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This article was published 6/6/2011 (3320 days ago), so information in it may no longer be current.
A transgender Winnipeg man is seeking triple credit for pretrial custody based on the mocking and torment he has allegedly received while living as a woman behind bars.
Joseph McNabb, 29, is citing a "horrible" experience as grounds for a unique legal exemption so he may return to the community immediately.
"There has been the possibility of physical attacks from inmates, and (McNabb has) suffered ridicule and abuse," defence lawyer Martin Glazer told a Winnipeg court on Monday.
McNabb has the physical appearance of a woman and has been kept in the medical ward of the remand centre because it would be unsafe to put him in either the men's or women's ward of the jail, court was told.
"It's been horrible, a very stressful time," said Glazer. He said even some corrections officers have made crude remarks to McNabb.
McNabb appeared in court Monday to be sentenced for rummaging through the pockets of an unconscious, dying man and trying to rob him. McNabb was found not guilty of manslaughter last month because a judge ruled there were elements of self-defence and provocation in the April 2009 killing of Evaristo Caniuman.
The 60-year-old victim died of head trauma after being knocked to the ground at Sargent Avenue and Young Street. McNabb didn't deny pushing Caniuman but said it came after the man approached him on the street, asked for a sexual favour and then tried to steal his shoes. McNabb, took offence at the uninvited solicitation and fought back.
McNabb has spent the equivalent of nearly one year in pretrial custody.
Crown attorney Scott Cooper wants McNabb to be given just single-time credit plus an additional two years in jail, citing his extensive criminal record which includes more than a dozen prior convictions and numerous breaches of court orders. Cooper notes that recent legislative changes have outlawed the two-for-one credit that was routinely being given out by Canadian judges. However, McNabb's case pre-dates the changes and he is still eligible.
But Glazer says McNabb should be released immediately. He said the unique circumstances of this case and McNabb's background should justify a three-for-one credit and a sentence of time already served. Glazer said any further jail time would be "overkill."
"Any way you slice it, my client has served more time than what this case calls for," he said.
Queen's Bench Justice Kenneth Hanssen has reserved his sentencing decision until Friday afternoon.
McNabb told homicide detectives in a videotaped interview that Caniuman fell to the ground, hitting his head on the cement. McNabb said he fled and doesn't have a clear memory of the incident because he was drunk.
"I don't think I was in my right mind at that stage," he told police. Caniuman was rushed to hospital with head trauma and died six days later.
In closing arguments last month, Glazer said McNabb could not have appreciated a "simple shove" would result in death.
The Crown argued "unreasonable force" was used.
Mike McIntyre grew up wanting to be a professional wrestler. But when that dream fizzled, he put all his brawn into becoming a professional writer.
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