R. v. Brownlee, 2021 BCPC 89

Citation: R. v. Brownlee 2021 BCPC 89 Date: 20210326 File No: 109875-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHANE TROY BROWNLEE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.D. PHILLIPS Counsel for the Crown: C. Cook Counsel for the Accused: K. Thorsteinson Place of Hearing: Kamloops , B.C. Date of Hearing: January 14, 2021 Date of Judgment: March 26, 2021 [ 1 ] THE COURT: First of all, thank you, counsel, for the thorough work you did in this matter.

[ 2 ] We enter and leave this world totally dependent on the people around us to do what is right. [ 3 ] Mr. Brownlee is before the court having pled guilty to improperly or indecently interfering with, or offer an indignity to, a dead human body by concealing the body of David Boltwood and leaving his remains at a dumpster, contrary to s. 182 (

b) of the Criminal Code . [ 4 ] Mr. Brownlee admits his failure in upholding his duty to do what is right when he moved the dead body of his friend, Mr. Boltwood, to a dumpster wrapped in a carpet and a cardboard box. In doing so, he deprived the family of Mr. Boltwood to put their loved one to rest in a respectful way. [ 5 ] Mr. Brownlee is before the court to take responsibility for his actions. [ 6 ] The Crown seeks a sentence that includes a two-year conditional sentence order followed by three years of probation. [ 7 ] Counsel for Mr. Brownlee submits that Mr.

Brownlee has undergone a significant transformation in his life that amount to exceptional circumstances which justifies a sentence lower than the normal range. Specifically, a conditional sentence order between 6 to 12 months, followed by 12 months of probation. [ 8 ] At the commencement of these proceedings, counsel submitted the following Agreed Statement of Facts: 1. In November of 2019, the deceased, David Boltwood, was living with Shane Brownlee (the "Accused") at unit 117 - 170 Carson Crescent in Kamloops, British Columbia. Mr.

Boltwood was homeless and was in the process of seeking his own place to live. . . . 2. On Thursday November 7, 2019, the Accused was served eviction papers by the building manager. Mr. Boltwood was already residing with the Accused at that time. It is unknown as to when exactly he moved in, but it is believed to be in early November, after the Accused's previous roommate moved out. 3. The deceased was 65 years old, of poor health and required the use of a wheelchair as he had mobility issues. He passed away in the days following November 7, 2019, however the exact date is unknown. 4.

On November 13 or 14, 2019, Adele Ruschiensky and her colleague Kenneth Boyes were cleaning the common areas of 170 Carson Crescent. Both persons noted a foul smell in the area near the Accused's apartment unit and Mr. Boyes believed it to be the smell of a decaying body. 5. On Tuesday November 19, 2019, Ms. Serediuk returned to the Accused's apartment and photographed the suite as part of the eviction process. The apartment was a complete mess and resembled that of a hoarder's. One of the photographs that Ms. Serediuk took showed a zebra patterned rug that was rolled upon one of the bedroom floors.

Unbeknownst to her, Mr. Boltwood's body was rolled up inside [that] rug. 6. Between November 19 and November 24, 2019, the Accused moved Mr. Boltwood's body, rolled up inside of the zebra rug, to one of the six storage lockers he used in the hallway across from his apartment. Several witnesses reported smelling a strong odour within that part of the building. 7. On Saturday November 23, 2019, the Accused acquired a "Rona" hot water tank cardboard box from the building manager, Jared Townsend.

On Sunday November 24, 2019, the Accused requested help from a local boy, 15-year-old C.M., to move items out of the apartment. C.M. thought he was only moving larger household items to the dumpster and did not realize he was helping the Accused move Mr. Boltwood's body. The body was inside of the cardboard box and was brought to the exterior parking lot of 170 Carson Crescent beside the dumpsters. This incident was captured on surveillance footage from the adjacent building. 8.

On Friday November 29, 2019 at approximately 10:00 a.m., Levi Stables and Adam Dunbar contacted the Kamloops R.C.M.P. after discovering the body in front of two large dumpster bins. When police [entered], Mark Northcott was also in the area and reported that he had seen the rolled-up rug and cardboard box by the dumpster bins for a few days. . . . 9. Following the discovery of the body, a media release was created by the Kamloops R.C.M.P requesting any information from the public regarding Mr. Boltwood's death.

On November 30, 2019, C.M. called the Kamloops R.C.M.P. dispatch to report that he had information regarding the body that was discovered, and that he was willing to show police where the deceased male's wheelchair was located. 10. C.M. told police that the deceased male was living in apartment 117 at 170 Carson Crescent with the Accused. He had only recently met the Accused and his girlfriend, and from time to time was asked by him to help move some of his belongings in exchange for money. 11. C.M. advised police that the Accused told him that Mr.

Boltwood stayed with the Accused and when questioned about his whereabouts, the Accused told him that the man's brother had picked him up. 12. On one of the days that he helped him, the Accused asked C.M. to move some "pissy blankets". The Accused told him that the man who was staying with him had a problem with urinating. The "pissy blankets" were all wrapped up in a cardboard box and strapped to a dolly in one of the storage lockers rented by the Accused. C.M. was told not to touch it and witnessed the Accused pour a bottle of Febreeze on the cardboard box.

C.M. also saw a black folded up wheelchair in another storage unit rented by the Accused and across from where he was keeping the "pissy blankets". 13. Later that night, C.M helped the Accused move the "pissy blankets" that were in a cardboard box strapped to the dolly out of the

storage unit. They brought the "pissy blankets" through the hallway, up the stairs to the back door of the building and over to the garbage bins. Once outside by the garbage bins, the Accused cut one of the straps off the dolly and the cardboard box dropped to the ground. C.M. observed the bottom of the box to be folded over and closed. Once the box was dropped on its side, C.M. saw that the top of the box was open and that there was a rug inside. He could not see what the rug looked like because it was dark outside. The Accused asked him to put the box into the dumpster, but C.M. said no because he was tired.

