R. v. Karim, 2012 ABQB 727

Court of Queen ’ s Bench of Alberta Citation: R. v. Karim, 2012 ABQB 727 Date: 20121127 Docket: 060508074Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Mohamed Ali Karim and Robert Elliot Deer Defendant Restriction on Publication: Identification ban – See the Criminal Code,

section 486.5. By Court Order, information that may identify any of the undercover officers in this case must not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. NOTE: This judgment is intended to comply with the restriction so that it may be published. Corrected judgment: A corrigendum was issued on December 20, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment.

Corrected judgment: A corrigendum was issued on December 18, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Sentencing Decision on Robert Elliot Deer of The Honourable Madam Justice E.A. Hughes _______________________________________________________ [ 1 ] Jack Beauchamp was shot to death in his downtown Calgary office on January 16, 2006 by Mohamed Ali Karim. I found Mr. Karim guilty of the murder of Mr. Beauchamp and found Mr. Deer guilty of manslaughter – that it is unlawfully causing the death of Mr.

Beauchamp. My reasons for judgment are found at 2012 ABQB 589 . It is not my intention to recite the facts found in that decision but rather, I will make reference to those facts relevant to the sentencing of Mr. Deer. [ 2 ] The offence of manslaughter with a firearm carries a minimum sentence of four years imprisonment and a maximum sentence of life imprisonment. In determining what is a fit sentence for Mr.

Deer I must consider the purpose and principles of sentencing set out in the Criminal Code and the decisions of the Supreme Court of Canada and the Alberta Court of Appeal that have interpreted the sentencing principles, and the decisions of the Alberta Court of Appeal respecting the sentencing range for the offence of manslaughter. In addition, I must consider Mr. Deer’s personal circumstances including his time in custody, the victim impact statements, and the aggravating and mitigating circumstances in this case. [ 3 ] S. 718 of the Criminal Code defines the purpose and objectives of sentencing.

It states: The fundamental purpose of sentencing is to contribute ... 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; (

b) to deter the offender and other persons from committing offences; (

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 community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 4 ] In this case, the primary objectives of the sentence I impose must be to denounce the unlawful conduct and to deter this offender – Mr. Deer – and others from committing like offences. [ 5 ] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree

of responsibility of the offender. R. v. Arcand, 2010 ABCA 363 reviewed the sentencing principles in the Criminal Code and observed: 1. The principle of proportionality is the governing sentencing principle. This principle is fundamental to the integrity of thesentencing regime that Parliament has prescribed. para. 47. 2. The two components of proportionality are the gravity of the offence and the degree of responsibility of the offender. para. 47. 3. The objectives of sentencing in s. 718.2 of the Code are all “... either components of the proportionality principle or properlyinfluence its

interpretation and application. Either way, all are relevant in determining a just sanction that satisfies the proportionalityprinciple.” para. 59. 4. “The parity principle in s. 718.2(

b) impacts squarely on the degree of responsibility of the offender generally prescribing, as itdoes, that a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances.More fundamentally, as noted, parity constitutes a indispensable element of the proportionality principle. Therefore, to diminish orignore the importance of parity in sentencing is to effectively undercut the proportionality principle mandated by Parliament.” para. 61. 5. While sentencing is an individualized process, the process is not exclusively about the offender.

A sentencing judge must notoverlook that crimes are wrongs to both individuals and the community. para. 67 [6] In addition, the court made the following observation at para. 60 respecting the relative degree of responsibility amongstparties: ...

Section 718.2(

a) also permits courts to take into account the relative degree of responsibility amongst parties to a crime. While thecriminal law does not distinguish between the principal offender and parties to an offence in terms of criminal liability, for most crimes,the relative degree of culpability of parties potentially varies widely. Thus, an offender who is the ringleader of a crime may well receivea higher sentence than, for example, an immature follower.

On the other hand, there may be no basis on which to distinguish betweentwo (or more) offenders, especially where the crime is a joint gang attack on a victim. [7] The offence of manslaughter is one of the most serious offences in the Criminal Code after the offence of murder. As I willexplain in these reasons, I find the degree of responsibility or moral blameworthiness of Mr. Deer to be very high. [8] R. v.

