R. v. Carte, 2017 BCSC 2421

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Carte, 2017 BCSC 2421 Date: 20171228 Docket: 169954-2 Registry: Victoria Regina v. Justin Michael David Carte Before: The Honourable Madam Justice DeWitt-Van Oosten Reasons for Sentence Counsel for the Crown: Stephen Fudge Counsel for the Accused: Timothy J. Russell Place and Dates of Trial: Victoria, B.C. December 18–21, 2017 Place and Date of Sentencing Submissions: Victoria, B.C. December 22, 2017 Place and Date of Sentencing: Victoria, B.C. December 28, 2017 [ 1 ] THE COURT : This decision was delivered in the form of Oral Reasons .

The Reasons have since been edited for publication. I. INTRODUCTION [ 2 ] Justin Michael David Carte has pleaded guilty to one count of manslaughter, contrary to s. 234 of the Criminal Code , R.S.C. 1985, c. C-46. [ 3 ] In the early morning hours of November 26, 2016, he gravely wounded 20-year-old Rapha ë l Bussi è res in the neck. The wound severed Mr. Bussi è res' carotid artery and tragically, he died two days later. [ 4 ] The offence occurred on a street in downtown Victoria. Mr. Carte was under the influence of drugs at the time. He had only recently been released from jail for other offences.

He did not know Mr. Bussi è res. [ 5 ] The Crown seeks a sentence of eights years' imprisonment. The defence submits that a jail term of six to seven years is appropriate. II. FACTS OF THE OFFENCE [ 6 ] The guilty plea to manslaughter was entered mid-trial, after the Crown closed its case on a charge of second degree murder. Mr. Carte brought a no-evidence motion, arguing there was no evidence from which a reasonable jury, properly instructed, could find the specific intent required for murder. [ 7 ] I granted the motion and ordered that the matter proceed on the lesser and included offence of manslaughter. Mr.

Carte subsequently entered a guilty plea. [ 8 ] At the start of trial, Mr. Carte admitted that he committed an unlawful act. He also admitted that the act caused Mr. Bussi è res' death. [ 9 ] By virtue of his guilty plea, Mr. Carte has now admitted that he committed culpable homicide. The assault against Rapha ë l Bussi è res was inherently dangerous and one that a reasonable person, in the circumstances of Mr. Carte, would have realized exposed Mr.

Bussi è res to a risk of hurt or injury that interfered with his health or comfort, and was more than just brief or minor. [ 10 ] Admissions of Fact were filed at trial under s. 655 of the Criminal Code . The Admissions, as well as the remainder of the evidence called by the Crown, provides the factual foundation for the purpose of sentencing. [ 11 ] Based on the Admissions, I find as a fact that:

• Between 12:30 and 12:32 a.m. on November 26, 2016 Emergency Services received three 9-1-1 calls reporting a stabbing on the 1200-block of Douglas Street in Victoria. • Police and ambulance personnel responded within minutes and found Rapha ë l Bussi è res on the sidewalk. • He was unconscious and bleeding from a wound to the neck. • Mr.

Bussi è res was transported to Royal Jubilee Hospital and underwent surgery to repair a severed carotid artery. • He never regained consciousness and died on November 28, 2016 as a result of his injuries and the consequent blood loss. • Shortly before 2:00 a.m. on November 26, 2016, Justin Carte was arrested in a restaurant at 1235 Broad Street called West Coast Waffles. • Blood drops were identified on the shoes worn by Mr. Carte at the time of his arrest. • One of these drops was analyzed by the RCMP Forensic Laboratory and determined by DNA analysis to be the blood of Mr.

Bussi è res. • Justin Carte was the person who struck the blow that caused the death of Rapha ë l Bussi è res. [ 12 ] Roxanna Hassan testified as a Crown witness. Based on her evidence, I find that in the early morning hours of November 26, Ms. Hassan was walking with Mr. Bussi è res and another friend toward the McDonald's restaurant on Douglas Street. They had been socializing in Beacon Hill park. They encountered Mr. Carte on Douglas Street. He was coming toward them, on the same side of the street. [ 13 ] Ms. Hassan has seen people on drugs and knew Mr. Carte was "high". He was moving his arms.

They were outstretched. He was walking a bit strange, although not weaving. [ 14 ] Mr. Bussi è res asked Justin Carte if he wanted to "rap". Both men started rapping. Ms. Hassan could not understand the words coming out of Justin Carte's mouth. He was talking low and fast. It was not coherent. [ 15 ] Mr. Bussi è res stopped rapping. French was his first language and he no longer wanted to rap in English. Ms. Hassan, Mr. Bussi è res and their friend continued toward McDonald's. After they crossed the street, Ms.

Hassan turned around and saw Justin Carte crossing the street and moving toward them. [ 16 ] He approached them while they were grouped outside the entrance to McDonald's and started touching Mr. Bussi è res on the shoulders. Ms. Hassan said he placed a hand on each shoulder, palms out. He appeared to be trying to say something to Mr. Bussi è res. Ms. Hassan could not decipher it. He was speaking "nonsense". [ 17 ] Mr. Bussi è res told Mr. Carte to not touch him. This happened three times. Mr. Bussi è res said, "I'm serious, don't touch me". This was said in a flat, non-threatening tone.