C.M. left while the Accused continued to try and get the box in the dumpster. 14. At the time, C.M. did not know Mr. Boltwood's body was in the box. 15. The police identified the Accused's girlfriend as Bridgette Dormoriz. She also confirmed that the Accused lived in unit number 117 at 170 Carson Crescent. 16. Ms. Dormoriz told police that in the beginning of November 2019, the Accused had shown her a piece of photo identification in the name of David Boltwood and told her that Mr. Boltwood was living with him.

She also remembered seeing a wheelchair outside of the Accused's apartment from the end of October until mid-November. 17. At the time of giving her statement on November 30, 2019, she had been inside of the Accused's apartment every day for the past two or three weeks. She told police that it smelled worse than usual during that time. When police showed her a picture of the zebra rug that the body was found in, she immediately stated that the rug was from the living room in the Accused's apartment and that she had not seen it in approximately two weeks.

When she helped him clean the apartment after eviction, she noticed it was missing. 18. As a result of this information, search warrants were executed for the Accused's apartment and storage lockers associated to the Accused. Some of Mr. Boltwood's belongings were recovered including his wheelchair and jacket, as confirmed through DNA and photographs. . . . 19. An autopsy was conducted on Tuesday, December 3, 2019. It was determined that Mr. Boltwood had died of natural causes relating to complications of Emphysema which was likely worsened by malnutrition.

There were bed sores on his body, indicating that he was likely immobile before his death, but no other significant visible injuries were found. . . . 20. Ms. Dormoriz advised police that on November 28, 2019, the Accused had taken her car and had not returned it. She decided to report it stolen when speaking to police. 21. On Sunday, December 8, 2019 at 18:55 hours, Constable Theriault of the Jasper R.C.M.P., located the Accused driving Ms. Dormoriz's Toyota Tercel in Jasper, Alberta. The Accused was arrested for possession of stolen property, and the vehicle was seized.

The Accused had initially identified himself as Sean Doucette, his previous roommate. Eventually the police were able to identify him through a picture forwarded by the Kamloops R.C.M.P and he was also arrested for obstructing justice. The Accused was transported to Hinton, Alberta, and a bail hearing was conducted for the Accused on December 9, 2019; he was later released on bail. 22. Upon his release on bail for the Alberta offences, Corporal Marshall and Corporal Gladdish of the Kamloops R.C.M.P. met [with] the Accused outside of the Hinton R.C.M.P. detachment.

The Accused was advised that he was under investigation for the offence of indignity to human remains and agreed to provide a voluntary warned statement to [the] police. 23. The Accused told police that he met Mr. Boltwood around Halloween 2019 and offered him a place to stay because he was worried that he was going to freeze if he stayed outside. He bought food and alcohol for Mr. Boltwood and felt bad for him. He told police that Mr. Boltwood had died of natural causes and that he had panicked when it happened. He could not recall the exact date, but that he was out shopping and returned home to find Mr.

Boltwood deceased. He was adamant that he did not kill Mr. Boltwood. When police asked him why he did not call for help when he was found, the Accused said that he suffered from anxiety and did not deal with death well. 24. When asked about moving the body, the Accused told police that C.M. was a "little naïve" but that he "didn't have anything to do with it". He also stated that he would not provide any further details with regards to Mr. Boltwood's passing or how his body ended up near the garbage bins outside of his apartment. . . . 25.

The Accused was formally arrested for the charge of indignity to human remains on July 10, 2020. The Aggravating Factors [ 9 ] Mr. Brownlee has a criminal record starting with convictions for uttering threats and two breaches in 2014; two convictions for possession of stolen property under 5,000 in 2017; a further conviction in 2018 for three counts of possession of stolen property under 5,000; and lastly, a conviction under the Motor Vehicle Act on February 10, 2020, for driving while prohibited. Counsel for Mr. Brownlee submits that Mr.

Brownlee's criminal behaviour started late in life at the age of 46, and corresponded with a severe downturn in Mr. Brownlee's physical and mental health and while Mr. Brownlee was in the throes of addiction. [ 10 ] Mr. Brownlee made concerted efforts to avoid responsibility at the outset. [ 11 ] Mr. Brownlee incorporated the use of a minor who, unknowingly at the time, helped Mr. Brownlee move the body of the deceased from a storage locker to a garbage bin outside. [ 12 ] Mr. Brownlee took away the rights and responsibility of family to put their loved one to rest in a manner that is fitting to them.

[ 13 ] Mr. Brownlee failed to connect with authorities upon discovering that the deceased had passed on. The Mitigating Factors [ 14 ] Mr. Brownlee provided a warned statement to the RCMP upon arrest. [ 15 ] Mr. Brownlee expressed his intention to take responsibility early on. However, this matter started as a homicide investigation requiring significant disclosure and discussion between counsel, all of which, along with the global pandemic, prevented a more timely resolution. [ 16 ] While Mr. Brownlee failed in his legal obligation to show dignity to the body of the deceased, Mr.

Brownlee, in his own misguided way, demonstrated some respect by leaving a Bible and a favourite hat with the body of the deceased. [ 17 ] During their short relationship, Mr. Brownlee reached out to Mr. Boltwood, an elderly homeless man, by taking him into his home, feeding him, caring for him, providing for him, and assisting him with finding a home. [ 18 ] Mr. Brownlee has taken extremely positive steps in his life such that, in the eyes of the people who know him, Mr. Brownlee is a vastly different person today. For those unfamiliar with Mr.