Laberge (1995), 1995 ABCA 196 , 165 A.R. 375 (CA) provides guidance to trial judges in attempting to craft asentence that meets the two components of proportionality – the gravity of the offence and the degree of responsibility of the offender,when sentencing an accused for manslaughter. This guidance is of assistance because as the Court accurately observed at para. 6: ... the offence of unlawful act manslaughter covers a wide range of cases extending from those which may be classified as near accidentat the one extreme and near murder at the other ...

Different degrees of moral culpability attach to each along a continuum within thatspectrum. It is precisely because a sentence for manslaughter can range from a suspended sentence up to life imprisonment that the courtmust determine for sentencing purposes what rung on the moral culpability ladder the offender reached when he committed theprohibited act.

The purpose of this exercise is to ensure that the sentence imposed fits the degree of moral fault of the offender for theharm done. [9] To determine the moral culpability of an offender convicted of manslaughter, the sentencing judge must consider: • Fault in terms of the offender’s overall moral blameworthiness for the crime. para. 7 Laberge. • The unlawful act itself. “The nature and quality of the unlawful act itself, the method by which it was committed and the manner in

which it was committed in terms of the degree of planning and deliberation are all relevant to this inquiry.” para. 8 Laberge • The subjective intent, if any, established in the case over and above the requisite objective intent. This is relevant ... “because our criminal justice system is based on the premise that, all other things being equal, the more an offender’s “intention” or “awareness” approaches the point that he knew or was wilfully blind to the fact that his unlawful act was not likely to put the victim at risk of death, but indeed to cause death, the more culpable he is.

Similarly, even absent proof of subjective mens rea, the more that the offender’s conduct, on an objective basis, approaches the point where it can be said that he ought to have known, had he proceeded reasonably, that his unlawful act would be likely to cause life-threatening injuries as opposed to simply putting the victim at risk of bodily injury, the more culpable hie is.

In other words, the offender’s moral blameworthiness and in turn the gravity of the offence are functions of the degree of fault.”para. 14 Laberge . • The personal circumstances of the offender that may mitigate or aggravate culpability. para. 10 Laberge. [5] To further assist, the Court, at para. 17, set out a series of questions to consider in assessing an offender’s moral culpability while always taking into account all the other relevant factors. [6] The Crown submits Mr.

Deer’s culpability falls within the third category of the Laberge analysis and points to the considerations set out at para. 21 of Laberge as being relevant to the analysis here. The relevant part of para. 21 is as follows: ...the court must look not only at the physical characterization of the act itself, but must assess a range of other considerations.

These include the choice of weapon used to effect the unlawful act, the degree of force the offender used in perpetrating the act, the extent of the victim's injuries, the degree of violence or brutality, the existence of any additional gratuitous violence, the degree of deliberation involved in the act, the extent to which the act reflected forethought of action or planning, the complexity of the act, what, if anything, provoked the act, the time taken to perpetrate the act and the element of chance involved in the resulting death. [7] The Crown submits a fit sentence for Mr.

Deer is in the range of 16 to 18 years less pre-trial custody and Mr. Deer’s incarceration in the penitentiary from the time of his conviction for murder at his first trial and the Court of Appeal ordering a new trial. [8] Counsel for Mr. Deer submits Mr. Deer’s culpability falls within the first category of the Laberge analysis and submits a fit sentence is 8 years, less the pre-trial custody and penitentiary time. [9] The relevant factors for me in assessing Mr. Deer’s culpability are these: 1. Mr. Beauchamp’s death was the tragic result of a contractual dispute between Mr.

Deer’s company and Morbank Financial, Mr. Beauchamp’s company; that contractual dispute was whether Mr. Deer owed money to Morbank for a commitment fee. Rather than relying on our courts and the rule of law to resolve the contractual dispute, Mr. Deer took the law into his own hands by devising a plan with Mr. Karim whereby Mr. Karim went to Mr. Beauchamp’s office with a loaded handgun to extort, intimidate and/or assault Mr. Beauchamp. Contractual disputes arise every day in this province. Individuals cannot take the law into their own hands to resolve them. 2. Mr. Deer asked Mr. Karim to come to Calgary. Mr.

