R. v. Cote, 2013 BCSC 2424

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cote, 2013 BCSC 2424 Date: 20131024 Docket: 26159-2 Registry: Vancouver Regina v. Donald Denis Cote Before: The Honourable Mr. Justice Voith Oral Reasons for Sentence Counsel for the Crown: J.H. CryderCounsel for the Accused: J.R. RayC. NgPlace and Date of Trial/Hearing: Vancouver, B.C. September 27, 2013Place and Date of Judgment: Vancouver, B.C. October 24, 2013 [1] THE COURT: On April 15, 2013, following a trial that occupied seven days, a jury convicted Mr. Cote of the followingoffences:

a) the manslaughter of Jesse Thomson on October 15, 2011, contrary to s. 236(

b) of the Criminal Code;

b) an assault on Jesse Thomson, on October 15, 2011, using a weapon, that weapon being a chain, contrary to s. 267(

a) of the CriminalCode; and

c) an assault on Jesse Thomson, on October 15, 2011, using a weapon, that weapon being pepper spray, contrary to s. 267(

a) of theCriminal Code. [2] Mr. Thomson died when he was struck by the vehicle of a third-party motorist while seeking to escape from the assault ofMr. Cote. The Facts that Arise from the Jury's Verdict [3] Section 724(2) of the Criminal Code, R.S.C. 1985, c. C-46 provides:

(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either partywith respect to that fact. [4] In R. v. Ferguson, 2008 SCC 6, McLachlin C.J., for the court, confirmed the principles that govern the manner in which asentencing judge is to determine, from the issues before the jury and the jury's verdict, the facts necessary for sentencing: [17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and impliedfactual implications of the jury's verdict": R. v.

Brown, (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge "shallaccept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must notaccept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), (MB CA),95 C.C.C. (3d) 443 (Man. C.A.). [18] Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow thelogical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v.

Fiqia (1994),1994 ABCA 402 , 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosedby evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge mustbe convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencingjudge must be persuaded on a balance of probabilities: ss. 724(3)(

d) and 724(3)(e); see also R. v. Gardiner, (SCC),

[1982] 2 S.C.R. 368; R. v. Lawrence (1987), (ON SC), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of theexercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand.The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. [5] The application of these principles is straightforward in this case. The evidence of the principal witnesses was largelyconsistent. The physical evidence found at the scene aligned with that evidence.

The Admissions of Fact that were filed as Exhibit 14 attrial further inform and support the coherency of what occurred. [6] In the late morning or early afternoon of October 15, 2011, the deceased, his girlfriend Ms. Wallace, the accused, and a fourthyoung male took the Skytrain from Surrey to Vancouver. Each of the deceased, Ms. Wallace, and Mr. Cote were young people with ahistory of drug use. The evidence of Ms. Wallace, however, was that none of them had taken any drugs that day. [7] The group spent some time walking around in the downtown eastside.

As they were walking, they bumped into an olderacquaintance, Ms. Dunbar. Ms. Dunbar had been at a swap meet and had parked her car on Terminal Avenue near Main Street inVancouver. She had run out of gas. She said Mr. Thomson offered to take a jerry can that she had in her trunk to get her some gas. She, inturn, offered the group a ride thereafter. [8] The group returned to her vehicle. The three young men took the jerry can and left. Ms. Dunbar and Ms. Wallace remainedbehind and waited in the vehicle. [9] A cab driver, Mr. Monga, gave evidence that helped fix what the three young men did over the next hour or so.

He said hepicked them up in the 600-block of Terminal Avenue shortly after 7:00 p.m., drove them to the Main and Hastings area, and then madeseveral stops. Cameras placed in the cab confirmed the presence of the three men. Eventually all three left the cab without payingMr. Monga and without the jerry can. [10] Ms. Wallace and Ms. Dunbar saw the three young men returning at approximately 8:15 p.m., as the Admissions of Fact confirmthat Mr. Thomson was struck by the vehicle which killed him at approximately that time. Both Ms. Wallace and Ms. Dunbar said thatMr.

