R v Stephens, 2021 ABQB 816

Court of Queen’s Bench of Alberta Citation: R v Stephens, 2021 ABQB 816 Date: 20211014 Docket: 170998470Q4 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Arnold Anton Stephens Accused _______________________________________________________ Reasons for Sentencing Decision of the Honourable Mr. Justice Douglas R. Mah _______________________________________________________ A.

Background to this written decision [ 1 ] This sentencing decision follows a manslaughter verdict by a jury, on a charge of second-degree murder. [ 2 ] In the interests of speedy justice, I gave an oral version of this decision from the bench on October 4, 2021. I advised counsel at the time that I reserved the right to issue a written version. In this written version, I have added headings and proper citations, and made slight corrections to language. I have also expanded, as I said I would, on the discussion of the cases cited to me as sentencing

authorities by counsel. Otherwise, this written decision is a near- verbatim rendition of the oral reasons. [ 3 ] The oral version delivered in court remains the official version. B. Message to family members of the victim [ 4 ] For the family members of Mr. Cardinal, who attended court, I want to say this. He may not have been perfect, but he was loved, his life had value and he is both mourned and missed. The sense of loss is reflected in the victim impact statements tendered before the court and read into the record. This young man’s life was tragically and senselessly taken away.

His potential will never be realized. To the family members, I express my utmost sympathy for your loss. [ 5 ] This sentencing is not an exercise in vengeance or trying to balance the scales because that is not possible. My job is to hand out a sentence that accords with law. C.

Principles of Sentencing [ 6 ] The law provides that the fundamental purposes of sentencing are to • protect everyone, • make sure that our laws are respected, and • maintain a just, peaceful and safe society. [ 7 ] That is done through the Court imposing a sentence that will: • express society’s disapproval, or denunciation, of unlawful conduct; • deter the offender and others from committing offences, • separate offenders from society where necessary, • help the offender become a better and more productive person, and • help the offender take responsibility and acknowledge the harm done to victims or to the community: Criminal Code , s 718. [ 8 ] It is also fundamental that a sentence is proportionate to the gravity, or seriousness, of the offence and the degree of responsibility of the offender ( Criminal Code , s 718.1), or not too harsh and not too lenient, all circumstances considered. [ 9 ] Further, • the sentence must be or rational, or make sense, • focus on the person before the Court, and • demonstrate parity in that similar circumstances should attract similar sentences. [ 10 ] Overall, these objectives must be tempered by restraint and common humanity.

D. Positions of the Crown and the Defence [ 11 ] The Crown seeks an overall sentence of 11 years, based on a range of 9 to 12 years. The defence seeks a sentence of 6 years based on a range of 5 to 7 years. E. Fact-finding following a jury trial [ 12 ] Before I can do any of that, I must first make necessary findings of fact. This was a jury trial. The jury returned a verdict of not guilty of second-degree murder, but guilty of manslaughter.

No one knows the exact factual basis or whether jurors had more than one factual basis for the verdict. [ 13 ] According to R v Ferguson , 2008 SCC 6 , I must utilize the following framework: • first, I should make necessary factual findings, only of those facts that are necessary, for deciding an appropriate sentence; • second, I am bound by the express and implied factual implications of the jury verdict; • third, where there is ambiguity as to these necessary facts, I should not try to re-create the jury’s reasoning or follow their logical

path; rather, I should make independent determinations of these relevant facts; and • finally, any aggravating fact must have been proven by the Crown beyond a reasonable doubt; any other facts must be establishedon a balance of probabilities. F. Uncontested facts [14] The deceased, Mr. Cardinal, was killed in the parking lot of the apartment complex where he lived. It is uncontested that twoindividuals, the offender here (Mr. Stephens) and an accomplice (Mr. Lewis) were joint participants in the attack. It is also accepted thatthe attack was in response to earlier events, when Mr. Cardinal assaulted Ms.

Desjarlais, threw a piece of wood through the frontwindow of the unit in which Mr. Stephens and Ms. Carifelle lived, and shortly before the attack created a disturbance outside the unit,including making death threats to the inhabitants. Mr. Cardinal was then chased to the parking lot by Mr. Stephens and Mr. Lewis andthere the attack took place. A board from a bed frame was used to beat Mr. Cardinal and a kitchen knife from the unit was used to inflictwounds upon Mr. Cardinal. Mr. Cardinal died from a stab would to the chest, the knife left protruding from his chest. Mr.

