R. v. Sanford, 2023 BCSC 1956

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Sanford , 2023 BCSC 1956 Date: 20231107 Docket: 110090-03 Registry: Kamloops Rex v. James Dylan Sanford Before: The Honourable Justice Donegan Oral Reasons for Judgment on Sentence Counsel for Crown: A. Buchanan D. Heighes Counsel for Mr. Sanford: J. Michi J. Killoran Place and Date of Hearing: Kamloops, B.C. July 4, 2023 Place and Date of Judgment: Kamloops, B.C.

November 7, 2023 Table of Contents Introduction .. 2 Circumstances of the Offence .. 3 Circumstances of the Offender .. 10 Victim Impact .. 12 The Law ... 12 General Principles of Sentencing . 12 Principles of Sentencing Applied to Manslaughter 15 Application of the Law to This Case .. 26 Aggravating Factors . 26 Mitigating Factors . 27 Gravity of the Offence . 27 Mr. Sanford’s Moral Culpability . 28 Objectives of Sentencing . 29 Decision .. 30 Introduction [ 1 ] James Sanford was charged with second degree murder in relation to the death of Daniel Myles.

On January 26, 2023, a jury convicted him of the lesser and included offence of manslaughter. He is here today to be sentenced. [ 2 ] The Crown seeks a sentence in the range of six to eight years imprisonment. The defence seeks a sentence of two years less a day imprisonment followed by a three year probationary period.

[ 3 ] To craft a proportionate sentence in accordance with the purpose, principles, and objectives the law requires in each unique case is a difficult task. Although this task is governed by s. 718 of the Criminal Code , R.S.C. 1985, c. C-46 [ Code ], and although the objectives set out in those sections guide the court and are clearly defined, it nonetheless involves by definition the exercise of a broad discretion by the court in balancing all of the relevant factors in order to meet the objectives being pursued in sentencing: R. v. Lacasse , 2015 SCC 64 at para. 1 .

Fundamental to this task is to ensure the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 4 ] I will begin by considering the circumstances of the offence in the context of a jury trial . Circumstances of the Offence [ 5 ] How the jury arrived at its verdict is not known. The trial was very brief. The Crown tendered evidence from the following sources: (

a) a video recording compilation that captures, to some extent, the physical interactions between Mr. Sanford and Mr. Myles in the area where Mr. Myles was killed; (

b) extensive admissions of fact, some relating to a history of threatening or violent behaviour by Mr. Myles toward Mr. Sanford and/or his girlfriend and their property, including their pets; (

c) testimony and admissions from various police witnesses about their scene observations and items seized; (

d) testimony and admissions about conversations with Mr. Sanford at the scene; (

e) expert evidence from a police dog handler and the pathologist who conducted the autopsy of Mr. Myles; and (

e) a video- recorded statemen taken of Mr. Sanford while in custody the day following his arrest. [ 6 ] My task is to come to findings based on the evidence and verdict to serve as a factual basis in assessing a fit and appropriate sentence: R. v. Maulen , 2022 BCSC 468 at para. 2 . Section 724(2) of the Code , informed by common law principles, governs my approach to this task. [ 7 ] Section 724(2) of the Code provides: 724

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

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

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. [ 8 ] In R. v. Ferguson , 2008 SCC 6 , the Court outlined the procedure and principles that are to inform this fact-finding process following a jury verdict. The Nova Scotia Court of Appeal, in R. v. Landry , 2016 NSCA 53 , helpfully summarized these principles at paras. 48-49: [48] Both before and after the 1996 Criminal Code amendments and the decision of the Supreme Court of Canada in R. v.

Ferguson , the law was fairly clear: following a jury verdict, an accused is not entitled to be sentenced according to the most lenient view of the circumstances of the offence consistent with the jury verdict. A trial judge must determine the facts for the purpose of imposing sentence guided by two fundamental principles: a trial judge must be satisfied that the evidence establishes aggravating facts beyond a reasonable doubt, and the facts must not be inconsistent with the jury's verdict (in addition to Brown and Ferguson , see: R. v. Gauthier (1996), 78 B.C.A.C. 85 at paras. 23-24 ; R. v.

Englehart , [1998] N.B.J. No. 150 (C.A.) ; R. v. Roncaioli , 2011 ONCA 378 at paras. 58-61 ). [49] I would distill the rules for a court to follow as: 1. The sentencing judge shall accept as proven all facts, express or implied, that are essential for the jury's guilty verdict. 2. When the jury finding is ambiguous, the sentencing judge should not attempt to follow the logic of the jury. Instead, he or she must make their own independent determination as to the relevant facts. 3. The sentencing judge should only find those facts necessary to permit the proper sentence to be imposed. 4.

The sentencing judge may not find as fact things that were rejected by the jury's verdict. 5. For any aggravating fact, the sentencing judge must be satisfied that the evidence is sufficiently cogent to enable her to find it proved beyond a reasonable doubt. [ 9 ] Applying these principles, I find the evidence at trial establishes the following facts. [ 10 ] At the time of the offence, Mr. Sanford lived in room #109 of the Acadian Inn in Kamloops. He lived there with his girlfriend, Lindsey Bartlett, and their pets, a dog and a cat. Mr. Myles had a girlfriend at the time as well. Her name is Makayla Maskwa.

Makayla’s mother’s name is Chandie Maskwa. [ 11 ] Mr. Myles and Mr. Sanford were acquainted. Both men were involved in high-risk lifestyles involving illicit substances. I am satisfied the evidence proves beyond a reasonable doubt that Mr. Sanford was involved in both the use and sale of illicit substances at the time of the offence. [ 12 ] On September 12, 2020, shortly after 6:30 a.m., Mr. Sanford stabbed Mr. Myles once with a knife on the street outside of Mr. Sanford’s residence, causing his death. This was not a random occurrence.

It occurred after the culmination of several weeks of threatening and violent behaviour by Mr. Myles toward Mr. Sanford, his girlfriend and their pets. Mr. Sanford was living in fear of Mr. Myles. [ 13 ] In the few months before his death, Mr. Myles and Makayla were having relationship difficulties. In efforts to locate her, Mr.

Myles intermittently lashed out at those he thought were keeping her whereabouts concealed, including her mother, Chandie Maskwa, Mr. Sanford, and Ms. Bartlett. [ 14 ] Between June 2, 2020 and July 3, 2020, Mr. Myles periodically sent Chandie Maskwa text messages that related to his attempt to locate Makayla. In several of these messages, Mr. Myles threatened to kill or harm various people associated to Makayla and also threatened to burn their property or smash their windows. [ 15 ] On June 26, 2020, Mr. Myles sent a series of threatening text messages to Mr.