Thomson was walking back to the car very quickly, that he was practically running. Mr. Cote and the other individual followedsome metres behind. Ms. Dunbar sat in the driver's seat of her vehicle and Ms. Wallace sat beside her. Mr. Thomson came to the car andentered through the rear passenger-side door. He yelled at the two women to lock the doors. His voice was urgent and agitated. [11] Mr. Cote approached the car, swinging a heavy chain. Both women said he looked angry. He smashed the rear passenger-sidewindow, near where Mr.

Thomson sat, with the chain and then leaned or reached into the vehicle to pepper spray Mr. Thomson.Mr. Thomson, in an effort to escape, exited on the far side of the car. He began to run diagonally across the street. He was struck almostimmediately by a minivan. At about the same time, Mr. Cote and the other young man fled in the opposite direction. [12] Ambulance service personnel arrived within minutes. Mr. Thomson was unconscious. He was taken to Vancouver GeneralHospital (“VGH”) where he underwent surgery to manage his brain injuries.

He never regained consciousness and his medical conditionslowly deteriorated over the next two weeks. On November 1, 2011, after VGH medical staff determined there was no prospect of amedical recovery for him, he was removed from life-support equipment. The autopsy which was subsequently conducted confirmed thatthe deceased had suffered a traumatic brain injury caused by the motor vehicle accident. [13] The ensuing police investigation recovered the chain in question. That chain had been left beside Ms. Dunbar's vehicle. It was aheavy chain, approximately 30 inches in length with a lock on it.

The individual links were perhaps an inch and a half long. The chainweighed approximately five or six pounds. The police also recovered the trigger guard from a can of pepper spray from the same area. [14] Constable Hatchman, who retrieved Mr. Thomson's clothes from VGH, said that when he unpacked those clothes, and inparticular Mr. Thomson's sweatshirt, he felt a scratching in his throat and began to cough.

He recognized these reactions as beingconsistent with his earlier experiences with pepper spray. [15] Detective Murphy, who had been sprayed with pepper spray in the past, described the consequences of being sprayed as"completely incapacitating" and as "completely overwhelming". Being sprayed had the prospect of causing a severe burning of the eyes,nose, and throat that could not be controlled.

After 45 minutes a person would still suffer from discomfort but could, at that point, carefor themselves. [16] The physical description of Terminal Avenue, as well as the conditions that existed that evening, including the volume oftraffic, were again largely consistent. Terminal Avenue is a major thoroughfare and at times traffic is exceedingly heavy. It is a six-laneroadway with three lanes heading both east and west; those lanes are separated by a median. [17] On the evening of October 15th, the weather was cool and dry.

At the time of the events in question it was dark with someillumination emanating from both streetlights and nearby commercial buildings. The police described the traffic flow as continuous. Thedriver of the vehicle that struck Mr. Thomson said that traffic was not very heavy. There were cars both in front and behind her vehicleby "quite a ways". The evidence at trial established that the driver was proceeding at approximately the legal speed limit when she struckMr. Thomson. [18] I intend to develop further aspects of this evidence when I address the moral culpability attached to Mr. Cote's conduct.

The Position of the Parties [19] The Crown seeks a sentence of six years on Count 1, Mr. Cote's manslaughter conviction, which includes time that Mr. Cotehas already served. He has been in custody since October 20, 2011, very nearly two years. The Crown also seeks a term of one year oneach of the two convictions for assault. It says that these terms should be served concurrently with Count 1 and with each other. The

Crown also seeks ancillary relief under each of s. 487.051 and s. 109(3) of the Criminal Code . [ 20 ] Counsel for Mr. Cote argues that a sentence of two years in addition to the time Mr. Cote has served, together with a period of probation of up to three years, is appropriate in all the circumstances. Counsel does not oppose the ancillary orders sought by the Crown. The Relevant Legal Framework [ 21 ]

Section 718 of the Criminal Code establishes that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society.