Lewis got on abicycle and quickly left the scene. Mr. Stephens was arrested at the unit when police arrived in the morning. G. Two different paths of manslaughter [15] A major part of the trial focused on which of Mr. Stephens or Mr. Lewis wielded the knife. At the time, the Crown wasseeking a conviction for second-degree murder. The jury was provided, by myself, both in written and verbal instructions, and in theform of a diagram attached to the written instructions, with two distinct pathways to a manslaughter verdict. [16] The first route asked the jury to determine whether Mr.

Stephens had the required intent for murder. If not, the verdict ismanslaughter. The second route asked the jury to determine whether Mr. Stephens, having the intent for murder, was provoked by Mr.Cardinal, leading to a manslaughter conviction. [17] The jury returned the manslaughter verdict, of course, with no reasons. The Crown says today that implicit in the jury’sverdict is that Mr. Stephens intended to kill Mr. Cardinal and that the manslaughter verdict was the result of provocation (the secondroute). The Crown suggests that the jury must have believed Mr. Lewis. As Mr.

Lewis had testified as to which person used the board(himself) and which person used the knife (Mr. Stephens), the irresistible conclusion (says the Crown) is that Mr. Stephens wielded theknife. [18] The defence says that the Crown has not proven beyond a reasonable doubt that Mr. Stephens held the knife at all. That leavesMr. Stephens in the position, at worst, of having participated in a group attack along with Mr. Lewis upon Mr.

Cardinal, during which aknife and a board were used as weapons. [19] In my view, it is not implicit in the verdict that the jury chose the second path to manslaughter versus the first.[1] To say sowould be impermissibly reconstructing the jury’s reasoning contrary to Ferguson. Moreover, R v Thatcher, (SCC),[1987] 1 SCR 652 confirms that jurors may arrive at a unanimous verdict for different reasons and on different theories of the case.Quite conceivably, some may have chosen the first path and some the second, with a unanimous destination. H.

Whose hand wielded the knife? [20] It would be a serious aggravating factor for Mr. Stephens to be found beyond a reasonable doubt to be the one who used theknife in the killing of Mr. Cardinal. Consequently, it is necessary for me to determine as a fact for the purposes of sentencing whether itwas Mr. Stephens who used the knife, or more precisely, whether the Crown has proven beyond a reasonable doubt that his handwielded the knife. [21] The Crown says that Mr. Lewis’ evidence concerning Mr. Stephens and use of the knife is corroborated by Ms.

Desjarlais, thetestimony of other eyewitnesses and the forensic evidence. [22] The defence contends that Mr. Lewis is a Vetrovec witness whose testimony should be viewed with caution and that he andMs. Desjarlais had the opportunity to collude. Mr. Corbett also says that the forensic evidence is only consistent with Mr. Lewis havinghandled the board. There is no forensic evidence connecting Mr. Stephens to the knife.

He also says that the independent witnesstestimony is not corroborative, that each such witness told a different version of events and that at least one independent witness supportsthe defence theory, that is Chantelle John saying she saw the glint of metal in Mr. Lewis’s hand. [23] I conclude that Mr. Lewis’ evidence should not be relied upon by this court now to prove that Mr. Stephens wielded the knife.I say so for the following reasons: • Mr. Lewis is a Vetrovec witness. He pled guilty to manslaughter in the same incident and has all but served his term.

The Crownsays he has nothing to gain and therefore is credible. But whether the witness is still before the court is only one Vetrovec characteristic.The essence of the witness being a Vetrovec witness is that he or she falls into a disreputable and untrustworthy category. Recently in Rv Lawrence, 2020 ABCA 268 at para 26, the Court of Appeal enumerated a non-exclusive list of Vetrovec characteristics. Mr. Lewis hadseveral of these: a criminal history, being an accomplice, having had access to disclosure, minimizing his own wrongdoing. • Mr.

Lewis admitted to being high on meth at the time and having a poor memory of the events in question. • He tried to imprint his version of the night’s events on Ms. Desjarlais through the undelivered letters. I acknowledge the letters

were not received. • His evidence regarding Ms. Desjarlais’ location when the knife was supposedly passed by Ms. Carifelle to Mr. Stephens is at odds with Ms. Desjarlais’ evidence on this point. [ 24 ] As for Ms. Desjarlais, the defence pointed to her prior inconsistent statements. She said that the board that came flying through the window was the same board used in the attack, when clearly that was not the case. The evidence of the knife did not come out when Ms. Desjarlais was initially interviewed by police but only later, right before Ms. Carifelle’s preliminary inquiry. This calls into question the Ms.

