R. v. Hart, 2021 BCPC 311

Citation: R. v. Hart 2021 BCPC 311 Date: 20211105 File No: 179545-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LEE HART NATHEN MONSOUR REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: T. Hodge and A. Pace Counsel for Accused Hart: K. Bradshaw Counsel for Accused Monsour: M. Munro Place of Hearing: Victoria , B.C. Date of Hearing: March 15 and 16, 2021; November 2 and 3, 2021 Date of Judgment: November 5, 2021 [ 1 ] THE COURT: On September 29, 2018, Shawn Campbell was assaulted by the defendants, Nathen Monsour and Lee Hart.

The assault, in which weapons were used, caused serious injuries from which Mr. Campbell never recovered. He died in hospital. Mr. Monsour and Mr. Hart are before the court today to be sentenced for their role in Shawn Campbell's death. [ 2 ] Mr. Hart and Mr. Monsour were initially charged with the second degree murder of Shawn Campbell. At the preliminary hearing, and before its conclusion, both elected to maintain their pleas of not guilty to second degree murder, but in this court and

pursuant to s. 606(4) of the Criminal Code , each pled guilty to the lesser included offence of manslaughter of Shawn Campbell contrary to s. 236 of the Criminal Code . As such, the record must reflect an acquittal for both Mr. Hart and Mr. Monsour on Count 1 of the information as charged. Guilty pleas are entered to the lesser included offence of manslaughter. In addition, Mr. Hart is being sentenced today having pled guilty to Count 2 of the information which charges that, on September 29th, 2018, he committed assault with a weapon on Neil Albrecht contrary to s. 267 (

a) of the Criminal Code . [ 3 ] Mr. Hart and Mr. Monsour initially entered these pleas based on an agreed statement of facts. Since then, other facts have been alleged which this court is asked to consider on sentencing. I will refer to those in these reasons including the facts in the agreed statement of facts which I will address in a moment. For the present, it is enough to say that, on September 29, 2018, Mr. Hart and Mr. Monsour went to a home on Carey Road here in Victoria where they knew or reasonably suspected Shawn Campbell would be present. Each came armed with a hammer.

They were accompanied by another male, Mr. Jamie Dark, who is not part of this sentencing, but who figures in the agreed statement of facts and in Mr. Hart's position on sentencing. [ 4 ] Mr. Monsour and Mr. Campbell had a history. They were, until just before the attack, reasonably good friends. Mr. Hart barely knew Mr. Campbell, but was good friends with Jamie Dark. He was content, ultimately, to go with Mr. Dark and Mr. Monsour to find Mr. Campbell. Mr. Monsour and Mr. Hart each agreed that they formed a mutual intent to beat Mr.

Campbell up to teach him a lesson for having assaulted his wife, Amanda MacDonald, only days before. Other motives are asserted and I will address those later in these reasons. [ 5 ] On the day of his attack, Mr. Campbell was staying at the home of his friend, Mr. Neil Albrecht. He was, at the material time, helping Mr. Albrecht move out of his rental suite. When Mr. Hart and Mr. Monsour and Mr. Dark arrived at Mr. Albrecht's residence, they found Mr. Campbell initially by himself in the driveway loading Mr. Albrecht's belongings into the trunk of a car. The two defendants quickly set upon Mr.

Campbell knocking him to the ground. [ 6 ] At some point during the assault, Mr. Albrecht tried to intervene to help his friend. He was prevented from doing so by Mr. Hart who assaulted him with a hammer. Ultimately, Mr. Campbell was punched and struck by a hammer or hammers. Two of the blows landed on his head and above his right eye. Mr. Campbell fell unconscious. He was declared brain dead several days later and died days after life support was withdrawn. Issue on Sentencing [ 7 ] At issue in this sentence hearing is the length of sentence for each of the defendants.

The Crown seeks a custodial sentence in the range of seven to eight years for the offence of manslaughter. It seeks a concurrent sentence of six to nine months for the charge of assault with a weapon against Mr. Hart, but that is not controversial. [ 8 ] With respect to the manslaughter charge, the defendants each, for different reasons, submit a custodial sentence of four years or only slightly longer is fit in all of the circumstances. To foster the considerable steps he has taken toward rehabilitation while in custody, Mr.

