R. v. Harry, 2023 BCSC 999

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Harry, 2023 BCSC 999 Date: 20230406 Docket: 30628-3 Registry: Vancouver Rex v. Chad Steven Harry Before: The Honourable Madam Justice Fleming Oral Reasons for Sentence Counsel for the Crown: D.J. Pruim S. Gillespie Counsel for the Accused appearing via videoconference: J.D.A. Watt Place and Date of Trial/Hearing: Vancouver, B.C. March 17, 2023 Place and Date of Judgment: Vancouver, B.C. April 6, 2023 These reasons were delivered orally. They have been edited for publication.

Introduction [ 1 ] Charged with second degree murder, at the outset of the trial, Chad Harry entered a guilty plea to manslaughter in relation to the death of Cong Quoc Tran on April 6, 2019. [ 2 ] The offence involved a brutal and entirely unprovoked assault on Mr. Tran that occurred several days earlier. Both Mr. Harry and Mr. Tran were highly intoxicated at the time. [ 3 ] There is no dispute that some months after the offence, Mr. Harry committed himself to addressing his addiction to alcohol and his underlying anger.

He has abstained from drinking since then. [ 4 ] The difficult task now is to determine a just and fit sentence. [ 5 ] The Crown seeks a sentence of seven years' imprisonment less credit for time served, which is agreed to be 11 months, along with mandatory ancillary orders. Mr. Harry's counsel proposes a conditional sentence order (“CSO”) based on a jail sentence of two years less a day followed by a three-year probation order.

In the alternative, he suggests a jail sentence of just less than three years, resulting in a net sentence of two years less a day followed by a one-year probation order. [ 6 ] Underlying these divergent positions are conflicting views regarding the appropriate relative weight to be given to the sentencing objectives of denunciation, deterrence, and rehabilitation, the role of self-induced intoxication in determining Mr.

Harry’s responsibility for the offence, the systemic and background factors unique to him as an Indigenous person, and the guidance provided by sentencing decisions in other manslaughter cases. [ 7 ] The evidence includes an agreed statement of facts, Mr. Harry's criminal record, and reasons for sentence in relation to prior convictions for violent offences against his former partner, Kristina Wilson, in 2015, 2016, and 2018. I also have the benefit of well- prepared Gladue and presentence reports, a recent update to the presentence report, and Mr. Harry's statement during the sentencing hearing.

Circumstances of the Offence

[ 8 ] Based on the agreed statement of facts and the video footage it includes, I make the following findings. [ 9 ] In the late afternoon on April 1, 2019, Mr. Tran stopped to talk to a man named Norman Schooner, who was standing with Mr. Harry and Ms. Wilson in the 700-block of East Hastings Street in Vancouver. Suddenly and without any warning, Mr. Harry punched Mr. Tran in the face, causing him to fall to the ground. As he lay motionless, Mr. Harry kicked him in the head twice and then stomped on his head three times. The attack ended only when Mr. Schooner pulled Mr. Harry away from Mr.

Tran. [ 10 ] Earlier that afternoon, Mr. Harry and Mr. Schooner had purchased alcohol at the Astoria Liquor Store. Shortly before he assaulted Mr. Tran, Mr. Harry had a verbal altercation with an unknown man outside the liquor store. After the altercation, he and Ms. Wilson wandered along the street with Mr. Schooner drinking. [ 11 ] Mr. Harry is six feet tall. At the time, he weighed approximately 200 pounds. Mr. Tran was much smaller at about five feet four inches tall and 154 pounds. He was also highly intoxicated. The video footage shows him walking unsteadily immediately prior to being assaulted. [ 12 ] Mr.

Harry's extremely violent attack assault of Mr. Tran attracted the attention of several independent witnesses, some of whom attempted to intervene or help. [ 13 ] Nisvet Nezic was driving westbound on East Hastings Street when he saw Mr. Harry attacking Mr. Tran. Mr. Nezic immediately started honking his horn, turned his car around, and pulled over next to Mr. Harry, thinking he was going to kill Mr. Tran if he did not stop. Mr. Nezic described the amount of force Mr. Harry used when he was stomping on Mr. Tran's head as "all the force he had". [ 14 ] Maxwell Zipursky was driving eastbound on East Hastings.

He saw Mr. Harry stomping on Mr. Tran's head and joined in Mr. Nezic's honking, thinking it might help stop the attack. [ 15 ] Harlan Collins was sitting on the north side of East Hastings, about one block away. From that distance he was able to see Mr. Harry “sucker punch” Mr. Tran with his hands down at his sides and not paying attention. Mr. Harry then stomped on his head repeatedly. Mr. Collins ran to their location and turned Mr. Tran on his side to prevent him from choking on the blood coming from his mouth and nose. [ 16 ] Chad Murray also saw Mr. Harry stomping on Mr.

Tran's head multiple times as he was walking on the north side of the 700-block of East Hastings. Mr. Murray called 9-1-1 and ran to Mr. Tran to provide assistance. [ 17 ] Mr. Harry fled the scene. The video footage shows him running quite some distance before he slowed to a walk. Ms. Wilson and Mr. Schooner left about three minutes after Mr. Harry did. [ 18 ] Mr. Nezic approached Mr. Tran after Mr. Harry fled but Ms. Wilson was still there. She confronted Mr. Nezic and grabbed Mr. Tran, attempting to pull him up. Concerned she would injure him further, Mr. Nezic pushed her away. [ 19 ] Mr.

Nezic also called 9-1-1 and remained with Mr. Tran until emergency responders arrived. Mr. Tran was unconscious, breathing irregularly, and unresponsive. [ 20 ] Mr. Tran was taken by ambulance to Vancouver General Hospital. His blood panel results showed a blood alcohol concentration of "300mg%”, which the Crown identified as nearly four times the legal limit. Radiographic imaging revealed extensive bleeding in Mr. Tran's brain and a "new” facture to his right temporal bone. For a short time, Mr. Tran regained consciousness and became responsive.

He was able to provide his name and his date of birth. [ 21 ] Admitted to the ICU, Mr. Tran's condition deteriorated on April 2, 2019. He underwent neurosurgical intervention. A severe traumatic brain injury was observed. After surgery, his condition did not improve. Life support was removed and he died on April 6, 2019. [ 22 ] In the autopsy report, Dr. Steven White concluded that Mr. Tran's death was caused by blunt force head injuries due to assault.