Brownlee, he is unrecognizable when comparing his appearance in court with a photo of him taken at the time of the offence. [ 19 ] Mr. Brownlee was under restrictive bail conditions for a long period of time without incident. The Background of the Accused [ 20 ] Mr. Brownlee was born in Fort St. John, British Columbia. The family moved to Alberta when his father worked in the oil patch. Both parents were heavy drinkers and argued a lot, ending in divorce when Mr. Brownlee was six years of age. Mr. Brownlee moved to Kamloops with his mother.

His father remained in Alberta, remarried, and fathered two more children. Mr. Brownlee maintained a close relationship with his father. [ 21 ] Mr. Brownlee graduated high school with honours and, shortly after, worked as carpet layer, did odd jobs, and delivered groceries. He obtained a Class 1 driver's licence, then became a truck driver for 18 years. After the death of his mother, Mr. Brownlee began drinking alcohol heavily and using marihuana regularly.

He was also using the alcohol and marihuana as a means to self-medicate from chronic pain associated with degenerative rheumatoid arthritis. [ 22 ] By 2012, Mr. Brownlee's drinking and marihuana use became unmanageable. His father passed away and he was struggling with managing his anxiety. He and his wife separated and Mr. Brownlee moved out of the home. He began seeing a psychiatrist for manic episodes and was treated with lithium on an assumed diagnosis of bipolar disorder. The side effects of the lithium were too severe and he discontinued medical treatment. As well, it was around this time that Mr.

Brownlee, lost his driver's licence due to a charge of impaired driving. As a result, he lost his job as a professional driver. Over the next five years, he led the life of an addict, including convictions for property crime offences. [ 23 ] Mr. Brownlee is diagnosed with post-traumatic stress disorder stemming from a series of incidents in 2018 that involved being threatened with a double-barrelled shotgun held to his head, and later he was the victim of a brutal assault committed by two other inmates during a period of incarceration. Mr.

Brownlee only recently had his teeth repaired from that assault. [ 24 ] By 2019, Mr. Brownlee was living alone in Kamloops and continued to struggle with alcohol and marihuana use. In September 2019, Mr. Brownlee was on the verge of eviction, living in poverty, and experiencing deteriorating mental health. Mr. Brownlee struggled with managing the simplest of tasks. [ 25 ] On September 29, 2019, Mr. Brownlee suffered heart failure. Fortunately, he was revived with immediate medical assistance and treatment over a three-month period. The treatment revealed that Mr.

Brownlee had suffered a series of mini strokes and was informed of the possibility of his heart stopping at any time. [ 26 ] It was in the midst of this personal turmoil that he met the deceased, Mr. Boltwood, on the street. As it turned out, Mr. Boltwood had previously worked in the same oil patch as Mr. Brownlee's father. With Mr. Brownlee facing eviction, Mr. Boltwood being homeless, and the weather turning cold, Mr. Brownlee invited Mr. Boltwood into his home, then cared for him by buying food, cooking for him, and advocating for him. During this time, Mr. Brownlee recalls Mr.

Boltwood being in terrible health. He was constantly coughing up phlegm, rarely left the apartment, and drank heavily. On numerous occasions, Mr. Brownlee recalls trying to convince Mr. Boltwood to seek medical treatment; however, Mr. Boltwood adamantly refused, to the point of being aggressive and belligerent. [ 27 ] Mr. Brownlee does not have a clear recollection of the events surrounding Mr. Boltwood's death. He recalls coming home from grocery shopping for the two of them and finding Mr. Boltwood unresponsive and deceased. Mr. Brownlee admits to panicking, acting irrationally, and being full of anxiety.

He was on the verge of being homeless, and feared being blamed for Mr. Boltwood's death and the possibility of returning to jail. [ 28 ] Mr. Brownlee let his anxiety get the best of him and deeply regrets what happened next. The Victim Impact [ 29 ] Mr. Benjamin Boltwood, the brother of the deceased, attended court for this sentencing. He informed the court that he was not advised of the circumstances surrounding the death of his brother, and that his brother's remains were cremated without input from the family and no opportunity to say goodbye.

Somewhat surprisingly, Benjamin Boltwood and other family members expressed forgiveness and a collective desire not to see Mr. Brownlee go to jail. They acknowledge the help and the support Mr. Brownlee offered to their brother during his last days, and acknowledge the significant steps Mr. Brownlee has taken towards rehabilitation.

The Remorse of Mr. Brownlee [30] At the conclusion of sentencing, Mr. Brownlee read from a prepared statement, taking full responsibility for his actions. Heacknowledged what he did was unacceptable, hurtful, and immoral. He is mindful of the harm and the hurt he caused to Mr. Boltwood'sfamily. He acknowledges the role addictions played in his life and how that addiction clouded his decision making and actions. In theend, he seeks forgiveness and provides an assurance that he has and will continue to seek rehabilitation and live a healthier life. He doesnot want to return to where he was. [31] I find Mr.

Brownlee's expressions of remorse genuine and that he demonstrates insight into the immoral acts and the harmcaused. More importantly, through his actions since the offence date, he has meaningfully engaged in activities directed at rehabilitation. The Law [32] Under s. 182(

b) of the Criminal Code: 182 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of anoffence punishable on

summary conviction who . . . (

b) improperly or indecently interferes with or offers any indignity to a dead human body or human remains, whether buried or not. [33] The Crown proceeded by indictment. Therefore, the maximum sentence a court can impose is five years of imprisonment. [34]

Section 182 of the Criminal Code is rarely used and is usually charged in conjunction with a homicide; therefore, there is limitedcase law involving this

section in circumstances where the offender had no role in the demise of the deceased. [35] In R. v. Holly, (B.C.C.A.), the British Columbia Court of Appeal upheld an 18 month jail sentence imposedfollowing a guilty plea for an offence under s. 182(

b) of the Code. The deceased died as a result of an overdose from drugs supplied byone of her companions. The offender disposed of her body and did not report her death until he came under police suspicion about a yearlater and led police to her remains. The offender was 50 years of age with a long-time drug addiction and a lengthy criminal record. TheCourt of Appeal endorsed the remarks of the sentencing judge who said the offence was aggravated by the offender's decision for selfishreasons, to protect his illicit drug trade, rather than report the death.

