Man who killed brother won’t co-operate if assessment is ordered

A Behchokǫ̀ man accused of killing his brother in 2020 previously heard inner voices telling him to kill and murder, his lawyer told a Yellowknife court on Monday.

In a surprise move that halted what was supposed to be the start of a two-day sentencing hearing for Colton Migwi, defence lawyer Peter Harte said his client does not want to be declared “not criminally responsible” for the crime.

Migwi, 31, has pleaded guilty to the manslaughter of his brother, Andrew.

“He has a history of auditory hallucinations. He hears voices, and the voices specifically say, ‘kill, kill, kill’ or ‘murder, murder,’” said Harte.

“However, there is no evidence that he has ever acted upon those … and he has at times presented himself at the hospital saying, ‘I hear these voices.’ So there’s no evidence that they are voices that he’s not able to manage, so to speak.”

Harte told Justice Andrew Mahar that in order for Crown Prosecutor Duane Praught to even ask the court to consider an NCR (not criminally responsible) assessment, he must be able to connect the earlier psychological issues with the state of his mind when he took his older brother’s life on March 7, 2020.

Harte referred to a report from a forensic psychologist who met with Colton at the North Slave Correctional Complex, where he has been on remand since being arrested in the days following Andrew’s death.

The lawyer said he wants to have Dr Anne Pleydon, who was in court on Monday, qualified as an expert to discuss the report she produced.

“At the end of the day,” Harte quoted from Pleydon’s report, “Colton did not want to end up in a hospital with an indefinite and uncertain length of [detention] outside of the territory, which likely would have happened under the review board.”

Upon an NCR finding, the accused is usually detained in a psychiatric facility and subject to the jurisdiction of a review board.

The Criminal Code of Canada states a review board shall take into account “the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused.”

Harte told the court if an assessment is ordered, his client will not cooperate.

“Colton is going to be advised not to open his mouth … he doesn’t want to end up in the mental health system.”

Harte said he also doesn’t want to place his client or himself into a position of being in contempt of the court.

“But he is not required by the Charter [of Rights and Freedoms] to assist the Crown in prosecuting him.”

Adjournment granted

As a small group of Migwi family members sat in the public gallery, Colton listened at the defence table as Harte suggested a sentence of two years less one day – after factoring in remand credit – that could be served at Yellowknife’s jail, followed by a lengthy period of supervised probation.

Prosecutor Praught said he will be seeking an assessment order, which would then either lead to an NCR hearing or a regular sentencing.

“The Crown made an offer to resolve the matter with a plea of manslaughter instead of second-degree murder, which was the original charge,” he said. “That plea was accepted on the agreed statement of facts that was negotiated between the parties that [was] signed in early December.”

He said he made it clear at the time that should mental illness or mental disorders be an issue, or a “topic of discussion” at the sentencing hearing, that would need to be discussed beforehand.

“I wouldn’t feel as if I’ve done my due diligence unless I review all the medical records,” said Praught. “The Crown wants to make sure that the best evidence is before the court so that the court can make the best decision possible.”

Justice Mahar granted an adjournment until August 16.

“Despite Mr Migwi not wishing to raise the issue of criminal responsibility, when that issue has become apparent through the documents, I feel it’s incumbent upon the Crown – for purposes of both protection of the public and possibility of wrongful conviction – that the issue be canvassed with the appropriate authorities through the system,” the judge said.

After court closed, the sheriffs allowed Colton a tearful reunion with his family.

Andrew’s passing was first described by RCMP as a sudden death. Colton was arrested less than one week later.

In tributes about Andrew reported by Cabin Radio in 2020, he was remembered as a “kind, soft-spoken young man” with a quick sense of humour.

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Correction: June 16, 2021 – 13:20 MT. A previous version of this story incorrectly referred to the prosecutor as both Duane Praught and Morgan Fane. The prosecutor in the case is, in fact, Duane Praught.