Sanford, again related to his efforts to locate Makayla. They included threats to kick in Mr. Sanford’s door, smash his window, spray (a reference to bear spray or mace) his room, take his dog, hurt Mr. Sanford, cut Mr. Sanford’s throat, stab Mr. Sanford, and kill Mr. Sanford. To demonstrate his commitment to fulfilling these threats, Mr. Myles also wrote that he was “totally prepared to go to jail tonight u little goof”. [ 16 ] On August 17, 2020, Mr. Myles sent Mr. Sanford more threatening text messages, again related to his efforts to locate Makayla. He sent Mr.

Sanford a photograph of an axe, a long-barrelled firearm with ammunition next to it, and other items, and wrote that the items depicted in the photograph were “all gonna fit in my bag”. He also wrote that Mr. Sanford “better give her up” (referring to Makayla), that he was “5 away” from Mr. Sanford’s home, that he had lost his “fucking mind” and that Mr. Sanford was a “dead mother fucker”. [ 17 ] The next day, August 18, 2020, Mr. Myles sent a text message to Chandie Maskwa that read “Hey Chandie, so I’m heading over to James Sanford’s to shoot that ginger goof…This isn’t me bullshitting”. Mr.

Myles also made good on one of his June 26 text message threats to Mr. Sanford that day. Mr. Myles attended at the Acadian Inn that day. While holding a large knife in his hand, he threw a rock at Mr. Sanford’s room and smashed out one of the windows. Mr. Myles was photographed by the manager of the Acadian Inn committing this crime. [ 18 ] The day after this event, August 19, 2020, Mr. Myles made good on another one of his June 26 threats to Mr. Sanford. He re- attended the Acadian Inn and sprayed mace through the window, discharging the can’s contents into Mr. Sanford and Ms. Bartlett’s room. Mr.

Myles also confronted Ms. Bartlett outside of the room, demanding to know whether Makayla was inside. Ms. Bartlett told Mr. Sanford about this confrontation, including that she and their cat had been “bear-maced” by Mr. Myles that day. [ 19 ] Ms. Bartlett reported both the August 18 and 19 occurrences to police. Mr. Myles was arrested on September 4, 2020 in relation to the August 19 incident. He was charged with uttering threats and possession of a weapon (bear spray) and was released that same day on a Release Order, with conditions prohibiting him from having any contact with Ms.

Bartlett or Makayla and from attending at the Acadian Inn. [ 20 ] Mr. Sanford heard from others in the community that Mr. Myles was calling him a “snitch” in relation to this arrest. [ 21 ] During the evening of September 11, 2020, Mr. Sanford and Ms. Bartlett had the window of their home smashed out with a rock again. Mr. Sanford believed, reasonably in my view, that Mr. Myles was the perpetrator. At approximately 11 p.m. that same evening, Mr. Sanford sent Chandie Maskwa a text message, complaining that Mr. Myles had smashed the windows of their home again. Fearing that Mr.

Myles would return to spray mace through the damaged window again, he conducted a temporary repair of the window. [ 22 ] Chandie Maskwa replied to Mr. Sanford’s message at 12:40 a.m. on September 12, 2020. She told Mr. Sanford that Mr. Myles had been at her residence the night prior and that she caught him walking up to her house with a jerry can full of gas “to light our house on fire like he threatened to do”. She also wrote “thank god mike went there when he did or else he (referring to Mr. Myles) would have carried out his plans”. [ 23 ] About four or five hours after the rock came through their window, Mr.

Sanford smelled gasoline in his room. As the odour seemed to originate from the back porch area, Mr. Sanford looked out the back window. He saw that the porch was wet with a substantial amount of gasoline. He believed, again quite reasonably in my view, that it was Mr. Myles who had poured gasoline on their back porch. When police searched the area of the back porch and alleyway that morning, they located an empty jerry can beneath the area of the back porch. [ 24 ] Given all of the evidence I heard in this trial, including Mr.

Myles’ recent history with this specific type of threatening behaviour, his recent history of threatening behaviour and animosity toward Mr. Sanford, and his presence on the property shortly after the gasoline was deposited, I am satisfied beyond a reasonable doubt that it was Mr. Myles who deposited the gasoline on the back porch of Mr. Sanford’s home. He did this at a time when Mr. Sanford, Ms. Bartlett and their pets were inside. [ 25 ] After sitting inside the room for awhile, not knowing if Mr. Myles was going to try to light the place on fire or what was going to happen, Mr. Sanford made a decision.

He made a decision to go outside with his dog. He took a large knife, in a sheath, with him. The time was shortly after 6:30 a.m. [ 26 ] Mr. Sanford saw Mr. Myles fairly quickly after leaving his room. He first saw Mr. Myles walking from the direction of the back alley behind his home. He handed his dog’s leash to a person nearby as he crossed Nicola Street and began running toward 13 th Avenue – toward Mr. Myles. There was another person, Brooke Scriver, in the immediate area. From the video compilation, Mr. Myles appears to strike Mr. Scriver, but it is unclear if Mr. Sanford saw this. Mr. Sanford chased Mr.

Myles. Mr. Myles ran from him and tried to get into a taxicab parked on Nicola Street, but was unable to do so because of Mr. Sanford’s pursuit. Mr. Sanford could not have known this at the time, but Mr. Myles had called the taxicab a short time earlier. [ 27 ] Mr. Sanford chased Mr. Myles down Nicola Street. As he ran from him, Mr. Myles dropped items he had been carrying, such as his backpack. Mr. Scriver picked up the backpack and walked away. [ 28 ] Mr. Sanford swiped at Mr. Myles with the knife as he chased him. Mr. Myles fell to the ground in front of the Acadian Inn, allowing Mr.

Sanford to catch up to him. Mr. Sanford kicked Mr. Myles as he was on the ground. Mr. Myles made an effort to get up. At some point during this exchange, Mr. Sanford stabbed Mr. Myles once with the knife. When, precisely, this occurred during their very

brief exchange is unclear from the video recording. I can make no determination about the positioning of their bodies at the time the fatal wound was inflicted. What is clear from the resulting injury, however, is that Mr. Myles was stabbed in his back, on the right side. The knife penetrated and fractured his right 11 th rib and injured the lower lobe of his right lung, causing significant blood loss and, ultimately, death. Given the frenzy of the moment, I do not infer that Mr. Sanford intended to stab Mr. Myles in the specific location of Mr. Myles’ body that he did. [ 29 ] After Mr.