Hart submits that a sentence of four to four-and-a-half years is appropriate as it would enable him to attend treatment at Guthrie House. Given his prospects for successful rehabilitation, this sentence, Mr. Hart submits, would meet the purposes and principles of sentencing. Mr.

Monsour submits that for various reasons, those being principally his Métis status and bail conditions, that his sentence should be at the low end of the sentencing range. [ 9 ] As all counsel have emphasized in this sentence hearing, and as the case authorities make amply clear, sentencing for manslaughter is made particularly challenging for this reason: manslaughter is but one form of culpable homicide. There are obviously others, including first and second degree murder.

Section 222(5) of the Criminal Code provides that a person commits manslaughter by means of an unlawful act or by criminal negligence obviously causing death. In what I have found to be an instructive and helpful discussion of the complexities of sentencing for manslaughter, at para 35 of R. v. Larson , 2017 ACQB 79, quoting from the oft-cited reasons in R. v. LaBerge , 1995 ABCA 196 (Alta CA), the court writes that manslaughter cases have two common requirements: first, conduct which has caused the death of another; and, second, fault short of intention to kill.

However, as the court in Larson continues, despite these common elements of the act of manslaughter, the circumstances or context in which death is caused may support a wide variety of moral responses. [ 10 ]

Section 236 of the Criminal Code provides that every person who commits manslaughter is guilty of an indictable offence subject to imprisonment for life. At the same time, under the Criminal Code , the sentencing options for manslaughter run from a life sentence to a suspended sentence and probation, in other words, a jail sentence for life subject to parole eligibility, of course, to no jail at all.

In between, the sentencing options are wide-ranging. [ 11 ] As the court explains at paragraph 36 of Larson , again citing LaBerge , it is precisely because a sentence for manslaughter can range from a suspended sentence up to imprisonment that the court must determine for sentencing purposes what rung on the moral culpability ladder the offender reached when they committed the prohibited act.

The purpose of this exercise is to ensure that the sentence fits the degree of moral fault of the offender for the harm done. [ 12 ] Whether the issue is one of the particular rung of the moral culpability ladder as described in LaBerge , or the principle of proportionality as described by Justice DeWitt-Van Oosten (as she then was) at paras 90 and 91 of R. v.

Carte , 2017 BCSC 2421 , determining a fit sentence for manslaughter involves consideration of a myriad of factors, principal among which is a determination of the degree of moral culpability of the offender given the broad range of conduct that falls within the definition of manslaughter under the Criminal Code . [ 13 ] The key or central question is, of course, to determine, as best as can be done, the degree to which the offender is responsible for the death caused by the offender's illegal act. If the death came about almost by accident, the sentence must reflect that fact.

If the death came about in a manner that suggests an intention bordering on intent to murder, the sentence must also reflect that fact. The facts, including any necessary findings of fact on which the court is sentencing the offender and, in this case, offenders, are therefore critical. Background Facts

[ 14 ] As I noted at the outset, Mr. Hart and Mr. Monsour come before the court for sentencing having pled guilty to manslaughter at their preliminary hearing. The pleas were entered largely based on an agreed statement of facts entered as Exhibit 1. The facts contained in the agreed statement do not comprise all of the evidence brought out at the preliminary hearing.

At the same time, given the nature and purpose of a preliminary hearing, which is primarily a tool of discovery, the evidence called was not subject to any sort of rigorous testing by cross-examination precisely because a preliminary hearing judge cannot engage in an assessment of credibility except in the very rare instance. Therefore, it falls on this court to sentence Mr. Hart and Mr.

Monsour largely based on the agreed statement of facts and any inferences that are fairly permissible from those facts. [ 15 ] In addition to the agreed statement of facts, I have been provided with presentence reports prepared for each of the defendants, as well as additional information regarding their personal circumstances provided by their counsel during submissions. Some of this additional information is relevant or at least bears consideration on the question of moral culpability.

Other information is more relevant when considering mitigating and aggravating factors that can themselves have a bearing on length of sentence. [ 16 ] The agreed statement of facts runs some 54 paragraphs. All of the facts are relevant one way or another in this sentencing, but I propose to read in only some for the purpose of these reasons. These are the facts that I find most relevant to determining the degree of the moral culpability of each of the defendants. These facts begin at paragraph 26 of the agreed statement of facts and are preceded by facts outlining the relationship between Mr. Campbell and Mr.