At sentencing, the objectives of denunciation and deterrence wereparamount. [36] A distinguishing feature is the apparent motivation in Holly to protect his illicit drug trade, rather than report the death of thedeceased, and the presence of a lengthy criminal record. In the case before me, I do not find any selfish or monetary motive on the part ofMr. Brownlee.

I find that his judgment was clouded by extreme anxiety and serious and ongoing health issues, compounded by a pendingeviction, exacerbated by addictions to alcohol and cannabis, and an underlying fear of being blamed for the death of the deceased and theprospect of going to jail, the source of his post-traumatic stress disorder. [37] In R. v. Valliere, 2005 BCSC 124 , 2005 B.C.S.C. 124, Mr. Valliere received 18 months' jail. He was originally chargedwith manslaughter and indignity to human remains. At the commencement of trial, Mr.

Valliere pled guilty to an offence under s. 182(b)and was acquitted of manslaughter at trial. In Valliere, the complainant died at hands of the offender, who transported the dead body in abackpack by folding the body in half and covering the protruding head with a garbage bag. Mr. Valliere hid the body over anembankment and entombed the body in an abandoned culvert. Mr. Valliere then carried out an elaborate series of lies and deceptionsrelated to the death of the deceased and the whereabouts of her remains. This included pleas to the media for help in finding her andactive participation in the search.

The RCMP carried out an undercover operation posing as members of a criminal organization, and Mr.Valliere brought the police to her body some 15 months later. The court found Mr. Valliere's moral culpability to be very high andwithout remorse.

A defence request for a conditional sentence order was refused as it would not adequately communicate society'scondemnation of Valliere's conduct. [38] The circumstances in Valliere are significantly more serious than the case before me and, for that reason, it is not helpful interms of identifying an appropriate sentence, other than establishing a high watermark in terms of the appropriate range. [39] In R. v. R.C.L., 2012 BCPC 53 , 2012 B.C.P.C. 53, R.C.L. pled guilty to a charge pursuant to s. 182(

b) of the Code.R.C.L. was sentenced to 21 months' jail and three years' probation. The deceased was a retired friend of R.C.L. and died in R.C.L.'sresidence shortly after making a 9-11 call. RCMP attended to follow-up and were told by R.C.L. that she evicted the deceased and thedeceased left the residence. Although the RCMP entered the residence and looked around, they did not see the body of the deceasedlaying downstairs in a pile of laundry. Over the next several days, R.C.L. purchased a tarp, plastic, and gloves. She then wrapped thebody in the plastic and tarp, and placed it in a sealed Rubbermaid container.

The container was moved to the garage and placed beside anew freezer. Acting on a tip, the RCMP investigated the possibility of a dead body in R.C.L.'s residence. Eventually the container withthe deceased body in it was found. On her arrest, R.C.L. spoke to her 11 year old daughter and told her to lie to the RCMP, which shedid. The same daughter gave a subsequent statement indicating that the lie was at the request of R.C.L.

In determining a fit sentence, thecourt found in relation to R.C.L. that, despite her insight and the passage of three years from the offence date to sentencing, R.C.L. haddone very little to address the underlying factors that led to the offences. The court also found that R.C.L.'s recent conduct in thecommunity was consistent with her actions at the time of the offence. She was manipulative, deceitful, and lacking in any motivation totake control of her circumstances, to accept assistance, and to act in a positive, active way to address what she must. [40] In R. v.

Pearce, 2014 ONCJ 554 , 2014 O.N.C.J. 554, Pearce was sentenced to two years less a day and the co-accused,Mr. Greer, was sentenced to 18 months' jail. The two accused were 21 and 23 years old and had left a house party together. Mr. Pearcedrove Mr. Greer's truck. He had drinks and some cocaine, but felt he was good to drive. Greer was highly intoxicated. On a stretch ofroad used by skateboarders, they struck a 16 year old boarder who was dressed in dark clothing and had not seen by Mr. Pearce. Onbeing struck, the victim hit the windshield, then rotated over the truck, landing in the flat bed of the truck. Mr.

Pearce was unaware of

this. The deceased died on impact. The two continued to another house party and, upon leaving the vehicle, discovered the victim's bodyin the truck's cargo bed. The two agreed to transport the body to a skateboard park for disposal to make it look as if a skateboardingaccident had occurred. They left the body by the side of the road and Pearce called 9-11. Greer was subsequently arrested for impaireddriving and immediately confessed. Pearce initially lied to police about his identity before turning himself in. The offenders pled guilty.The court found the offenders' conduct criminal and morally reprehensible.

Mitigating factors included guilty pleas, Greer's confession,expressions of remorse, and good rehabilitation prospects. Aggravating factors included the prolonged nature of the offending decisionmaking, the lack of sensitivity to the victim's body, Pearce's leadership role and attempts to avoid being caught, and the pair'sconsumption of alcohol and drugs at the time of the offence. [41] The distinguishing features of Pearce from the case before me is the deceased died at the hands of the offenders. As well, thedegree of planning and deceit were significantly higher than the case before me. [42] In R. v.

