R. v. Eustache, 2023 BCSC 1742

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Eustache, 2023 BCSC 1742 Date: 20230728 Docket: 108724-2; 108724-14; 108724-37; 108724-40 Registry: Kamloops Rex v. Jayden Michael Robert Eustache Nathan Anthony Townsend Darian Frederick Rohel John Wade Daviss Sean Garvil Scurt Restriction on publication: Pursuant to s. 486.5 of the C.C.C., and Inherent Jurisdiction Before: The Honourable Mr. Justice Dley Oral Reasons for Sentence Re Accused Jayden Michael Robert Eustache Counsel for the Crown: S.E. Firestone L.M. Winters Counsel for the Accused Eustache: J.

Michi Place and Dates of Trial/Hearing: Kamloops, B.C. July 24-27, 2023 Place and Date of Judgment: Kamloops, B.C. July 28, 2023 [ 1 ] THE COURT: Mr. Eustache pled guilty to a charge of manslaughter that arose out of a planned and brutal beating carried out in the milieu of the drug trade. [ 2 ] The Crown says that a fit sentence would be a period of incarceration for 10 to 12 years. The Crown also seeks an order pursuant to s. 753.1 of the Criminal Code of Canada [ Code ] designating Mr.

Eustache as a long-term offender and subject to a long-term supervision order for 10 years. [ 3 ] The defence argues that a fit sentence is one of eight years in jail and that the 10-year period urged by the Crown on the supervision order is too long. STATUTORY PROVISIONS [ 4 ] The proper procedure is, first, to decide whether Mr. Eustache is a long-term offender and, if so, then proceed to sentence on the manslaughter conviction followed by a determination of the supervision order. [ 5 ]

Section 753.1(1) of the Code sets out the basis upon which the court may find Mr. Eustache to be a long-term offender. That

section states: 753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. [ 6 ] Subsection (2)(

b) states that the court must be satisfied that there is a substantial risk that an offender will reoffend where the offender:

(

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons. [ 7 ] If the court finds the offender to be a long-term offender, then he must be sentenced to prison for no less than two years and subject to a long-term supervision order for not more than 10 years. CIRCUMSTANCES OF THE OFFENCE [ 8 ] Mr.

Eustache has endorsed an agreed statement of facts which include the following. [ 9 ] Troy Gold was a drug user who owed money to Nathan Townsend, a Kamloops drug dealer. Mr. Townsend suspected that Mr. Gold was involved in destroying his vehicles by fire on August 19 and September 29, 2018. [ 10 ] On October 1, 2018, Mr. Townsend directed Mr. Eustache and Darian Rohel to harm Mr. Gold, telling them to "fuck him up and get digits". There was no plan to use a weapon, but the vehicle that was driven to the site of the beating had a baseball bat in it. [ 11 ] On the day of the beating, Messrs.

Scurt, Rohel, Eustache, and Daviss picked up Mr. Gold at his home. Mr. Gold was told that beating was to be delivered, but the beating was intended for someone else. They drove to the Lac DuBois grasslands, a protected nature area approximately 12 km from Downtown Kamloops. [ 12 ] During the trip to the grasslands, Mr. Gold became concerned that he was in fact the target of the intended beating. Upon arriving at the scene, Mr. Eustache offered Mr. Gold a cigarette as a means of distracting him and putting him at ease. Mr. Eustache then struck Mr.

Gold in the head with an aluminum bat, just as the cigarette was being lit. [ 13 ] According to Mr. Eustache's account, he just kept beating him. [ 14 ] Mr. Eustache was the only member of the group who used the bat or any other object to strike Mr. Gold. He levelled multiple blows at various parts of Mr. Gold's body, including further strikes to Mr. Gold's head. [ 15 ] The other members of the group also participated in Mr. Gold's beating by hitting, kicking, and restraining him. Mr. Eustache threatened Mr.

Scurt with violence if he refused to participate in the beating, stating words to the effect, "Hit him or you're going to get hit." [ 16 ] Mr. Eustache directed the other members of the group to get a finger from Mr. Gold. One of Mr. Gold's fingers was severed by members of the group using bolt cutters. Mr. Eustache did not participate in the physical act of severing the finger. [ 17 ] Mr. Eustache directed the others to remove Mr. Gold's shoes before departing. Mr. Gold's pants were also removed, and Mr. Gold was left in the same area where the beating had occurred. [ 18 ] At the time the group left, Mr.

