Her Majesty the Queen - v. -, 2019 SKPC 27

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 27 Date: April 27, 2019 Information: 24537274 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Austyn Edward Adamko Appearing: Tyla Olenchuk For the Crown Mark Brayford, Q.C. For the Accused Brian Pfefferle Zachary Carter, Student-at-Law SENTENCING DECISION L.W. STANG , J Introduction

[ 1 ] On September 16, 2017, Mr. Jordan Darchuk (“Mr. Darchuk”) was hunting near Weirdale, Saskatchewan. As evening approached, Mr. Darchuk concluded his hunting for the day, secured his firearm and other gear, and was in the process of walking back to his truck when he was shot. He died at the scene from a single gunshot wound to the right chest. [ 2 ] The shooting, and resulting death of Mr. Darchuk, was investigated by the police. This resulted in a sworn Information charging the accused, Mr. Austyn Adamko (“Mr.

Adamko”), with several offences pursuant to provisions of the Criminal Code of Canada . [ 3 ] The preliminary inquiry for these alleged offences was scheduled to take place on February 25, 2019 in Nipawin. On that date, the preliminary inquiry did not proceed; instead, Mr. Adamko chose to change his election from the Court of Queen’s Bench sitting with a jury to the Provincial Court. He then entered a plea of guilty to counts 2 and 3 as set out in the Information and the Crown undertook to stay proceedings on the remaining counts upon the conclusion of sentencing for counts 2 and 3.

A sentencing hearing was scheduled for March 25, 2019 at Melfort. [ 4 ] At the conclusion of the sentencing hearing that was held on March 25, 2019, I adjourned the matter until today to consider the evidence, the jurisprudence, and the submissions of counsel and decide the appropriate sentence for Mr. Adamko. Issue [ 5 ] The only issue being determined in this decision is the appropriate sentence to be imposed on Mr.

Adamko for his commission of the following two offences: Information 24537274, Count 2: On or about the 16 h day of September 2017 at or near Weirdale in the Province of Saskatchewan Austyn Edward Adamko did, without lawful excuse, use a firearm, to wit a 300 Tikka in a careless manner contrary to Section 86(1) of the Criminal Code ; and, Information 24537274, Count 3: On or about the 16 th day of September 2017 at or near Weirdale in the Province of Saskatchewan Austyn Edward Adamko did possess a firearm, to wit a 300 Tikka knowing that he was not the holder of a license under which he may possess it contrary to Section 92(1) of the Criminal Code .

Circumstances of the Offences [ 6 ] The circumstances of the offences are for the most part set out in the Agreed Statement of Facts filed at the sentencing hearing as Exhibit P-1. These agreed facts are important so I will repeat them here: 1. On September 16, 2017, Jordan Darchuk (age 23) was on foot in a field approximately 16 km south of Weirdale, SK. He had recently finished hunting for the day and was returning to his truck. Jordan was wearing a red bunnyhug with a camouflage backpack on his back that had shooting sticks attached to it, which stuck up above his head. 2.

Austyn Adamko was also elk hunting and was driving by that same farm field in his truck. He was accompanied by Connor Balan and Haley Paul. Mr. Balan had come along to spot for Adamko, while Ms. Paul was just along for the ride. 3. Adamko and Balan spotted an elk running through the field and stopped the truck. They determined that this was a cow elk, and Adamko had a hunting tag for a bull elk. They lost site of the animal and Adamko used an elk bugle. Balan looked for the elk out of the open window of the truck with a pair of binoculars and Adamko got out of the truck with his father’s rifle.

Adamko and Balan then both spotted something moving in the field. Balan looked at it through his binoculars and told Adamko it was a “spiker” (referring to a young male elk). 4. Adamko looked through his rifle scope and agreed that it was an elk. He fired and thought he had shot an elk. He immediately called his father to come and help him field dress and load the animal. 5. Adamko and Balan walked out into the field and found the body of Jordan Darchuk. They realized that Adamko had not shot an elk, but had shot a person instead. 6.

Adamko’s father and brother arrived on scene shortly thereafter and called 911, then performed CPR on Jordan until EMS arrived. Unfortunately, EMS pronounced Jordan dead at the scene. His cause of death was determined to be from a single gunshot wound to the

right chest. 7. Adamko turned over the rifle that he was using to the police. The rifle, chambered in 300 Winchester magnum caliber, had a scope on it. 8. Jordan’s truck was parked on the side of the road in the ditch up the road from the field, approximately 88m from where Adamko stopped his vehicle. All 3 had seen the vehicle. 9. Further investigation indicated that the sun had set at that exact location at 7:13 p.m., meaning that legal hunting time ended at 7:43 p.m.

Telephone records obtained by police showed that Adamko’s phone call to his father occurred at 7:43 p.m., with the shot having been fired just minutes before. 10. Police were able to determine that the distance from Jordan’s body to where Adamko’s truck was parked was 214 meters. 11. Adamko did not have a Possession and Acquisition Licence, and never had one. He had taken the Hunter Safety Course as well as the Federal Firearms Course in 2009. 12.

Adamko was interviewed by the police at the scene and stated that he had shot what he believed to be a “spike” bull elk walking in the field and later realized he had shot Jordan Darchuk. On December 14, 2017, Adamko was interviewed by police for a second time. At that time, he admitted to having the firearm in his possession. He admitted that a shot was taken and stated “I remember someone saying something about hurry up or whatever like it’s going to get away kind of thing.

I don’t remember if it was exact words saying, shoot Austyn or whatever, but I know that you know, there was tension there to make the shot before it was too late.” He believed that there was enough light to be able to see what was walking in the field. He admitted that he did not have a firearms license and had never applied for one because he didn’t know that he had to. 13. Police were able to determine times and dates when the sun would be at the same position as it was on September 16, 2017 to attempt to recreate the scene on three separate occasions.