His injuries included bruising on the face and scalp, a right subdural hematoma, a large hemorrhagic contusion involving the right parietal and temporal lobes, a subarachnoid hemorrhage mostly on the right side, and swelling of the brain. Autopsy photographs show the right side of Mr. Tran's brain completely covered in a thick layer of dark blood. [ 23 ] Dr. White also found Mr. Tran had cirrhosis of the liver, which results in reduced clotting factors leading to increased bleeding. Victim Impact [ 24 ] The presentence report includes some but limited information about Mr. Tran.

He was an older brother to three younger sisters. Sadly, he was estranged from his family due to substance misuse. [ 25 ] Two of his sisters, Huong and Thien Tran, spoke with the probation officer. Thien Tran also provided a written statement that conveys much love and deep sorrow over the loss of her brother and his senseless death: My brother was the oldest of us four. He had three younger sisters including myself. We unfortunately did not grow up under the best circumstances. We are a result of our childhood.

We may have gone down different paths in life but he was a great and protective older brother throughout my childhood. We know he was trying to turn his life around but once you go down a certain path it gets harder and harder. Being taken away at such a young age he never had the chance to do this. He never had the chance to meet his nieces and nephews who were born after his death. His life was taken away senselessly. I think what hurts the most is that he will never be able to see how we have grown up and the potential for his life to change. His chance was taken away.

His death had a great impact on me and it is hard for me to speak about it to this day because it brings up so many emotions that I cannot handle. I hope that it is known that his

life mattered. He is not just another victim with a case to be closed. I hope that there will be justice for what happened. [ 26 ] Only 34 years old when he died, Mr. Tran had most of his life left to live. Mr. Harry's violence deprived him of so much, including the opportunity to make the changes his sister hoped for, reconciling with his family or, as the Crown points out, even failing in dealing with his addiction. [ 27 ] I have this to say to Mr. Tran's family members. Although no sentence will ease, let alone erase, the pain you feel, I recognize that his life had value beyond measure.

He not only mattered, he can never be replaced. I must and I have considered the gravity of the harm Mr. Harry caused to him and to you in ending your brother’s life in determining Mr. Harry’s sentence. Circumstances of the Offender [ 28 ] A fairly full account of Mr. Harry's circumstances emerges from the Gladue and the presentence reports, as well as his counsel's submissions and his statement to the Court. [ 29 ] Mr. Harry was 31 when he committed the offence. [ 30 ] Born in Lytton, Mr. Harry's father was a member of the Coldwater Indian Band and his mother, the Lytton First Nation. Mr.

Harry is a member of the Lytton First Nation. [ 31 ] Now 35, Mr. Harry has suffered more grief and loss than most in a lifetime. His father died in 2008 from brain cancer and his mother died very recently from the same disease. Mr. Harry had five siblings. Tragically, his oldest sister died in 2021 of a drug overdose, as did his niece and nephew, and his former partner Ms. Wilson. [ 32 ] Mr. Harry grew up in Lytton. He recalls a childhood defined by substance abuse, violence, instability, poverty, and fear. [ 33 ] Describing his maternal grandfather as a functional alcoholic, Mr.

Harry says his mother attended public school instead of residential school, but she faced a lot of racism. She had her first child at the age of 16, a child she did not raise, and was only 17 when she and Mr. Harry's father started their relationship. [ 34 ] When Mr. Harry's father was a young child, he was forcibly removed from his family and taken to St. George's Residential School, along with his brothers. The Truth and Reconciliation Commission described St. George's as one of the worst residential schools in western Canada. Parents were not allowed to visit or even contact their children.

Children had their hair cut when they arrived and were prohibited from speaking their Indigenous languages. Physical, sexual, and psychological abuse were rampant. [ 35 ] The Indian Residential School Survivors' Society reports the graves of students flogged to death at St. George's exist under floorboards and next to the playground. Olivia Brown the Aboriginal Justice Coordinator with the Lytton First Nation states that many members of the Fraser Valley's First Nations communities continue to suffer the intergenerational impacts of St.

George's, reflected in high levels of violence and addiction. [ 36 ] At the age of only 15, Mr. Harry's father was convicted of manslaughter. Mr. Harry describes his father as a hard-core, chronic alcoholic who was violent towards everyone in the family. He beat Mr. Harry regularly. Mr. Harry recalls his mother telling the children to flee the house when things got particularly bad, which they did, but then he would beat them for running away. He was sometimes in pain for days from his father's abuse. Appallingly, teachers and other adults in the community knew what was going on but did nothing. [ 37 ] Mr.

Harry attributes his father's violence and alcohol abuse to his unresolved residential school trauma. His mother was also a drinker. [ 38 ] Mr. Harry and his siblings were apprehended by child protection authorities and placed in foster care in Lytton. His mother was placed in a women's shelter. They eventually returned home after his father attended a residential treatment centre and stopped drinking. Mr. Harry reports the physical and emotional abuse reduced with his father's sobriety. [ 39 ] Fortunately, Mr. Harry also grew up with a strong awareness of his Indigenous culture.

Despite his father's attendance at residential school, the family followed a traditional way of life. His father was a skilled carver and painter and helped community members with sweat lodges and smudges, which Mr. Harry participated in as a youth until he converted to Christianity at the age of 18. His father was also a pipe carrier. Lytton First Nation’s alcohol and drug counsellor Matilda Brown explains that this is a great honour and one that is only bestowed after many tests and ceremonies. [ 40 ] In terms of education, Mr. Harry experienced significant learning challenges.

Diagnosed with ADHD as a child, he was medicated in his early teens but stopped taking the medication due to side effects. Ultimately, he graduated from an alternative program in 2006. [ 41 ] Not surprisingly, Mr. Harry began drinking alcohol when he was 13. He explained that everyone around him abused alcohol and he wanted to fit in. His consumption escalated and became an entrenched part of his life. As a young person, he also became addicted to crack cocaine, which fortunately he was able to stop using at the age of 22. [ 42 ] Mr.