Gold was still alive, although he had lost and regained consciousness before they left. Mr. Scurt reported that Mr. Gold was seated on the ground and just collapsed as the group walked away. [ 19 ] Mr. Eustache put the bat into the bed of the truck. Mr. Gold's pants and shoes were also deposited in the truck. Mr. Rohel put Mr. Gold's severed finger into a sunglasses bag. [ 20 ] Later on October 1, Mr. Townsend, Mr. Eustache and Mr. Townsend's girlfriend went for dinner at Boston Pizza in downtown Kamloops. With them was Mr. Vaux, who was an associate of Mr. Townsend.

On the way to the restaurant and while talking out in front of the restaurant, Mr. Eustache told Mr. Townsend and Mr. Vaux details about the beating, including that he, Mr. Eustache, had struck Mr. Gold in the head and legs with a baseball bat and that Mr. Gold turned into a "little bitch" when they started removing his finger. [ 21 ] Mr. Townsend's girlfriend's observations from that night were that Mr. Eustache was in an “okay” mood and that he was laughing and joking around with the others. She recalls that they were acting completely normal. [ 22 ] Mr. Vaux said that he wanted to go to look for Mr.

Gold, but Mr. Townsend and Mr. Eustache rejected that proposal. Mr. Eustache described that Mr. Gold was complaining about getting drug sick on the drive up to the corral and laughed about that fact. [ 23 ] Mr. Eustache did say that Mr. Gold was alive when they left, but would not disclose the location of the beating to Mr. Vaux. [ 24 ] On October 3, Mr. Gold was reported missing to the RCMP. On October 6, the RCMP located items of clothing that Mr.

Gold was wearing; and on October 30, the RCMP located partial skeletal remains about 800 metres from the site of the beating. [ 25 ] An autopsy was performed on the remains, and the pathologist determined the cause of death to be evidence of blunt-force head trauma in the context of incomplete skeletonized remains with animal scavenging. [ 26 ] On October 18, Mr. Eustache was arrested and he remained in custody until January 4, 2021, when he was released on a release order with a surety.

He remained out of custody until December 1, 2021, when he was arrested for the assault and unlawful confinement of his girlfriend. LONG-TERM OFFENDER DESIGNATION [ 27 ] I will now turn to the issue of the long-term offender designation. [ 28 ] The circumstances of the offence, together with Mr. Eustache's personal circumstances, require a jail sentence of at least two years. Dr. Brink's report makes it clear that there has been a pattern of repetitive behaviour showing a substantial risk or likelihood that Mr.

Eustache will reoffend to the extent that at least injury will occur to other persons, but there is a reasonable possibility of eventual

control in the community, providing Mr. Eustache receives and complies with appropriate programming resources. [29] Mr. Eustache does not contest the application to have him designated as a long-term offender. There is no question thatMr. Eustache fits within the requirements of s. 753.1(1) as a long-term offender. It is not mandatory that a long-term offender designationbe made if the factors have been met. It is a discretionary designation. [30] In all of the circumstances of this case, I have concluded that it is appropriate to designate Mr.

Eustache as a long-term offender. [31] The remaining issue under this application then is to determine the length of time that Mr. Eustache shall be subject to asupervision order upon his release from prison. SENTENCING PRINCIPLES [32] I will deal first with the sentence as it relates to the manslaughter plea. [33] The principles and objectives of sentencing are set out in s. 718 of the Criminal Code, and they require the court: (

a) to denounce unlawful conduct … (

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

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [34]

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of the responsibility ofthe offender. [35]

Section 718.2 requires that a court imposing 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 offenceor the offender … (

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

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 … should be considered for all offenders,with particular attention to the circumstances of Aboriginal offenders. [36] The circumstances of this offence require that denunciation and deterrence be emphasized. At the same time, the court mustalways exercise restraint in sentencing and keep rehabilitation in mind. [37] Sentencing is an individualized process.

Each offender must be sentenced in the particular circumstances of the offencecommitted and the particular circumstances of the offender. [38] Other cases are of assistance to ensure that there is parity in sentencing, but the range of sentences must not be so rigidly appliedso as to eliminate the individualized nature of sentencing. [39] It is important to recognize that Mr. Eustache must be sentenced within the guidelines set out by the Criminal Code, and in hispersonal circumstances as an Aboriginal offender. In that respect, the court must pay heed to the instructions and considerations set out inR. v.