Myles was stabbed, the men walked away from one another. Mr. Sanford paced the parking lot in front of his room, eventually sheathed the knife and went inside his room. Police later seized this knife from Mr. Sanford’s room (Exhibit 9). [ 30 ] Mr. Myles walked away from the scene and across Columbia Street, holding his right lower back. He walked up the stairs of a residence and banged loudly on the door, waking the homeowner, before ultimately collapsing. The homeowner placed a 911 call at 6:36 a.m. Police and ambulance arrived quickly. Mr.

Myles was taken to nearby Royal Inland Hospital, but life saving measures were unsuccessful and he was pronounced dead at 7:08 a.m. [ 31 ] At approximately 8 a.m., one of the investigating police officers who was canvassing the area for witnesses saw Mr. Sanford walking his dog nearby. She stopped him and asked him a few questions. He had changed his clothes and denied knowing anything, but did offer that his room smelled like gasoline that morning. A short time later, police determined that Mr. Sanford was arrestable in relation to Mr. Myles’ death.

They located him nearby, still walking his dog, and arrested him for murder at 8:34 a.m. [ 32 ] The next day, while in custody, Mr. Sanford was interviewed by police. He initially denied any involvement in the matter, but ultimately made some admissions. He discussed not wanting to stab or kill Mr. Myles. He discussed protecting his family and about feeling threatened by Mr. Myles. He was worried that Mr. Myles would burn them alive. He was worried he would smash his windows out and about Mr. Myles threatening him with a gun. [ 33 ] Self-defence, defence of property and provocation were all left with the jury.

From the verdict, it is clear the jury rejected self- defence and defence of property. [ 34 ] I am satisfied from the whole of the evidence that the regrettable action by Mr. Sanford occurred in a frenzied moment, where, following the culmination of many days and weeks of experiencing threats and violence from Mr. Myles, he (and his girlfriend) were fearful of Mr. Myles. In other words, I am satisfied from the whole of the evidence that Mr. Sanford did have a subjective fear of Mr. Myles on the date that he stabbed him and that this fear was reasonable. What was not reasonable was the action that Mr.

Sanford took and, therefore, the defence of self-defence and defence of property do not apply. [ 35 ] I am further satisfied that that the evidence does not support a finding beyond a reasonable doubt that Mr. Sanford stabbed Mr. Myles meaning to cause his death or meaning to cause him bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not. In other words, I am of the view the verdict did not rest on a finding of provocation. The evidence supports that there was an element of provocation by Mr. Myles, which may serve to attenuate Mr.

Sanford’s moral blameworthiness, but the verdict did not rest on this. Rather, the verdict rested on a finding the Crown had not proven that Mr. Sanford had the necessary mens rea for murder. Both parties urged me to reach this conclusion and I do. Circumstances of the Offender [ 36 ] Mr. Sanford is currently 35 years old. He was born in Nanaimo, but moved to Vernon with his mother, brother and sister when he was a toddler when his parents separated. He attended elementary school in Vernon until he and his family moved to the Pinantan Lake area where they lived a modern homesteading lifestyle and Mr.

Sanford attended high school in nearby Kamloops. [ 37 ] Mr. Sanford did not excel academically in high school, likely due to a learning disability and his use of illicit drugs, such as marihuana and methamphetamines. Nevertheless, he managed to maintain average grades and graduated in 2006. [ 38 ] Overall, Mr. Sanford has positive memories from his childhood. Although his father lived on a small acreage south of Nanaimo and he mostly spent time with him only during the summers, their bond was deep. Mr.

Sanford considered his father his mentor and was deeply affected by his passing in 2010, following a year-long battle with lung cancer. [ 39 ] After high school, Mr. Sanford moved to Vernon and worked in the drywalling industry for two years. While there, he continued using drugs, this time crack cocaine. In 2009, he returned to Kamloops and obtained employment in the commercial construction industry. He stopped using crack cocaine. He worked on several notable projects in Kamloops and is proud of his work. [ 40 ] Mr. Sanford has a sister and two half-brothers with whom he no longer has a close relationship.

Tragically, his closest sibling, his older brother, died in 2016. This impacted Mr. Sanford deeply. He relapsed into methamphetamine use and spiralled down into a volatile lifestyle. Nevertheless, he was able to maintain employment. [ 41 ] Mr. Sanford had been working in Kitimat, but unfortunately the project that employed him shut down during the Covid-19 pandemic. He returned to Kamloops and became more entrenched in drug use. He lost employment opportunities. He lost places to live and ended up living at the Acadian Inn. He began to support himself by selling drugs. [ 42 ] Mr.

Sanford was arrested in relation to Mr. Myles’ death on September 12, 2020. Since his judicial interim release on December 8, 2020, he has done well. Released on house arrest to live with his mother, they have re-established their relationship. His mother speaks very highly of him, confirming that Mr. Sanford has maintained his abstinence, followed the terms of his release, and maintained employment. He is no longer involved in the drug lifestyle or is in active addiction. He has disassociated from his former negative peer group.

His mother reports many positive changes in her son, including that he has been very engaged in helping her maintain her home and yard, engaged and eager with his job, and has “changed to appreciate what he has in life and to keep on track with working and doing better”.

[ 43 ] Mr. Sanford has an eight-year old son who lives in Kamloops. He sees his son every other weekend and remains on good terms with the child’s mother. [ 44 ] Mr. Sanford also has a circle of family and friends with positive characteristics, who continue to offer him their ongoing social and emotional support. Friends and employers have written complimentary letters attesting to his positive outlook and his supportive, kind and hardworking nature. [ 45 ] Mr. Sanford had no criminal record at the time of this offence, but he was before the court in relation to two 2018 drug trafficking allegations.

On June 10, 2022, Mr. Sanford pled guilty to those offences and was sentenced to 18 months imprisonment, to be served in the community, followed by 18 months probation. Victim Impact [ 46 ] Mr. Myles was only 34 years old at the time he died. His family is grief-stricken over this loss. His aunt wrote an eloquent statement describing the impact Daniel’s death had on her, his friends and many other family members. Mr. Myles was a son, a grandson, a nephew, a friend and a father. [ 47 ] Mr. Myles had many people who loved and cared for him.

