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As he sentenced two sisters to prison for drunkenly killing a woman they'd known almost their entire adult lives, a provincial court judge offered veiled criticism of Manitoba's method of assessing the public safety risks posed by Indigenous offenders.
Although he stopped short of saying so outright, Judge Rocky Pollack suggested Wednesday the risk assessments used by probation officers in Manitoba conflict with legislation aimed to reduce disproportionate rates of Indigenous people in Canada's prisons.
"A cynic might say that the application of LS/CMI (a risk-assessment tool) to Indigenous offenders in Manitoba means that offenders with prominent Gladue factors will inevitably be classified in a higher-risk category," Pollack said.
Gladue reports are meant to detail personal histories and trauma experienced by Indigenous people so courts can take them into account during sentencing. But when probation officers compile risk assessments, those same Gladue factors — such as having criminally-involved friends or a lack of family support — can ratchet up the offenders' perceived risk.
The apparent chasm between how Gladue factors were intended and how they're being interpreted by probation officers has long been criticized by defence lawyers, including the Criminal Defence Lawyers Association (Manitoba). But Pollack's remarks came in light of a case in which the attackers — and the victims — had all experienced the fallout of decades of trauma and substance abuse.
Candice Nepinak, 33, and her sister, Vanessa Nepinak, 37, were sentenced to seven and six years, respectively, in prison for manslaughter in the killing of 35-year-old Cynthia Huntinghawk and an attack on her sister, Charlotte Huntinghawk, in a West Alexander rooming house on Jan. 12, 2016.
Vanessa Nepinak had been with the Huntinghawk sisters that evening, drinking intoxicants such as hand sanitizer, hairspray and mouthwash, when they threw her out, falsely accusing her of having HIV, court heard. Vanessa Nepinak, having been beaten, dragged down the stairs of the rooming house and left with two black eyes, went to Candice Nepinak's residence threatening revenge.
"In a plan to seek vengeance, they decided that each of them would beat one of the Huntinghawk sisters," Pollack said in his decision Wednesday.
The Nepinak sisters were both drunk, and Candice Nepinak had a small kitchen knife. They kicked down the door at the rooming house and attacked Charlotte Huntinghawk, who managed to escape and call 911 from a payphone.
Cynthia Huntinghawk was unconscious in a chair and didn't resist as she was dragged down the stairs by her hair and stabbed six times in the side of her face. The stab wounds were "relatively minor," court heard, but Cynthia's level of intoxication made the effect of the injuries much worse, and she ultimately died. When police arrested the Nepinak sisters shortly after Charlotte Huntinghawk's call for help, they found them both highly intoxicated.
Because of their intoxication, Pollack said, they couldn't have had the intention to kill that a murder charge requires.
"Why the sisters were originally charged with murder was not explained to me, but it is clear that they were always prepared to admit causing Cynthia's death by an unlawful act," the judge said.
Pollack acknowledged the Huntinghawk sisters had experienced much of the same kinds of trauma as the Nepinak sisters, all of which led to substance abuse. But the probation officers' reports for the Nepinaks listed their addictions as risk factors, he said.
"Perhaps there is some criminological reason to deny that substance abuse leads to crime, but more importantly, it seems to me that the risk factors enumerated reflect — in the case of each offender — the offenders' Gladue factors," Pollack said, noting the fact Vanessa Nepinak had a long-term relationship with a man involved in crime and Candice Nepinak's friends were homeless or "not doing well," also seemed to increase their risk.
Both Nepinak sisters were designated as high risk to reoffend and the probation officers concluded they couldn't be safely supervised in the community.
"It's clear that community supervision is out of the question at this time," Pollack said, imposing a higher sentence for Candice Nepinak because of her more "troublesome" criminal record. But he said Vanessa Nepinak's recent record "indicates a struggle for survival on the streets by a helpless addict, without causing particular harm to others," although she was convicted of assaulting a police officer in 2000.
"Neither had the opportunity through the years, in sobriety, without concern for food, clothing and shelter, to access rehabilitation opportunities," Pollack said, adding he believes rehabilitation is possible for the Nepinak sisters.
Their older sister, Tanya Nepinak, has been counted among Canada's missing and murdered Indigenous women, though her body hasn't been found. She went missing from Winnipeg's West End in 2011.
Convicted killer Shawn Lamb was charged in her death, but those charges were later dropped.
As Pollack delivered his decision, Charlotte Huntinghawk sobbed in the courtroom, surrounded by family.
With credit for the time they've already spent in custody, Candice Nepinak and Vanessa Nepinak have four years and three years, respectively, left to serve.
Katie May reports on courts, crime and justice for the Free Press.