Officers used the same scope, with the same setting as at the time it was seized, to look at another officer in the field, who was approximately the same height as Jordan Darchuk and dressed in a similar manner, though officers were unable to recreate some aspects of the scene, such as the height of the crop in the field or snow in the field. During these recreations, all three officers were able to determine that they were looking at a person. [ 7 ] In addition to the Agreed Statement of Facts surrounding the circumstances of the offence the following relevant facts were presented by Mr.

Adamko’s counsel, and were confirmed in support letters filed during the sentencing hearing as Exhibit D-3. These facts are generally mitigating and were not disputed by the Crown. As such pursuant to

section 723 of the Criminal Code , I accept and consider the following additional facts. [ 8 ] Mr. Adamko was an experienced hunter, and, notwithstanding the fact that he had no license to possess a firearm, his hunting experience prior to September 16, 2017 was done in a lawful manner because he would hunt with someone else who had the required license to possess firearms. In such circumstances the requirement to personally have a possession license is obviated by operation of paragraph 91(4) (

a) of the Criminal Code . For Mr. Adamko this other person would usually be his father. And, generally speaking, prior to September 16, 2017, he had hunted responsibly. As such, his decision to go hunting on September 16, 2017 without his father or other person properly licensed to possess firearms must be considered to be an isolated incident and not typical behavior on the part of Mr. Adamko. Position of the Crown [ 9 ] The Crown submits that the appropriate sentence would be a period of incarceration in the range of 12 to 18 months, plus a two year period of probation, and a firearms prohibition order pursuant to

section 109 of the Criminal Code . The Crown also applies for an order for forfeiture of the firearm used in the commission of the offences pursuant to

section 491 of the Criminal Code . [ 10 ] In making this submission, the prosecutor stresses the importance of denunciation and deterrence from among the various sentencing principals that must be considered and applied. She highlights the gravity of the offences committed and in particular the devastating consequences of Mr. Adamko’s careless use of the firearm. The prosecutor also relies on several court decisions that I will address later. Position of Mr. Adamko [ 11 ] On behalf of Mr.

Adamko his counsel submit that an appropriate sentence would be a short period of incarceration to be served intermittently, combined with probation for a period of two years. A suggested condition of the probation order is payment of restitution to the victims who have filed Statements on Restitution as part of their Victim Impact Statements. Additionally, Mr. Adamko acknowledges the appropriateness of a firearms prohibition order pursuant to

section 109 of the Criminal Code and suggests that the

duration of this order be the maximum possible. [ 12 ] In making this submission, counsel urged the Court to consider the personal circumstances of Mr. Adamko, which include him having no prior criminal record, and the fact that Mr. Adamko had no intention to cause any harm to anyone thus demonstrating a very low level of moral blameworthiness. Counsel also highlighted that the charge of careless use of a firearm itself only requires a very low threshold of blameworthiness; and it is rare that a person who is only being careless about something would still be committing a criminal act. Counsel for Mr.

Adamko also urged the Court to give appropriate consideration to the principal of parity; and in doing so relied on a number of court decisions pertaining to sentences imposed on other offenders for offences arising from situations where unintentional deaths were caused by these offenders while hunting. I will address this jurisprudence later in this decision. Sentencing Provisions of the Criminal Code [ 13 ] The applicable law regarding the imposition of sentences is set out in

Part XXIII of the Criminal Code . I am familiar with this part of the Criminal Code , and have reviewed and instructed myself accordingly, however, given the seriousness of the charges and the public interest in this matter I will specifically review some of the most important and applicable sections found in

Part XXIII. [ 14 ]

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

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 15 ] Proportionality is a fundamental principle of sentencing as set out in

section 718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 16 ] Other sentencing principles are set out in

section 718.2, which reads, in part, as follows: A court that imposes a sentence shall also take into consideration the following principles: (

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

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

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

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 17 ] I have omitted from the citation in the previous paragraph the list of deemed aggravating factors found in paragraph 718.2(

a) because with one possible exception they are all clearly not applicable in this case. The one possible exception is sub-paragraph 718.2(a)(iii.1) which reads as follows: “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation”. This deemed aggravating factor was cited and relied on by the prosecutor during her submissions to the Court.

[ 18 ] The fundamental purpose and objectives of sentencing, the fundamental principle of proportionality, and the other sentencing principles cited above do not always work together in perfect harmony. It is my task in this case, and in many others, to assess their level of applicability to the circumstances of the offences and the circumstances of the offender who is to be sentenced. [ 19 ] It is appropriate to note that certain considerations, such as retribution and trying to equate the severity of a sentence to the severity of harm felt by victims, are absent from the provisions of

Part XXIII of the Criminal Code . It is understandable that such things are often considered by victims and other members of the public, but they are not part of the law regarding sentencing. Consequently, I can not and do not give any weight to such considerations in deciding the appropriate sentence for Mr. Adamko. Circumstances of the Offender [ 20 ] Mr. Adamko is a young man who recently turned 24. He was 22 years old when the offences were committed. He does not have a prior criminal record and has no history of any regulatory or provincial offences pertaining to firearms or hunting.

He primarily grew up on the family farm, and in doing so, he learned the values of hard work and helping others. Early on in his childhood, his parents’ divorced. As a child and a teenager, he had to cope with and adjust to difficulties resulting from his parents’ divorce and being raised between two homes. After finishing high school, he choose to enter the workforce and since then he has maintained regular employment, primarily as a welder. He also continues to help out on the family farm and has become a volunteer firefighter. Mr. Adamko has Indigenous heritage, as his mother is French- Métis.