There was nothing provocative or threatening about Mr. Bussi è res' conduct. [ 18 ] Justin Carte did not move away. Instead, he swung at Mr. Bussi è res in a punch-like motion. Ms. Hassan described it as slow- moving. She demonstrated a right arm punch, coming from below shoulder height. She said Mr. Carte's fist came into contact with Mr. Bussi è res' chin. At first she thought he missed. Ms. Hassan did not see a knife. She said neither of the two men were in a fighting stance when the assault occurred. [ 19 ] Mr. Bussi è res grabbed his neck. He told Ms. Hassan that he got stabbed and to call 9-1-1.

In video footage from outside McDonald's, Mr. Bussi è res can be seen holding on to his neck after moving backward from one or more pushes or some other form of physical aggression by Mr. Carte. Justin Carte immediately leaves the scene. He is seen on the footage walking away. His movements are disjointed. He makes no attempt to render assistance to Mr. Bussi è res. [ 20 ] The events outside the doors to McDonald's unfolded quickly. The video footage offers little, if any, clarity on the specifics of the physical interaction between Justin Carte and Rapha ë l Bussi è res.

Some of the interaction is blocked from view by the building or parts of the front doors; other portions are only visible through glass. Justin Carte can be seen following Mr. Bussi è res and his friends to the location where the assault occurred. He moves about quite a bit while interacting with them. His movements are awkward, consistent with Ms. Hassan's description of their first encounter. [ 21 ] According to Ms. Hassan, there did not appear to be any reason or motive for the assault. It was "senseless". [ 22 ] Mr. Bussi è res continued to hold on to his neck while waiting for police or an ambulance. Ms.

Hassan could see blood. One of the police officers who responded to the 9-1-1 call assisted in applying pressure to the wound. It was on the left side of Mr. Bussi è res' neck. He described blood pouring from the wound. [ 23 ] Mr. Bussi è res was taken away by emergency personnel. He was unconscious. He underwent surgery, but died of his injuries on November 28, 2016. Mr.

Bussi è res did not regain consciousness before his death. [ 24 ] After the incident outside McDonald's, Justin Carte went to West Coast Waffles on Broad Street in Victoria. [ 25 ] I accept the evidence of the employees who were working at West Coat Waffles in the early hours of November 26, including their descriptions of Mr. Carte as "high on drugs". [ 26 ] Consistent with observations made of him before he assaulted Mr. Bussi è res, Justin Carte was seen to be flailing around the restaurant. At one point, he poured maple syrup into his drink. He was incoherent; jerking around; he seemed to be "in his head"; he

played with ornamental balls that were sitting on the tables in the restaurant––feeling them, cuddling them and swinging them around. He was walking in a disjointed fashion and engaged in bizarre behaviour, but was aware of his surroundings. He had difficulty ordering from the menu, but was able to communicate what he wanted. [ 27 ] Mr. Carte was arrested in West Coast Waffles shortly before 2:00 a.m. on November 26. A taser was deployed during the arrest. Mr. Carte was searched. A 4-inch folding knife was located in the waste band of his pants, down the middle of his groin area.

The trial evidence did not establish a connection between this knife and the wound to Mr. Bussi è res' neck. [ 28 ] After his arrest, Mr. Carte was taken to hospital. He continued to display symptoms consistent with impairment by drugs or alcohol. He said nonsensical things. Once back at the Victoria Police Department, he kept falling asleep. [ 29 ] Based on the witness observations, which are consistent with my own viewing of the video footage from McDonald's and West Coast Waffles, I find as a fact that Mr. Carte was under the influence of drugs before, during and after his interaction with Mr.

Bussi è res. [ 30 ] At the sentencing hearing, he admitted to having consumed drugs in the days and hours prior to the assault. I have no evidence of the specific drugs consumed; when they were consumed in relation to the assault; and, there is no evidence on the actual extent of impairment. However, Mr. Carte was clearly under the influence at the time of the offence, as manifested through his speech and physical movements. [ 31 ] At the same time, it is equally apparent that he was capable of purposeful and goal-directed behaviour.

I find as a fact that he was aware of his surroundings and able to navigate them, including conversing with others, responding to their questions and accomplishing minor tasks. [ 32 ] A fitness assessment was completed on Mr. Carte in October 2017. Following a mid-trial ruling on relevance, a portion of the assessment was admitted into evidence by agreement. It summarized a number of prior psychological and psychiatric assessments completed on Mr. Carte and their resulting diagnoses: • "Medical records from the Forensic Psychiatric Services include a psychological assessment done by Dr. Diana Alexander in 2012.

Dr. Alexander noted that Mr. Carte had a history of serious substance abuse problems. Dr. Alexander's report concluded that Mr. Carte had personality difficulties. • The records show that Mr. Carte was admitted to hospital at the Royal Jubilee Hospital at the end of 2013. Mr. Carte was diagnosed at that time to have psychotic symptoms, which were thought likely to be due to use of substances. • Mr. Carte was subsequently referred to Dr. Deanne Breitman, psychiatrist, at the beginning of 2014. Dr. Breitman noted that Mr.