Karim and Mr. Deer made the plan for Mr. Karim to go to Mr. Beauchamp’s office prior to the two men shopping for Mr. Karim’s disguise, the day before Mr. Beauchamp’s death. Mr. Deer drove Mr. Karim to different stores to make the purchases for Mr. Karim’s disguise, and he paid for the various items. 3. Mr. Deer armed Mr. Karim in that he provided Mr. Karim with the handgun and the ammunition to take with him to Mr. Beauchamp’s office.

4. Mr. Deer was an individual who had a number of firearms at his home and regularly attended a firing range as evidenced from his December appointments on his computer. I find he was and is knowledgeable and experienced with firearms. I also find from Mr. Deer’s knowledge and experience with firearms that he knew the inherent dangers of them. 5. Mr. Deer drove Mr. Karim to the Morbank offices and provided the information to Mr. Karim respecting the location of the office, Mr. Beauchamp’s name and physical appearance. 6. There was a power imbalance in the relationship between Mr. Deer and Mr. Karim in that Mr.

Deer was Mr. Karim’s employer. I agree with the submissions of the Crown that the evidence does show Mr. Karim felt beholden to Mr. Deer. 7. I find on the whole of the evidence that Mr. Deer was the instigator of this unlawful act. This was not an impulsive act. [ 10 ] Viewed objectively, the above factors lead to the inescapable conclusion that Mr. Karim’s act of going to the Morbank offices with a loaded handgun to extort, intimidate or assault Mr. Beauchamp was likely to subject Mr. Beauchamp to the risk of life threatening injuries.

I find the act, also viewed objectively, was likely to cause life threatening injuries to Mr. Beauchamp because the plan conceived by Mr. Deer and Mr. Karim was for Mr. Karim to commit criminal offences of violence while armed with this loaded firearm.

I cannot think why one would bring a loaded firearm with them to commit acts of criminal violence unless they believed it may well be necessary to use it. [ 11 ] The last inquiry in Laberge is: “Did the offender know that the unlawful act would likely subject the victim to the risk of life- threatening injuries, short however of what would be required to establish the intention to kill required for murder, or did the offender, knowing the probable consequence of the act, proceed recklessly in the face of the risk?

And if so, can it be concluded that the offender knew of, or was wilfully blind to, the likelihood of causing this level of injuries, not simply putting the victim of risk for these injuries?” [ 12 ] In my view, I have answered the last question in Laberge in the affirmative in light of my finding at para. 105 in my reasons for judgment: From my findings above, I find Mr. Deer assisted Mr. Karim in committing acts of general violence, which are unlawful acts. These acts were inherently dangerous in light of the fact Mr. Deer knew Mr. Karim was in possession of a loaded handgun. While Mr. Deer may have hoped Mr.

Karim would not get physical with Mr. Beauchamp, a reasonable person would have appreciated in all the circumstances that the taking of a loaded handgun to a situation where one is committing acts of general violence, is

an act that is inherently dangerous, and the harm to Mr. Beauchamp, which was neither trivial nor transitory, was its foreseeable consequence. I find Mr. Deer knew or was wilfully blind to the threat Mr. Karim posed to Mr. Beauchamp to likely cause life threatening injuries. [ 13 ] Based on these factors, I place Mr. Deer’s moral culpability at the highest level, and I categorize this manslaughter as a near murder on the continuum of manslaughter offences. [ 14 ] Mr. Deer is presently 59 years old and I am advised he continues to have the support of his family.