A number of years ago, he was provided with some minimal exposure to this part of his heritage. However, as indicated by his counsel at the sentencing hearing Mr. Adamko feels it is important to know his heritage but he generally self-identifies as “Non-Indigenous”.

Summary of Aggravating and Mitigating Factors [ 21 ] In the circumstances of this case, I find the following to be aggravating factors: (

a) While the offence of careless use of the firearm was brief in duration, the other offence for possessing the firearm without a license was not. It started the moment Mr. Adamko and his companions left, without Mr. Adamko’s father, to go hunting that day and continued up until the fatal shot was taken; (

b) The careless act of shooting the firearm resulted in the death of Mr. Darchuk; and, (

c) The devastating impact that the offence has had on numerous victims in addition to Mr. Darchuk losing his life. Additionally, I find the following to be mitigating factors: (

d) Mr. Adamko’s guilty pleas and acceptance of responsibility; (

e) His remorse;

(

f) His cooperation with the police during their investigation; (

g) Mr. Adamko’s very low degree of moral culpability regarding his carelessness with the firearm, including the fact that this was an isolated incident; (

h) Mr. Adamko’s personal circumstances including his family support and that he is generally employed and positively contributes to his community; (

i) That he has been subject to a restrictive undertaking, without incident, for over 16 months; and, (

j) The fact that Mr. Adamko has no prior criminal record. Discussion of the Aggravating Factors Possession of the Firearm Without a License [ 22 ] While I accept, as set out in the Agreed Statement of Facts, that Mr. Adamko told the police that he did not have a license to possess firearms because he did not know that he had to, he ought to have known this. This is particularly so because he was familiar with firearms and had significant experience hunting. He also had taken a Federal Firearms course and a Hunter Safety course in 2009.

He would have been in a position to know that use of firearms and hunting are highly regulated activities and his unlawful possession of the firearm that day was not momentary but rather went on for a significant period of time. [ 23 ] During the sentencing hearing, defense counsel submitted that the increases in regulations surrounding firearms and increasing penalties for firearms offences over the past number of years have been implemented to help address ongoing criminality, such as that found in gangs and drug dealers, involving firearms; and that addressing generally law abiding people such as Mr.

Adamko is not the objective of these legislative changes. While I agree with the first part of this, I disagree with the second part. In my view, one of the key objectives in legislative requirements, such as firearms possession licenses, is enhanced public safety.

In particular, regarding the offence of careless use of a firearm, in the Supreme Court of Canada decision, R v Finley, Chief Justice Lamer wrote: “By enacting s.86(2), Parliament has seen fit to impose on all people owning or using firearms a specific and rigorous duty of care.” [1] (Emphasis added.) Impact on the Victims [ 24 ] The first victim in this matter was Mr. Darchuk. As a result of Mr. Adamko’s careless use of the firearm, he lost his life. This loss of life is of course extremely serious. What contributions Mr.

Darchuk could have brought to his loved ones, to his community, and to society at large are now lost. Based on the description of Mr. Darchuk provided by his family and friends it is easy to surmise that his contributions could have been extraordinary. [ 25 ] In addition to Mr. Darchuk there were many other victims. Nineteen people, including members of his immediate family, his partner, his extended family and friends prepared victim impact statements. All of them were filed collectively as Exhibit P-2 during the sentencing hearing. Most of them were read out loud by each victim during the hearing.

I want to acknowledge the effort taken by each victim to write about something so personal for each of them and, for those that chose to do so, the strength needed to read out their statements in open court. I especially want to acknowledge the fact that most of victims chose to talk about Mr. Jordan Darchuk and what he meant to each of them. These descriptions helped me to get a sense of who he was and helped me to understand how and why losing him has had such a profound and devastating impact on each of them. [ 26 ] Victim impact statements are important.

The importance and relevance of victim impact statements was the subject of extensive commentary from the British Columbia Court of Appeal in its decision R v Berner [2] . At paragraph 14 of this decision, the Court wrote: Two things flow from the admission of victim impact statements. First, on the reading of the victim impact statement in court the consequences of the offender’s actions are brought home palpably to the offender. Second, the trial judge is made aware of the damage the commission of the criminal offence has caused the victim(

s) and thus, indirectly, the community in general. In this way the victim

impact statement addresses the objective of sentencing set out in s. 718(f). [ 27 ] What each victim wrote and said in court is a matter of record, and I do not intend to summarize each victim impact statement, however, I do find it is appropriate to repeat several poignant portions of a few. [ 28 ] Leanne Darchuk wrote the following at the beginning of her victim impact statement: My name is Leanne Darchuk and I am Jordan Darchuk’s mother. My family was just beginning to heal from the senseless death of my husband Ben Darchuk, to a drunk driver in 2012.

Here we go again having our lives torn apart by another person’s disregard for obeying the law once again. And she ends her statement as follows: I want you to know that I have not slept a full night since Jordan was shot and killed. This has been a terrible roller coaster for me. I feel sick reliving it and am haunted by it. I have anxiety on a regular basis and had to take an extended leave from my job from the stress, heartache, and torment that you have inflicted. [ 29 ] Mr.

Darchuk’s sister, Whitney Darchuk, included the following passage in her victim impact statement: The loss of my brother has affected me physically and mentally in many ways. Since the evening of his death I have not been able to sleep well at night and find myself waking up often due to horrible nightmares of that day. These thoughts and visions never go away. They haunt me everyday. It causes me to break down in tears, to be fearful of life, to lose hope in the world. It has created an extreme amount of anxiety that builds up when I can’t get a hold of those close to me.