Carte had a predisposition to psychotic illness and ultimately later in 2014 made diagnoses of Schizophrenia as well as substance use problems. Dr. Breitman continued treating Mr. Carte with intramuscular antipsychotic medication until the end of his probation towards the end of 2014. Mr. Carte was discharged from the Forensic Psychiatric Clinic. • Dr. Breitman saw Mr. Carte for further assessment in 2015. Dr. Breitman's last assessment, of Mr. Carte was in October, 2015. At that time he was noted to be likely acutely intoxicated with opiates and thus somewhat tangential, unfocused, and disorganized. Dr.

Breitman stated that Mr. Carte had symptoms consistent with paranoid schizophrenia paranoid type including ongoing persecutory delusions and possible auditory hallucinations complicated by opiate and amphetamine abuse disorders. Mr. Carte was at that time refusing treatment with medications. • Notes from the Forensic Psychiatric Service Clinic notes show that Mr. Carte was seen by a case manager subsequently in November 2015 but did not further attend. His file at Forensic Psychiatric Services was then closed after Mr.

Carte was placed back into custody at the beginning of 2016." [ 33 ] Although I ruled that this evidence met the threshold for relevance on the issue of intent, I also made clear that the amount of weight to be assigned to it, within the context of the circumstances of November 26, 2016 was yet to be decided. [ 34 ] In light of the outcome of the no-evidence motion, and the guilty plea to manslaughter, it was not necessary for me to complete the weighing exercise in determining the merits of the charged offence.

However, I have done so for the purpose of sentencing. [ 35 ] On the trial record, I am not satisfied that Mr. Carte's mental disorder of Schizophrenia, as diagnosed in 2014 and 2015, played a role in the assault on Mr. Bussi è res. No evidentiary nexus has been shown, through expert opinion evidence or otherwise, between the assault and psychotic symptoms that may be associated with his disorder, including persecutory delusions or auditory hallucinations. [ 36 ] Justin Carte does not have an explanation for his conduct on November 26, other than impairment by drugs. His counsel informed the Court that Mr.

Carte has only a hazy recollection of what occurred with Mr. Bussi è res. [ 37 ] He was released from custody only two days before the offence, having received a five-day jail sentence on November 22, 2016 for various offences, including breach of probation. [ 38 ] Very quickly after his release, Mr. Carte relapsed into a long-standing pattern of drug abuse and the conduct displayed on November 26 ensued from there. III. OFFENDER'S ANTECEDENTS [ 39 ] Justin Carte is 28 years of age. [ 40 ] Dating back to May 2012, Mr. Carte has an adult criminal record with at least 39 prior convictions. This includes 10

convictions for offences of violence (assault and uttering threats), a number of which were committed against police officers. I do not know the level of violence displayed. [ 41 ] For the most recent of his assault convictions, Mr. Carte was sentenced to "time served" in August 2016, plus probation. He was granted 166 days' credit for pre-sentence custody, which equates to a jail sentence of approximately five and one-half months. [ 42 ] Some of Mr. Carte's family members attended the sentencing hearing. Based on letters they put before the Court, Mr. Carte was a productive and thoughtful child.

Then, at age 17, he became involved with a negative peer group and fell into drugs. [ 43 ] This was over ten years ago and since then, his behaviour, mental health, relationships and life choices have been significantly impacted by drug addiction. There is no evidence before me of attempts at employment or schooling as an adult. He admits to being largely resistant to intervention and treatment, both for drug addiction and his mental health. Although presented with opportunities to engage with professionals, he chose a different path.

Since December 2015, he has spent much of his time in custody. [ 44 ] It is apparent from his family's letters that Mr. Carte is loved, but his parents, siblings and friends feel hopeless in their ability to offer him constructive assistance. In the words of Mr. Carte's counsel, they "lack the tools" necessary to manage this offender's behaviour. Their letters request the Court's "help" in addressing an ongoing pattern of destructive conduct. IV. AGGRAVATING AND MITIGATING CIRCUMSTANCES A. Aggravating Circumstances [ 45 ] There are a number of aggravating circumstances in this case.

They consist of: • the severity of the wound suffered by Mr. Bussi è res, causing a loss of consciousness, significant blood loss and, ultimately, his death; • the use of a knife or other form of sharp-edged weapon in committing the assault; • the fact that the assault outside McDonald's was unprovoked. Mr. Bussi è res did not display physical aggression toward Mr. Carte or verbally antagonize him, either in the preceding "rap" encounter, or outside the restaurant; • the assault occurred after Justin Carte was told three times by Mr. Bussi è res that he did not want to be touched. Mr. Carte persisted.

There was a deliberateness about his behaviour; • in light of the manner in which the offence unfolded, Mr. Bussi è res had no real opportunity to defend himself, or take steps to distance himself from Mr. Carte. Justin Carte inserted himself into the group of three friends without invitation or warning. The violence shown by him could not have been anticipated by Mr. Bussi è res; • Mr.