Since the 1980's, he has been in the business of renovating and building homes. It was this same business that lead Mr. Deer to seek financing from Morbank Financial for the construction of a project in the fall of 2005. I infer from the length of time Mr. Deer was in this business that he enjoyed success. [ 15 ] Mr. Deer has a criminal record but it is unrelated and very dated. [ 16 ] Mr. Deer’s background leads me to conclude there are two mitigating factors in this case:

1. Prior to January, 2006, Mr. Deer had been a long time contributing member of society, and 2. Mr. Deer continues to have the support of his family. [ 17 ] The principal aggravating factors are much more numerous and include: 1. Mr. Deer engaged in a self help remedy for a contractual dispute by sending Mr. Karim to Mr. Beauchamp’s office. 2. Mr. Karim’s visit to Mr. Beauchamp was planned; it was not an impulsive act. 3. Mr. Deer played a key role in Mr. Beauchamp’s death by providing Mr. Karim with the handgun and ammunition. 4.

The enormity of the loss to the Beauchamp family of a husband, a father, a son, a brother and an uncle, and the loss to Mr. Beauchamp’s friends and colleagues. [ 18 ] As I have found this manslaughter to be a near murder manslaughter, I find the cases submitted by counsel with respect to other manslaughter cases in the third category provide me with the most guidance. These cases include R. v. Hennessey , 2010 ABCA 274 , R. v. Ellahib , 2008 ABCA 281 , R. v. Cooper , 2003 ABCA 228 and R. v. Guitar , 2001 ABCA 58 .

From these cases, I find the range for the third category of manslaughter is 10 years to life imprisonment. [ 19 ] Taking into account my characterization of this offence, including the planning and the use of the firearm, I find a fit sentence is 16 years incarceration less Mr. Deer’s pre-trial custody and penitentiary time. [ 20 ] Counsel for Mr. Deer provided a very helpful aid to the court in calculating Mr. Deer’s time in custody. A

summary of the key information follows. [ 21 ] Mr. Deer was arrested on April 28, 2006 for the murder of Mr. Beauchamp, and Mr. Deer was sentenced on October 21, 2007, having been found guilty of first degree murder at his first trial. [ 22 ] Prior to Mr. Deer being sentenced, he spent 542 days in pre-trial custody. [ 23 ] On December 30, 2010, the Court of Appeal ordered a new trial for Mr. Deer and Mr. Karim, and Mr. Deer was returned to remand status.

Counsel advised the total combined pre-trial custody until October 28, 2012 is 1,210 days, to which I have added another 30 days for the time between October 28, 2012 and today’s date. [ 24 ] Both counsel advised that I may give two - one credit for Mr. Deer’s pre-trial custody as this offence was prior to the amendment to s. 719 of the Criminal Code . I will credit Mr. Deer two - one for his pre-trial custody. [ 25 ] Counsel differ in their submissions respecting what credit I should give Mr.

Deer for his penitentiary time which ran from October 21, 2007 - December 30, 2010, a time period of three years, two months. [ 26 ] The Crown submits Mr. Deer should receive one - one credit for this time because the factors that led to the common law, two

- one credit for pre-trial custody are not present. These factors are identified in R. v. Sooch, 2008 ABCA 186 at para. 11: The amount of credit to be given for predisposition custody is a matter within the sentencing judge’s discretion: R. v. Coxworthy, 2007ABCA 323, 417 A.R. 242; R. v. MacDonald, [2001] O.J. No. 4926 (C.A.). Although there is no fixed rule, it is common to give doublecredit for such time.

This practice is based on the recognition that pre-trial custody is “harder” time since it is served before guilt isestablished, does not count toward statutory release and is usually served in an environment with few, if any, rehabilitative or workprograms: R. v. Tallman (1989), 1989 ABCA 47 , 94 A.R. 251, 65 Alta. L.R. (2d) 75 (C.A.), R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713, 96 O.A.C. 268 (C.A.), and R. v. Wust, 2000 SCC 18 at paras. 44-45, [2000] 1 S.C.R. 455.

Inexceptional circumstances, a sentencing judge may give enhanced credit when evidence indicates that the conditions of predispositioncustody were unusually harsh for the offender: see R. v. Bui, 2001 BCCA 471; R. v. Krachov (2002), (ON CJ), 4 C.R. (6th) 137 (Ont. Ct. J.); R. v. R.L.L., [2004] O.T.C. 774 (Sup. Ct. J.), and R. v.Coombs, 2003 ABQB 818, 343 A.R. 212. [27] Counsel for Mr. Deer submits the approach in R. v. Gunning, 2008 BCCA 22 is to be preferred in that it takes into accountMr.