They have all experienced trauma, not only from his untimely death, but from the violent manner in which he died. His loss has been profoundly felt by his family and friends. The Law General Principles of Sentencing [ 48 ] The determination of a just and appropriate sentence is a highly individualized exercise. It involves a careful balancing of a variety of factors in the context of a particular set of circumstances in respect of a very particular offender. This balancing is to occur within a legislative framework, set out in s. 718 of the Code . [ 49 ]

Section 718 sets out the fundamental purpose of sentencing as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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. [ 50 ] These objectives are given sharper focus in s. 718.1, which mandates that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. This proportionality principle is fundamental in Canadian law. Thus, whatever weight I may wish to accord to the objectives listed in s. 718 , the resulting sentence must respect the fundamental principle of proportionality: R. v. Nasogaluak , 2010 SCC 6 at para. 40 . [ 51 ]

Section 718.2 provides a non-exhaustive list of secondary sentencing principles including the consideration of aggravating and mitigating circumstances (s-s. (a)); the principles of parity and totality (s-ss. (

b) and (c)); the instruction that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances (s-s. (d)); and to consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances” (s-s. (e)): Nasogaluak at para. 40 . [ 52 ] With respect to the deemed aggravating factors set out in s. 718.2(a), subsection (iii.1) applies in this case. I am satisfied the Crown has proven beyond a reasonable doubt that this crime had a significant impact on the victims. Mr. Myles lost his life. The circumstances surrounding Mr.

Myles’ death will leave a stain on his legacy. I have already discussed the profound effect Mr. Myles’ death has had on his family members – his aunt who wrote the Victim Impact Statement, his mother who will have to live without her son and his daughter who will have to grow up without her father. She will never know him. [ 53 ] Regarding the principle of parity found in s. 718.2(b), counsel have relied on a number of authorities.

I will summarize these authorities shortly, but will say here that while I recognize the importance of this principle, I am also careful not to lose sight of the individualized nature of the assessment that requires me to weigh the objectives of sentencing in a manner that best reflects the circumstances of this case and this particular offender: Nasogaluak at para. 43 . [ 54 ] Subsections 718.2(

d) and (

e) emphasize the need for me to exercise restraint in the use of imprisonment. These provisions require that an offender not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Indigenous offenders. Mr. Sanford is

not an Indigenous offender. [55] Again, the proportionality principle in s. 718.1 is fundamental to all of this. This principle and its interplay with the sentencingobjectives and other principles was explained by the Court in R. v. Ipeelee, 2012 SCC 13: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions.

Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justicesystem. As Wilson J. expressed in her concurring judgment in Re B.C.

Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, atp. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender.

In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [56] The Supreme Court emphasized this again in Lacasse, instructing sentencing courts that proportionality is to be determined bothon an individual basis, that is in relation to the offender herself, and to the offence committed by that offender and by comparison withsentences imposed for similar offences committed in similar circumstances.

The concepts of "individualization and parity of sentencemust be reconciled for a sentence to be proportionate”: para. 53. Principles of Sentencing Applied to Manslaughter [57] The seriousness with which Parliament views the offence of manslaughter is reflected by the maximum penalty of lifeimprisonment set out in the Code. As this offence carries no minimum sentence, the range of available sentences is very broad. [58] As many courts have recognized, manslaughter is an offence that can encompass very different factual matrixes, leading to awide variance in sentences that are imposed.

My challenge in this case is to locate Mr. Sanford and his offence somewhere within thatbroad range. [59] The Court in R. v. Bhadhesa, 2019 BCCA 70 explained: [24] The offence of manslaughter encompasses conduct which has caused the death of another person and falls short of intentionalkilling. It covers a wide range of cases extending from “near accident” to “near murder” and different degrees of moral culpability attachalong a continuum within that spectrum.

A sentencing judge assesses moral culpability for manslaughter by considering the offender’smental state in the context of the unlawful act itself and the offender’s personal characteristics, blending and balancing all incombination. Factors that weigh in the balance include intentional risk-taking, the harm caused, the normative character of the offender’sconduct, the degree of deliberation involved, the existence of provocation and the element of chance involved in the resulting death: R. v.Plowman, 2015 BCCA 423 at para. 40, citing R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 80; R. v.

Stone, (SCC), [1999] 2 S.C.R. 290 at para. 247. [25] The purpose of the balancing exercise is to ensure that the sentence fits the degree of the offender’s moral fault for the harmdone by the unlawful act underlying the offence of manslaughter. The measure of the fitness of a sentence lies in the principle ofproportionality: a sentence must be proportionate to the seriousness of the offence and the moral blameworthiness of the offender. If asentence for manslaughter passes this fundamental test it is a fit sentence. If it does not, it is unfit: Stone at para. 233; R. v. LaBerge,1995 ABCA 196 at paras. 6–11; R. v.

Draper, 2010 MBCA 35 at para. 7. [26] Sentences imposed for manslaughter range from a suspended sentence to life imprisonment. Given that wide range, the judgemust carefully determine the degree of an individual offender’s moral culpability and craft a sentence that accounts adequately for theunique constellation of relevant factors present in a case. The task is complex and sometimes factors unrelated to where the unlawful actfalls on the “near accident” to “near murder” spectrum nonetheless bear on the degree of the offender’s moral culpability.

Where anoffender falls on the spectrum of individual moral culpability is a question of fact. Absent palpable and overriding error, that finding isentitled to deference: Plowman at paras. 39, 44–45, citing R. v. Richer, 2005 BCCA 3; R. v. Engebretsen, 2016 BCCA 182 at paras. 9–12, 17. [60] In R. v. Engebretsen, 2016 BCCA 182, the Court reiterated the general range of sentence for manslaughter as four to 15 yearsimprisonment. It would probably only be in unusual circumstances that a sentence would be below or above this range. [61] Counsel have provided me with several authorities in support of their positions.

The Crown submits that the gravity of thisoffence is significant and Mr. Sanford’s degree of moral blameworthiness is high due to the obvious harm caused to the victim and hisfamily and the nature of the altercation, which included Mr. Sanford arming himself with a knife and chasing down an unarmed Mr.Myles and stabbing him while he was in a vulnerable position. The Crown submits that a sentence in the range of six to eight yearsimprisonment reflects the aggravating and mitigating circumstances and is a proportionate one. They cite six authorities in support oftheir position: R. v.

Engebretsen, 2016 BCCA 182; R. v. Hart, 2021 BCPC 311; R. v. Hussain, 2021 BCSC 2068; R. v. McCulloch, 2016BCSC 2069; R. v. Audette, 2022 ONCJ 104; and R. v. Lee, 2021 ONSC 7672. [62] In Engebretsen, the offender pled guilty to manslaughter for killing his adult stepson by stabbing him once through the heart with

a large knife. The event occurred in the offender’s home at a time when the victim was seated, watching television with his mother. Mr. Engebretsen was extremely intoxicated. Following a minor dispute over changing television channels, Mr. Engebretsen went into another room, armed himself with a knife, returned to the living room and stabbed his stepson. He could not recall why he did this and could not recall the event at all. Their relationship had been acrimonious. It involved frequent verbal arguments in the past and violence by the victim toward Mr. Engebretsen from time to time.