Carte made no attempt to render assistance to Rapha ë l Bussi è res; • the offence occurred on a downtown street, with numerous people milling about, where they are entitled to feel safe, not at risk and should not have to bear witness to violent acts; • Mr. Carte consumed drugs in the days and hours leading to the offence, knowing that drugs render him prone to impaired thinking and/or conduct that he might not otherwise engage in, including violence.

His involvement with the provincial corrections and forensic mental health systems since at least 2012 would have brought this home to him; and, • at the time of the offence, Mr. Carte was subject to a probation order imposed on August 29, 2016. The order directed that Mr. Carte "keep the peace and be of good behaviour". He was also ordered to "not possess any weapons as defined in

section 2 of the Criminal Code ", or possess any controlled substances unless prescribed by a physician. He was in flagrant breach of more than one condition of this order when he caused the death of Rapha ë l Bussi è res. B. Mitigating Circumstances [ 46 ] Justin Carte is still a young man. He has the support of his family and friends. Because of his drug addiction, they have had limited capacity to influence his choices. Moreover, they are distressed about the harm he has caused, particularly the pain and trauma he has caused the family of Mr. Bussi è res.

Nonetheless, they attended Court to show their support for him, hoping that through the sentencing process, Mr. Carte will have an opportunity to take control of his behaviour, engage in treatment and rehabilitate. [ 47 ] I am told that when Mr. Carte was released from custody on November 24, 2016, two days before the assault, he had come to recognize a need to change his lifestyle and, for the first time, he was desirous of assistance. He wanted to get involved with Victoria's specialized court program, with a focus on his mental health and drug addiction.

However, he picked up his subsistence monies and without food, a place to stay or institutional support, he resorted to the one thing he has known for the past ten years––drugs. [ 48 ] He is again expressing a desire to seek treatment and says he is motivated to follow-through. He does not contest the necessity of a substantial term of imprisonment for this offence, and sees it as an opportunity to treat his addiction. He has not previously undergone any form of residential treatment. While on custodial remand for this offence, Mr.

Carte has completed a course on substance use management, as well as violence prevention.

[ 49 ] Mr. Carte has expressed remorse for his conduct against Rapha ë l Bussi è res and at the sentencing hearing, he apologized to Mr. Bussi è res' family. I accept his remorse as sincere. I am told that the consequences of Mr. Carte's behaviour on November 26, 2016 have had a "profound" effect on him. He realizes the terribleness of what he has done. [ 50 ] The Crown acknowledges that Mr. Carte has been willing to plead guilty to manslaughter since the charge of second degree murder was first laid against him. As recognized in the case law, this is a significant mitigating factor. V.

VICTIM IMPACT [ 51 ] At the sentencing hearing, Mr. Bussi è res' parents presented their Victim Impact Statements in-person. Without objection from counsel for Mr. Carte, a video was also shown of Rapha ë l Bussi è res at various stages of his life. [ 52 ] A large group of family members and other supporters of Mr. Bussi è res were present in Court. They travelled from Quebec to attend the trial and respectfully sat through the proceedings. [ 53 ] Mr. Bussi è res' mother described her son as athletic; an exemplary student; hard working; responsible; and altruistic.

He planned to attend university, but first wanted an opportunity to explore life and determine what educational path was best suited for him. This is what he was doing in Victoria. He spent three summers working in Tofino and decided to stay in Victoria for the fall 2017. All indications are that he was a young man with great promise who would have made positive societal contributions throughout his life. [ 54 ] Rapha ë l Bussi è res was very close to his family, particularly his three younger sisters, grandparents and many cousins. They have all been significantly impacted by his death.

Among other things, his sisters have lost a confidante; they suffer from insomnia; an inability to concentrate; anger and fear. His cousins, friends and the larger community of which he formed an integral part, are also suffering. Mr. Bussi è res' mother told the Court of a sports teammate who suffered depression after the tragic events of November 26, as well as another friend who began using substances to deal with the pain. The impact of Mr. Bussi è res' death has been far-reaching. [ 55 ] Mr. Bussi è res' mother is exhausted from her pain.

She has not slept a full night since her son's death; she wakes up with images of her son in agony; she feels his distress. In her words, she lives in "continual anguish". She worries about being overly protective of her other children and stifling them. She has lost her energy for work and finds it difficult to concentrate. The family has been financially impacted as a result. [ 56 ] Mr. Bussi è res' father also feels overwhelmed by the loss of his son.

He describes it as anguish that "translates into a constant fear that once again [his] family will be destroyed by a new tragedy". [ 57 ] He too has become overly protective of his daughters, constantly worried they will be hurt in some way. He is angry and, in his words, "guilt permanently inhabits" him. This includes guilt about not being with and supporting his son before he lost consciousness on November 26, 2016. He has lost the ability to concentrate on work and does not have the energy required for his business, bringing with it a detrimental financial impact on the family. Mr.