This object is to be accomplished through just sentences that have one or more of the following purposes: denunciation, deterrence, separation from society, rehabilitation, reparations, and the promotion of responsibility and acknowledgment of harm. [ 22 ] Further fundamental principles include the requirement that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

They also recognize that a sentence must be just, based on the aggravating or mitigating circumstances that are present, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, and that an offender should not be deprived of his or her liberty if less restrictive sanctions are appropriate. [ 23 ] In this case, s. 718.2(

e) is relevant and provides: 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 24 ] The individualized nature of sentencing is well established. A sentencing judge is to take into account both the circumstances of the offence and the circumstances of the offender; R. v. Angelillo , 2006 SCC 55 at para. 18 , and R. v. Shoker , 2006 SCC 44 at para. 14 . [ 25 ] Having said this, it is important to return to the guidance provided in s. 718.2 (

b) of the Criminal Code , which confirms that a sentence should be similar to sentences imposed on similar offenders who have committed similar offences in similar circumstances. Analysis

i) Objective Evidence and Reports [ 26 ] Mr. Cote was born on October 31, 1985. He was 25 years old at the time of the events in question. He has a youth record that starts with an assault when he was 14 years old. He has numerous other youth convictions, including an assault causing bodily harm. During one 15-month period from 2000 to 2002, he had eight convictions. [ 27 ] As an adult, he has previously been convicted of three separate robberies and of two assaults with a weapon. In 2004, he received a conditional sentence for the first of these assaults.

He was ultimately required to serve the balance of his term. He thereafter received a total sentence of four years and three months for the three robberies. He was released on probation in May 2011 for the second assault. He committed the instant offences while on probation. [ 28 ] I was provided with both a Pre-Sentence Report and a Psychological Assessment from the British Columbia Mental Health and Addiction Service. The content and conclusions of those two reports overlap in numerous respects and I have chosen to address them concurrently. [ 29 ] Mr.

Cote, who is now within days of turning 28 years old, is the elder of two children born of the marriage of Diane Rock and Don Cote. He also has two half-sisters and three half-brothers. Mr. Cote now understands that his mother was a member of the Mohawk Tribe. He was, however, unaware of this while growing up, as his mother had been adopted and raised in a French-Canadian family. [ 30 ] Mr. Cote's upbringing was exceedingly difficult. Both his parents were substance-addicted. Their household was characterized by physical and emotional abuse. His mother left when he was three or four years old with his sister.

He remained with his father for a period of time and was sexually abused by his father. By the time he was 11 or 12, he was placed in a series of foster homes. He is close to one of his step-sisters, Ms. Marin. He moved to British Columbia to live with her for a time. At 15, he learned that his mother had been killed by Robert Pickton. [ 31 ] Mr. Cote has a Grade 9 education and has earned some credits towards Grade 10 and 11. His primary source of income has always been from illicit means, including from dealing in drugs. He worked very briefly in the construction industry. Mr.

Cote has a history of drug and alcohol use. He started using drugs at 13; those drugs include crack cocaine, amphetamines, and heroin. Mr. Cote believes that drug use "has ruined his life". [ 32 ] In terms of his past access to or use of programs, his Pre-Sentence Report states: Mr. Cote's provincial custody records show that in 2007, he commenced but refused to complete the Violence Prevention Program. He completed the 18-module Substance Abuse Management Program at the same institution shortly thereafter.

BC Corrections custody records also show he has been sanctioned for being disrespectful, engaging in fights, and for non-compliance with regulations on a number of occasions. Since his remand in custody on the current matters, he has, however, completed 10 “Essential Skills to Success”

seminars in the area of employability and life skills. [ 33 ] Mr. Cote has also struggled with periods of depressed mood, but does not suffer from any mental illness. [ 34 ] I was provided with a series of victim impact statements from each of Mr. Thomson's grandmother, mother, father, aunt, and sister. I have read and considered these statements carefully. Individually and collectively, they reflect the great sorrow that comes from the sudden loss of a loved one. [ 35 ] In a similar vein, I have read and considered a letter of support from Ms.

Marin. [ 36 ] I was provided with an extremely thorough and carefully written Gladue report. Mr. Cote only learned of his mother's aboriginal heritage within the last two years and, as such, has had no connection with the First Nations community. Nevertheless, the Crown accepted the relevance of the Gladue report in the circumstances. [ 37 ] The report states that Mr. Cote's mother was of Mohawk and non-aboriginal descent.

His father was apparently of mixed Métis lineage. [ 38 ] The report confirms at considerable length and in considerable detail the exceedingly difficult, turbulent, and traumatic circumstances of Mr. Cote's childhood and upbringing. It chronicles the physical and sexual abuse Mr. Cote was subject to, as well as the complete chaos of his surroundings. It traces Mr. Cote's own addiction issues and confirms that he began to sell drugs when he was about 15 years old. The report addresses Mr. Cote's criminal connections as well as his criminal activities. Mr.