I now instantly begin to think the worst. My family now has to deal with my stress, sadness, constant tears when they are all experiencing it themselves. [ 30 ] Mr. Darchuk’s other sister, Julie Darchuk, included the following passage in her victim impact statement: The effects of this tragedy are numerous and have impacted me physically, mentally, socially, and emotionally. My body is chronically stressed and exhausted.

They say stress kills and I do everything I can to help myself, but no matter how many healthy choices I seem to make, I still find the trauma creeping back into my life every day in different forms. When I try to sleep, I am plagued with debilitating memories and nightmares of my brother Jordan’s death, and sometimes I don’t even want to go to sleep just to avoid the pain. Sometimes I am so exhausted mentally and physically. And, she also wrote the following: I feel guilty not living close to home but home is no longer home. It has become a place I dislike spending time. It’s not the same for me.

I become angry when I go home. I feel awful, stressed and I end up becoming sick. [ 31 ] Mr. Darchuk’s partner of five years, Jerrica Kress, included the following passage in her victim impact statement: The emotional impact that Austyn’s careless actions have had on my life is not something that can be explained easily. There is an image that I see in my mind of Jordan’s dead body and a voice in my head that reminds me everyday that he’s dead. When I see forests, a scene of what happened to him instantly appears. I think of who I used to be, and I can’t believe the person I have become.

I used to be a girl that loved life, but I am no longer that girl. I live each day angry, sad, and alone. I don’t look forward to waking up. I have no energy. Each day feels like a chore. I neglect my health. I rely on antidepressants that negatively affect my physical health. I suffer from panic attacks and stress headaches. I cry almost everyday. I isolate myself. I don’t enjoy going out anymore; I find every excuse to stay home. My relationships with my friends have changed. They are left with the burden of dealing with my ongoing negativity.

I feel bitter when I see them happy and jealous when their relationships progress with their partners. The relationships I had with friends in Prince Albert have slowly disappeared. The thought of returning back to Prince Albert or going to the lake where we spent so much time together making the best memories makes me feel sick. I no longer find enjoyment doing the activities that Jordan and I used to do together. [ 32 ] There is no question that Mr. Adamko’s commission of the offences has caused, and will continue to cause, devastating impact to Mr. Darchuk’s family, partner, and friends.

His family is shattered and will never be the same. They are all grieving and understandably are having a great deal of difficulty dealing with their loss. The victims are all suffering greatly and in many different ways: physically, emotionally, and mentally to mention a few. It is clear that a great deal of harm has come to the victims and this impact is without question a very serious aggravating factor for me to consider in my assessment of the appropriate sentence. [ 33 ] The law is clear that impact on victims can be considered an aggravating factor as I do in this case.

Furthermore, this information appropriately comes from victim impact statements. In a recent decision, the Court of Appeal of Ontario wrote the following:

Moreover, in my view, it is not an error in principle for a sentencing judge to determine that the impact of the crime on a victim, as described in a victim impact statement, is an aggravating factor.

If it were otherwise, victim impact statements would have limited utility and the mandate to consider them as part of the sentencing process found in s. 722 of the Criminal Code would be rendered meaningless. [3] Additionally, in addressing an offence that resulted in two deaths, the Supreme Court of Canada has recognized that “… impact on those close to the victim can be an aggravating factor ” . [4] [ 34 ] In giving appropriate consideration to victim impact as an aggravating factor, I must be mindful to not be overwhelmed by the sheer magnitude of the harm caused.

Additionally, during the sentencing hearing, counsel correctly cautioned me to the fact that some of the victim impact statements would contain certain comments and information that are not relevant to sentencing and as such, I should disregard such portions of the victim impact statements pursuant to section 722(8) of the Criminal Code . I find this concern to be applicable in this case.

However, rather than trying to judicially redact portions of certain statements, I find it to be sufficient to simply identify certain areas of concern and confirm my treatment of same. [ 35 ] In several victim impact statements the writers express criticism of the criminal justice system and the unfairness of the process for them. I do not comment on whether or not these criticisms are justified, but I can say with confidence that I do understand the sentiment, and some of the reasons why these victims have lost confidence in our justice system.

In fact, I suspect that this portion of my decision may well contribute to their loss of confidence. Certainly, no one wants to be told that some of what they said is not relevant. I understand that all of their comments are relevant to them and their grief. However, certain things are not relevant to determining the appropriate sentence and I am duty bound to apply the law as required in our system of justice, as imperfect as it may be. To be more precise on this specific issue, whatever the shortcomings of our criminal justice system may be, none of them are attributable to Mr. Adamko.

Nor are comments of this nature germane to any of the purposes, objectives, and principles of sentencing set out in the Criminal Code . Consequently, I must and do disregard such comments as they are not relevant to the sentencing of Mr. Adamko. [ 36 ] There are also some comments regarding circumstances of the offence, some criticisms of Mr. Adamko, and some commentary as to the sentence that should be imposed.

Again, I can certainly appreciate that it is important to the victims to say what they think about these issues, but I agree with other courts that the purpose of victim impact statements does not include providing these kinds of comments. [5] Consequently, I find I must and do disregard any of these kinds of comments in the various victim impact statements. [ 37 ] Lastly, in the area of things to be disregarded pursuant to section 722(8) , I find I must, and I do disregard any comments that directly or indirectly try to equate the length of the sentence to the value of the life lost.

Similarly, I disregard any comments tending to advocate for a harsh sentence so as to measure up to the pain and suffering of the victims. In the Berner decision, the British Columbia Court of Appeal wrote: We would add to the comments of Mr.