Bussi è res says he cannot accept the death of his son. [ 58 ] It is obvious that Rapha ë l Bussi è res was well-loved and that his family and friends miss him terribly. His tragic and senseless death at only 20 years of age has left a gaping hole in their lives. The pain and devastation they have experienced over the past year, and will continue to experience, is palpable. [ 59 ] Nothing I say or do will relieve the enormity of the suffering that has been experienced by Mr. Bussi è res' family and friends.

It is appropriate, however, for me to take the impact of the offence into account in determining a sentence for Justin Carte: ss. 722(1) , (5) , (6) , (9) , Criminal Code . [ 60 ] As noted in R. v. Brenner , 2013 BCCA 188 at para. 14 , understanding the extent of the damage caused by the offender's conduct, to the victim, his family, friends and, indirectly, the community at large, is relevant to the sentencing objective embodied within s. 718 (

f) of the Criminal Code , namely: "to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community". [ 61 ] At the same time, I recognize that sentencing is an "objective inquiry into what a fit sentence should be" and must not be allowed to descend into a hearing that is exclusively focused on "condemnation" of the offender: R. v. Brenner , para. 28 . VI. PRINCIPLES OF SENTENCING [ 62 ] The fundamental purpose of sentencing is to protect society and contribute to respect for the law and maintenance of a just, peaceful and safe society: s. 718 , Criminal Code . [ 63 ] Other objectives include: (

i) denouncing unlawful conduct and its resultant harm; (ii) deterrence, both general and specific; (iii) separating offenders from society where necessary to protect the public; (iv) assisting in rehabilitation; (

v) providing reparation for harms done; and (vi) promoting responsibility in offenders and acknowledging the impact of their conduct: Criminal Code , s. 718(a)–(f). [ 64 ] Sections 718.1 and 718.2 of the Criminal Code delineate a number of sentencing principles that guide judges in crafting a just sanction that will give meaningful effect to one or more of the codified sentencing objectives: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles:

(

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 65 ] Achieving a proportionate sentence is a case-specific determination, requiring a multi-factoral analysis tailored to the individual circumstances of the offence and the offender: R. v. Nur , 2015 SCC 15 at para. 43 . All relevant factors must be considered. VII.

RANGE OF SENTENCE FOR MANSLAUGHTER [ 66 ] The maximum sentence available for manslaughter under the Criminal Code is life imprisonment. In the circumstances of this case, there is no mandatory minimum term of imprisonment. Because of s. 742.1(

c) of the Criminal Code , a conditional sentence order is not available. [ 67 ] In R. v. Engebretsen , 2016 BCCA 182 at para. 13 , the "general" range of sentence for manslaughter was described as four to 15 years. See also, R. v. Vikilani , 2017 BCSC 2074 , wherein Justice Pearlman noted: [69] Although the range of sentence for manslaughter is from a suspended sentence to life imprisonment, the Court of Appeal has held that most cases fall within the period of 4 to 15 years, and that a sentence below or above that range is imposed only in a case involving special circumstances: R. v.

Green, 2001 BCCA 672 . [ 68 ] The determination of where a particular case falls within the "general" range is informed by its facts, including the circumstances surrounding the commission of the offence and the offender's personal context. [ 69 ] Counsel have put a number of sentencing authorities before me, specific to manslaughter by stabbing. These include: R. v. Brertton , 2013 BCSC 1029 ; R. v. Newton , 2016 BCSC 1440 ; R. v. Peters , 2014 BCSC 1009 ; R. v. Johnson , 2017 BCSC 1240 ; R. v. J.J.R. , 2012 BCPC 143 ; R. v. R.E.A. , 2003 BCSC 925 ; and R. v.

McCulloch , 2016 BCSC 2069 . [ 70 ] With reference to these decisions, Crown Counsel argues that the offence committed by Mr. Carte is appropriately described as one of "near murder". As such, a six to 10-year range of sentence is appropriate. It is the Crown's position that Mr. Carte's case should fall at the higher end of this range because of the nature of the assault perpetrated against Mr. Bussi è res and the offender's criminal antecedents. As noted, the Crown seeks eight years' imprisonment. [ 71 ] Counsel for Mr. Carte argues that the appropriate range of sentence for this case is four to eight years.

The assault involved one wound to the neck. Mr. Carte did not engage in the extent of violence that is seen in other manslaughter cases and found to justify a term of imprisonment at the higher end. [ 72 ] Although Mr. Carte does not offer his drug-induced state as an excuse for what occurred on November 26, his lawyer reminds the Court that drug addiction is an illness. To this extent, it is said to attenuate the offender's moral blameworthiness. Mr.

Carte is desirous of treatment; he has never had the opportunity for residential intervention; and, in light of the fact that he has been wanting to take responsibility for the offence since its commission, a sentence of six or seven years would be fit. [ 73 ] I have read the decisions provided to me. Counsel took me through them, highlighting both the similarities to this case and the distinguishing features.

I do not consider it necessary to discuss each of these authorities at length in my Reasons for Sentence , particularly in light of the individualized nature of the sentencing process and the fact that the sentences imposed in other cases provide guidance only. [ 74 ] However, counsel agree that R. v. Newton is the case most closely aligned with the facts before me. As such, I will briefly summarize that decision. [ 75 ] Tyler Newton pleaded guilty to one count of manslaughter. He was initially charged with second degree murder.

