Tough sentencing ahead for Red Earth man

A Prince Albert Court of Queen’s Bench judge has a tough, and possibly precedent-setting decision to make in the “near murder” of a Red Earth First Nation man.

Two of the three men responsible for the death have already received nine year sentences for manslaughter, but the sentence for the third – Tyson Whitehead, now 28 – is proving difficult for Justice Lyle Zuk due to the uncommon circumstances of the death and a special report that takes into account factors related to aboriginal peoples.

Duril McKay was 20 when he got kicked out of a New Year’s Eve party at the home of Lenny and Doug Head’s mother heading into 2013.

He reacted by striking her with a hammer, and the retaliation from Lenny, Doug, and their cousin Tyson Whitehead was brutal as they chased McKay down the street. Beating him with table legs, the three young men hit and kicked him in the head and body even after he stopped moving.

Duril died in Nipawin hospital of blunt force trauma to the head.

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This “senseless,” alcohol-fueled attack left a hole in the lives of McKay’s family that they conveyed through victim impact statements.

Although the statements from Duril’s widow Kristy McKay, mother Noreen, and father Harvey were similar to those read last summer at Lenny’s sentencing, the Crown prosecutor noted that even years after the death, the family’s pain is “palpable.”

Duril’s father cried as he read his statement, saying with Duril’s death, “part of me has died.”

Noreen was often wracked with sobs, and supported by her sister, as she described the deep sadness she’s felt. This includes isolating herself from family, having flashbacks to the events of that night, and the pain of seeing her grandchildren without their father.

Open sobs and sniffles were heard in the gallery, where at least a dozen people sat.

Tom Healey has been the Crown prosecutor for all three men accused in Duril’s death, and heard the victim impact statements three times.

Despite that, “I still find myself lost for words” at the suffering, Healey told Justice Zuk. He said this case has had an effect on him.

It’s been “truly heartbreaking to watch,” he said.

Sentencing submissions pose problems

Healey told Zuk the Crown is seeking the same sentence for Whitehead as the other two, which is nine years.

In Healey’s view, there were no distinguishing factors between the three men accused in the death.

The defence submission from James Struthers acknowledged the issue of “parity,” or consistency with the sentences between those already sentenced and Whitehead.

Struthers argued that parity plays one role, but it’s not the only one.

The biggest weight for his requested sentencing range between five and a half years to eight came from a special report.

This report takes into account cultural factors the accused faced in the past that contributed to the crime. 

Called “Gladue factors,” a judge must note these cultural factors in First Nations people when they consider sentences and the types of punishments, which can include restorative justice.

This is due to a Supreme Court decision that these factors must be noted due to the historical overrepresentation of Aboriginal people in prisons.

The lasting effects of colonialism on First Nations people and communities lead to issues like poverty, addictions, and domestic violence, Struthers said in court.

Healey interpreted through the report that a connection between the crime and Gladue factors doesn’t exist. Whitehead has no criminal record and none of his family went to residential school. In addition, Healey said the report says Whitehead participated in hunting and fishing with his dad, and despite having parents that drank Whitehead reflects on a loving childhood.

Struthers saw things very differently, and even Zuk stated that it appeared the Red Earth First Nation community as a whole struggles with lack of opportunity, alcohol and domestic violence. Zuk said it seems Whitehead minimized some of the effect of his parents.

Whitehead saw his childhood through “rose coloured glasses,” Struthers said. His parents’ alcoholism affected Whitehead’s life as did significant domestic violence, and his father died of alcohol-related causes, Struthers said.

Whitehead only started learning in English after a lifetime of Cree speaking in high school, which led to difficulty getting a grasp of the language, Struthers said.

In the time since the arrest, Struthers said Whitehead has now completed courses through the Prince Albert campus of the Learning Disability Association of Saskatchewan.

Zuk asked very specifically how these Gladue factors are connected to Duril’s death.

Struthers acknowledged there will always be an element of personal responsibility.

“I don’t think it’s necessary to draw that solid line” between those factors and the events that took place on Jan. 1, 2013.

Finally, Struthers apologized on behalf of Whitehead, who was too “self-conscious” to speak before the court.

Calling the actions inexcusable, Struthers said Whitehead takes full responsibility for his role in Duril’s death.

Zuk’s sentencing decision will come down on June 12.

He spoke directly to the gallery, saying he knows this case is an extremely important matter and the only reason the sentencing is so far away was because he’s booked solid until that date.

claskowski@jpbg.ca   

On Twitter: @chelsealaskowsk