Harry became involved in the Youth Criminal Justice System at the age of 15 in 2003. [ 43 ] Mr. Harry met Ms. Wilson in 2014. She too struggled with addiction. During their relationship, they had two daughters who have lived most of their lives in the care of Ms. Wilson’s father. He has had “full custody” of them since April 2021. From 2015 to 2019, Mr. Harry and Ms. Wilson made multiple attempts to "get sober", motivated to raise their daughters together. The two of them attended various recovery houses together, but when one would relapse, the other soon followed.

[ 44 ] During this same period, Mr. Harry was convicted of assaulting Ms. Wilson three times, assault causing bodily harm and various breaches of no-contact conditions intended to protect her. In each instance, he pleaded guilty. The sentences he received included suspended sentences with probation orders, a four-month CSO, and very minimal jail sentences. The Crown's

summary of the circumstances of those offences indicate, however, they included multiple acts of serious physical violence. The last of the sentences imposed on November 23, 2018, was the longest jail sentence, 30 days for time served followed by a 12-month probation order. In her reasons, Provincial Court Judge Saunders urged Mr. Harry to get treatment as soon as possible and, if drugs or alcohol were causing his (domestic) violence, she stated "hopefully this behaviour will end".

She also told him: “[y]ou do not want to … land up doing something that is very, very serious and ends up in death or serious bodily harm to one of your partners” (para. 5). [ 45 ] At the time of his last offence against Ms. Wilson, Mr. Harry was serving the 2018 probation order which included a term of no contact with Ms. Wilson. [ 46 ] Describing himself as in a period of relapse when he assaulted Mr. Tran on April 1, 2019, Mr. Harry states he was heavily intoxicated that day. He also says he has no memory of what he did, describing himself as in a state of alcoholic blackout. Mr.

Harry learned about his assault on Mr. Tran the following day from Ms. Wilson. He had known Mr. Tran since 2014 and identifies him as a nice guy who was part of their peer group. [ 47 ] Mr. Harry acknowledges that alcohol intoxication often led to blackouts for him and a complete loss of control over his behaviour. He describes his repressed anger as easily aroused when intoxicated and his behaviour escalating quickly and disproportionately, as reflected in his history of violent offending. [ 48 ] In August 2019, Mr. Harry made a decision to "break the cycle of addiction" and be a proper father to his children.

He ended his relationship with Ms. Wilson, who was not ready to become sober, and all contact with others he drank with in order to focus on his sobriety. To his great credit, Mr. Harry has remained sober for more than three and a half years. [ 49 ] Initially, Mr. Harry attended the New Vision Society recovery program in Surrey, BC (“New Vision”). After he was arrested and charged in relation to this offence in January 2020, he remained in custody until July 2020.

The terms of his release required him to reside at Seven Sacred Fires Society's Indigenous (“Seven Sacred Fires”) spiritually-based recovery program which he did, except for a brief period, until December 2022. [ 50 ] At the time of the presentence report, staff notes indicated Mr. Harry was seen as a mentor to residents in the early stages of their recovery. In addition to receiving support from program staff, Mr. Harry also attended regular counselling sessions remotely with Joanne Warren, who is trained in trauma treatment, based in Lytton. [ 51 ] The updated presentence report indicates Mr.

Harry was asked to leave Seven Sacred Fires for several reasons that include his attraction to a peer support worker, aggressive behaviour toward other residents, and his diminished participation within the facility and in community volunteering. [ 52 ] Mr. Harry responded appropriately by reporting to the probation officer. Because no other suitable recovery program placement was available, he was taken into custody until he secured a placement at New Vision. [ 53 ] When Mr.

Harry was asked about his discharge from Seven Sacred Fires, the probation officer writes, he downplayed the aggression that was identified. Although he also stated he felt he was held to a higher standard than other residents, he said he understood why given his years of sobriety, more would be expected of him. Further, he agreed he showed poor judgment in relation to the peer support worker. [ 54 ] The site manager of New Vision reports that Mr. Harry is "doing okay", but he struggles with following through on his stated intention and commitments.

He also gets angry if things do not go his way. [ 55 ] In addition to his participation in recovery programs, Mr. Harry reports making a concerted effort to deal with his historical trauma by engaging in Indigenous cultural practices such as smudges, sweats, and speaking regularly with elder Fred Thomas, as well as continuing his counselling with Ms. Warren. She suggests in-person culturally-sensitive trauma treatment would be ideal for Mr. Harry. [ 56 ] Mr. Harry describes himself as having outgrown his ADHD. Since the offence, he has been diagnosed with anxiety which has improved with medication. Mr.

Harry reports experiencing some ongoing symptoms related to a number of head injuries he has suffered and most recently in 2017, when he fell approximately 35 feet while working as a roofer. He identifies various cognitive issues, including slow thinking process, problems with multi-tasking, memory loss, impulse control, sleep disturbance, and generalized nerve pain. [ 57 ] Ms. Wilson’s father supports Mr. Harry's goals of working full-time, save money, secure his own home, and care for his daughters himself. Mr. Harry spends time with his daughters every weekend. Ms.

Wilson’s father views him as doing well and reports no current concerns. [ 58 ] Mr. Harry also has supportive relationships with his four surviving siblings: Rainbow, Brian, Catherine, and Daniel. Only Rainbow lives locally. She attends the nursing program at UBC and has regular contact with Mr. Harry and his children. [ 59 ] Mr. Harry worked on and off in construction and roofing before the offence. Since then, he has worked for construction companies as a skilled labourer. In August 2022, he started roofing jobs. He describes himself as very reliable and hardworking.

His employment was interrupted when he was taken into custody in December 2022. New Vision required him to wait 30 days before he could start working again. Mr. Harry has expressed an interest in vocational training leading to his Red Seal designation as a roofer. [ 60 ] Acknowledging he and Ms. Wilson often ignored protective order conditions, Mr. Harry has been fully compliant with his bail conditions. [ 61 ] Both the Gladue and the presentence reports indicate Mr. Harry has expressed significant remorse for his offence against

Mr. Tran. He also expressed remorse when he addressed the Court. Mr. Harry acknowledged his attack was completely unprovoked. Heprays for Mr. Tran or Tommy and his family. He also said he prays for forgiveness. Mr. Harry believes that when he dies, he will befully judged for his actions. Wanting to repair his wrong, he says he is trying to honour Tommy by living his life sober and being thebest version of himself. Mr. Harry is willing to speak directly with Mr. Tran's family if this would help to resolve any residual fear theymay have or to assist in their healing process.