Gladue, (SCC), [1999] 1 S.C.R. 688 (S.C.C.) at paras. 77-78, and 80 (as referred to in R. v. Ladue, 2011 BCCA101, paras. 51 to 55): … As explained herein, the circumstances of aboriginal offenders are markedly different from those of other offenders, beingcharacterized by unique systemic and background factors. Further, an aboriginal offender's community will frequently understand thenature of a just sanction in a manner significantly different from that of many non-aboriginal communities.

In appropriate cases, some ofthe traditional sentencing objectives will be correspondingly less relevant in determining a sentence that is reasonable in thecircumstances, and the goals of restorative justice will quite properly be given greater weight. Through its reform of the purpose ofsentencing in s. 718, and through its specific directive to judges who sentence aboriginal offenders, Parliament has, more than everbefore, empowered sentencing judges to craft sentences in a manner which is meaningful to aboriginal peoples. In describing the effect of s. 718.2(

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must alwaysbe sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence,denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of theselatter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offencesand some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. …

As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence?

How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? [Emphasis in original.] [ 40 ] In R. v.

L.M. , 2008 SCC 31 (S.C.C.) [ L.M. ] at para. 38 , the Court said that a sentencing judge was not to take the subsequent period of community supervision into account when imposing the period of imprisonment: [38] … When the Crown applies to have an offender found to be a long - term offender, must the judge, in determining the length of the term of imprisonment, take the subsequent period of community supervision into account? I do not think so.

In my view, a distinction must be made between sentencing per se and the procedure for imposing a period of post - sentence supervision. [ 41 ] Subsequently, our Court of Appeal in R. v. Awasis , 2020 BCCA 23 at para. 125 , stated that the court may reduce a sentence to accommodate long-term supervision: [125] … However, as Bennett J.A. noted in R. v. Ladue … at para. 53 … the choice for the sentencing judge is not simply custody or not custody, but rather the possibility of reducing a sentence to accommodate subsequent probation, or in this case, long-term supervision.

Rehabilitation remains an important sentencing principle for dangerous offenders, as the question of whether a sentence less than an indeterminate period is appropriate will depend on the offender's prospects for addressing the issues that contribute to his or her risk. That said, the court in both Gladue and Ipeelee emphasized that s. 718.2(

e) can be seen as Parliament's direction to judges to inquire into the causes of the problem of the drastic overrepresentation of Aboriginal people in the prison population and criminal justice system, “and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process ”: [Citations omitted. Emphasis in Awasis . ] [ 42 ] At first blush, the comments in L.M. and Awasis appear to be in conflict as they relate to the reduction of the sentence to accommodate community supervision.

They are only in conflict if one considers the supervision order to be a deprivation of liberty and thus adding a consecutive aspect to the punitive nature of the prison sentence. The distinction is addressed in para. 49 of L.M. where the court stated: [49] Nevertheless, the judge determining the length of an offender's sentence of imprisonment will also receive the application to find the offender to be a long-term offender before passing sentence. As a result, the judge will quite likely tend to consider both decisions at the same time.

He or she may accordingly find it difficult to observe the conceptual distinction between the two decisions. Despite these practical difficulties, it is important to remain faithful to the distinction between sentencing and the imposition of a supervision period. A judge who confuses these two processes risks straying from the normative principles and the objectives of sentencing. A judge who does so would also neglect the specific objective of the procedure for finding an offender to be a long-term offender, which requires the application of different principles.

Parliament intended that the judge determine the appropriate sentence first. After doing so, the judge is to ask, in light of Parliament's objective of protecting the public, whether a period of supervision is warranted.

The period of community supervision cannot therefore be equated with a new period of deprivation of liberty consecutive to the one resulting from the sentence. [ 43 ] I, therefore, conclude that it may be appropriate to adjust the prison sentence to accommodate a long-term supervision order, provided that the adjustment is not based on the term of supervision being regarded as a deprivation of liberty. [ 44 ] The structure of a sentence has long taken into account the interplay between the punitive nature of a sentence such as imprisonment and the rehabilitative aspect of post-custodial supervision.

For example, it has not been unusual to have a sentence crafted so that the custodial time is less than two years in order to allow for a period of probation to be part of the sentence. [ 45 ] The resulting sentence, however crafted, must be fit and just in the circumstances of the particular offender, regardless of how the period of imprisonment and post-sentence supervision are determined. [ 46 ] The long-term offender assessment has a dual purpose; to protect the community and to assist in rehabilitation.