Waters, [2020] O.J. No. 4575, Waters was sentenced to a two-year conditional sentence order followed by two years ofprobation. From the facts, Waters pushed a padlocked freezer containing the deceased's remains over a cliff. A passerby found the bodyand called police. The facts disclosed that Waters was not involved in the death of victim. The deceased died some 20 years prior whenWaters was only six years of age. I understand Waters' father was subsequently charged with the murder of the victim.

The court foundas mitigating factors a lack of a record, a youthful offender who at the time of sentencing was gainfully employed with good familysupport, and a long period of time where Waters was under very restrictive bail conditions. The aggravating factors were essentially theelements of the offence and the inability of the victim's family to bring closure. Of all of the cases submitted by counsel, I find thedecision in Waters to be the most comparable. As in Waters, Mr. Brownlee played no role in the death of the victim. As well, whileMr.

Brownlee in the case before me is not youthful, he did manage to get to the age of 48 before obtaining a criminal record.

The court inWaters agreed with the joint submission of counsel that an appropriate sentence in the circumstances was a two-year conditionalsentence. [43] I now turn to the purposes, objectives, and principles of sentencing and the applicable analytical considerations to determine a fitsentence for this particular offender. [44] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence andthe specific circumstances of the offender. (see R. v. Shoker, 2006 SCC 44 , 2006 S.C.C. 44, at para 14, and R. v.

Angelillo,2006 SCC 55 , 2006 S.C.C. 55, at para 22). [45] As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Code, but also bemindful, depending on the nature of the offence committed, that certain principles will receive more emphasis than others: see R. v.McCormick, 2006 ABCA 410 , 2006 A.B.C.A. 410 at para 9-12). [46] The purposes and the principles of sentencing are found in s. 718 to 718.2 of the Code.

These sections codify and plainly state theintention and rationale for imposing particular sentences, as well as the common law principles of sentencing: see R. v. Nasogaluak, 2010SCC 6 , 2010 S.C.C. 6 at para 39. [47] The fundamental purpose of sentencing is set out in s. 718 of the Code: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

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. [48]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender'sresponsibility. [49] The gravity of the offence refers to what the offender did wrong. It includes two components:

a) the harm or likely harm to the victim; and

b) the harm or likely harm to society and its values. [50] The Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13 , [2012] S.C.J. No. 13 at para 37 had this to say aboutproportionality in sentencing: Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This isclosely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.

Second,the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of theoffender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. [51]

Section 718.2, under the heading of "Other Sentencing Principles," states, in part, that:

718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender; (

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

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

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders . [52]

Section 718.2(

b) codifies the parity principle, which holds sentences should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. The Restraint Principle [53] Sections 718.2(

d) and 718.2(

e) codify the restraint principle, which holds an offender should not be deprived of liberty if lessrestrictive sanctions may be appropriate, and all available sanctions other than imprisonment that are reasonable in the circumstancesshould be considered for all offenders. [54] Upon consideration of the offence, the case law submitted by counsel, and the facts of this case, the principles of deterrence anddenunciation are paramount. At the same time, the court must be mindful of the significant rehabilitative steps taken by Mr.

Brownleesince the offence date and the efforts he has undertaken to take responsibility for his actions in a timely and forthright manner. [55] While counsel did not join in their submissions, both counsel submit that a jail sentence can be served conditionally. It isappropriate then at this stage to assess whether a conditional sentence order is available and appropriate. Conditional Sentences [56] The principles which underlie conditional sentences are set out in ss. 742 to 742.7 of the Code. In the decision of R. v.

Proulx,2000 SCC 5 , [2000] 1 S.C.R. 61 at para 27, the court described the proper approach to the application of these principles. [57] Some of these principles that are particularly relevant to this case are as follows:

a) A conditional sentence is intended to address punitive and rehabilitative sentencing objectives, and should generally include punitiveconditions that restrict the offender's liberty. Thus, it is to be distinguished from probationary measures, which are primarily arehabilitative sentencing tool.

b) The "safety of the community" not being endangered is merely one of the statutory requirements for imposing a conditional sentenceand it is not the primary consideration. The threat of the specific offender must be considered. A sentencing judge must consider the riskof the offender reoffending and the gravity of the damage that could ensue. The risk should be assessed in light of conditions that can beattached to the sentence thereby to reduce any risk to an acceptable level.

c) A conditional sentence is available for all offences in which the statutory prerequisites are satisfied, and there is no presumption thatconditional sentences are inappropriate for specific offences. The gravity of the offence, however, is very relevant to determine whether aconditional sentence is appropriate in the circumstances.

d) Serious consideration should be given to the imposition of a conditional sentence in all cases where the statutory prerequisites aresatisfied, but there is no presumption in favour of a conditional sentence.

e) A conditional sentence can provide a significant amount of denunciation, particularly where onerous conditions are imposed and theterm of the sentence is longer than would have been imposed as a jail sentence.

f) A conditional sentence can provide significant deterrence if sufficient punitive conditions are imposed, and judges should be waryof placing too much weight on deterrence when choosing between a conditional sentence and incarceration. However, there may becircumstances where deterrence will warrant incarceration.

g) When the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may be realistically achieved, aconditional sentence will be the appropriate sanction, subject to considerations of denunciation and deterrence.

h) While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, aconditional sentence may be imposed, even if such factors are present. [58] I find that in Mr. Brownlee's case the statutory prerequisites are met, and that the imposition of a conditional sentence followedby a term of probation with sufficient terms is a just sanction that promotes the respect for the law and maintains a just, peaceful, andsafe society. Exceptional Circumstances [59] Counsel for Mr.

Brownlee submits that exceptional circumstances are present such that a sentence outside the normal range iswarranted, and that Mr. Brownlee has turned his life around to such a degree that the protection of the public is better served by a non-custodial sentence.