The sentencing judge imposed a sentence of four years imprisonment, which was upheld on appeal. [ 63 ] In dismissing the appeal, Justice Harris rejected the offender’s argument that the death of the victim was a “near accident” and found the sentencing judge’s characterization of the incident as “closer to the murder end of the scale than the accidental end” was an accurate one.

Although the Court considered the sentence to be at the bottom of the range and one that might well have been materially higher, it was not found to be unfit. [ 64 ] While this case bears some similarities to the case at bar, there are notable differences including the offender’s extreme intoxication, his guilty plea and the absence of any aspects of self-defence and/or provocation. [ 65 ] In Hart , the offenders, aged 40 and 34 respectively, had originally been charged with second degree murder in relation to the death of Mr. Campbell, a man they ambushed and beat to death with a hammer.

These offenders pled guilty to manslaughter following their preliminary inquiry and were sentenced to six years imprisonment. I will attempt to summarize the very lengthy circumstances of the offence. [ 66 ] At the time of his death, Mr. Campbell was married to a woman named Amanda MacDonald. Mr. Campbell was also a good friend of one of the offenders, Mr. Monsour. A few days before his death, Mr. Campbell and Ms. MacDonald had an argument. Mr. Campbell was said to have struck Ms. MacDonald causing her injury. She, in turn, was said to have struck Mr.

Campbell, causing him injury as well. [ 67 ] A few days after this incident, Ms. MacDonald ended up in the company of Mr. Monsour and others. While there, Mr. Campbell called Ms. MacDonald many times, upset and jealous, convinced that Mr. Monsour was becoming romantically involved with her. Mr. Monsour intervened and the two men exchanged unpleasantries. Mr. Campbell then took revenge by breaking a window on Mr. Monsour’s truck and then by causing some damage to his home. Mr. Monsour reported the damage to his vehicle to RCMP that night. He then picked up Mr.

Hart and another person who had been partying together. The three went to Mr. Monsour’s home and saw the damage there. Mr. Monsour also told Mr. Hart about the damage to his truck and about Mr. Campbell’s assault on Ms. MacDonald. The three men then visited Ms. MacDonald and photographed her bruises. [ 68 ] It was at this point that Mr. Monsour and Mr. Hart developed a common intention to beat Mr. Campbell, in order to “teach him a lesson” for his assault on Ms. MacDonald. Mr. Monsour was also upset about the damage Mr. Campbell caused to his property and he did not know what Mr.

Campbell would do next. [ 69 ] During the mid-afternoon of September 29, 2018, the three men drove to Mr. Campbell’s residence to carry out their intention to beat him up. When they arrived, Mr. Campbell and another man, Mr. Albrecht, were in the process of loading Mr. Albrecht’s belongings from the house into a vehicle on the driveway. Mr. Monsour and Mr. Hart, both armed with hammers, effectively ambushed Mr. Campbell when he was alone between the closed garage door and the back of the vehicle. Mr. Campbell was unarmed and had no time to react. Their assault on Mr.

Campbell included striking him, quickly taking him to the ground, punching him and delivering hammer blows to the back of his head and the area above his right eye. One of them said during the attack “that’s what you get for beating your wife”. Mr. Albrecht tried to come to Mr. Campbell’s aid, but Mr. Hart swung a hammer at him several times, striking him once, which caused him to retreat. The offenders fled the scene. They wiped and discarded the hammers. [ 70 ] The attack on Mr.

Campbell by these two men lasted less than a minute, but in addition to cuts and bruises, it caused him to suffer skull fractures and a significant and inoperable brain injury. He never regained consciousness and life support was withdrawn a few days later. [ 71 ] Mr. Hart cooperated early with authorities. He confessed. Both offenders entered guilty pleas after the preliminary inquiry, had good family supports, and were found to have sincere remorse. Mr. Monsour, an Indigenous man, had no prior criminal record. Mr.

Hart had a lengthy criminal record, largely drug-related, but had successfully and meaningfully engaged in rehabilitation since the offence. [ 72 ] The sentencing judge rejected Mr. Monsour’s claim to have been motivated, in addition to avenging Ms. MacDonald, by fear of Mr. Campbell. He claimed at the hearing that Mr. Campbell had threatened him, his wife and child, and he was fearful of retaliation by Mr. Campbell. The judge rejected this claim. At para. 36, she found that on the day of the attack, Mr. Monsour knew Mr. Campbell’s jealousy-fuelled anger was escalating and that he could expect Mr.

Campbell might act unpredictably, but that his intention that day was to avenge Ms. MacDonald. She rejected the assertion that Mr. Campbell threatened death or bodily harm and refused to “attribute this as amounting to some form of self-defence or provocation so as to reduce Mr. Monsour’s moral culpability for Mr. Campbell’s death”. [ 73 ] The sentencing judge found both offenders’ moral culpability to be high. Not so high as to amount to near murder, but not near the accidental end of the manslaughter spectrum either.

Giving the objectives of general deterrence, denunciation and retribution primary emphasis, she held that a proportionate sentence “is not one at the low end of the sentencing range for manslaughter” (para 117) and ultimately imposed a sentence of six years for each offender. [ 74 ] I find this case quite distinguishable. These offenders pleaded guilty, a mitigating factor not present in the case at bar.

However, our case does not involve the aggravating features of a planned and premeditated attack on an unsuspecting victim and it involved aspects of self-defence and provocation that this other case does not. [ 75 ] In Hussain , the offender, a 28-year old drug user and trafficker, was charged with second degree murder in relation to the stabbing death of Mr. Mohammed on the Downtown Eastside of Vancouver. Following a trial, Justice Crossin convicted him of manslaughter and then sentenced him to seven and a half years incarceration.

[ 76 ] Although this case involves a stabbing death, I find it of little assistance. Other than the broad strokes I have just described, the circumstances of the offence and of the offender are quite different than the case at bar. As well, there is an aspect of the sentencing hearing that was held in camera , depriving me from knowing all of the factors that featured in the decision. [ 77 ] In terms of the offence, Mr. Hussain was waiting for a delivery of drugs from his supplier in an alleyway. Mr. Mohammed was attending the marihuana dispensary nearby. Mr. Mohammed came into the busy alleyway. Mr.