Cote accepts that most of his peers are people he met in jail or who are involved in criminal activities. [ 39 ] The report addresses Mr. Cote's limited education, his limited work-related skills, the fact that he has no savings and no real family support other than from Ms. Marin. The report identifies that though Mr. Cote and Ms. Marin are close, Ms. Marin's own circumstances are such that she is unable to have Mr. Cote live with her once he has been released. [ 40 ] Accordingly and importantly, there is very little by way of positive influence or support that surrounds Mr. Cote.

Though he was raised in a non-aboriginal setting, I am satisfied that the systemic factors that play a

part in the over-representation of aboriginal persons in our prison system have also played some role in now bringing him before this court. [ 41 ] Finally, the report addresses Mr. Cote's apparent willingness to address his addiction and other issues and to develop skills that would enhance his employability. It also indicates some interest on the part of Mr. Cote in increasing his awareness of his aboriginal roots. The report identifies various programs and facilities, both within the community and the prison system, that might enable Mr.

Cote to achieve these various objects. ii) The Circumstances of the Offender [ 42 ] There are numerous significant aggravating circumstances which are relevant. Mr. Cote has a significant record for violent or dangerous crimes. He has been provided numerous opportunities on numerous occasions to reflect on his conduct and on the path he has chosen to follow.

He was, as I have said, on probation when these offences occurred. [ 43 ] The author of the Gladue report observes: In terms of Donald's receptivity to previous interventions imposed by the courts and corrections, Donald has a long history of failing to abide by the interventions attempted. He has continued to offend in both the community and custodial setting, with little seeming regard to consequences. [ 44 ] The extent to which Mr. Cote feels remorse or acceptance for his actions is unclear.

In the Pre-Sentence Report, the author states: The subject cannot be assessed regarding attitude and understanding of the offence due to his position on the outcome of the trial. [ 45 ] The author of the Gladue report writes: Donald reported a recollection of the events leading to the death of the victim, Mr. Jesse Thomson, which differed from the court's findings of fact. Donald said that he was still struggling to understand how the events of the night could have led to the death of Mr.

Thomson. [ 46 ] The author of that report does go on, however, to say: He feels a great deal of remorse over what occurred. [ 47 ] The author of the Psychological Assessment commented that Mr. Cote "did not want to talk about his offence". [ 48 ] Generally a lack of remorse is not considered to be an aggravating factor; R. v. Henry , 2002 NSCA 33 , at para. 21 . Nevertheless, in Clayton C.

Ruby et al. , Sentencing , 7th ed. (Markham: LexisNexis Canada, 2008) at 229, the authors observe: A more severe sentence should not be imposed for lack of remorse; but this disentitles one to leniency that otherwise might have been extended. [ 49 ] In a similar vein, Mr. Cote did not plead guilty. While not an aggravating factor, the absence of a guilty plea is often taken to reflect a lack of remorse: R. v. Lever , 2006 BCSC 979 , at para. 31 , R. v. Kreutziger , 2005 BCCA 231 , at paras. 10 and 12 .

[50] I will return to this issue when addressing the circumstances in which Mr. Thomson's death occurred and the moral culpabilityof Mr. Cote's conduct, but at this point I observe that Mr. Cote's assault on Mr. Thomson was aggressive, violent, and somewhatsustained in nature. It occurred when Mr. Thomson was retreating and when he was making no effort to defend himself. Mr. Cote usedtwo separate weapons, a chain and pepper spray, to assault Mr. Thomson. [51] In terms of mitigating circumstances, Mr. Cote's exceedingly difficult childhood is relevant.

At 28 years old, though no longer ayouthful offender, he is still at an age where rehabilitation and a realistic prospect for such rehabilitation remains relevant. iii) The Nature and Circumstances of the Instant Offences [52] It has often been observed that the range of sentence appropriate for the offence of manslaughter may be as wide as for anyother offence under the Criminal Code. The nature of the cases that give rise to manslaughter convictions extend from circumstancesinvolving near accident to those involving near murder. [53] In R. v.