I note a victim-offender reconciliation program is offered through the Fraser RegionalCommunity Justice Initiatives Program and available through the Correctional Service of Canada. [62] The Gladue and presentence reports set out a number of other community and corrections-based therapeutic and rehabilitationprograms. Legal Framework [63] Turning to the legal framework.

The offence of manslaughter has no minimum sentence, but carries a maximum penalty of lifeimprisonment. [64] The principles that govern the determination of a fit sentence within this vast range are set out in ss. 718, 718.1, and 718.2 of theCriminal Code, R.S.C. 1985, c. C-46 [Code]. [65]

Section 718 tells us the overall purpose of sentencing is to contribute to “respect for the law and the maintenance of a just,peaceful and safe society by imposing just sanctions”. Just sanctions fulfil one or more objectives. The most significant objectives hereinclude denouncing the offender's unlawful conduct, deterring the offender and others from committing offences, assisting inrehabilitating offenders, and promoting a sense of responsibility in offenders. [66] The fundamental principle of sentencing, found in s. 718.1, is proportionality.

Mandating an individualized assessment, itrequires a sentence to be proportionate to the gravity or seriousness of the offence and the degree of responsibility or moralblameworthiness of the offender. [67] At the same time, the parity principle, codified as a secondary sentencing principle, requires similar offenders who commitsimilar offences in similar circumstances to receive similar sentences: s. 718.2 [68] Justice Wagner, as he then was, discussed the relationship between parity and proportionality in R. v.

Lacasse, 2015 SCC 64,identifying proportionality as determined both on an individual basis, that is in relation to the offender and the offence, but also bycomparison with sentences imposed for similar offences committed in similar circumstances. [69] Other secondary principles include the requirement to increase or reduce a sentence to account for aggravating and mitigatingcircumstances related to the offence or the offender. Sections 718.2(c), (d), and (

e) promote restraint in sentencing. [70] Because Mr. Harry is Indigenous, s. 718.2(

e) of the Code is particularly significant. It reads: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [71] Introduced in 1996, the provision is intended to deal with the crisis of overrepresentation of Indigenous people in Canada'scriminal justice system: R v. Gladue, (SCC), [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13. As JusticeMarchand observed in R. v.

Harry, 2018 BCSC 2069, the crisis is one driven by alienation, poverty, substance abuse, lower educationalattainment, lower rates of employment, and prejudice experienced by Indigenous people that has resulted from Canada's colonial historyand policies of cultural destruction such as the horrific legacy of Indian Residential Schools: para. 22. [72] The case of Gladue identified Indigenous offenders as different from others because they “are victims of systemic and directdiscrimination”: para. 68. [73] In sentencing an Indigenous offender, Gladue and Ipeelee require a sentencing judge to consider two factors:

a) the unique systemic or background factors which may have played a role in bringing the offender before the court; and

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances. [74] With respect to the first factor, although every offender's background may be highly relevant to the assessment of theirresponsibility for the offence, Gladue and Ipeelee make it clear that the unique systemic or background factors of an Indigenous offendermay diminish their moral blameworthiness for the offence. [75] Other important principles established in Gladue and Ipeelee include: • the court must take judicial notice of the history of colonialism, displacement, and residential schools, and how that historycontinues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse andsuicide, and higher levels of incarceration for Indigenous peoples; • these factors provide the requisite context for considering the case-specific information; • the offender is not required to establish a causal link between the systemic and background factors and the offence, but a link maybe important or helpful in finding a fit sentence; and

• although taking a restorative approach will not necessarily lead to a reduced sentence, in many instances restorative sentencingprinciples will be primarily relevant because the prevention of crime as well as individual and social healing cannot occur through othermeans. [76] The Supreme Court of Canada has repeatedly stated that determining a fit sentence for all offenders is a highly-individualizedprocess that requires a delicate balancing of multiple principles and objectives. [77] Consistent with the emphasis on individualization and the proportionality principle, the Supreme Court of Canada has reiteratedtime and again that sentencing ranges are guidelines only, identifying them as just one tool among others: Lacasse at para. 69, cited in Rv.

Suter, 2018 SCC 34 , [2018] 2 S.C.R. 496 at para. 25. In Lacasse, the reasons of Justice Wagner include: [57] Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, … [T]heyshould not be considered “averages”, let alone straightjackets, but should instead be seen as historical portraits for the use of sentencingjudges, who must still exercise their discretion in each case. [78] The point was made even more forcefully in the recent case of R. v.

Parranto, 2021 SCC 46. [79] There, the Court also clarified that the objectives of denunciation and deterrence are generally built into ranges and startingpoints.

They reflect a judicial consensus on the gravity of the offence-based considerations only, or the objective seriousness of theoffence, not the personal characteristics of the offender, potentially mitigating circumstances, or Gladue factors: Ellis, paras. 130-131. [80] Referring to Indigenous offenders in particular, Parranto clarified that while the gravity of the offence may dictate a custodialsentence, the individual circumstances of the offender must also support the sentence imposed (para. 52). [81] Despite Lacasse perhaps, but prior to Parranto, the general range for manslaughter absent unusual or special circumstances wasdescribed as between four and 15 years imprisonment: R. v.

Engebretsen, 2016 BCCA 182; R. v. Plowman, 2015 BCCA 423. R. v.

Pop,2013 BCCA 160, referred to the range for sentences for young Indigenous offenders without prior criminal records who committedmanslaughter in aggravated circumstances as between three and eight years' imprisonment, with sentences of one and 10 years "at theouter ends". [82] Turning to the approach to sentencing for manslaughter, the cases have always recognized the assessment of the offender'sdegree of responsibility as playing a particularly critical role, because the offence encompasses such a broad range of conduct and allowsfor the widest possible range of penalties. [83] Some time ago, R. v.

C.A.M., (SCC), [1996] 1 S.C.R. 500, established the assessment requires an examinationof intentional risk taking, the harm caused, and the normative character of the conduct. R. v.

Stone, (SCC), [1999] 2S.C.R. 290, subsequently affirmed a more extensive list of factors that included the choice of weapon used in the unlawful act, thedegree of force used, the extent of the victim's injuries, degree of violence or brutality, the existence of any gratuitous violence, thedegree of deliberation and planning or forethought, the complexity of the act, what if anything provoked it, the time taken to perpetratethe act, and the element of chance involved in the resulting death. [84] Much more recently in R. v.