Hussein took a knife out of his pocket, exposed the blade and held it at the ready upon his approach. The two men spoke face to face. Mr. Mohammed insulted and complained that Mr. Hussain had his money and he wanted it back. Neither man showed any physically aggressive behaviour or body language. As their verbal exchange continued, another man, Mr. Harper, struck Mr. Mohammed from behind in the head with a closed fist causing him to drop to the ground. As he fell, while he lay helpless on the ground and as he tried to get up, Mr. Hussain engaged in what the court described as a “rapid fire stabbing of Mr.

Mohammed”. He died about an hour later. [ 78 ] Unlike Mr. Sanford, the offender had a criminal background replete with breaches of court orders, possession of drugs and at least one property offence at the time of the offence. He had only a fleeting history of legitimate employment, no meaningful social or family supports, was being treated for schizophrenia, and had failed in his drug rehabilitation treatment attempts. [ 79 ] Justice Crossin rejected the offender’s claims of self-defence, provocation and intoxication at trial.

In relation to self-defence, he found that the stabbing was “grotesquely out of proportion, even accepting the evidence of the accused” and was “wildly unreasonable”: para. 21. The manslaughter verdict rested on the court’s reasonable doubt as to whether Mr. Hussein had the requisite mens rea for murder. Again, as part of the sentencing hearing was held in camera , I am unable to know all the factors the court considered. [ 80 ] In McCulloch , the offender was sentenced to six years and two months imprisonment in relation to the stabbing death of Mr. King.

Having originally been charged with second degree murder, Mr. McCulloch pled guilty to manslaughter. At the time of the offence, Mr. McCulloch was 42 years old, addicted to heroin, homeless and unemployed. He had a lengthy criminal record, mainly consisting of property and breach offences. He was under the influence of drugs at the time he stabbed Mr. King multiple times, causing his death, on August 2, 2014. Mr. King was involved in the use and sale of illegal drugs at the time. [ 81 ] The two men had a history. About two months before the offence, in June 2014, Mr. King fronted some heroin to Mr.

McCulloch’s girlfriend, Ms. Walkley. She told Mr. McCulloch that Mr. King began to demand repayment from her, and over several weeks threatened her, stalked her, and on one occasion, took her into some bushes and choked her while demanding his money, or sex in exchange. She told Mr. McCulloch that she was terrified of Mr. King and that he was dangerous. Mr. McCulloch saw Mr. King twice after that, before the incident where he killed him. [ 82 ] The first occurred on June 30, 2014. Mr. King approached Ms. Walkely in Mr. McCulloch’s presence and made threatening comments to her about paying for the heroin. Mr.

McCulloch then struck Mr. King in the face with a hammer, causing him injury. According to Ms. Walkley, Mr. King still continued to harass her after this. The next time Mr. McCulloch saw Mr. King, Mr. McCulloch chased him with a wooden pole but did not catch him. The next time Mr. McCulloch saw Mr. King he killed him. [ 83 ] On the evening of August 1, 2014, Mr. McCulloch consumed alcohol, heroin, and crystal meth. He had his bicycle with him and he and another man went in search of more drugs. The other man told Mr. McCulloch that he found a heroin supplier. When Mr. McCulloch realized the supplier was Mr.

King, he told the other man not to buy from him. He called Mr. King a pedophile. [ 84 ] When Mr. King arrived at the location of the buy, Mr. McCulloch opened the blade of the folding knife he had in his possession and chased Mr. King on foot. Not catching him, he retrieved his bicycle and soon caught up to him. He cut him off, causing Mr. King to trip and fall. Mr. McCulloch got off his bike, armed with the knife in one hand and a metal chain link in the other. While Mr. King lay prone on his back, Mr. McCulloch taunted him by poking him at least three times in the head and face with the knife.

He also punched and hit him. Mr. McCulloch then stabbed Mr. King twice in the torso. One was unintentional and occurred because Mr. McCulloch fell onto Mr. King after Mr. King kicked him in the groin. The other was intentional. [ 85 ] Mr. McCullogh left the scene and buried the knife. Witnesses to the incident called 911. Despite emergency surgeries, Mr. King died from the multiple stab wounds, the most significant found to have been the two wounds to his torso, one to the left side of the chest and the other to the right side of the back. [ 86 ] Mr.

McCulloch cooperated with police following his arrest and made admissions in relation to the offence. [ 87 ] Justice Fisher, as she then was, found Mr. McCulloch’s moral culpability was in the middle of the spectrum for manslaughter cases. She found his prior violent conduct and animus toward Mr. King, arming himself with a knife and a chain link, immediately chasing Mr. King and, to some extent, his criminal record, to be aggravating factors.

She found his guilty plea, his cooperation with police, his remorse, his unfortunate personal circumstances, his supportive family and friends and his conduct while in pre-trial custody, to be mitigating. [ 88 ] Again, while there are some similarities to the case at bar, there are clearly some significant differences as well. [ 89 ] I find the remaining two authorities tendered by the Crown, from Ontario ( Audette and Lee ), less helpful as they involve very different facts, unclear findings, and/or a reliance on a higher sentencing range set out by the appellate court in that province. [ 90 ] The defence says that Mr.

Sanford’s degree of moral culpability places this offence closer to the near-accident end of the spectrum than the Crown position suggests. They emphasize that his conduct that day occurred in a frenzied moment, where Mr. Sanford was legitimately and reasonably frightened for himself, his wife, his pets and his property, after days and weeks of threats and threatening behaviour by Mr. Myles. He did not intend to kill Mr. Myles, had no criminal record at the time, unlike the offender in McCulloch had not been violent toward Mr.

Myles previously, has taken great strides toward rehabilitation since these events and is very remorseful for what occurred. They argue that a sentence of two years less a day, followed by three years’ probation is a proportionate sentence. It is one, they argue, that meets the objectives of sentencing, takes into account all of the aggravating and mitigating circumstances and is one which would see him incarcerated in a provincial institution, in Kamloops, near to his mother and his son.

[ 91 ] The defence relies upon six authorities in support of their position: R. v. Alphonse , 2018 BCSC 2045 ; R. v. Maulen , 2022 BCSC 468 ; R. v. Poucette , 2019 ABQB 725 ; R. v. Toth , 2021 BCSC 1263 ; R. v. Stone , 1997 BCCA 2573; and R. v. Sor , 2023 BCSC 642 . [ 92 ] In Alphonse , the offender, charged with second degree murder in relation to the stabbing death of Mr. Jackson, was convicted by a jury of manslaughter. The offender and the victim were well known to each other. Their partners were sisters and the two couples had lived together at one point. [ 93 ] On the day of Mr.

Jackson’s death, both men drank to excess. They fought, first with their fists and then with chairs. At one point, Mr. Alphonse was able to get up off of the ground as Mr. Jackson was beating him with a chair and ran to the kitchen. Mr. Jackson followed and again got Mr. Alphonse onto the ground and was punching him and striking him with a chair . He was using such force that one of the women present felt he was going to kill him and yelled for Mr. Jackson to stop. He stopped and tossed the chair toward Mr.