Creighton, (SCC), [1993] 3 S.C.R. 3, McLachlin J. as she then was, said at 48-49: Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence. This is appropriate. Because manslaughtercan occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence,for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness ofrisk of death just short of what would be required to infer the intent required for murder.

The point is, the sentence can be and is tailoredto suit the degree of moral fault of the offender. This Court acknowledged this in Martineau, at p. 647: The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted outwith regard to the level of moral blameworthiness of the offender.

It follows that the sentence attached to manslaughter does not require elevation of the degree of mens rea for the offence. [54] A significant distinguishing characteristic between cases involving sentences at the low end of the spectrum and those attractingsomewhat higher sentences, is the moral blameworthiness of the offender. The range of sentences relevant to those involving nearaccident and those attracting somewhat more severe sentences was expressed in R. v.

Mintert, (BC CA), [1995] B.C.J.No. 652 (C.A.), at para. 20, citing with approval the reasons of the trial judge: A review of the British Columbia Court of Appeal cases since 1990 dealing with the sentencing in manslaughter cases providessentences from a suspended sentence to life imprisonment. The lower range involves a near accidental death and very specialcircumstances where the moral culpability of the offender is at the lowest. In my opinion the next range involves sentences where the culpability of the offender is such that the principle of general deterrencewarrants a sentence of one to seven years.

The next range involves sentences resulting in incarceration for six to twelve years where the need is to remove the offender from thecommunity to meet risk that the offender presents after careful consideration of all the circumstances and the need for general deterrence;and the maximum sentence I've already discussed. [55] Counsel for Mr. Cote accepts that Mr. Cote's conduct does not fall within this first category of cases. The question is where itfalls on the spectrum involving the second category. [56] In this case, a proper analysis of Mr. Cote’s moral blameworthiness has two components.

The first involves an examination ofthe unlawful act itself. In R. v. K.K.L., 1995 ABCA 196 , [1995] A.J. No. 434 (C.A.), the court, at paras. 8 and 23, identifiedvarious considerations that are relevant when weighing the moral culpability of an offender. Those factors included the nature andquality of the unlawful act, the method by which it was committed, whether a weapon was used, and the degree of planning orpremeditation.

Other considerations include the degree of force used, the degree of violence or brutality, the perpetuation of additionalgratuitous violence, the time involved in perpetrating the act, and the relevance of chance involved in the resulting death. [57] The measured application of these considerations is particularly important in this case because of the unusual nature of thecircumstances that led to Mr. Thomson's death. [58] Counsel for the Crown argued that the body of cases that were most apt or most helpful were those described as "one punch"cases.

In these cases, a single blow leads to the death of the victim. [59] Counsel for Mr. Cote argued that the "one punch" cases actually involved a higher level of moral culpability than did the act ofMr. Cote. There was, it was argued, no "bad luck" involved in striking a person. Conversely, in this case, it was argued there were twounforeseen and independent acts that led to Mr. Thomson's death. The first was that Mr. Thomson fled from the car he was in.

Thesecond was that he was struck by the vehicle of a third party. [60] I do not, in the main, accept these submissions and do not consider that they align with the analysis in K.K.L. [61] There is no suggestion that Mr. Cote's acts were premeditated. The court in K.K.L., at para. 18, observed, however: Of course, all other things being equal, impulsivity is less blameworthy than planned or repeated conduct. But simply because

an act wasimpulsive does not automatically mean that it falls at the lower end of the manslaughter scale. [62] In this case, though Mr. Cote's conduct was not premeditated it was extended. Mr. Cote followed Mr. Thomson to the car incircumstances where Mr. Thomson was already fearful. He carried not one, but rather two weapons. He used both weapons to assaultMr. Thomson. He used the chain to smash the window beside where Mr. Thomson was sitting. He then followed up by leaning into the

vehicle to pepper spray Mr. Thomson. Thus, Mr. Cote's conduct was neither simply reactive nor the product of a single thoughtless act.It cannot be described as spontaneous. Rather, it involved various aggressive and violent acts that were performed in succession. [63] Furthermore, Mr. Thomson made no effort to defend himself; Mr. Thomson was retreating throughout and Mr. Cote was theaggressor throughout. This factor was considered salient in cases such as R. v. Tabbara, [2009] O.J.