In L.M. at paras. 41 and 42 , the Court explained the unique nature of a long-term designation: [41] This Court has previously stated that a sentencing judge must, if satisfied that a community supervision order will make it possible “to reduce the threat to the life, safety or physical or mental well - being of other persons to an acceptable level ” , consider the option of finding an offender to be a long - term offender before finding him or her to be a dangerous offender … This is the only situation in which the Criminal Code requires a judge to consider the possibility of supervision before determining the appropriate sentence.

The decision is thus based on controlling a serious risk: if this objective can be attained in the community, an offender cannot be found to be dangerous and, as a result, be imprisoned for an indeterminate period … [42] Although they both contribute to assuring public safety, the dangerous offender and long - term offender designations have different objectives.

Unlike a dangerous offender … who will continue to be deprived of liberty, since such offenders are kept in prison to separate them from society … a long - term offender serves a sentence of imprisonment of two years or more and is then subject to an order of supervision in the community for a period not exceeding 10 years for the purpose of assisting in his or her rehabilitation … This measure, which is less restrictive than the indeterminate period of incarceration that applies to dangerous offenders, protects society and is at the same time consistent with … “the principles of proportionality and moderation in the recourse to sentences involving a deprivation of liberty" …

[Citations omitted.] [ 47 ] The Gladue factors apply to a long-term supervision order: Awasis at para. 122 . The impact of the Gladue factors on these types of proceedings was summarized in R. v. Shanoss , 2013 BCSC 2335 at para. 164 : [164] In my view, it would be an error to limit the application of the Gladue factors in a dangerous offender proceeding in order to prioritize protection of the public as a sentencing objective. The unique circumstances of the Aboriginal offender must be given careful consideration in every sentencing.

The fundamental principles of sentencing in s. 718.1 and s. 718.2 apply with equal force to a dangerous offender proceeding. The moral blameworthiness of the offender is a fundamental consideration and the Aboriginal heritage of an offender often has a direct and substantial impact on their moral culpability for the offence. A person who grows up in a culture of alcohol and drug abuse is less blameworthy than a person who commits a crime despite a positive childhood and upbringing.

Further, the systemic underlying criminogenic factors affecting an Aboriginal offender may respond better to Aboriginal-focused rehabilitation and restorative justice models. Re-acquainting the Aboriginal offender with his culture may reduce his risk to re-offend far more successfully than more generalized treatment programs. As Caldwell J.A. says in Standingwater , the existence of Aboriginal-focused treatment may give the sentencing judge confidence that a lesser sentence than a dangerous offender designation will adequately protect the public. MR. EUSTACHE’S PERSONAL CIRCUMSTANCES [ 48 ] I will now turn to Mr.

Eustache's personal circumstances. [ 49 ] Mr. Eustache is 29 years of age. He is single and a member of the Simpcw First Nation. His history is detailed in the Gladue report that has been prepared and filed with the court on April 14, 2022. It discloses that many residents of the Simpcw Nation are survivors of the Kamloops Indian Residential School. Many of Mr. Eustache's family members, including grandparents and great grandparents, attended the school, as well as the Kuper Island Residential School near Chemainus.

The extensive legacy of the residential school system remains within the Simpcw community as demonstrated through high levels of violence, addictions, and disrupted parenting capacity. [ 50 ] Shortly after his birth, Mr. Eustache's parents broke up. He went back and forth between both houses. There was alcoholism at both places. Mr. Eustache recalled witnessing his mother being physically assaulted, and that he was abused by various boyfriends and girlfriends of each of his parents. He described getting whipped with belts, mostly towards him and his sister; he tried to protect her. [ 51 ] Mr.

Eustache also revealed that he had been sexually abused at the age of eight. [ 52 ] Mr. Eustache went to school in Kamloops. He indicated that he was repeatedly kicked out of school for behavioural issues. [ 53 ] At the age of 12, Mr. Eustache was recruited by an uncle to sell marihuana for the Redd Alert gang. At the age of 13, he began smoking marihuana and hash; and at 14, began drinking alcohol. He escalated to selling and using crack cocaine. [ 54 ] When Mr. Eustache was 21 years of age, he witnessed his stepfather committing suicide.

He found his stepfather hanging with an extension cord wrapped around his neck. [ 55 ] Mr. Eustache described his life with gangs. He said he had been attacked by rival gang members, stabbed, run over, hit by cars, been hit by baseball bats and two-by-fours. [ 56 ] Mr. Eustache's father described his son's education. He said that his son made it to Grade 8 and then went to Four Directions for Grades 9 to 12. He said that his son was a troubled student and, even though he did not have the bare basics, the school just simply wanted him to pass and get him out of the system.