Justice Hill that victim impact statements should not contain material which appears to be an appeal to the sentencing judge to place a value on the life of the victim, or to compensate grief through the imposition of a harsh sentence. [6] Once again, I can understand that victims might want to urge such comparisons, but they do not contribute anything to the factors I must consider, and in particular, such comparisons imply an element of retribution, which is something that should not be considered in sentencing. 718.2(a)(iii.1) [ 38 ] In her submissions as to sentence, the prosecutor invited the Court to consider sub-paragraph 718.2(a)(iii.1) as a further aggravating factor.

It reads as follows: “…(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, … shall be deemed to be aggravating circumstances;”. This consideration is one of a number of deemed aggravating factors listed in paragraph 718.2(a). It was added to the Criminal Code on January 13, 2013, [7] and was primarily intended to be a factor in elder abuse situations. That is not obvious from the plain reading of the sub-paragraph but it does appear to be the case upon reading the

summary, and indeed the title of the act that created this amendment to the Criminal Code : ‘ Protecting Canada’s Seniors Act ’. [8] [ 39 ] It is possible that this sub-paragraph will be applied to situations other than ones of elder abuse. [9] However, I am not convinced that it ought to apply in this case. Certainly, members of Mr. Darchuk’s family were uniquely vulnerable when this incident occurred because they were still recovering from the recent death of Mr. Darchuk’s father, but in my view this is not the type of vulnerability that Parliament was attempting to address by adding this sub-paragraph to the list of deemed aggravating factors. In any event, I would add

that I have considered this particular vulnerability of these victims as part of my general assessment of the impact to all the victims as an aggravating factor. To consider it again under sub-paragraph 718.2(a)(iii.1) would be inappropriate. Consequently, I decline to apply this sub-paragraph in the context of this sentencing.

Discussion of Mitigating Factors Guilty Pleas and Acceptance of Responsibility [ 40 ] Early guilty pleas are an important mitigating factor, not only because they save time and court resources, but because, as they did in this case, they eliminate the necessity of a longer court process and possible further trauma to witnesses and victims. In this case, the guilty pleas were not entered as soon as possible but they were entered prior to any evidence having to be called at the preliminary inquiry.

It is also important to note that guilty pleas generally eliminate the uncertainties of the trial process and the potential for appeals of the verdict on each charge. [ 41 ] Guilty pleas are also considered to be a general acceptance of responsibility for the elements of the relevant charges. However, it is important to note that in this case there is more than that. During the immediate aftermath of the shooting, while still at the scene, Mr. Adamko told the police that he was the person who fired the shot.

Then, as is the case now, he also said he thought he was shooting an elk, but he clearly was not trying to avoid his responsibility for the act of shooting that resulted in Mr. Darchuk’s death. Remorse [ 42 ] When given the chance to speak during the sentencing hearing Mr. Adamko said the following: I knew that one day I would be able to speak to the court and most importantly to the Darchuk family after Jordan’s death. As a result I’ve tried to put into words what I wanted you all to know. There are no right words, I have written and re-written these words many times. Each time I find that I can not say enough.

Every time I get from one sentence to another I think about my actions and what brought us all here today. My year no longer begins January first, my year now begins September sixteenth. This date marks how my life, and more importantly the lives of the Darchuk family, have been changed forever. There are no words, no apologies that can ever make this situation correct. I constantly find myself trying to put myself in your shoes. The closest I believe I can get to these circumstances is the loss of my cousin Jocelynn. What I can recollect from her passing was feeling a lot of anger.

I was angry that she was gone without being able to say goodbye to her; wishing that the man who drove the car that night would one day feel the pain, not only of myself, but the pain of her mother, her father, her brother, her sister and all of her friends and surrounding family. I am now that person to you. I understand that you may wish pain on me and I want you to know I really do feel it, but I am sure it is nothing compared to what you feel.

Today, and every day that I can remember since September sixteenth of twenty-seventeen I am reminded of my mistake and my mistake alone that took the life of Jordan Darchuk. I have a feeling of tremendous guilt and shame that I have not only placed on myself but the pain and disappointment that my family must also burden. This all pales in comparison to what you are feeling. The amount of pain, suffering, and agony your family has been faced with is something no person should ever have to be faced with or burdened with. And I am responsible for it, no one else is.

I sincerely hope your family can heal, although I know with this grave a loss you can not heal completely or fill this enormous void in your life, but I really hope you can. I never knew Jordan Darchuk personally. I never crossed paths with him, never crossed paths until this devastating day in 2017, but I do remember hearing about him through friends surrounding our community. I’ve gathered he was an extremely caring, selfless, outgoing man.

I hope to one day be able to learn more about his life so that I can appreciate more than I already do the tremendous amount of love I have seen for Jordan and his family and friends throughout the community. Because Jordan was who he was, I know that this accident has also taken so much away from our community. Jordan cannot continue to contribute positively to our community and I am responsible for that. I know that I am probably the last person you want to hear from. I realize that your family may never forgive me and probably won’t forgive me, but I want to convey my deepest apologies.

I truly am deeply sorry. Thank you. [ 43 ] I find that Mr. Adamko has experienced and continues to experience deep and genuine remorse for his actions that resulted in Mr. Darchuk’s death. My conclusion in this regard is partly based upon his words spoken in court, but also on the confirmation of his remorse from the outset as confirmed in the support letters filed in evidence. In particular, the letters from his mother, Genevieve Grant, and his priest, Fr. Ivan Nahachewsky. I am also of the view that Mr.

Adamko spent a lot of time and effort in preparing his remarks to the Court and the victims, and in particular, I am impressed with his thoughts and expression of empathy for the Darchuk family. Consequently, I find his remorse to be an important mitigating factor. Cooperation with the Police [ 44 ] Cooperation with the police is often considered to be mitigating and in this case, I find it to be an appropriate factor to consider. In addition to Mr. Adamko’s initial acceptance of responsibility, referred to above, he also turned over the rifle he had used to the police.