[60] Justice Bennett clarified at paragraph 45 of R. v. Voong, 2015 BCCA 285 , 2015 B.C.C.A. 285 that: [45] The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of themain principles of deterrence and denunciation by way of a prison sentence. [61] At paragraph 59 in Voong, Justice Bennett provides an explanation for what is meant by the term "exceptional circumstances": [59] In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dopedrug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptionalcircumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation forthe drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed toharm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstancesthat are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge toconclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served bya non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded thatCSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [62] In R. v. Dragani, 2018 BCCA 225 , 2018 B.C.C.A. 225, the court provided the following guidance regardingexceptional circumstances at paragraph 74: [74] That said, a judge can order a sentence outside the range as long as it is in accordance with the principles and objectives ofsentencing: a sentence outside the range is not necessarily unfit: R. v. Nasogaluak . . . [and] Lacasse . . .

Where there is an arguable caseof exceptional circumstances, two inquiries are commonly emphasized: (1) has the offender concretely demonstrated that he or she hasturned his or her life around since his or her arrest, and (2) would the fundamental purpose of sentencing as set out in s. 718 of theCriminal Code be better served by a custodial or non-custodial sentence . . . [63] Applying the exceptional circumstances factors as set out in Voong and Dragani to Mr. Brownlee's case, I make the followingfindings:

a) Mr. Brownlee has a brief unrelated criminal record that started late in life, when Mr. Brownlee was 48 years of age.

b) At the time of the offence, Mr. Brownlee was severely addicted to alcohol and marihuana. Since the offence date, he has attendedand completed the Adult Addiction and Supportive Housing Program provided by Ask Wellness Society. This program is a stringent,six-month community-based recovery program. The program is exclusively for individuals who are committed to abstinence and whorecognize their need for support to overcome their addictions, and who want to live a life of sobriety. This program is abstinence-basedtreatment with 24/7 supports, housing, wellness planning, life skills development, and recovery-focused group meetings.

c) In a letter of support entered as an exhibit in this proceeding, the program coordinator states: Since starting the ash program, Shane's [Mr. Brownlee’s] participation and communication has always been consistent. He displaysconfidence in his sobriety and his motivation to pursue a life of sobriety is apparent. Shane [Mr. Brownlee] has created a very healthynetwork of friends, family, and staff that care about him in his journey of recovery.

d) In July of 2020, Mr. Brownlee successfully completed a 12 week Daily Addiction Recovery Program in partnership with InteriorHealth.

e) Mr. Brownlee has volunteered at the food bank for the past two years. He currently volunteers for two to three eight-hour shifts perweek. During winter months, he can be found shovelling snow at the Food Bank entrances. Mr. Brownlee also volunteers at the HenryLeland House building in downtown Kamloops by maintaining the exterior landscaping.

f) Mr. Brownlee is deeply remorseful. He gave a warned statement in December 2019 and proceeded on the basis of pleading guilty.Significant disclosure, case complexity, and lengthy discussions among counsel, along with the global pandemic, delayed his sentencing.

g) At the sentencing hearing, Mr. Brownlee prepared and read his own statement to the court, which I find was delivered with genuine emotion and sincerity. As stated in R. v. Anderson, 1992 6002 (B.C.C.A.), (BC CA), 74 C.C.C. (3rd) 523(B.C.C.A.) at paragraph 45, remorse gains added significance when it is paired with insight and signs that the offender has "come torealize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantlyreduces the likelihood of further offending."

h) The last word at this sentencing hearing was delivered by Mr. Benjamin Boltwood, the brother of the deceased, who expressedforgiveness after hearing the circumstances, the background of Mr. Brownlee, the care and support that Mr. Brownlee provided to Mr.Boltwood at a time when he was down and out and in the cold, the inclusion of a Bible and a favorite hat in the material covering thedeceased, and the steps Mr. Brownlee has taken to turn his life around. Specifically, he understood the dark place where Mr. Brownleewas at the time of the offence and was of the view that Mr. Brownlee did not deserve to go to jail.

i) There were several letters of support provided by people who have known Mr. Brownlee for some time. All of these lettersacknowledge the significant changes Mr. Brownlee has made in his life.

j) The photo of Mr. Brownlee taken at the time of the offence bears no resemblance to the man before me for sentencing. Thedifference was so remarkable that I questioned counsel and Mr. Brownlee as to whether the photo was accurate. [64] I find that Mr. Brownlee has expressed genuine remorse, has come to realize the gravity of his offence, has engaged support andtreatment in a meaningful way which, as a result, has changed his life around significantly. Accordingly, I find that Mr. Brownlee hasmet the standard of exceptional circumstances.

Conclusion [ 65 ] In conclusion, I find that Mr. Brownlee has concretely demonstrated that he has turned his life around since his arrest, and that the fundamental purpose of sentencing as set out in s. 718 of the Code is better served by a jail sentence served by way of a conditional sentence order. [ 66 ] Given my findings of genuine remorse expressed by Mr. Brownlee, his demonstration of insight into the gravity of the offence, the positive rehabilitative steps taken by Mr. Brownlee since the offence date, the forgiveness expressed by the family of the Mr.

Boltwood, and my finding of exceptional circumstances, determining a fit sentence is a challenging task. This is a grave crime. To help him move the dead body, Mr. Brownlee recruited a minor who thought he was helping Mr. Brownlee remove a rolled-up carpet from Mr. Brownlee's storage to a nearby dumpster. Understandably, the minor was traumatized after learning what he had done. [ 67 ] In light of all of the circumstances, the principles of deterrence and denunciation are at the forefront. [ 68 ] While counsel are not joined in their respective sentencing positions, both counsel agree that Mr.