His father says that his son has made some upgrades in jail, changed his life, and his direction has changed. [ 57 ] Mr. Eustache was diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder. [ 58 ] His father made the following comment [as read in]: At age 12 or 13, he was more out of control at that point and began getting into trouble. He was going his own way. He was given a sentence and then breached. He was in and out of incarceration most of his life. It kept getting longer. He was brought up more by the correctional system than us. [ 59 ] Mr.

Eustache's mother shared many of the same observations that I have described. She also discussed the impact of gang life on her son. She said that he wanted to be accepted by gang members, no matter what that meant. [ 60 ] Mr. Eustache indicated that he has focused on managing his anger. He said that he is now quick to check himself and apologize. He discussed the impact of alcohol use; that he no longer wanted to drink because he knew the effects that alcohol had on him. [ 61 ] When he returned to custody in December of 2021, Mr.

Eustache chose to be self-sanctioned in order to be away from the gangs at the correctional centre. [ 62 ] Mr. Eustache's paternal grandfather referred to his grandson's alcohol use and said that a lot of Mr. Eustache's problems occurred because he drank and that he did not have control over himself when he consumed alcohol. [ 63 ] Ms. Hodgson, who had been Mr. Eustache's probation officer, had supervised him as recently as 2021. She commented on changes and said: Before, his focus in custody was on power, status, and peers. Now he wants to make changes for himself; maybe he doesn't know how. [ 64 ] Ms.

Andrews, a correction officer at the correctional centre, says that Mr. Eustache has participated in the Living Without

Violence program and has done well and received certificates for his participation. [ 65 ] The Gladue writer has made some observations and recommendations with respect to restorative justice and community treatment options that Mr. Eustache has indicated that he would welcome the opportunity to participate in. Those include the Aboriginal healing unit at Pacific Institution, the former Elbow Lake institution at Harrison Mills, and other programs that are detailed in that report. [ 66 ] Mr. Eustache has an extensive record, both as a youth and adult. Starting in 2010, Mr.

Eustache's record includes 16 failures to comply with court orders or undertakings prior to this offence and two since then. He has four violence-related offences, including aggravated assault and assault causing bodily harm prior to this offence and two since then. [ 67 ] Of particular note is the conviction in 2015 with respect to assault causing bodily harm to Mr. Bennett. The victim impact statement that was filed with the court in that case indicated that the victim, Mr.

Bennett, was essentially in a vegetative state for about 10 months after the assault and subsequently passed away. [ 68 ] In September 2021, when Mr. Eustache was convicted of assault with a weapon and unlawful confinement; the victim was his girlfriend. Those offences occurred while Mr. Eustache was on bail regarding this manslaughter charge. [ 69 ] Mr. Eustache has had the benefit of an assessment by the court-appointed forensic psychiatrist Dr. Brink, who prepared a report dated October 3, 2022. [ 70 ] Dr. Brink has provided a detailed history and assessment of Mr. Eustache. Dr.

Brink had access to numerous relevant institutional records, including the agreed statement of facts, the criminal history, and the Gladue report. Dr. Brink interviewed Mr. Eustache twice before providing his findings. [ 71 ] Dr. Brink concluded that Mr. Eustache's psychiatric and behavioural difficulties were best conceptualized in three areas:

a) Alcohol and Substance Use Disorder;

b) Antisocial Personality Disorder/Traits; and

c) Major Depressive Disorder. [ 72 ] Dr. Brink referred to the treatment needs and treatability, beginning at p. 23 of his report. He said that the risk relevant treatment in Mr. Eustache's case was substance abuse and violent offending programming. [ 73 ] At para. 117, Dr. Brink states: There are moderate prospects of Mr.

Eustache attaining long-lasting benefits from high intensity substance use and violent offender programming, but it is uncertain in my opinion, whether this will be risk reducing should he again engage in unsuitable relationships with substance-using persons, and opportunity to earn “easy money”, an extremely high risk scenario for him. The types of benefits that can reasonably be foreseen from a broadly focused treatment program would include further development of intimate and non-intimate relationships, the development of feasible community plans including goals for housing, vocational development, and work.

It would be essential that the program equip him with the requisite skills, insight, and motivation to develop social supports that are more binding and sober in their habits. [ 74 ] At para. 119, he states: With respect to violent offender treatment, the challenging issue in Mr. Eustache's case will be determining what types of offender treatment are available and would best suit his needs. … Mr.