Alphonse and moved toward the kitchen counter in the direction of where his machete knife was sitting on the counter. Mr. Alphonse immediately stood up and, using his own knife, slashed Mr. Jackson on the back and stabbed him twice in the left side. [ 94 ] Having regard to the time he had spent in pre-trial custody (almost six months), Justice Murray suspended the passing of sentence and placed Mr. Alphonse on probation for a period of three years. In so doing, she determined that the jury’s verdict rested on a finding that the Crown had not proven Mr.

Alphonse had the mens rea for murder, by reason of intoxication. Noting that the jury clearly rejected self-defence, she held that the stabbing occurred in the heat of moment during a highly charged, hard fought battle in which the victim had been the main aggressor. She further found that Mr. Alphonse did not intend to kill Mr. Jackson or intend to cause him harm that he knew could cause death, that he accepted responsibility, had been sober since the offence, had engaged in meaningful rehabilitation, had a good support system and had several Gladue factors at play, among other mitigating factors.

Justice Murray was satisfied that this was not a case of near-accident, but rather one of “near self-defence”, which she found significantly reduced his level of moral blameworthiness. [ 95 ] Maulen also involved an accused who was tried for second degree murder and convicted by a jury of manslaughter. This 53-year old offender was involved in a fist fight with the victim on a street in the Downtown Eastside, which ended when he stabbed the victim twice with a knife. The two men knew each other. Mr. Maulen knew the victim, a man much larger than him and had a reputation for violence.

The incident began when the victim, Mr. Hayden, saw Mr. Maulen on the street and called out to him. Mr. Hayden was highly intoxicated at the time. Mr. Maulen crossed the street to make inquiries as to why he was calling out to him. The offender was carrying, for an innocent purpose, a large sheathed knife tucked in his belt at his back under his coat. The moment Mr. Maulen approached Mr. Hayden, Mr. Hayden immediately stood up from his seat at the bus stop and punched Mr. Maulen in the head. Mr. Maulen fell to the ground and a fight ensured. Mr.

Maulen managed to get on top of the victim, who was tucked like a ball on the ground, and stabbed him twice, once on his upper left thigh and the other on the lower left part of his abdomen. Either wound could have caused his death. Mr. Maulen left the scene and threw the knife away. [ 96 ] Mr. Maulen had a long history of substance misuse. He had no history of violence. While on bail, he had made a dramatic transformation. He was in recovery and had gainful employment. [ 97 ] Justice Crossin left self-defence and provocation with the jury.

In determining the basis for the manslaughter verdict, he concluded the jury rejected self-defence on the basis that the force Mr. Maulen used was unreasonable. He found that the verdict did not rest on a finding of provocation, but rather that the evidence fell short of proving the mens rea for murder. In sentencing this offender to 20 months plus six days imprisonment, Crossin J. found Mr. Maulen’s moral blameworthiness at the low end, concluding that this was a case of the unreasonable use of force in the course of the offender defending himself against the unprovoked attack by a much larger man: para 72.

It was an isolated incident of violence in a life otherwise free of this kind of conduct. [ 98 ] In Sor , Justice McIntosh relied heavily on Maulen in sentencing a 38-year old offender who stabbed a person he had never met before to two and a half years imprisonment. Mr. Sor was living at a treatment facility at the time. He had no criminal record. He drank a significant amount of vinegar that day and sat down on a bench where he vomited. The victim, Mr. Deans, who outsized Mr.

Sor considerably, approached him, stood above him, told him to clean the vomit or “get the fuck out of here” and pulled out a can of bear spray. Mr. Sor told him to leave, but Mr. Deans did not. This prompted Mr. Sor to bring out a knife and unfold the 9 cm blade so that Mr. Deans could see it. Mr. Deans discharged the cannister of bear spray from a distance of one or two meters. Mr. Sor stood up and lunged at Mr. Deans and the fight was on. While they struggled on the ground, Mr. Sor stabbed him five times with a knife in rapid succession. All told, their entire interaction lasted about ten seconds. Mr.

Sor disposed of the knife. Mr. Deans died weeks later from his injuries. [ 99 ] Mr. Sor was found to have made good progress in treating his addiction while on bail. Justice McIntosh also found, in mitigation, that while it was difficult to know whether Mr. Sor was attempting to defend himself (rejected due to his unreasonable use of force) or whether he was provoked, he found that the “better conclusion between the two” was that Mr.

Sor was attempting to defend himself, but used excessive force in doing so. [ 100 ] I have considered the other authorities put forward by the defence, but find them too factually distinguishable to be of assistance. Application of the Law to This Case [ 101 ] I will begin with the aggravating factors. Aggravating Factors [ 102 ] I find the Crown has proven the following aggravating factors beyond a reasonable doubt. (

a) The nature of the altercation

[ 103 ] The nature of the altercation is an aggravating factor, but not for all of the reasons advocated by the Crown. Mr. Sanford left his home armed with a knife that morning. When he saw Mr. Myles, he chased him down. While Mr. Myles was prohibited by court order from being on the property and had just deposited gasoline on the back porch of Mr. Sanford’s home, he was unarmed, so, in that sense, was in a vulnerable position. Mr. Sanford swiped at Mr. Myles with the knife as he chased him. Mr. Myles tried to get into a waiting taxicab, but was unable to do so because Mr. Sanford was chasing him.

At some point, Mr. Sanford stabbed Mr. Myles in the back. As I explained, the evidence does not allow me to make any determination about precisely when Mr. Myles was stabbed during the altercation. The men were facing each other at one point. Mr. Myles appears to be on the ground at one point as well. The timeframe in which Mr. Myles was stabbed was very brief. In these circumstances, I cannot be satisfied beyond a reasonable doubt that Mr. Myles was stabbed while he was on the ground, as the Crown alleges. Nor can I be satisfied that Mr. Sanford intended to stab him in the back, as the Crown alleges.