However, a plea to manslaughter was entered on the basis that the evidence did not support proof of the specific intent required for murder. [ 76 ] There was undisputed evidence that Mr. Newton was in a drug-induced psychosis when he stabbed and killed the victim, who was not known to him: R. v. Newton , para. 3 . He was sitting behind the victim on a bus. Without warning or announcement, he swung his right arm toward the victim, stabbing him with a knife in the right side of his neck. He left the bus through the rear door. The victim expressed shock, stood up holding his neck and was bleeding profusely.

Several passengers tried to assist by stopping the bleeding. The victim died before paramedics arrived: R. v. Newton , paras. 15–17 . [ 77 ] Tyler Newton was 25 years old at sentencing. By age 15, he was abusing hard drugs. He had "an appalling criminal record", with approximately 50 prior convictions. It was a "typical record for someone with serious drug addictions". However, it included no prior offences involving violence: R. v. Newton , paras. 31, 32 and 35 . He had support from his family and, while in custody awaiting sentence, Mr.

Newton entered a program designed to assist addicts with their cravings in a way that "allows for normal functioning": R. v. Newton , paras. 35–37 . He expressed motivation for treatment.

[ 78 ] The sentencing Judge saw denunciation and deterrence as primary sentencing objectives in that case: R. v. Newton , para. 53 . Although the circumstances of Mr. Newton's offence did not involve "prolonged or very extreme and brutal violence", Justice Holmes held that it was appropriately characterized as an offence of "near-murder": R. v. Newton , paras. 60 and 65 . [ 79 ] At the same time, Mr. Newton was "a relatively young man who will rejoin the community at some point" and his sentence had to account for the fact that he was motivated for treatment and had selected a path for his potential recovery.

It was in society's best interest that he be able to "equip himself for ordinary life" and contribute to the community: R. v. Newton , para. 56 . [ 80 ] Mr. Newton was sentenced to seven years' imprisonment, less credit for 30 months of pre-sentence custody. VIII. DETERMINING SENTENCE [ 81 ] Justin Carte has committed an objectively grave offence. [ 82 ] No forensic or medical evidence is before me about the nature or extent of the wound inflicted by him. I have no evidence of the specific location of the wound on the left side of the neck; its length, depth or whether it was a puncture entry or laceration.

There is no evidence of the trajectory or angle of the wound; whether it was caused, in fact, by a knife or some other form of sharp instrument; there is no evidence of the degree of force used by Mr. Carte in delivering the "blow" that is referenced in the Admissions of Fact. The term "blow" is not defined. [ 83 ] It was the absence of evidence surrounding the nature of the wound that led the Court to conclude, in large part, that there was no evidence from which a reasonable jury, property instructed, could infer guilt on the specific intent for murder under s. 229 (a)(

i) or (ii) of the Criminal Code . [ 84 ] A conviction for murder requires proof of an intent to cause death, or an intent to cause bodily harm that the offender knows is likely to cause death, but is reckless as to whether death ensues. In a case such as this, where the evidence surrounding the issue of intent is circumstantial, intent for murder must be inferred. [ 85 ] Before drawing any such inference, a court must be satisfied it is the "only rational inference that can be drawn from the circumstantial evidence": R. v. Griffin , 2009 SCC 28 at para. 28 .

I concluded there was no evidence before me reasonably capable of meeting this test. [ 86 ] However, this determination does not preclude me from finding that the unlawful act to which Justin Carte has now pleaded guilty was very serious. The wound to Mr. Bussi è res' neck severed his carotid artery and caused death. [ 87 ] On the evidence, Mr. Carte made a deliberate choice to assault Rapha ë l Bussi è res in his chin and neck area, with a knife or some other form of sharp-edged instrument in hand. The result of this choice was a severed carotid artery, which caused Mr.

Bussi è res to lose consciousness, suffer blood loss and, ultimately, it resulted in his death. [ 88 ] Objectively, the act committed by Mr. Carte meets the definition of the most aggravated form of assault under the Criminal Code . It involved the intentional application of force, without consent, which not only wounded Mr. Bussi è res, but, it was a wound that plainly endangered his life. The fact that death ensued made the conduct of Mr.

Carte more grave, providing ample bases for a conviction for manslaughter. [ 89 ] Both counsel made submissions on whether the facts of this case amount to a "near murder" and, by virtue of this characterization, justify a sentence at the higher end of the range. [ 90 ] The term "near murder" is frequently used in the case law as an analytic tool to assist in positioning a particular set of facts within the sentencing range for manslaughter; however, it is not required at law that I make (or reject) a classification of "near murder" as a precondition to deciding where this offender's sentence should fall on the manslaughter spectrum. [ 91 ] Instead, the principle of proportionality, which is fundamental to the sentencing process, requires that I consider the case as a whole, balancing the gravity of the offence, the moral blameworthiness of Justin Carte and the harm caused by his crime: R. v.

