued that Wesley took responsibility right away for what he'd done when he was arrested, by describing what happened and pleading guilty to manslaughter.

Watkins asked the judge to order the sentence be served in a facility that has both Aboriginal support services and psychiatric treatment.

Watkins described the case as "a very sad situation," adding that the death was an accident and Wesley showed remorse.

‘Great sorrow’

However, the Crown noted the pathologist report shows the pressure on Yellowhead's neck was sustained, and wasn’t momentary.

The Crown argued that the fact Wesley fled Thunder Bay shows he didn't take immediate responsibility for his actions.

The Crown also pointed out that the victim was an older, frail man in poor health — versus the young and strong Joseph Wesley. [The court heard that Adam Yellowhead had been diagnosed with colon cancer, had refused treatment, and had given up hope. Police had been told by Yellowhead's niece that he had lost 60-80 pounds in the months prior and was an alcoholic.]

The Crown added that the three victim impact statements submitted by Yellowhead's children are "filled with sentiments of great sorrow."

Wesley ‘very sorry’

After the defence and crown finished making their sentencing arguments, Justice Bruce Fitzpatrick asked Wesley if he wanted to address the court

At first Wesley said he wanted to do so in Ojibwe, but after a long pause, said he wanted to speak in English. [Everything at the trial was translated for Wesley into Ojibwe through an interpreter.]

In broken English, Wesley said he was "very sorry" and asked the family to forgive him. He said he didn't intend to hurt Yellowhead.