Badhesa, 2019 BCCA 70, the Court of Appeal reiterated and explained: [24] … A sentencing judge assesses moral culpability for manslaughter by considering the offender’s mental state in the context ofthe unlawful act itself and the offender’s personal characteristics, blending and balancing all in combination.

Factors that weigh in thebalance include intentional risk-taking, the harm caused, the normative character of the offender’s conduct, the degree of deliberationinvolved… [25] The purpose of the balancing exercise is to ensure that the sentence fits the degree of the offender's moral fault for the harm doneby the unlawful act underlying the offence of manslaughter. The measure of the fitness of a sentence lies in the principle ofproportionality.… [26] Sentences imposed for manslaughter range from a suspended sentence to life imprisonment.

Given the wide range, the judgemust carefully determine the degree of an individual's moral culpability and craft a sentence that accounts adequately for the uniqueconstellation of relevant factors present in the case. The task is complex and sometimes factors unrelated to where the unlawful act fallson the near-accident to near-murder spectrum nonetheless bear on the degree of the offender's moral culpability. [Citations omitted.] [85] In R. v. Russell, 2019 BCSC 1039, Justice Schultes observed the Gladue factors that play a

part in bringing an offender beforethe court are a crucial example of the factors unrelated to the unlawful act contemplated in Badhesa that will bear on the offender's moralblameworthiness for manslaughter. [86] As I have indicated, Mr. Harry seeks a CSO of two years less a day, followed by a three-year probation order. [87]

Section 742.1(

a) of the Code allows for a CSO if: a jail sentence of less than two years is imposed and the Court is satisfied: (1)serving the sentence in the community would not endanger the safety of the community; and (2) would be consistent with thefundamental purpose and principles of sentencing. [88] The leading authority on the approach to determining whether to impose a conditional sentence remains R v. Proulx, 2000 SCC5. [89] Proulx explains that in considering the danger to the community, the court must consider the risk of re-offending, including theability of conditions to reduce the risk to an acceptable level, and the gravity of the damage that could result (paras. 68–69, 72).

Particularly in the case of a violent offenders, a small risk of a very harmful future crime may warrant a finding that this prerequisite has not been met. Addressing the requirement for consistency with the fundamental purpose and principles of sentencing, Proulx emphasizes that a conditional sentence can provide significant denunciation, particularly when onerous conditions are imposed and the term of the sentence is longer than would have been imposed as a jail sentence.

The same is true of general deterrence although there may be circumstances where the need for denunciation and deterrence is so pressing that incarceration will be the only suitable way to express society's condemnation of the offender's conduct. [ 90 ] As the Crown points out, where a penitentiary sentence is imposed but the net sentence is two years less a day after taking into account time served, a CSO is not available. Position of the Parties [ 91 ] The Crown takes the position that the gravity of Mr. Harry's offence and his degree of responsibility calls for a sentence of seven years' incarceration.

Relying on Badhesa , as well as other authorities, the Crown argues that deterring, denouncing, and imposing retribution are the primary sentencing objectives in this case, acknowledging, however, that rehabilitation and restraint must also be considered. [ 92 ] Applying the Stone criteria, the Crown submits: • Mr. Tran did nothing to provoke Mr. Harry; • The degree of force he used in kicking and then stomping on Mr. Tran's head was extreme; • The brutality involved was significant and continued until Mr. Harry was pulled away from Mr. Tran by Mr. Schooner; • Mr. Harry deliberately and exclusively targeted Mr.

Tran's head; • The traumatic brain injury Mr. Tran suffered was severe; • Causing brain trauma and death was a likely result of stomping on Mr. Tran's head; and • Put another way, there was very little, if any, element of chance involved in Mr. Tran dying. [ 93 ] Although part of the seriousness of the offence and Mr. Harry's moral blameworthiness, in my view, the Crown identifies almost all of the same circumstances as aggravating, along with Mr.

Harry fleeing the scene, his criminal record for "serious” violent offences, and a failure to address his issues with alcohol, despite being warned by the Court in October 2018. [ 94 ] Addressing the mitigating factors, the Crown suggests that the effect of Mr. Harry's guilty plea is lessened because of its timing, it was entered after the preliminary inquiry and voir dires , and because the Crown's case for manslaughter was particularly strong. Rather than acknowledging the support Mr.

Harry has, the Crown identifies a lack of significant local prosocial support, apart from some professionals, as a concern. [ 95 ] Acknowledging that Mr. Harry has expressed remorse, demonstrates insight into the causes of his offending, and has taken significant steps to deal with his alcohol misuse, the Crown also acknowledges that Mr. Harry has performed well on bail, the terms of which have been relaxed over time, due to his success. Characterizing the Gladue factors present in Mr.

Harry's background as also mitigating, the Crown accepts they are numerous and include his father attending residential school, parental alcoholism, an abusive and unstable childhood that included foster care for a period of time, the early death of his parents, his sister, her children, and Ms. Wilson, and a lifelong pattern of alcohol abuse. [ 96 ] The Crown denies that Mr. Harry's state of intoxication when he assaulted Mr.

Tran was mitigating, beyond its role in reducing murder to manslaught, relying on the discussion of self-induced intoxication in Badhesa : [39] Intoxication by alcohol or drugs often figures prominently in manslaughter cases. While relevant to moral culpability, self- induced intoxication that leads to violence is typically the produce of intentional risk taking, which conduct is itself dangerous, irresponsible and blameworthy.

If such circumstances the offender is held fully accountable for his or her condition and principles of deterrence and denunciation are paramount in the determination of a fit sentence.… [ 97 ] What I take from the discussion, however, is that self-induced intoxication is properly considered in determining the offender's degree of moral culpability. [ 98 ] Badhesa itself involved an offender who was severely psychotic and heavily intoxicated when he beat his mother to death and assaulted his wife in front of their children.

In addition to pleading guilty, the offender was extremely remorseful and at low risk to reoffend. The Court of Appeal found the sentencing judge had erred by failing to consider how his mental illness had contributed to his state of intoxication, thus reducing his moral culpability. The Court of Appeal allowed the appeal from a 10-year sentence for manslaughter and imposed a seven-year sentence. [ 99 ] Turning to the Crown's other manslaughter sentencing cases, I agree with Mr. Harry's counsel that R. v. Killiktee , 2011 ONSC 5910 and R. v.