Eustache requires a program of high intensity that targets core issues, with ongoing professional support outside program hours to keep him focused on the task at hand. … [ 75 ] At paras. 121 to 123, he states: Such programs would provide opportunity for him to address deficits regarding his level of insight, clear identification of high risk scenarios, his impaired judgment when in high risk situations, and a much-needed, enhanced ability to internalize such acquired skills. His past record is clear indication that this poses a significant therapeutic challenge. Mr.

Eustache needs alcohol and substance use programming of high intensity. While it is encouraging that he has been abstinent while incarcerated, this will remain a high risk factor for future reoffending. Mr. Eustache requires psychiatric follow-up to monitor his depression, medication compliance, and treatment response. … Mr. Eustache has a history of serious self-harming behaviours when emotionally distraught and he will require monitoring of his emotional state, especially when in crisis. This risk will be relevant in the event of future disappointment, reoffending, and relapse into substance use. [ 76 ] Dr.

Brink continued under "Community Risk Management Considerations" and said at paras. 126 to 129: Past behaviour and response to supervision often are helpful predictors of future response; and in Mr. Eustache's case, his failure to respond to supervision previously does not instil confidence. He offended as a youth and as an adult, and while on supervision, failed on conditions of bail, probation, and parole, almost immediately after release. He breached several of his release conditions and despite the best attempts at intervention by his probation officers, required repeated returns to custody.

It is evident that neither support nor supervision through the probation system, succeeded to curtail his aberrant, chaotic, and marginalized lifestyle, and could not prevent upon his last release in 2019, further breaches of probation and another violent offence that resulted in the death of the victim.

Mr. Eustache would need to demonstrate the ability to adhere to rules and expectations to a much greater degree for community supervision to be successful. Even under federal parole release with residency conditions, Mr. Eustache would have opportunities, albeit relatively limited, to access high-risk situations with potential for relapse into substance use and potential for reoffending. Avoidance of reoffending would therefore, rely heavily on Mr. Eustache to manage his risks during periods of stress and opportunity for reoffending.

It is my opinion that without new and robust personal, interpersonal, and vocational skills, his risk for engaging in substance abuse, ill-advised relationships, socialising with criminal acquaintances, and reoffending is high. Given Mr. Eustache's risk of violent reoffending and his ongoing vulnerability to alcohol and illicit substances, as well as the uncertain prospects for risk reduction from addictions and violent offender treatment, the safest community management strategy is long-term legal supervision. Given the facts in Mr.

Eustache's case, he needs a lengthy period on legal supervision that will need to be highly structured with psychiatric and psychological supports in place. … [ 77 ] At para. 131, Dr. Brink continues: Given the nature and uncertainties of case specific factors, it is not difficult to provide a reasonably accurate opinion regarding his risk beyond the near term. Based on his present clinical and risk profile, his current risk for violent reoffending over the next five to 10 years without treatment and with supervision only, would be in the high range.

It would be reasonable to assume that his risk might extend at least 10 years into the future and would be reduced with effective treatment and supervision to a moderate level. A risk forecast in the longer term would depend on the outcome of the identified case specific factors noted and his actual course while under supervision. [ 78 ] Mr. Eustache has expressed his remorse to the court, apologized for his actions that ultimately led to Mr. Gold's death, and has committed to doing better. However, his comments are eerily similar to what was encountered in his 2013 sentencing for the aggravated assault of Mr.

Styles. The presentence report filed in that case stated the following at page 7: Dana Boyce believes her son has no impulse control, that he acts first and is remorseful later about his actions, swearing he will change and never get in trouble again. After a period of time, he resorts to antisocial behaviours and the cycle repeats itself. Mr. Eustache reports he recognizes his negative thoughts lead him to drink alcohol, which leads him to commit crimes, and ultimately results in his incarceration.

Despite this recognition, he has done little to break these cycles of crime and violence and says he does not know what interventions will help him from reoffending. [ 79 ] Perhaps now is the time in Mr. Eustache's life that he can fully commit to changing his ways so as to break the cycle that has resulted in repeated incarcerations. There is always hope. Despite the legacy of colonization and Residential Schools, Mr. Eustache's grandparents and parents have addressed the clutches of alcohol abuse. There is no reason why Mr. Eustache cannot do likewise with the appropriate assistance. [ 80 ] Dr.

Brink said that there can be a number of attempts and failures before treatment can be effective. The level of motivation is the crucial factor for rehabilitative programs to have a prospect of success. [ 81 ] Of note is Mr. Eustache's description of the events to Dr. Brink. His version was much tamer than the facts that he has admitted to this Court. It was, as Dr. Brink described, a "sanitized version of events". That may be an indication that Mr. Eustache still does not appreciate the gravity of his actions that ultimately resulted in Mr.