Brownlee ought to be allowed to serve his sentence pursuant to a conditional sentence order. As I have said, the Crown seeks a two-year conditional sentence order followed by three years of probation. The defence submits that a conditional sentence order in the range of six months to a year in duration followed by 12 months of probation is appropriate. Counsel for the defence further submits that, given the extensive rehabilitative work of Mr.

Brownlee since the offence date, a sentence with a lengthy period of probation directed at rehabilitation is not necessary. [ 69 ] As I decide on an appropriate sentence, I would be remiss in not stating that I was struck by the final words of the deceased's brother, Benjamin, who, after hearing the submissions of counsel and learning of the significant turnaround Mr. Brownlee has made, that this in some small way honours the death of his brother and that his brother would be proud of the steps taken by Mr.

Brownlee to change things around. [ 70 ] As counsel point out, this is a bizarre case and there are very few cases like it in this province and this country, rightly so. [ 71 ] The sentence that I impose is as follows: [ 72 ] Mr. Brownlee, please stand. Mr. Brownlee, I am sentencing you to a two-year conditional sentence order followed by six months of probation.

This sentence reflects the gravity of the offence through a conditional sentence order and recognizes the significant and concrete steps that you have made to change your life around which, from my understanding and where I stand, was a 180-degree shift and that is to your credit. [ 73 ] The terms of your conditional sentence order will be as follows.

I am going to allow you to sit down, sir, it is going to take some time to read these into the record. [ 74 ] Counsel, I will entertain further submissions from counsel on the CSO terms and the probation, but these are the ones that I see, based on submissions and my decision. [ 75 ] As I have said, this is a conditional sentence order and it is two years in duration. [ 76 ] The terms, firstly, Madam Clerk, 3001, the compulsory conditions: Mr. Brownlee, you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or your conditional sentence supervisor in advance of any change of name or address, and promptly notify the court or supervisor of any change in employment or occupation. You must remain in British Columbia unless you have the prior written permission from the court or your conditional sentence supervisor to leave the province. [ 77 ] Do you understand those terms, sir? [ 78 ] THE ACCUSED: Yes, I do, Your Honour. [ 79 ] THE COURT: 3103: Mr. Brownlee, you must report by telephone to a conditional sentence supervisor here in Kamloops, and you will do that by 3:00 p.m. today.

If the office is closed, you must continue calling daily during regular business hours until you have spoken to a supervisor and received further direction to report. After that, you must report as directed by your supervisor. [ 80 ] Mr. Brownlee, do you understand that term, sir? [ 81 ] THE ACCUSED: Yes, I do. [ 82 ] All right, 3002: Mr. Brownlee, you must have no contact or communication, directly or indirectly, with C.M. Do you understand that, sir? [ 83 ] THE ACCUSED: Yes, I do. [ 84 ] THE COURT: No exceptions. [ 85 ] Madam Clerk, 3201: Mr.

Brownlee, when first reporting to your conditional sentence supervisor, you must provide them with the address where you live and your phone number. You must not change your address or phone number without the prior written permission from your supervisor. Do you understand that term, sir? [ 86 ] THE ACCUSED: Yes. [ 87 ] THE COURT: All right. And again, counsel, I need your assistance with the house arrest.

[ 88 ] Madam Clerk, 3209, house arrest: Mr. Brownlee, for the first six months of your conditional sentence order, you must obey house arrest by being inside your residence, 24 hours a day, every day. I will provide some exceptions. [ 89 ] The exceptions are as follows: You will be permitted between the hours of 12:00 noon to 2:00 p.m. each day to allow you to buy food and attend appointments.

As well, you may be away from your residence during the hours of 8:00 a.m. to 4:00 p.m. each Wednesday to volunteer at the Kamloops Food Bank, the Henry Leland House, and this is under the supervision of your conditional sentence supervisor. Do you understand that term, sir? [ 90 ] THE ACCUSED: Yes, I do. [ 91 ] THE COURT: Counsel, is there any concern or additional term that I need to address with respect to the house arrest? [ 92 ] CNSL C. COOK: Perhaps just in case of an emergency. [ 93 ] THE COURT: All right. Further exceptions, Mr.

Brownlee, firstly, during the period of house arrest, you must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest. Do you understand that, sir? [ 94 ] THE ACCUSED: Yes. [ 95 ] THE COURT: You may be away from your residence during the house arrest with the written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other medical reasons, or urgent medical reasons.

You must carry that permission with you when you are outside your residence, although if it is a medical emergency, it is not something you would get written permission for, it is something you would address immediately. Do you understand that term, sir? [ 96 ] THE ACCUSED: Yes, I do. [ 97 ] THE COURT: All right. 3401: Mr. Brownlee, you must not possess or consume alcohol, drugs, or any other intoxicating substance, except with a medical prescription. Do you understand that term, sir? [ 98 ] THE ACCUSED: Yes. [ 99 ] THE COURT: Madam Clerk, 3501: Mr.

Brownlee, you must attend, participate in, and complete any intake, assessment, counselling, or education program directed by your conditional sentence supervisor, specifically with respect to alcohol or drug addiction and psychiatric or psychological health. Do you understand that term, sir? [ 100 ] THE ACCUSED: Yes, I do. [ 101 ] THE COURT: All right. 3502, treatment: Mr. Brownlee, you must attend, participate in, and complete any intake, assessment, program, treatment or a full-time live-in treatment program as directed by your conditional sentence supervisor.

This may include programming or treatment for alcohol or drug addiction or psychiatric and psychological health. You understand that term, sir? [ 102 ] THE ACCUSED: Yes, I do. [ 103 ] THE COURT: 509, Madam Clerk: Mr. Brownlee, you must complete 50 hours of community work service, and this is to be completed within the first 12 months of your conditional sentence order. Do you understand that term, sir? [ 104 ] THE ACCUSED: Yes, I do. [ 105 ] THE COURT: 3515, Mr.

