Tran Hoang An Phuc, March 24th 2022

Prof. Sebastien - Legal Reasoning and Methodology

Murder of Ashley Chantal McKay

Ontario Superior Court of Justice
R. v. Kwandibens, 2021.11.15

Overview: On October 30, 2018 Marlene Kawandibens, along with Terryl Michon and
Darren Oombash, was charged with second murder in relation to the death of 25-year old
Ashley Chantel McKay. On the basis of the following evidences: the defendant’s statement
during the ivestigation and at the preliminary hearing, statements and identification results
of persons related to the case, report on crime scene examination and other relevant
documents, the Crown requested that the Court state the applicable principles and standard
of the Criminal Code due to the gravity of the case, and then considered to arrive another
sentence.

1) Conclusion

At the Preliminary hearing, the Accused plead guilty to manslaughter contrary to

section 234 of the Criminal Code, R.S.C. 1985, c. C-46. However, The Crown and
the Defence disagree as to what is a fit and appropriate sentece to be imposed. The
Crown advocated for a sentence in the 8 to 10-year range which will result in a
penitentiary sentence. Furthermore, the Defense seeks a 2-year probation order with
requirements such as reporting to a probation officer on a regular basis and
participating in all counselling or programs indicated to address trauma, sorrow, and
drug addiction problems.

2) Rules
According to Article 718 of the Criminal Code (R.S.C., 1985, c. C-46), it is stated that:
The fundamental purpose of sentencing is to protect society and to contriute, along with
crime pevention initatives, to respect for the law and the maintenance of a just, peaceful
and safe society by imposing just sanctions that have one or more of the following
objectives:
(a) To denounce unlawful conduct and the harm done to victims or to the community
that is caused by unlawful conduct;
(b) To deter the offenders from society , where necessary;
(c) To separate offenders from society, where necessary;
(d) To assist in rehabilitating offenders;
 (e) To provide reparations for harm done to victims or to the communityl and
(f) To promote a sense of responsibility in offenders, and acknowledgment of the harm
done to victims or to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of
responsibility of the offender
718.2 A court that imposes a sentence shall also take into consideration the following
principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or
mitigating circumstances relating to the offence or the offender, and, without limiting the
generality of the foregoing
(d) an offender should not be deprived of liberty, if les restrictive sanctions may be
appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances
and consistent with the harm done to victims or to the community should be considered for
all offencders, with particular attention to the circumstances of Aboriginal offenders.

3) Explantion of the law

(1) Accordingly, Article 718.2 (e) of the Criminal Code (R.S.C, 1985, c. C-46), does not
geuinely mean that the sentences of Indigenous ofenders should automatically be reduced.
The sentence of Indigenous offenders should automatically be reduced. The sentence
imposed must still take into considereation all the relevant sentencing principles, factors of
the offence and circumstances of the offender
(2) On the contrary, following the vicious beating a decision was made by the three
assailants to conceal their actions rather than seek help. Marlene had sufficient
wherewithal at one point to recognize that Ashley was not breathing (but still not
seek help), later when she told Mr. Maybee his efforts to revive her were futile, and when
she announced to him that she had killed Ashley.

4) Application of the law

In accordance with the aforementioned rule:

(1) The circumstances of this offence and the weight must giving to the principles
of denunciation and deterrence render the 6-year sentence sought by the
Defence inadequate.
 (2) Acknowledging, and having factored in the mitigating factors of a guilty plea,
signed statement that assisted police and Ashley's family in knowing what
happened to her, that Ashley's family has been spared the additional trauma of a trial,
and Marlene's heartfelt expression of remorse.

(3) For these reasons, and considering the principle of restraint, finding that the 10-
year higher end of the sentencing range suggested by the Crown is similarly
inappropriate.

(4) The Pre-Sentence Report assesses Indigenous woman Marlene at a higher risk to re-
offend given the multiple and complex issues facing her. Rehabilitative measures
will be extremely important to avoid recidivism in the community. A stable and
structured environment to address addiction and mental health issues would improve
the long-term outcome for Marlene.

5) Conclusion
After considering all of the relevant factors and principles of sentencing, both in
general and specifically with respect to manslaughter cases, I conclude that the
appropriate sentence is a custodial terms of 8 years, which is reduced by
enhanced credit of 1670 days for time served in pre-trial custody. As well,
ancillary orders are mandated by the Criminal Code. Pursuant to s. 109, the
Accused is prohibited from possessing any firearm, crossbow, prohibited weapon,
restricted weapon, prohibited device, ammunition, and explosive substance for a
period of 10 years. The Accused is also required to submit a sample of her
DNA to the DNA Data Bank pursuant to s. 487.051