Nur . [ 92 ] The facts of this case involve one wound to the left side of the neck, delivered by what has been described as a punch-like motion. To the extent that it can, the video footage from outside the McDonald's restaurant corroborates Ms. Hassan's description. It also shows that the "blow" was likely preceded by one or two pushes from Mr. Carte. Ms. Hassan testified that Justin Carte put his hands on Mr. Bussi è res' shoulders three times. Mr. Bussi è res can be seen moving quickly backward in a thrust-like motion, more than once, while Mr.

Carte interacts with him outside the restaurant doors. [ 93 ] There is no other violence displayed by Justin Carte. This is not a situation in which the wound to the neck formed part of a larger, more targeted attack with multiple "blows" and or other forms of gratuitous violence. [ 94 ] However, the assault consisted of a distinct act, separate from other physical motions or movements that were occurring proximate in time. It was a deliberate act. Mr. Carte made a conscious choice to assault Rapha ë l Bussi è res in his chin and neck area with a knife in his hand, or some other form of sharp-edged instrument.

He did so after it was made clear to him, at least three times, that Mr. Bussi è res did not want him in his personal space. Mr. Bussi è res did nothing other than assert his own entitlement to be left alone. He did not threaten Mr. Carte, physically aggress against him, or, on the evidence, intentionally antagonize him. It was Mr.

Carte who followed Rapha ë l Bussi è res to the McDonald's restaurant and persisted in further engagement with him, not the other way around. [ 95 ] Within this context, taken as a whole, the circumstances surrounding the intentional "blow" are unquestionably serious, even in light of the quickness with which the assault unfolded; the lack of evidence about the extent of the wound or level of force deployed; and the absence of additional, gratuitous violence.

[96] This was a senseless, unprovoked and grave assault that resulted in the death of a young man whose family and friends havebeen left devastated and in pain. It is an offence that, in my view, appropriately falls at the "more serious end of the offence range": R. v.Pop, 2013 BCCA 160 at para. 23. It involved "deliberate criminal activity": R. v. Fujimori, [1995] B.C.J. No. 2648 (C.A.), para. 10. [97] The sentencing principles of denunciation and deterrence (both general and specific) must be given paramount effect in light ofthe violence displayed by Mr.

Carte and its consequences. [98] It is important for the Court, through the sentencing process, to denounce this conduct. It is antithetical to Canadian societalvalues. It is also important that the Court send a message to individuals of like-mind to Mr. Carte. A choice to intentionally engage inviolence that leads to death will be met with substantial punitive consequences. And, it is important that Mr. Carte understand thegravity of what he has done.

The sentence I impose must bring home to him the critical need to avoid non-prescription drugs and thedestructive behaviour that flows from their use. [99] In determining a fit (and therefore proportionate) sentence, it is not only the gravamen of the offence that must be considered. As noted, I must also turn my mind to the moral blameworthiness of the offender. [100] I accept that at the time of this offence, Mr. Carte was intoxicated by drugs. The Crown takes no issue with this proposition and,indeed, the evidence bears it out. I have found as a fact that he was impaired.

As described by various of the witnesses at trial, Mr. Cartewas flailing his arms about; walking in a disjointed manner; some of his speech was incoherent; and, it was obvious to those whoengaged with him, both before and after the offence, that he was "high". [101] I also accept that because of the presence of drugs in his system, Mr. Carte's thinking would have been impaired and, amongother things, this would have impacted the intent he formed when he chose to assault Mr.

Bussières. [102] However, I do not see the fact that Justin Carte was "high" when he committed the offence as a mitigating circumstance onsentencing. I do not find that it diminishes his moral blameworthiness. [103] Mr. Carte has been abusing drugs since the age of 17. It is clear from his criminal history that the use of drugs is a significantand obvious risk factor for him. When on drugs, he commits criminal offences. And, most importantly, this includes offences forviolence.

In the case before me, the presence of drugs is once again at the forefront. [104] Through his involvement in the criminal justice system, as well as his interaction with medical professionals, it is not possiblethat Mr. Carte would have failed to appreciate the risks associated with his continued drug use. And yet, in the days and hours leading tothe assault on Raphaël Bussières, he chose to again put himself in a position whereby he presented a danger to others. [105] I appreciate that Mr. Carte is an addicted offender.

I accept that abstaining from drug use is complex and requires intensiveintervention and support. However, Mr. Carte has had opportunities available to him and he chose not to avail himself of them. In myview, his moral blameworthiness in committing the manslaughter of Raphaël Bussières is significant. He consciously put himself in asituation for which violence was not only possible, but likely. [106] I agree with counsel that the factual matrix of R. v. Newton is the most closely aligned of the authorities put before me. There, aseven-year sentence was imposed. However, although Mr.

Newton had an extensive criminal record, it included no offences involvingviolence: R. v. Newton, para. 35. This is a distinguishing feature. Mr. Carte has ten prior convictions for violent offending. [107] I see this case as considerably different than the authorities put before me by the defence. [108] In R. v. Peters, a four-year, five-month sentence for manslaughter was informed by Gladue factors [R. v. Gladue, (SCC), [1999] 1 S.C.R. 688]. The offender was a 50-year old Aboriginal person and Residential School survivor. [109] In R. v. Johnson, a four-year sentence was also informed by Gladue factors.