Brownlee, you must apologize to the Boltwood family by providing a written letter of apology, to the satisfaction of your conditional sentence supervisor, to Mr. Benjamin Boltwood on behalf of the family. Do you understand that term, sir? [ 106 ] THE ACCUSED: Yes, I do. [ 107 ] THE COURT: You are going to do that on or before April 30, 2021. All right? [ 108 ] THE ACCUSED: Yes. [ 109 ] THE COURT: 3610: Mr.

Brownlee, you must not possess, directly or indirectly, any weapon as defined by the Criminal Code , and this includes any firearms and ammunition; cross-bows, prohibited or restricted weapons or devices, or explosive substances; anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; any imitation of all the above, including any compressed air guns or BB/pellet guns; and any related authorizations or licences and registration certificates, and you must not apply for any of these.

You understand that term, sir? [ 110 ] THE ACCUSED: Yes, I do. [ 111 ] THE COURT: Do you have any firearms in your residence? [ 112 ] THE ACCUSED: No. [ 113 ] THE COURT: All right. All right, those are the terms of your conditional sentence order. [ 114 ] CNSL K. THORSTEINSON: Your Honour, if I may, with respect to the medical exception, Mr. Brownlee informs me that he does have a number of dental appointments, can we assume that dentistry falls under --

[ 115 ] THE COURT: Yes. [ 116 ] CNSL K. THORSTEINSON: -- the medical. [ 117 ] THE COURT: Medical. [ 118 ] CNSL K. THORSTEINSON: Okay, thank you. [ 119 ] THE COURT: Yes, thank you. [ 120 ] THE ACCUSED: Thank you, Your Honour. [ 121 ] THE COURT: All right, then, your probation is for a period of six months. [ 122 ] Madam Clerk, the statutory term, 2001: Mr. Brownlee, you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. Do you understand that term, sir? [ 123 ] THE ACCUSED: Yes, I do. [ 124 ] THE COURT: 2002, Madam Clerk: You must have no contact or communication, directly or indirectly, with C.M. You understand that term, sir? [ 125 ] THE ACCUSED: Yes. [ 126 ] THE COURT: No exceptions. 2014, Madam Clerk: Mr.

Brownlee, you must report by phone to a probation officer here in Kamloops within two business days after the completion of your conditional sentence, unless you have obtained, before your completion of your conditional sentence, the written permission from the probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by your officer. Do you understand that term, sir? [ 127 ] THE ACCUSED: Yes, I do. [ 128 ] THE COURT: 2401: Mr. Brownlee, you must not possess or consume alcohol, drugs, or any other intoxicating substance, except with a medical prescription.

Do you understand that, sir? [ 129 ] THE ACCUSED: Yes, I do. [ 130 ] THE COURT: 2501, Madam Clerk: Mr. Brownlee, you must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your officer, and this may include counselling for alcohol and drug addiction and mental health. You understand that term, sir? [ 131 ] THE ACCUSED: Yes. [ 132 ] THE COURT: As well, 2610, Madam Clerk: Mr.

Brownlee, you must not possess, directly or indirectly, any weapon as defined by the Criminal Code , and this includes firearms and ammunition; cross-bows, prohibited or restricted weapons or devices, or explosive substances; anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person; any imitation of all the above, including any compressed air guns or BB/pellet guns; or any related authorizations, licences, and registration certificates, and you must not apply for any of these.

Do you understand that term, sir? [ 133 ] THE ACCUSED: Yes, I do. [ 134 ] THE COURT: All right. All right, those are the terms of the probation. Counsel, is there anything that I may have overlooked? [ 135 ] CNSL C. COOK: Nothing, Your Honour, thank you. [ 136 ] THE COURT: All right. [ 137 ] THE COURT: And lastly, the ancillary matter. [ 138 ] CNSL C. COOK: Yes, Your Honour, the Crown is seeking a DNA order and it is a secondary designated offence when Crown proceeds by indictment. [ 139 ] THE COURT: All right. [ 140 ] CNSL C.

COOK: And the Crown asks for that, based on the accused's criminal record. [ 141 ] THE COURT: All right. [ 142 ] CNSL K. THORSTEINSON: We take no issue, Your Honour. [ 143 ] THE COURT: All right. So Count 1 on Information 109875-1 is a secondary designated offence. After considering the factors set out in s. 487.051(3) of the Criminal Code , I am satisfied that it is in the best interests of the administration of justice to authorize the taking of samples of bodily substances from you. [ 144 ] THE COURT: Mr. Brownlee, you must attend the Kamloops RCMP detachment in Kamloops, British Columbia, and you will do

so on March 30th at 10:00 a.m., and submit to the taking of samples. This order is valid until executed, and I will note for the record that if the probation officer or conditional sentence supervisor has not provided that or is remiss in providing that exception, I will make that exception for that purpose, all right. [ 145 ] THE ACCUSED: Yes. [ 146 ] THE COURT: All right, so that concludes the sentencing. You take care of yourself, Mr. Brownlee. [ 147 ] CNSL K.

THORSTEINSON: Thank you, Your Honour. [ 148 ] THE COURT: Thank you, counsel. [ 149 ] THE CLERK: The victim surcharge? [ 150 ] THE COURT: And the victim surcharge, I am going to waive the victim surcharge in these circumstances. I understand Mr. Brownlee is of limited means. [ 151 ] CNSL K. THORSTEINSON: Thank you, Your Honour. [ 152 ] THE COURT: All right. Take care. [ 153 ] CNSL C. COOK: Thank you, Your Honour. (REASONS CONCLUDED)