He did stab him in the back, but as I discussed earlier, I am not satisfied it has been proven that this was his intended location. (

b) Section 718.2(a)(iii.1) of the Code [ 104 ] It is a statutorily aggravating factor that this offence has had a significant impact on the victim and the family of the victim, as I have already discussed. [ 105 ] I turn now to the mitigating factors. Mitigating Factors [ 106 ] There are several mitigating factors in this case.

a) Mr. Sanford is a young man who had no criminal record and no history of violence at the time of the offence.

b) Mr. Sanford has engaged in meaningful rehabilitation since the offence. He has demonstrated a long-term commitment to sobriety and living a pro-social life. He has removed himself from all aspects of the drug sub-culture.

c) Mr. Sanford has good community support from his family and friends and good prospects for employment. He has completely turned his life around.

d) Mr. Sanford is genuinely remorseful for what he has done. [ 107 ] Focusing as I must on the fundamental principle of sentencing, proportionality, I will first address the gravity of the offence. Gravity of the Offence [ 108 ] The gravity of the offence includes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity. The maximum sentence the Code provides for offences “determines objective gravity by indicating the 'relative severity of each crime”: R. v. Friesen , 2020 SCC 9 at para. 96 .

That manslaughter carries a maximum sentence of life imprisonment reflects its objective gravity. [ 109 ] There is no question that Mr. Sanford’s offence is both subjectively and objectively grave. Mr. Sanford left his room, armed with a knife. He chased an unarmed man down the street and in the frenzy that ensued, stabbed him once, causing his death. [ 110 ] Assessing Mr. Sanford’s moral culpability for the offence is much more challenging. Mr. Sanford’s Moral Culpability [ 111 ] Mr. Sanford had no history of violence prior to this offence.

There is nothing in his background that indicates he even had a propensity for violence. Although he was involved in the use and sale of illicit substances at the time of this offence, I am satisfied from the whole of the evidence that the unlawful act he committed that day was out of character for him. [ 112 ] By the time Mr. Myles poured gasoline on his back porch that early morning, prompting him to go outside with a knife, Mr. Sanford had endured several weeks of what I would characterize as escalating threatening behaviour by Mr. Myles. Mr.

Myles had been threatening him, his girlfriend, his pets and his home, first with messages, then with broken windows, then by using a weapon (discharging bear spray) and then by pouring gasoline on their back porch. Prior to this terrible event, there is no evidence to suggest that Mr. Sanford had ever responded in kind. Instead, his girlfriend reported Mr. Myles’ crimes to police. Undeterred by the charges and court order banning him from the Acadian Inn property, Mr. Myles attended the property and poured gasoline on his back porch. Mr. Sanford was, quite reasonably, fearful of Mr.

Myles . [ 113 ] From the whole of the evidence, I find that Mr. Sanford did not make the decision to leave his room that morning armed with a knife to retaliate, or somehow “right the power imbalance” as the Crown submits. To be sure, Mr. Sanford made a deliberate decision to leave his room armed with a knife. It was a very bad decision, but I find it was a decision motivated by a desire to protect, rather than to retaliate. When he left the room with his family pet to go for a walk, he brought a knife. He did so in the event Mr. Myles was still around and still posing a threat.

Although not amounting to a defence, there were aspects of self-defence at play. In the context of everything that had occurred in the weeks leading up and including the events before his fateful decision, I have no difficulty finding that Mr. Sanford believed, on reasonable grounds, that force or the threat of force was being used against him, his girlfriend, their pets and their property that morning. This attenuates, to a degree, as does the existence of an element of provocation, his moral blameworthiness. However, Mr.

Sanford’s actions in responding to that threat were not reasonable in any way, shape or form. Instead of taking the reasonable step of calling police, he took matters into his own hands. He intentionally took a risk arming himself with a knife. He took another risk when he saw Mr. Myles and started to chase him with that knife.

[ 114 ] In all of these circumstances, I find Mr. Sanford’s unlawful act does not fall on the “near accident” end of the spectrum, nor does it fall on the “near murder” end. Rather, it falls somewhere in between. [ 115 ] Taking all of this into account, I find Mr. Sanford’s moral responsibility, although attenuated to a degree as I have described, remains moderately high. Objectives of Sentencing [ 116 ] In light of the seriousness of Mr. Sanford's offence and the aggravating factors, denunciation and general deterrence are critically important objectives in determining a fit sentence here.

This type of violence and the extreme harm it caused must be denounced and deterred. [ 117 ] I am satisfied that the objectives of specific deterrence and accepting responsibility are of less importance here. Mr. Sanford was never violent before this offence. He is genuinely remorseful for what he has done and has accepted responsibility for the harm he has caused.

He has taken many concrete steps to prevent himself from re-engaging in the lifestyle that facilitated this behaviour. [ 118 ] Given his young age and all that he achieved in overcoming his cycle of addiction and negative lifestyle since this offence, the objectives of rehabilitation and restraint must be given significant weight. [ 119 ] Applying the parity principle, and consistent with the individualized nature of the sentencing process, the authorities provided by counsel contain similarities and differences with this case.

Overall though, I find the decisions relied on by the Crown involve offenders with higher degrees of moral blameworthiness, with more aggravating factors than this case, and those relied upon by the defence, while bearing slightly more similarities to the case at bar, involve offenders with lower degrees of moral blameworthiness, with more mitigating circumstances. [ 120 ] Mr. Sanford, please stand.

Decision [ 121 ] Based upon all I have discussed – the gravity of your offence, your moderately high moral blameworthiness, the mitigating factors, the aggravating factors which are fewer, the primary objectives of denunciation and general deterrence, comparing your case to others, and giving as much weight as can be justified to the objective of rehabilitation and the principle of restraint, I find a proportionate sentence in this case is four years' imprisonment. [ 122 ] From this, I give you credit for a total of 214 days in pre-sentence custody at rate of 1.5 to 1 or 321 days.

As four years is the equivalent of 1,460 days, I sentence you to 1,139 days new time. [ 123 ] The ancillary orders are as follows:

a) DNA Order : Manslaughter is a primary designated offence pursuant to s. 487.04 (

a) of the Code . I make an order pursuant to s. 487.051(1) of the Code , in Form 5.03 that you provide a sample of your DNA for inclusion in the National DNA Data Bank.

b) Firearms Prohibition : Pursuant to s. 109(1) (

a) of the Code , I make an order prohibiting you from possessing any firearm other than a prohibited firearm or restricted firearm, crossbow, restricted weapon, ammunition and explosive substance for ten years after your release from custody, and prohibiting you from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

c) Reasons for Sentence : Pursuant to s. 743.2 of the Code , I order that these Reasons for Sentence be forwarded to the Correctional Service of Canada for sentence management. [ 124 ] As counsel wish for additional time to consider the matter of forfeiture of exhibits and items seized, I will have this matter placed on the next fix date list on Tuesday, November 14, 2023 at 2:00 p.m. for counsel to

schedule a hearing date, should one be necessary. That concludes my reasons for judgment. Thank you counsel for your assistance throughout these proceedings. “S.A. Donegan J.” DONEGAN J.