Desjarlais’ evidence about seeing the knife pass from Ms. Carifelle to Mr. Stephens. [ 25 ] Ms. Desjarlais and Mr. Lewis also gave different evidence about where in the unit the knife was passed. [ 26 ] Mr. Lewis is the only witness who says that Mr. Stephens used the knife. For the reasons cited, I cannot safely conclude that Mr. Stephens was the individual using the knife. [ 27 ] In consequence, I conclude that the Crown has not proven beyond a reasonable doubt that it was Mr. Stephens’ hand that held the knife. What I am left with is the established fact that Mr. Stephens along with Mr.

Lewis participated in a two-on-one attack on Mr. Cardinal, during which attack a board and a knife were used, resulting in Mr. Cardinal’s death. I. Applying R v Laberge [ 28 ] I am obliged to follow R v Laberge , 1995 ABCA 196 in determining a manslaughter sentence. The Court of Appeal divided the unlawful acts leading to manslaughter into three broad groups: risk of bodily harm, risk of serious bodily harm and risk of life- threatening injuries.

These escalating categories are used to define the mental state or degree of fault inherent in the crime committed. [ 29 ] Further, there are distinctive objective and subjective elements to each category of culpability.

Laberge instructs that in applying the analysis, the court must have regard to: • 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 degree of planning and deliberation; • the personal characteristics of the offender which would mitigate or aggravate culpability; and • a complete understanding of the surrounding circumstances, including: the choice of weapon, the degree of force used, extent of the victim’s injuries, the degree of violence or brutality, any additional gratuitous violence, degree of deliberation, any forethought, the complexity of the act and whether there was provocation. [ 30 ] Even here, the Crown says that the highest category of culpability must be ascribed to Mr.

Stephens because of the presence of the knife in the attack. [ 31 ] This is a situation where I am left with not being able to determine, as between Mr. Stephens and Mr. Lewis, who did what to Mr. Cardinal. Even though the Crown has not proven beyond a reasonable doubt that Mr. Stephens was the knife-wielder, Mr. Stephens participated in an attack in which a knife was used by someone. [ 32 ] This is a case, I conclude, that is much like R v Isidore, 2016 ABQB 83 , a decision of Justice Clackson. The objective consideration of Mr.

Stephens’s conduct in this case (participation in a two-on- one assault in which a knife is used) establishes that it was likely to cause life-threatening injury to Mr. Cardinal. As in Isadore , the judge is unable to determine who dealt the fatal blow. It is for the Crown to prove that Mr. Stephens had the highest level of subjective knowledge. In my view, the Crown has not proven that Mr. Stephens appreciated the consequences of the collective actions of himself and Mr. Lewis. It is not even clear to me whether or when Mr. Stephens became aware a knife was used.

I only know that the knife was used by one of them. This places Mr. Stephens’ actions in the middle of Laberge ’s third rung. [2] J. The cases cited [3] [ 33 ] I have reviewed and received submissions on the range of sentence by both counsel. I agree that what is instructive from the cases is the principles that may be drawn.

It is always difficult to find a case of exactly matching facts. [ 34 ] The Crown relied on R v Medwid , 2009 CarswellOnt 2659 (Sup Ct Jus) , R v Guitar , 2001 ABCA 58 , R v Bal , 2014 ONSC 3060 , R v Sorge , 2018 ABPC 153 , R v Dhillon , 2013 ABQB 365 , R v Swampy , 2017 ABCA 134 and R v Plowman , 2015 BCCA 423 to support the range of 9 to 12 years for manslaughter. First, I note that in Medwid (11 years), Sorge (9 & 1/2 years), Dhillon (8 & 1/2 years), and Swampy (8 years), the offender was found to have done the actual fatal stabbing, a finding that I have not been able to make.

In Guitar , the Court of Appeal gave a sentence of 10 years (reduced from 14) for the offender’s joint participation in a beating death, referring to a record of assault with no mitigating factors mentioned. In Bal , the accused received a sentence of 8 years, 3 months when the accused and two others swarmed and assaulted the deceased with golf clubs, ultimately killing him by stabbing him with a golf club shaft. The accused was found guilty of manslaughter as a result of being a party to an assault on the victim that resulted in his death.