Jessie George , 2010 ONSC 6017 , which imposed sentences of nine and seven years respectively, are of less assistance because they are Ontario decisions and the parties proposed higher sentences than are proposed here. Although both cases involve Indigenous offenders and fatal beatings, there is no lack of sufficiently similar B.C. cases with which to consider the parity principle. [ 100 ] Indeed, the parties have provided me with many.

[ 101 ] The Crown's B.C. cases include R. v. Johnny , 2016 BCCA 61 . Unlike Mr. Harry, Mr. Johnny was only 19 at the time of the offence and he had no criminal record or history of violent behaviour. While intoxicated, he beat Ms. Scow to death. Both Mr. Johnny and Ms. Scow were Indigenous. She was also the mother of seven children. Convicted of manslaughter, the trial judge sentenced him to eight years' jail. [ 102 ] The Court of Appeal concluded the trial judge had erred in failing to assess Mr. Johnny's moral blameworthiness as reduced by intoxication and his circumstances as an Indigenous offender.

Although the offence involved a brutal near-murder and caused terrible harm to Ms. Scow's children and other family members, along with focusing on Mr. Johnny and his offence, the Court found the sentence must reflect society's hope for his rehabilitation. Ultimately, in allowing the appeal, it was reduced to six years, a still significant term of imprisonment. [ 103 ] In R. v. Smith , 2019 BCSC 2084 , Mr. Smith was originally charged with murder and pled guilty to manslaughter. Intoxicated, he struck the victim, a person with medical issues, in the back of the head.

The victim fell to the ground, hitting his head. Mr. Smith then kicked the victim several times, stole his cellphone, and left. The victim died several days later from the effects of his injuries. [ 104 ] Much older than Mr. Harry, Mr. Smith was 54 when he was sentenced. The systemic and background factors for him as an Indigenous person were very significant, if not profound. Mr. Smith himself attended residential day school at a young age for a year, where priests subjected him to sexual abuse, physical abuse, and racism. Mr. Smith started using alcohol at the age of 10 years.

In his late 20s, he began using heroin. [ 105 ] Like Mr. Harry, Mr. Smith had no memory of assaulting the victim and expressed remorse. He was also very receptive to psychological and culturally-based interventions. [ 106 ] Mr. Smith had a criminal record that included two convictions for assault. [ 107 ] Indicating assaultive conduct was not out of character for him, Justice Duncan accepted his moral blameworthiness was significantly reduced by his background. She also accepted that the Gladue factors resulted in longstanding PTSD, as well as his substance use disorder.

A prison sentence of five and a half years was imposed. [ 108 ] Some of the Crown's cases involve non-Indigenous offenders. [ 109 ] Among them is R. v. Sanghera , 2020 BCSC 1622 , which the Crown identifies as setting the floor for manslaughter sentences, and Plowman which stands on a very different footing. [ 110 ] In Sanghera , I sentenced Mr. Sanghera to a jail for two years less a day followed by an 18-month probation order with very restrictive conditions. Leaving aside the role of the Gladue factors for Mr. Harry, Mr.

Sanghera's responsibility for the offence as well as its circumstances were far less serious. The victim, who was very large and powerful, died from an assault that occurred in the context of a fight that he started. Although Mr. Sanghera had opportunities to walk away, he suffered from epilepsy and feared losing consciousness during the fight. Like Mr. Harry, he had to be pulled off the victim. About the same age as Mr. Harry, Mr. Sanghera had led an exemplary life before the offence.

From the moment he learned of the victim's death, he was overwhelmed by remorse that I found could not have been greater. [ 111 ] There were several other significant mitigating circumstances along with extreme collateral consequences after the offence, which involved and resulted from an armed gunman attempting to shoot Mr. Sanghera, pointing a gun at his wife, and actually shooting his father-in-law. Mr. Sanghera and his wife were forced to live in hiding under the protection of state actors and continued to face an ongoing serious risk that would require them to carry on living anonymously.

After the offence and after the shooting, Mr. Sanghera developed severe mental health issues. Despite his participation in therapy prior to sentencing, his condition was anticipated to worsen in jail. [ 112 ] While I agree with the Crown that Sanghera undermines Mr. Harry's position on sentence, in my view, Plowman undermines the Crown's position. In that case, the Court of Appeal upheld sentences of seven years' imprisonment for two non-Indigenous offenders. They were part of a group attack on the victim who was punched, kicked, and then stabbed in the chest. The trial judge found Mr.

Plowman participated in the assault throughout and also dissuaded others from helping the victim. He dragged the victim's body to a car where he intended to bang his head before stomping on him. Whether or not these are more serious circumstances than in this case, certainly Mr. Plowman's degree of moral responsibility for the offence was very high and much higher. [ 113 ] Turning to Mr. Harry’s position, his counsel's focuses on his undeniably trauma-filled and significantly disadvantaged background as an Indigenous person, coupled with his commitment to transforming himself since shortly after the offence.

What distinguishes Mr. Harry from the offenders in the Crown's cases, his counsel argues, is the strength and endurance of his resolve to change. Not only has he tried to address the root causes of his violence, anger, and alcohol, he has remained sober in the face of so many tragic and deeply wounding personal losses: the death of his sister, her children, his mother, and Ms. Wilson. [ 114 ] His counsel forcefully asserts that the Crown's proposal of a seven-year sentence would be excessive and unduly harsh. Given everything Mr.

Harry has done in the last almost four years, such a long term of imprisonment would undermine the objective of rehabilitation and defeat his tremendous efforts to ensure his violent behaviour never happens again. [ 115 ] Also challenging the Crown's limited acknowledgment of some of the mitigating factors, Mr. Harry's counsel suggests his guilty plea deserves great credit eliminating, as it did, the need for a trial which provided a valuable saving to the criminal justice system. [ 116 ] Mr.

Harry's counsel also disagrees with the Crown's submissions that he lacks community support, emphasizing that in addition to significant professional supports, he has the support of Ms. Wilson's father and his siblings. Most importantly, along with his deep feelings of remorse, Mr. Harry is highly motivated by his children who he spends time with every weekend and his plan to care for them himself.