No. 4397 (S.C.J.) at para. 59, andHenry at para. 23. [64] An effort to differentiate the "one punch" cases is also unsound in concept, as what is particularly salient in those cases is thatthe nature of the blow gives rise to an unexpected consequence. In Tabbara a young man struck another man once in the back of theneck as he was walking away. The blow was described as mild to moderate and it caused only a small bruise. The individual who wasstruck did not fall immediately, but collapsed about 18 seconds later and subsequently died.

The blow apparently caused a torsion of thedeceased's head, tearing a small artery and leading to hemorrhaging within and around the brain. [65] In cases such as R. v. Braune, 2006 ONCJ 50 and R. v.

Isenor, 2007 NSPC 70, the offender struck the victim once with theresult that the victim hit his head and died. [66] I do not consider that the moral culpability of a person who strikes someone once, with the result that that person then falls andhits their head leading to their death, is different in any appreciable way from someone who raises a chain as though to strike someone, oralternatively attacks them with pepper spray, causing them to fall and then hit their head.

Similarly, there seems to be little difference instriking a person causing them to stumble into the path of a car and spraying them with pepper spray causing them to stumble into thepath of an oncoming vehicle. [67] I do not accept that it was unforeseeable that Mr. Thomson would flee from the vehicle he was in, following the sequence ofevents I have described. This is particularly so after Mr. Cote reached into the car to pepper spray him. His fleeing the vehicle wassimply an ongoing part of his effort to avoid Mr.

Cote. [68] I do accept that the probability of the extremely grave consequences that followed from Mr. Cote's attack would not have beenon Mr. Cote’s mind. [69] Finally, I consider that emphasizing the unexpected and intervening act of the motorist whose vehicle struck Mr. Cote, to theexclusion of other aspects of Mr. Cote's conduct, is also unsound. In para. 23 of K.K.L., referred to above, the court recognized thatconsidering and weighing "the element of chance involved in the resulting death" is appropriate.

However, that factor is simply oneaspect of a more far-ranging inquiry into the circumstances that determine the moral culpability of an offender's conduct. [70] The factors I have described, properly considered, significantly elevate the level of blameworthiness attached to Mr. Cote'sconduct. The moral fault attached to that conduct is at least as, if not more, severe than that found in many of the "one punch" cases Iwill address below. [71] I also consider that the nature of Mr.

Cote's conduct, and the moral culpability of that conduct, was fundamentally differentthan, for example, the conduct of the accused in R. v. Groves, (13 December 2011), Victoria 145534-2 (S.C.). In that case, the accusedwas 21 years old, had no record, no history of drug use, no history of aggression, and was described as hardworking. He was with a friendwho was trying to buy drugs. The accused was seeking to leave and referred to the people around him as “junkies and crackheads”. Thedeceased apparently threw a straw at Mr. Groves. Mr.

Groves was caught off guard by the perception of someone throwing something athim. He pushed the deceased, causing her to fall into the street and into the path of an oncoming bus. The push was described "as asingle spontaneous push with some force but little violence": at paras. 13, 44. [72] The court imposed a sentence of one year imprisonment, to be followed by a period of probation of two years. [73] The second consideration relevant to the issue of moral blameworthiness in this case arises from the application of R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and more specifically R. v. Ipeelee, 2012 SCC 13.

In this latter decision, LeBel J., atpara. 73, said: First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the unique systemicor background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender's conduct" (para. 38(emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. ManyAboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options forpositive development.

While this rarely — if ever — attains a level where one could properly say that their actions were not voluntaryand therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50, after describingthe background factors that lead to Mr.

Skani coming before the court, "[f]ew mortals could withstand such a childhood and youthwithout becoming seriously troubled." Failing to take these circumstances into account would violate the fundamental principle ofsentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. … [74] The foregoing comments are relevant to Mr. Cote's circumstances and conduct. [75] I return to the "one punch" cases and the types of considerations and sentences that courts have deemed appropriate in suchcases.

These cases, though different factually from the instant case, generally share the characteristic that the death of the victim arose inunexpected circumstances. [76] In Tabbara, the central facts of which are described above, the accused was 21 years old, had no record and was described as a"nonviolent, respectful individual". He had completed his schooling and was working. The court went on at some length to describe thepositive attributes of Mr. Tabbara. He received a sentence of two years less a day, followed by a term of probation of two years.