While on bail, Mr. Johnson made concerted effortsto begin his path to rehabilitation; he was demonstrating insight into his offending behaviour; he was assessed as a "low to low-to-moderate risk to reoffend violently"; and, although he had a substantiated criminal history for violent offending, his last violent offenceoccurred seven years prior to the offence: R. v. Johnson, paras. 81–82. [110] In R. v. J.J.R., a third case cited by the defence, a six-year sentence was imposed for manslaughter. The facts surrounding theoffence involved mutual aggression.

There was evidence that the victim, who was larger than J.J.R., chased him and "appeared ready toengage in a fight": para. 11. He kicked at the offender immediately before the use of the knife that resulted in stab wounds: para. 13. The sentencing Judge found that the assault was "provoked": R. v. J.J.R., para. 37. [111] The same can be said for R. v. R.E.A., in which a jail term of five years and 10 months was imposed for manslaughter. A fightbetween the offender and the victim immediately preceded the stabbing, with the victim as the initial aggressor. Both men wereinvolved in the sale of drugs: R. v.

R.E.A., para. 2. [112] In R. v. McCulloch, the last of the defence authorities, a sentence of six years and two months was imposed for manslaughter. The victim was stabbed twice in the torso. One of the stab wounds was unintentional. Mr. McCulloch had a long criminal record, butonly one prior conviction for assault: R. v. McCulloch, para. 15. [113] In my view, Justin Carte has an offending background that is more aggravated than many of the offenders highlighted in thecases put before me. He may not have as many prior convictions as some of them, but he has a more extensive background for violentoffending.

Moreover, at the time he committed the offence against Raphaël Bussières, he was on probation for assault. And, the act thatled to the death of Mr. Bussières was unprovoked. [114] These are particularly aggravating features and speak not only to Mr. Carte's moral blameworthiness as an offender, but the riskhe presents to the public.

[ 115 ] I do not have a risk assessment before me. However, Mr. Carte has a long-standing history of substance abuse and violent offending. No one disputes that the two are connected. While subject to a court order arising out of a violent offence, he violently took someone's life while intoxicated by drugs. It took place on a downtown street; it was brazen––occurring with people milling about; and, it was for no apparent reason. When arrested, Mr. Carte had a knife in his possession.

He was prohibited from doing so. [ 116 ] As a matter of common sense, I infer that unless and until there is significant treatment and intervention with Mr. Carte's risk factors, the public requires protection from him. [ 117 ] Mr. Carte is remorseful; he has wanted to take responsibility for this offence from the date he was charged; he has indicated a desire for treatment; and, his family is supportive of him.

These are all positive steps toward his possible rehabilitation and ultimately, his constructive re-integration into the community. [ 118 ] I have taken these factors into account in determining what constitutes a proportionate sentence, mindful of the need to ensure that the seriousness of the offence does not overwhelm all other considerations. The Court must also give meaningful effect to the sentencing objective of rehabilitation and the principle of parity. [ 119 ] Balancing all relevant factors, I am of the view that a sentence of seven and one-half years is proportionate.

Without the mitigation, referenced above, a longer sentence would have been justified. See, for example, R. v. Coopper , 2002 BCCA 259 (eight years' imprisonment for manslaughter). IX. DISPOSITION [ 120 ] Mr. Carte, please stand. [ 121 ] For the offence of manslaughter against Rapha ë l Bussi è res, I sentence you to seven and one-half years' imprisonment (90 months). [ 122 ] You have been in custody awaiting trial and sentencing since November 26, 2016.

Counsel agree that pursuant to s. 719(3.1) of the Criminal Code , I should assign you pre-sentence credit in the amount of 19.5 months (594 days). [ 123 ] Once this credit is taken into account, it means you have 70.5 months remaining to serve on your term of imprisonment (or, just under six years). [ 124 ] There are also a number of ancillary orders I am mandated to make:

a) Pursuant to s. 109(2) of the Criminal Code , you are prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for 10 years after release from your term of imprisonment.

b) Under this same section, you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, running from the date of this order.

c) Manslaughter is a primary designated offence within the meaning of s. 487.04 of the Criminal Code . As such, pursuant to s. 487.05(1), I make an order authorizing the taking of a sample of bodily substance from you, for the purpose of forensic DNA analysis and inclusion in the national DNA databank.

d) Pursuant to s. 737(1) of the Criminal Code , I order that you pay a victim surcharge in the amount of $200 for this indictable offence. This surcharge must be paid by the end of December 28, 2017. If no payment is made by this deadline, you will be found in default and any custodial remedy for default that may be available, will run concurrent to your sentence. [ 125 ] Finally, pursuant to s. 743.2 of the Criminal Code , I order that a copy of these Reasons for Sentence be forwarded to the Correctional Service of Canada. "DeWitt-Van Oosten J."