[ 117 ] Emphasizing that every case depends on its own facts, and manslaughter cases in particular require a very fact-specific analysis, Mr. Harry relies on number of cases that involve much younger Indigenous offenders and/or much less serious manslaughter offences, and jail sentences of over three years that would make a CSO unavailable. [ 118 ] In R. v. Alphonse , 2018 BCSC 2045 , the victim was killed during a violent fight where he had been the main aggressor. Twice the victim had Mr. Alphonse on the ground and was beating him with a chair. The trial judge found Mr.

Alphonse acted in near self-defence when he stabbed the victim as he walked towards a machete. [ 119 ] Like Mr. Harry, Mr. Alphonse was highly intoxicated and had no recollection of what happened. Described only as a young man, he too had started drinking as a young teenager. After the offence he stopped drinking altogether and associating with people who drank, completed residential treatment, and had been compliant with strict bail for two years. Although subject to intergenerational trauma, Mr.

Alphonse had no prior history of violence. [ 120 ] A suspended sentence with a three-year probation order that included stringent terms, including house arrest for the first year, was imposed. [ 121 ] R. v. Smith , 2017 BCSC 2513 , involved both an alcohol-fuelled fight and a very young offender. Only 19 years old at the time of the offence, Mr. Smith was injured while fighting with his uncle before stabbing him once with a steak knife. Both were heavily intoxicated. Impacted by significant intergenerational trauma, Mr.

Smith began using drugs and alcohol at the age of 10, which escalated to daily heavy use and resulted in suicide attempts and violent behaviour. He attended but did not complete treatment and continued his substance abuse while on bail, then detained for an extended period prior to sentencing, Mr. Smith was forced to abstain and became motivated to get well. [ 122 ] Finding his Indigenous background had played a substantial role in limiting his level of moral blameworthiness, recognizing the importance of rehabilitation given Mr.

Smith's young age, along with denunciation and deterrence, and giving weight to numerous mitigating factors, Justice Donegan imposed a sentence of three years and two months. With credit for time served, this resulted in a net jail sentence of 12 months to be followed by three years' probation. [ 123 ] In R. v. McGoran , 2004 BCSC 1737 , the offender was only 18 at the time of the offence. The victim died during a botched robbery. Mr.

McGoran hit him in the back of the head with a stick once without using a great deal of force, but it impacted a particularly vulnerable area causing a fracture which then lacerated an artery, resulting in his death. Mr. McGoran pleaded guilty to manslaughter. His background included being permanently placed in the Ministry's care at a young age after the death of his mother, and living in many different foster and group homes. He was diagnosed with ADHD and had a history of aggressive behaviour, but no criminal record.

At the time of the offence, he was using cocaine and methamphetamine, which fuelled his aggression and the court considered in assessing his degree of moral blameworthiness. Giving emphasis to the objective of rehabilitation, the sentencing judge decided against imposing a penitentiary sentence and instead imposed a jail sentence of two years less a day followed by a three-year probation order. [ 124 ] In R. v. Morris , 2018 BCSC 803 , the offender was only 21 at the time of the offence. Following an altercation, he struck the victim in the head once, which caused him to fall to the ground. Mr.

Morris hit him once or twice more as he was lying on the ground. In addition to pleading guilty, Mr. Morris had no criminal record or history of violence. The Crown sought only a sentence of imprisonment of two years less a day and the defence, a suspended sentence. At that time, a CSO was not available. Both counsel agreed the range for manslaughter offences in similar circumstances was six to 36 months, which the sentencing judge accepted. She was also provided with a different body of case law than I have been, other than R. v. Huth , 2 014 BCSC 570 .

The court imposed a jail sentence of 12 months. [ 125 ] The offender in R. v. Touchie , 2015 BCSC 1833 , was 23 years old, charged with second degree murder and convicted of manslaughter. Like Mr. Alphonse and Mr. Morris, Mr. Touchie also had no criminal record or history of violent behaviour. He offered a guilty plea to manslaughter before the trial. The offence occurred after Mr. Touchie found the victim sexually assaulting a woman who was unconscious.

A victim of sexual abuse himself, he had also witnessed his younger siblings, his mother, and other female family members being sexually abused, and his mother being physically abused by a series of violent partners when he was a child. His mother's upbringing was marked by poverty, chronic substance abuse, and rampant sexual abuse in her family and community. Not surprisingly, Mr. Touchie had a significant history of substance abuse, self-destructive behaviour, and anger problems arising from his traumatic upbringing, but again no criminal record. [ 126 ] Heavily intoxicated at the time of the offence, Mr.

Touchie responded to the victim's behaviour with extreme violence. He pummelled the victim with blows and kicks and stomped on his chest repeatedly. The victim died from repetitive blunt trauma injury. [ 127 ] Mr. Touchie stopped his substance abuse when he was arrested. While in pretrial custody, he participated in counselling and completed a number of therapeutic programs as well as high school. On bail, he was fully compliant.

Other mitigating factors included his young age, positive employment history, and strong support from family and friends, along with additional mitigating factors. [ 128 ] Paying particular attention to Mr. Touchie's background as an Indigenous person and finding it substantially limited his moral blameworthiness for the offence, Justice Baird imposed a sentence of three years and three and a half months' imprisonment. Less time served, this resulted in a penitentiary sentence of two years, followed by three years' probation.

Analysis [ 129 ] Ultimately, the cases I have been provided with demonstrate just how difficult it is to determine an appropriate sentence for the very serious offence of manslaughter. Not only are competing objectives required to be balanced, particularly in relation to young Indigenous offenders, those without criminal records and those like Mr. Harry who have taken significant steps to rehabilitate themselves, in applying the proportionality principle there is a tension between the seriousness of the offence and the moral blameworthiness of the offender owing to the impact of Gladue considerations.

[ 130 ] I begin by considering the mitigating and aggravating factors. [ 131 ] The aggravating factors related to the offence include Mr. Tran's vulnerability. Much smaller than Mr. Harry and noticeably intoxicated, he had no chance of defending himself. Rather than stopping his brutal assault on Mr. Tran, Mr. Harry had to be pulled away from him. Instead of getting help for Mr. Tran, Mr. Harry fled. Although he did not use a weapon, the injuries he inflicted were extremely serious. [ 132 ] Unrelated to the offence, Mr.