[77] In Henry, the accused observed the victim strike a woman. The accused followed the victim and struck him from behind. Theaccused was 31 years old and had no criminal record. The trial judge sentenced him to two years less a day to be served as a conditionalsentence followed by two years' probation. The Nova Scotia Court of Appeal reversed that sentence and imposed a sentence of fouryears' incarceration. [78] In Braune, the victim had made some comment to the accused's girlfriend. The accused struck the victim once in the head,knocking it into a cement wall.

The accused was 18 years old, pled guilty and had no record. He was sentenced to 30 months'imprisonment. [79] In Isenor, the accused punched the intoxicated victim in the mouth. The victim hit his head and died. Mr. Isenor was previouslyof good character. He had an unrelated criminal record. He was sentenced to three years in prison. [80] In R. v. Johnny, (BC CA), 46 B.C.A.C. 213, [1994] B.C.J. No. 1373, the accused and the victim had beenfriends. Mr. Johnny saw the victim, who was very intoxicated, kissing his common-law wife. Mr. Johnny struck the victim once.Mr.

Johnny was 28 years old, had no criminal record, and was clearly remorseful. He was sentenced to six months in prison to befollowed by a term of three years' probation, which was upheld on appeal. [81] In R. v. Hanifan, (ON CA), [2001] O.J. No. 1576 (C.A.), the victim and offender had been drinking andarguing. The victim left the premises and was thereafter punched in the face by Hanifan, causing him to fall and strike his head, leadingto a fatal head injury. The offender had a criminal record. The nature of that record is not apparent.

The Ontario Court of Appealdismissed his appeal from a six-year sentence. [82] R. v. King, [1999] N.S.J. No. 318 (S.C.), the accused and victim were intoxicated and engaged in a fight. The victim fell, hit hishead, lost consciousness, and died of asphyxiation. Mr. King had an old, unrelated record. He pled guilty and was remorseful. He wassentenced to five years. [83] In R. v. Jessie George, 2010 ONSC 6017, the accused was a 22-year-old aboriginal man with an extensive record, includingfive convictions for violent offences. He recognized that he could be violent when he drank. Mr.

George was involved in a fight with thevictim and kicked him in the head when the victim was already lying on the ground. The court emphasized the ferocity of that attack onthe victim. Mr. George was sentenced to seven years. I recognize that the nature of the assault in George is very different from that ofMr. Cote in this case. [84] Gladue and Ipeelee raise a further important issue and require that I consider the effectiveness of any sentence that I mightconsider appropriate. Thus, LeBel J. in Ipeelee, at para. 75, said:

Section 718.2(

e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentationof Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particularattention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particularcase. This has been, and continues to be, the fundamental duty of a sentencing judge.

Gladue is entirely consistent with the requirementthat sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status andlife experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadiancourts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section718.2(

e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples.Neglecting this duty would not be faithful to the core requirement of the sentencing process. [85] Mr. Cote, please stand. [86] Mr. Cote, I am sentencing you to five years' incarceration on Count 1, that count being the manslaughter of Mr. Thomson. Youare to receive credit for the time you have served. That credit is one year and 362 days, as I count it. [87] I am also sentencing you to one year on each of Counts 2 and 3.

Those sentences are to be served concurrently with each otherand with Count 1. [88] I consider that the foregoing sentence properly balances the factors and considerations I have identified. It also properlybalances denunciation and deterrence, and in particular specific deterrence, with the ongoing prospect of your rehabilitation. [89] I understand I have no ability to direct what programs Mr. Cote is to have access to while incarcerated.

Nevertheless, I wouldask the persons charged with these decisions to do what is reasonably possible to provide him with access, in addition to other programs,to programs within the Aboriginal-specific Multi-Target Program that are best suited to addressing his substance abuse issues and toproviding him with skills that would foster his employment prospects. [90] I am also making both ancillary orders that I referred to earlier: the first, under s. 487.051 of the Criminal Code, authorizes thetaking of those bodily samples that are reasonably required for the purposes of DNA analysis; the second, under s. 109(3) of theCriminal Code, imposes a lifetime ban on Mr.

Cote from possessing any weapon. “Voith J.”