Additionally, Mr. Adamko was interviewed by the police on December 14, 2017, during which interview he made some very significant admissions to the police, which are set out in the Agreed Statement of Facts. I also note in passing that this step in the police investigation seems to have confirmed the grounds for charges to be sworn as the Information was sworn that same date and Mr. Adamko was detained and held for his first court appearance the next day. Personal Circumstances and Compliance with Release Conditions [ 45 ] I have already summarized Mr. Adamko’s personal circumstances.

However, for the purposes of considering applicable mitigating factors it is important to confirm that prior to the tragic events of September 16, 2017, he was a young man of good character who was contributing positively to his community and to society more generally. This is a significant mitigating factor. [ 46 ] Additionally, since September 16, 2017, Mr. Adamko has made efforts to stay employed. Also, since his arrest and release from custody on December 15, 2017, he has been bound by, and complied with, a strict undertaking.

Notably, the undertaking contains a daily curfew clause, which has now been in place for more than 16 months. This is a significant restriction on his liberty for a significant period of time. Consequently, this too is a significant mitigating factor. The lack of a Prior Criminal Record [ 47 ] Not having a prior criminal record is often associated with the good character factor. The two are generally consistent with each other but the presence of one does not automatically mean the other factor is also present. In this case, I consider the lack of a prior criminal record to be part of Mr.

Adamko’s general good character, and as such, I am not giving double consideration to similar mitigating factors. It is however, important to recognize a separate reason why the lack of a criminal record is considered a distinct mitigating factor. This is because sentences for individuals like Mr. Adamko, who have no prior experience with the criminal justice system, and who are being sentenced for the first time, can experience their sentence as being harsher than it would be for an experienced offender receiving the same sentence. This is particularly the case when the first sentence includes custody.

Proportionality [ 48 ]

Section 718.1 of the Criminal Code sets out a fundamental principle of sentencing and it reads: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This principle generally operates as described by the Supreme Court of Canada in Lacasse [10] The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.

Determining a proportionate sentence is a delicate task. [11] [ 49 ] In his dissent, in Lacasse , Justice Gascon added the following comments: My colleague states that the principle of proportionality means that the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be (para. 12). I would qualify this statement somewhat. In my view, an offender’s degree of responsibility does not flow inevitably and solely from the gravity of the offence.

The gravity of the offence and the moral blameworthiness of the offender are two separate factors, and the principle of proportionality requires that full consideration be given to each of them: Proulx , at para. 83 . As s. 718.1 Cr.

C. provides, “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [12] [ 50 ] In Lacasse , Justice Gascon also goes on to write the following: Whereas the gravity of the offence concerns the harm caused by the offender to the victim as well as to society and its values, the other aspect of the principle of proportionality involves factors that relate to the offender’s moral culpability: The “degree of responsibility of the offender” as used in s. 718.1 certainly includes the mens rea level of intent, recklessness or wilful blindness associated with the actus reus of the crime committed.

For this assessment, courts are able to draw extensively on criminal

justice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moralculpability. However, the reference in s. 718.1 is not simply to the “mens rea degree of responsibility of the offender” at the time ofcommission of the crime. Parliament evidently intended “degree of responsibility of the offender” to include other factors affectingculpability. These might relate, for example, to the offender’s personal circumstances, mental capacity or motive for committing thecrime. Where else does the Code provide for an offender’s degree of responsibility generally to be taken into account? Here, too, theanswer takes us to s. 718.2.

Section 718.2 directs the sentencing judge to take into consideration a number of principles. All are either components of theproportionality principle or properly influence its

interpretation and application. Either way, all are relevant in determining a just sanctionthat satisfies the proportionality principle. [Citation omitted] (R. v.

J.L.M.A., 2010 ABCA 363 , 499 A.R. 1, at paras. 58-59; see also Nasogaluak, at para. 42; M. (C.A.), at para. 40.) The application of the proportionality principle may therefore cause the two factors to conflict, particularly where the gravity of theoffence points strongly to a sentence at one end of the range while the moral culpability of the offender points in the other direction: R. v.Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 93, quoted in C. C. Ruby, G. J. Chan and N. R. Hasan,Sentencing (8th ed. 2012), at pp. 26-27.

In short, although it is true that the gravity of the crime is a relevant factor, it must nevertheless be considered in conjunction with the offender’s degree of responsibility, a factor that is unrelated to the gravity of the offence. [13] The Gravity of the Offence [51] In this case, I find it appropriate to consider two things to assess the gravity of the primary offence in this situation, being theoffence of careless use of a firearm. First, there is the fact that this is an Indictable offence punishable by a maximum jail sentence of 2years. This is low for an offence that can result in tragic consequences.

Second, there are the actual consequences of Mr. Adamko’scommission of this offence, which could not be graver as they include the death of Mr. Darchuk. Because of the resulting death of Mr.Darchuk I find that the gravity of the offence is very high. [52] Crown counsel submitted that notwithstanding the fact that sentences for careless use of a firearm do not generally attractlengthy jail sentences is not a bar to a significant jail sentence in this case because of the very grave consequence. I agree that this is anapplicable consideration.

In R v DeSousa, the Supreme Court of Canada articulated this consideration as follows: Conduct may fortuitously result in more or less serious consequences depending on the circumstances in which the consequences arise. The same act of assault may injure one person but not another. The implicit rationale of the law in this area is that it is acceptable todistinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused. This isreflected in the creation of higher maximum penalties for offences with more serious consequences.