Gold's death. [ 82 ] On the spectrum of manslaughter offences, this was much closer to near murder than an accident. The beating was savage and brutal. It was planned and carried out with ruthless efficiency. Mr. Eustache was the driving force. He urged and demanded participation from the others to also inflict serious injury to Mr. Gold. [ 83 ] Mr. Eustache's reaction later in the evening was particularly callous. He joked about Mr. Gold's condition and refused to disclose his whereabouts to Mr. Vaux, who had expressed concern about Mr. Gold's safety in the wilderness. Mr.

Eustache was indifferent as to the consequences of the beating and leaving Mr. Gold without clothing in an area inhabited by wildlife. [ 84 ] Mr. Eustache's blameworthiness was at the upper end of the spectrum. [ 85 ] The Gladue factors are important considerations. [ 86 ] There is no question that Mr. Eustache's upbringing has had a negative influence. He was raised in an environment of instability, alcohol abuse, physical and sexual abuse. He has suffered from the generational impacts of colonization, all of which is described in the Gladue report. [ 87 ] The result is that Mr.

Eustache's moral culpability, while high, is less than would be the case of a non-Aboriginal offender. The Gladue report provides an insight and understanding as to why Mr. Eustache behaves in a manner that attracts criminal behaviour. His exposure to violence, being subjected to abuse, and being part of an unstable family racked with alcohol abuse has shaped who he is. [ 88 ] The general range of sentence for manslaughter offences is four to 15 years' imprisonment: R. v. Green , 2001 BCCA 672 at para. 10 . The general range for young Aboriginal offenders without a criminal history is three to eight years: R. v.

Pop , 2013 BCCA 160 at para. 25 . [ 89 ] The Crown has provided a number of cases that give guidance as to the type of sentence to be imposed in these circumstances. They are: R. v. Plowman , 2015 BCCA 423 ; R. v. Wilson , 2001 BCSC 1653 ; R. v. Jones , 2019 BCPC 6 ; R. v. Aburto , 2009 BCCA 446 ; and R. v. Anderson , 2018 BCSC 2528 . [ 90 ] All of these cases, while distinguishable on their facts, support the Crown's proposed range of 10 to 12 years' imprisonment. [ 91 ] The question is where a fit sentence in these circumstances lands within the proposed range.

[ 92 ] I must consider the mitigating and aggravating factors. [ 93 ] The mitigating factors are: 1) The guilty plea: the plea was a significant matter as it saved a lengthy and complex trial and the associated costs therewith. 2) Mr. Eustache's age: Mr. Eustache is still a relatively young man with hope and time for rehabilitation. He was 24 years old at the time of the offence and without the benefit of any meaningful programming previously. 3) Expression of remorse: Mr. Eustache has expressed his remorse and apologized for his behaviour.

He has indicated that he genuinely believes that it is time to make a change in his life and has taken some steps in that respect. He has transferred out of the unit at the Kamloops Regional Correctional Centre which had him in proximity to gang members, and he has pursued sobriety and faith. 4) Family support: It is apparent from the letters of support and the submission made by counsel that Mr. Eustache still has the support of his family. His family has taken difficult steps to cope with substance abuse issues and are supportive of Mr.

Eustache in his efforts at rehabilitation. [ 94 ] The aggravating factors are: 1) This was a planned beating, carried out with the strength of numbers, in a remote area where there was no prospect of aid for the victim. 2) Mr. Eustache used a baseball bat to beat his victim with indifference as to the extent of the injuries being inflicted. 3) Mr. Eustache was the directing mind of the group that participated in the beating and he demanded that others join in, even though they may have been reluctant to do so. 4) The beating was carried out in the context of the drug trade. Mr.

Eustache was a hired thug, to be paid off in money and drugs. 5) The beating was brutal and savage. The victim did nothing to precipitate the attack and did not fight back. Mr. Eustache orchestrated the dismemberment of the victim, by directing that one of his fingers be cut off and delivered as proof of the beating. 6) Mr. Eustache was indifferent as to Mr. Gold's condition, having left him in a remote location without clothing. He refused to disclose the location of the attack, when it was apparent that Mr. Vaux was concerned about Mr. Gold's ability to survive. 7) Mr.