Deer receives no credit for parole eligibility and statutory release if I credit him with one - one for his penitentiary time. [28] In Gunning, the court gave credit for Mr. Gunning’s penitentiary time at two - one stating as follows: [9] Here, the 886 days served by the appellant on his life sentence for murder does not count for parole eligibility or statutoryrelease and, by giving one-for-one credit against the eight-year sentence for manslaughter, the trial judge denied him this benefit.

Theloss of this benefit works unfairly to the appellant in a way that becomes readily apparent when the effect on the manslaughter sentenceof his time served under the life sentence is examined. The trial judge gave the appellant two and one-half years’ credit (30 months)against a fit sentence of eight years for manslaughter, and imposed a sentence of five and one-half years (66 months). The appellant willbe eligible for parole after serving one-third, or 22 months, of that sentence: Corrections and Conditional Release Act, S.C. 1992, c. 20,s. 120(1).

However, given the 30 months he served on the life sentence for murder, he will have served a total of 52 months by hisparole eligibility date. Thus, if he is released at the earliest opportunity under the current sentence of five and one-half years, he willhave been in custody for 20 months longer than if he had been convicted of manslaughter and sentenced to eight years after his first trial. Looking at the sentence another way, parole eligibility after 52 months would translate to a sentence of 156 months or 13 years.

Uponrecognizing this unfairness during the hearing of this appeal, Crown counsel conceded that the appellant should be placed in the sameposition as if he had been convicted of manslaughter and sentenced to eight years after his first trial and that the sentence must thereforebe adjusted. [10] However, it is not possible to superpose a fit sentence on an eight-year sentence notionally imposed after the first trial suchthat parole eligibility and statutory release coincide perfectly.

A sentence focussed entirely on reconciliation of parole eligibility andstatutory release dates would not be a fit and just sentence for the appellant’s crime. Rather, it would be a very short sentence in aprovincial institution. As well, there would be no subsequent period of supervised parole to assist in the appellant’s reintegration into thecommunity. [11] Accordingly, in my view, two-for-one credit should be given for the 30 months served on the life sentence rather than theone-for-one credit given by the trial judge.

This would reduce the eight years by 60 months and would result in a sentence of threeyears, which I would substitute for the five and one-half years imposed by the trial judge. [29] I acknowledge the potential unfairness identified by the court in Gunning. I also accept that the sentence I impose cannot be“focussed entirely on reconciliation of parole eligibility and statutory release dates”, especially without any evidence before merespecting Mr. Deer’s likely situation respecting parole eligibility and statutory remission: see s. 724(3)(

d) of the Criminal Code. [30] To my mind, some additional credit must given Mr. Deer over and above a one-one credit, but not at a pre set amount. Thus,taking into account Mr. Deer’s pre-trial custody of 1,240 days, for which I give two - one credit, and his penitentiary time of 1,166 days,for which I have given Mr. Deer credit over one-one, I sentence Mr. Deer to a further 4 ½ years incarceration.

Heard on the 23 rd day of October, 2012. Delivered orally on the 27 th day of November, 2012. Dated at the City of Calgary, Alberta this 27 th day of November, 2012. E.A. Hughes J.C.Q.B.A. Appearances: M. Ewenson and C.I. Gonzalez for the Crown J.M. Lutz and A. L. Serink for the Defendant Robert Elliot Deer _______________________________________________________ Corrigendum of the Sentencing Decision on Robert Elliot Deer of The Honourable Madam Justice E.A. Hughes _______________________________________________________ The description of the authoring justice should read: The Honourable Madam Justice E.A.

Hughes. _______________________________________________________ Corrigendum of the Sentencing Decision on Robert Elliot Deer of The Honourable Madam Justice E.A. Hughes _______________________________________________________

Paragraph: [14]; Subsection 6; Line 2: Delete: employee Insert: employer