Courts and legislators acknowledge the harm actually caused by concluding that in otherwise equal cases a more serious consequence will dictate a more serious response.[14] Degree of Responsibility [53] The prosecutor has argued that Mr. Adamko’s degree of responsibility is high. Defence counsel argued that the moralculpability or moral blameworthiness required to commit the offence of carless use of a firearm is very low, and that Mr. Adamko’spersonal moral culpability is also very low, and consequently his degree of responsibility is very low.

In the unique circumstances of thiscase, I find that both counsel are partially correct. [54] With respect to the actus reus of the offence, I agree with the prosecutor that Mr. Adamko’s degree of responsibility is high.While one of his companions may have been there to assist with spotting, he was the primary hunter. He had the hunting tag, he wasusing his father’s firearm, was driving his own truck, and was of course the one who took the shot that struck and killed Mr. Darchuk.He was the one who made the decision to possess the firearm without a license, and later to use that firearm in a careless manner.

Insome of the material filed at the sentencing hearing, the tragic incident that occurred on September 16, 2017 is infrequently referred to asan ‘accident’ or as a ‘hunting accident’. In this regard, I agree with the prosecutor’s comment that “this was no accident”. Mr. Darchuk’sdeath was not the result of an accident. It was a result of decisions and specific actions taken by Mr. Adamko, for which he is whollyresponsible. Also relevant here is the fact that firearms are deadly weapons and can cause severe injury and even death even by accident.The risk is even higher when a firearm is handled or used carelessly.

This is why there is a positive obligation on those who handle anduse firearms to do so carefully. [55] With respect to the mens rea of the offence, I agree with defence counsel that the offence itself only requires a low level of

moral culpability and that Mr. Adamko’s personal level of moral culpability was very low. His carelessness is the foundation of the charge but it is limited to the few minutes of events that led to his decision to take the tragic shot. There was no evidence that he was otherwise handling or transporting the firearm in a careless manner on the day in question. He certainly had no specific intent or advance plan to be careless with the firearm; and he clearly had no intention to harm Mr. Darchuk or any other person. [ 56 ] In my view, Mr.

Adamko’s very low level of culpability with respect to the mens rea of the offence is a significant factor in my assessment of proportionality in conjunction with all of the other principles and factors that I have considered.

This case is perhaps the embodiment of Justice Gascon’s statement in Lacasse that: [t]he application of the proportionality principle may therefore cause the two factors to conflict, particularly where the gravity of the offence points strongly to a sentence at one end of the range while the moral culpability of the offender points in the other direction…. [15] 718.2(e) / Gladue Factors [ 57 ] Paragraph 718.2 (

e) of the Criminal Code reads as follows: “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” The first part applies, as indicated in the text, to “all offenders” and the second part applies to “Aboriginal offenders”. The common references to “Gladue principles” and “Gladue factors” refer to the second part. In this case, defence counsel made submissions regarding Mr.

Adamko’s partial Métis heritage, but also indicated that Mr. Adamko generally self-identifies as “Non-Indigenous”. In this case, the Crown took no issue with the whole of paragraph 718.2 (

e) being applicable, so I find there is no need to delve into the possible issue of whether or not he can be considered an Aboriginal offender. For the purposes of this sentencing, I accept that he is. However, for the reasons that follow I find that in this case the application of Gladue principles has no effect on sentence. [ 58 ] Mr. Adamko was not raised “as a Métis person” or in a Métis community. Rather, he appears to have been raised in a manner consistent with his paternal heritage.

He did not experience, nor was he exposed to, any of the common negative systemic or background factors experienced by many Aboriginal people. One exception to this is the fact that in his maternal family history there were experiences of family members being unjustly ashamed of the Aboriginal part of their heritage and consequently wanting to “hide” that part of their identity. [ 59 ] As indicated by the Saskatchewan Court of Appeal in R v Chanalquay , [16] one of things I must consider is whether or not there are systemic or background factors which played a

part in bringing Mr. Adamko to court. If so, this could be a factor that reduces his moral culpability for the offences committed. In this case, there is no basis upon which I could find that anything to do with Mr. Adamko’s Métis heritage contributed to his commission of the offences before the court. This is in large part because I have found that the offences he committed on September 16, 2017 were an isolated incident. [ 60 ] If I am incorrect in the foregoing, I would still find that any Gladue factors that may be applicable to Mr.

Adamko would have little to no effect on my assessment of his moral culpability quite simply because I have already determined his moral culpability to be very low. [ 61 ] The second thing I must consider pursuant to Chanalquay , is the types of sentencing procedures and sanctions that may be appropriate for Mr. Adamko in light of his Aboriginal heritage. No such procedures and sanctions were identified or requested by defence counsel and I am unable to identify any.

The Crown and defence in this case do not agree on the appropriate sentence but they have both suggested that it include custody, probation, and a firearms prohibition order. Defence counsel has requested that the custody be of short duration so that it might be served intermittently. Defence counsel has also indicated that Mr. Adamko is willing to pay a substantial amount of restitution and that this obligation be included as a condition of the probation order. Lastly, through his counsel Mr. Adamko has expressed his willingness to have the firearms prohibition be imposed for as long as possible.

These measures may well be appropriate for an Aboriginal offender but they are equally appropriate for a Non-Aboriginal offender. Consequently, I find this second consideration does not affect the sentence I am imposing today. Rather, I find this case to be an example of the situation contemplated by the Supreme Court of Canada in this passage from R v Ipeelee : Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [17] Parity

[ 62 ] The principle of parity is specifically set out in paragraph 718.2 (

b) of the Criminal Code , which reads as follows: “…a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;”. Defence counsel submitted a substantial number of cases, [18] and Crown counsel also referred to several cases. [19] I have reviewed all of these cases, and I appreciate counsels’ efforts to provide assistance to me in this regard, however I unfortunately find that they are of limited assistance to me.