As an Ontario case, the Laberge analysis regarding culpability was not applied in Bal . Of these cases, the closest is Plowman where a 7 year sentence was handed down when the sentencing judge could not determine who stabbed the deceased but the attackers were acting jointly and facilitated the stabbing by rendering the victim helpless in the attack. [ 35 ] The defence cited these cases as comparators in support of a range of 5 to 7 years: R v Decoine-Zuniga , 2014 ABQB 155 – 5 years for participation in a group attack where death resulted from stabbing and the accused was not the stabber. Culpability fell within

the second branch of Laberge . R v Isadore – already discussed, moral culpability objectively within Laberge ’s third branch but subjective culpability in second branch, 6.5 years. R v Perteet, 2019 ABQB 773 , a beating death where the accused landed in the second branch of Laberge in terms of culpability and received 6.5 years. R v McFarlane , 2012 ONCA 355 – accused and another beat the deceased with their fists, with the other stabbing the victim in the heart, causing death. The accused was apparently aware of the knife. The sentence was 4 years on a joint submission, taking into account certain mitigating factors. R v Hoffman , 2019 ONSC 6031 – the accused took

part in the victim’s beating death where a stick was used as a weapon. The accused did nothing to assist the victim after the attack. The sentence was 6.5 years. [ 36 ] As noted, Plowman and Isadore are the best comparator cases here, as in both the cause of death was a knife stab but the exact identity of the stabber could not be ascertained, only that the offender took

part in the attack. Isadore is the closest in terms of placement on the Laberge scale of culpability. K. Aggravating and mitigating factors, and calculation of sentence [ 37 ] In terms of aggravating factors: • this was a group attack; • the victim was a young man, only 17 years of age; • the attackers used weapons; • once on the ground, the victim was vulnerable; • no effort was made to assist the victim, and he died where he lay. [ 38 ] Mr.

Stephens has a significant record but only three convictions for what is described as crimes of violence: one conviction for assaulting a peace officer for which he received 15 days, and two convictions for uttering threats for which he received 30 days on one and a fine of $500 on the other, the last events occurring in 2014. This is not a serious record for the purposes of this sentencing. [ 39 ] I take into account that the actions themselves were spontaneous and impulsive. I take into account that there was a degree of provocation, as Laberge requires me to do, in Mr.

Cardinal taunting the inhabitants of the unit immediately preceding the attack. [ 40 ] The starting point I use is 9 years having regard to the aggravating factors and Mr. Stephens’s placement on the Laberge spectrum. From there, I take into account: • Mr. Stephens’ indigenous background and the Gladue factors discussed in the Gladue report, including his struggles with alcohol abuse, which will mitigate moral blameworthiness; • With regard to parity, I know that Mr. Lewis received a six-year sentence for his involvement in the crime, reduced by a timely guilty plea.

There is no guilty plea in this case, and so I would not automatically drop the sentence to 6 years. • Finally, I note that Mr. Stephens has made good use of his time in remand, completing a number of courses and, for a period of time, participating in and then being a leader in the Boot Camp program. Taking this into account, I suggest that Mr. Stephens has some prospect for rehabilitation. [ 41 ] Having regard then to the mitigating factors, and in the result, I impose a sentence of 7 years imprisonment. L.

Enhanced credit [ 42 ] From this term of imprisonment, I deduct time in custody at the enhanced rate of 1.5 days for each actual day of pre-sentence custody, or 1565 days x 1.5 = 2347 days, meaning Mr. Stephens has 208 days left to serve. M. Sentence and ancillary orders [ 43 ] Stand up, Mr. Stephens. [ 44 ] On the charge of manslaughter for which you were convicted by a jury, I sentence you to 7 years imprisonment, less enhanced credit for time served of 2347 days.

For clarity, this leaves you with 208 days left to serve. [ 45 ] As for ancillary orders, I grant the following: • a DNA order; • a lifetime weapons prohibition; and • the forfeiture of any seized exhibits.

Heard on the 04 th day of October, 2021. Dated at the City of Edmonton, Alberta this 14 th day of October, 2021. Douglas R. Mah J.C.Q.B.A. Appearances: Domina Hussain Justice and Solicitor General of Alberta for the Crown Austin Corbett Bottos Law Group for the Accused