Eustache has a criminal history of violent offending. 8) Mr. Eustache was on probation at the time of the beating. He had been released from a prison sentence of two years less a day only days before he beat Mr. Gold. [ 95 ] The others who were involved in this beating have been sentenced. Mr. Townsend received a six-year term of imprisonment. Mr. Townsend is Indigenous. He had no record for violence. Although he was the impetus for the beating, he did not intend for a weapon to be used. Mr. Rohel received a seven-year sentence. He had no record for violence and took the police to the scene to try and locate Mr.

Gold. Mr. Scurt received a four-year sentence. He is Indigenous. He had a lesser role in the beating and immediately cooperated with the police. [ 96 ] Mr. Eustache's role in the beating places him at a much higher level of moral culpability than the others. [ 97 ] Mr. Eustache's conduct places him at the upper end of the sentencing range, but for Gladue considerations. As I have indicated, the Gladue factors reduce Mr. Eustache's moral culpability. [ 98 ] Deterrence and denunciation are the primary factors that guide the sentencing in these circumstances.

However, the focus on Aboriginal-based restorative justice measures and rehabilitation, both while in custody and as a result of the long-term supervision order, reduce what would otherwise be a longer period of imprisonment. [ 99 ] Dr. Brink stated that a minimum of four to five years in custody would be required for Mr. Eustache to access the programs that he needs. Since his most recent arrest in December 2021, Mr. Eustache has not had the kind of programming that would address his behavioural impediments to re-entering the community. That is not to say that he has been idle. Mr.

Eustache has taken some programs dealing with violence prevention. However, it is apparent that he needs intensive programming to effectively address rehabilitation. [ 100 ] A 12-year sentence would not take into account Mr. Eustache's personal circumstances and the Gladue factors. A fit sentence is for a period of incarceration for 10 years. LONG-TERM SUPERVISION ORDER [ 101 ] I now turn to the long-term supervision order. [ 102 ] Dr. Brink was of the view that if all programming options were executed to their optimal level, then five years of long-term supervision within the community would be sufficient.

However, he cautioned that Mr. Eustache's history tended to indicate that the optimal level was not realistic, and therefore a longer period of community supervision was required. Dr. Brink said the following at the conclusion of his report: I recognize that the court has available to it other sentencing options and considerations, but from a treatment and rehabilitation perspective, I would conclude that a cautious approach and one that affords Mr. Eustache the best chance of future success and containment of his risk is one that places him on legal supervision for as long as possible.

[ 103 ] Mr. Eustache is at a high risk to reoffend without proper and strong support. He has done well while in custody, but history suggests that he will struggle if left on his own. He is not so entrenched in a pro-criminal attitude that engagement in the appropriate treatment is futile. He must be given every opportunity to succeed. A longer period of supervision will help in that regard. [ 104 ] A long-term supervision order is not to be regarded as punitive. It serves to rehabilitate an offender and protect the community.

A rehabilitated offender benefits and protects the community. [ 105 ] It is important for Mr. Eustache to have the benefits of all programming, with particular emphasis on restorative justice programs for Indigenous offenders. Some of those programs are set out in the Gladue report (starting at p. 13). There are likely others that, too, would be of immense support. It is best for the Corrections Branch to determine which are most suited and beneficial for Mr. Eustache. [ 106 ] The Corrections Branch has the expertise and experience to make that determination. Programs and facilities change.

As a result, I decline to make specific recommendations as to the particular programs that should be provided to Mr. Eustache, other than to express my hope that there are Indigenous-focused programs that he can access. [ 107 ] The best rehabilitative supervision for Mr. Eustache is the longest period of time available. I therefore conclude that a 10-year supervision order is appropriate.

SUMMARY [ 108 ] In

summary, Mr. Eustache shall be imprisoned for 10 years with a long-term supervision order for a period of 10 years after his release from prison. [ 109 ] Manslaughter is a primary designated offence. Mr. Eustache shall provide a sample of his DNA within 30 days, pursuant to s. 487.051 of the Code . [ 110 ] Pursuant to s. 109 of the Code , Mr. Eustache shall be prohibited for life from possessing the items set out in that section. [ 111 ] In order for Mr. Eustache's classification proceedings to be expedited, the following documents shall be attached to the warrant of committal: 1) the Gladue report; 2) Dr.

Brink's report; 3) the CPIC and JUSTIN criminal history printouts; and 4) all other documents in Exhibit 2, being the reports from prior hearings. [ 112 ] Mr. Eustache has a long road ahead of him. It is not in the public interest to impose a victim fine surcharge and I decline to do so. “S.D. Dley J. ” DLEY J.