A good number of the cases are somewhat similar in that the offenders were sentenced for offences that resulted in deaths or injury while the offender was hunting, but none of the cases dealt with sentencing an offender for the same two charges as Mr. Adamko. Additionally, virtually all of the cases include specific facts that would distinguish them from the circumstances surrounding Mr. Adamko’s offences. Lastly, I would add several of the cases submitted are quite dated and actually predate the significant rewriting and replacement of

Part XXIII of the Criminal Code , which occurred in September, 1996. [20] Consequently, the sentencing proceedings in those older cases would not have been conducted on the basis of the fundamental purpose and objectives of sentencing (s.718), the principle of proportionality (s.718.1), and the other sentencing principles ( s.718.2 ) which currently apply to all sentencings. I would note that this significant change to

Part XXIII also included the first formal provisions for the use of victim impact statements in sentencing proceedings and as such, it is not surprising that there is very little analysis of impact to victims included in these older cases. [ 63 ] The circumstances of these offences are unique, as are Mr. Adamko’s personal circumstances. As such, this is a situation where the principal of parity has much less effect on the sentence.

In R v Whitehead , being a case where one of the issues being considered was parity, the Court of Appeal of Saskatchewan wrote the following: Certainly, as a matter of general principle, a sentencing court should seek to avoid imposing disparate sentences for similar offences committed by similar offenders in similar circumstances, “but not without considerable qualification”: R v Knife at para 11. Given that s. 718.2 (

b) uses the words should and similar , the codified principle does not bind a court to impose exactly the same sentence on an accused as was imposed on a co-accused. As the Criminal Code suggests—and as courts have consistently held—sentencing is an inherently individualised process where the gravity of the offence and the role the offender played in its commission must be considered alongside the degree of responsibility of the offender, having had regard to the offender’s unique individual circumstances.

Differences in these considerations may well account for variations in sentence even as between co-accused provided the predominant goal of sentence proportionality is achieved. [21] (Emphasis added). Additional Analysis and Sentence [ 64 ] The Crown has submitted that the more important principals in this situation ought to be denunciation and general deterrence. I generally agree with that submission but I also find that rehabilitation and providing some reparations to the victims are also important principals to apply in this case.

Given his previous history, his compliance with the undertaking, and his family support, I find that Mr. Adamko is a good candidate for rehabilitation that he will require to some degree. Also, because of his employability I find that he will be able to make some financial reparations to the victims. I also find that Mr. Adamko has fully acknowledged his responsibility for the offences and the resulting consequences. He is, to the extent possible, personally aware of the harm done to the victims.

Consequently, there is no need for the sentence to further promote his sense of responsibility and acknowledgement of harm. [ 65 ] I also find that there is essentially no need for the sentence to specifically deter Mr. Adamko from committing further offences, including further offences of this nature. I observe that the firearms prohibition order that will be part of the sentence will directly affect his ability to commit similar offences in the future. [ 66 ] As indicated above, both the Crown and defence have taken the position that both custody and probation are appropriately part of the sentence for Mr.

Adamko. The most significant divergence in their positions is the appropriate duration of the custody portion of the sentence. In my view, it is the custody portion of the sentence that will provide the appropriate level of denunciation of Mr. Adamko’s unlawful conduct and the harm caused by it. A significant amount of custody will also best address the important goal of general deterrence, and in particular, general deterrence to hunters and other persons who own and use firearms. The message must be clear that firearms must always be handled carefully.

Failure to do so can result in serious consequences and sentences for committing the offence of careless use of a firearm, especially if it causes serious harm to another person. [ 67 ] Given the gravity of the circumstances of the offence that resulted in the death of Mr. Darchuk, along with the other aggravating factors, the Crown submission for jail in the range of 12 to 18 months is not unreasonable. However, the sentence I impose must also include appropriate consideration for all of the mitigating factors discussed above and Mr.

Adamko’s very low level of moral culpability as I have assessed it regarding the mens rea of the offence. In my view these factors, and the application of the principal of proportionality as it ought to apply to this case, requires a significant jail sentence but one that is considerably lower than the Crown’s recommendation.

[ 68 ] I have also considered whether or not the charge for possession of a firearm without a license should attract a separate and consecutive period of custody. While this offence is somewhat separate from the other offence because it would have started sooner, the two do overlap. Additionally, I have found that the factual basis of this charge is a significant aggravating factor to the charge of careless use of a firearm.

For these reasons, I find that it is appropriate to include custody in the sentence for this charge but it will be made concurrent to the custody imposed for the charge of careless use of a firearm. [ 69 ] Having considered the appropriate purpose and objectives of sentence along with the principal of proportionality and the other applicable principles of sentencing; and considering Mr.

Adamko’s personal circumstances, I conclude that the appropriate sentence is as follows: Count 2, careless use of a firearm: 7 months jail, to be followed by 2 years of probation, which probation order will include a clause for payment of a significant amount of restitution. Also on count 2, there will be an order pursuant to s.491 of the Criminal Code for the forfeiture of the firearm used in the commission of this offence. Count 3, possession of a firearm without a license: 1 month jail concurrent. Also on count 3, there will be an order pursuant to s.109 of the Criminal Code prohibiting Mr.

Adamko from possessing any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for life. This order will also include a prohibition on any prohibited firearm, restricted firearm, prohibited weapon, and prohibited ammunition for life. [ 70 ] Before formally imposing the sentence on Mr. Adamko, I will hear further from counsel regarding specifics of the terms to be included in the probation order, and regarding specific terms of the forfeiture order. ________________________ L.W. Stang, J