Harry's criminal record and in particular his four convictions for assault and assault causing bodily harm to Ms. Wilson, which were also fuelled by alcohol misuse, are aggravating. Recognizing Mr. Harry was attempting to address his alcohol addiction during that time, he was well aware before this offence of the risk of violence he posed to others when he drank. [ 133 ] Turning to the mitigating factors, I agree with the defence that Mr. Harry's guilty plea is entitled to meaningful weight.

Although not an early plea, it spared, as he said, the criminal justice system and the witnesses the cost and ordeal of a trial. It also demonstrates his assumption of responsibility for the offence and his remorse, which he has consistently expressed. I accept Mr. Harry's remorse includes an understanding of the profound harm he has caused and it motivates his efforts to change for the better. [ 134 ] On this point, perhaps the most significant mitigating factor is Mr. Harry’s powerful commitment to addressing his serious longstanding addiction to alcohol and the profound trauma that underlies it.

His success in remaining sober since August 2019 by immersing himself in appropriate treatment is a remarkable achievement and I commend him for it. [ 135 ] Along with this factor is the family support Mr. Harry enjoys, which includes the support of his children's caregiver, their grandfather. Although most of his siblings live elsewhere, given their trauma-filled background, the fact that the four of them share supportive relationships is also remarkable. Mr.

Harry's steady involvement with his children is an aspect of this mitigating factor. [ 136 ] Focusing as I must on the fundamental principle of sentencing, proportionality, and addressing first the seriousness of the offence, there is no question Mr. Harry committed an extremely violent, brutal assault on Mr. Tran that caused his death. Not only was it entirely unprovoked, after Mr. Tran was punched in the head without any warning and lay helpless on the ground, Mr. Harry kicked and then stomped on his head with as much force as he could.

These are truly appalling circumstances. [ 137 ] Assessing his responsibility for the offence is much more complicated. [ 138 ] Were I not to consider Mr. Harry's background as an Indigenous person, his degree of moral culpability would be very high. [ 139 ] However, taking judicial notice, as contemplated in Gladue and Ipeelee , and considering the evidence of his background, I accept many of the factors that led to Mr.

Harry being before the Court today: the trauma of extreme physical violence, omnipresent alcohol abuse, poverty, instability, and inadequate educational and community support, are the result of the legacy of colonialism and the intergenerational trauma caused by residential schools. [ 140 ] In my view, the systemic and direct devastation inflicted on Mr. Harry's family, his community, and his culture, which in turn manifested itself in his abusive and highly-dysfunctional upbringing, played a significant role in the alcohol addiction, rage, and volatility that underlie this offence.

Although a direct causal relationship between the Gladue considerations and the offending is not required, I am satisfied that relationship is present here. I conclude Mr. Harry's moral blameworthiness is substantially reduced as a result, although it remains significant. [ 141 ] In light of the seriousness of Mr. Harry's offence and the aggravating factors, denunciation and general deterrence are critically important objectives in determining a fit sentence here.

This type of brutal violence and the extreme harm it caused must be denounced and deterred. [ 142 ] Specific deterrence also warrants some consideration. Appreciating Mr. Harry is now fully aware that he must continue on his pathway to healing to prevent himself from committing further acts of dangerous violence, I cannot ignore that he was not deterred by the previous sentences he received for violent crimes against Ms. Wilson. [ 143 ] At the same time, given all that Mr.

Harry has achieved since the offence and his background as an Indigenous person, the principles of rehabilitation and restraint must be given significant weight. [ 144 ] Applying the parity principle, Mr. Harry shares the impact of his background with many of the Indigenous offenders in the sentencing cases I have reviewed.

Thirty-one years old when he committed the offence and with a criminal record for violence, however, his circumstances differ from those of the much younger, if not very young, Indigenous offenders with no criminal records in Johnny , Alphonse , Smith , McG oran , Morris , and Touchie , most of whom also had no history of violent behaviour, despite their substance abuse. The absence of any provocation, let alone an altercation, along with the brutality of his assault on Mr. Tran, makes his offence much more serious than those in Sanghera , Alphonse , Smith , and Morris.

Significantly provoked by the victim's sexual assault and his own unique background factors, I would also characterize Mr. Touchie's moral blameworthiness as significantly lower than Mr. Harry's. On the other hand, Mr. Harry's blameworthiness is lower than Mr. Plowman's and in Smith (2019), Mr. Smith had yet to launch his rehabilitation. [ 145 ] Mr.

Harry, based on the gravity of your offence, your reduced but still significant moral blameworthiness, the many mitigating factors, and the aggravating factors which are fewer, the objectives of denunciation, deterrence, and rehabilitation, the principle of restraint, and comparing this case to the others I have discussed, I am firmly of the view, that a CSO would be unreasonable and a significant sentence of imprisonment is required. [ 146 ] I have reached this conclusion very alive to the need to encourage rather than extinguish your ongoing rehabilitation.

As discussed in the Gladue report, I am encouraged by the extent to which B.C.'s federal system provides robust programming for Indigenous offenders.

[ 147 ] Giving as much weight as can be justified to the objective of rehabilitation and the principle of restraint, before a deduction for time served, I sentence you to five years' imprisonment.

Applying the agreed-upon credit of 11 months, I imposed a sentence of four years and one month imprisonment. [ 148 ] In doing so, I recommend that you receive access to all available programs suitable for an Indigenous offender with your background, so you may continue to address your alcohol misuse and trauma, including your underlying anger and propensity for violence. [ 149 ] I also recommend that you serve your sentence in a penitentiary located as close as possible to your children so you can visit with them. [ 150 ] I grant the mandatory ancillary orders sought by the Crown. [ 151 ] They include a DNA order and a firearms prohibition. [ 152 ] Accordingly, pursuant to s. 487.051(3) of the Code , I order you to provide as many samples of your bodily substances as may reasonably be required for forensic DNA analysis. [ 153 ] Pursuant to s. 109(1) of the Code , I prohibit you from possessing any of the listed items for 10 years after your release from custody, and then from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 154 ] I wish you well in your recovery, Mr.

Harry. [ 155 ] Thank you, those are my reasons. “Fleming J.”