Monsour. Those facts outline that the two were good friends. That at the time of his death, Mr. Campbell was married to Amanda MacDonald. That, on September 25th, 2018, Mr. Campbell and Ms. MacDonald argued. Mr. Campbell is said to have struck Ms. MacDonald causing facial bruising and a concussion. Ms. MacDonald, in turn, is said to have struck Mr. Campbell on the head causing a laceration which was treated. That injury was later determined to have played no role in Mr. Campbell’s death. [ 17 ] Compressing the factual background considerably, the agreed statement of facts outlines that Ms.

MacDonald ended up in the company of Mr. Monsour and others on September 28, 2018. Mr. Campbell phoned her many times. He was clearly upset and jealous. He threatened to report Ms. MacDonald to Family and Child Services given the company she was keeping while in the presence of their young daughter. Mr. Monsour intervened and exchanged unpleasantries with Mr. Campbell. [ 18 ] Mr. Campbell became convinced Mr. Monsour was becoming romantically involved with Ms. MacDonald. He took some revenge thereafter by first breaking the driver-side window of Mr. Monsour's truck, and then by causing some damage to Mr.

Monsour's home. Mr. Monsour discovered this after having accompanied Ms. MacDonald to hospital. She had, during the early morning hours of September 29, fallen and injured her leg. Video footage showing the numerous instances Mr. Monsour visited Ms. MacDonald while she was in hospital before the assault on Mr. Campbell were played at the preliminary hearing. [ 19 ] The facts I want to emphasize in this hearing, as I say, pick up at paragraph 26 of the agreed statement of facts when Mr. Monsour reports the damage to his truck to Sooke RCMP.

Beginning at paragraph 26, the agreed statement of facts read as follows: 26. At 12:16 PM, Mr. Monsour went to the West Shore RCMP detachment in Langford. He said he had reported damage to his truck windows to Sooke RCMP but wanted West Shore RCMP to provide him information about possible investigative steps that could be taken. He was told he should speak to the Sooke RCMP as it was their jurisdiction. 27. Mr. Monsour went to the Granderson Road residence and met up with Mr. Dark and Mr. Hart, who had been partying. The three of them went to Mr.

Monsour's residence and found the broken window and other damage there. Mr. Monsour photographed and made two videos of that damage. 28. At some point, Mr. Monsour spoke to Mr. Hart about the damage to his truck, and about Mr. Campbell's assault on Ms. MacDonald. 29. Mr. Monsour then invited Mr. Hart and Mr. Dark to accompany him to VGH to visit Ms. MacDonald. They agreed. 30. Mr. Monsour drove Mr. Hart and Mr. Dark to VGH in Mr. Monsour's truck arriving at approximately 2:20 PM. Mr. Monsour led Mr. Hart and Mr. Dark into the hospital, and they visited Ms. MacDonald. While there, Mr.

Monsour took photographs of the bruises on her face caused by the assault by Mr. Campbell earlier that week. 31. The three departed at approximately 2:27 PM, still in Mr. Monsour's truck. 32. Mr. Monsour and Mr. Hart developed a common intention to beat up Mr. Campbell to teach him a lesson for Mr. Campbell's assault on Ms. MacDonald earlier in the week. 33. Mr. Monsour was also upset about Mr. Campbell's overnight damage to Mr. Monsour's property, and Mr. Monsour did not know what Mr. Campbell would do next. 34. Mr. Monsour drove Mr. Hart and Mr. Dark to the Carey Road residence in Mr. Monsour's truck. 35.

Between the intersection where Carey Road meets Glanford Avenue and where it meets McKenzie Avenue, Carey Road runs northwest. The Carey Road residence was located a short distance north of the Glanford Avenue intersection on the east side of the street with its front door facing west. The house was positioned below street level so that the driveway in front of the attached double garage ran uphill to meet the street. 36. In the mid-afternoon of Saturday, September 29th, 2018, in the driveway of the Carey Road residence, a Toyota Highlander was parked facing the street, taillights nearest the front door of house.

Parked south of and next to the Highlander with a gap in between was a Crown Victoria sedan, also facing the street, with its taillights nearest the north garage door with its trunk open. 37. Around 3:00 PM, Mr. Campbell and Mr. Albrecht were packing the Highlander and the Crown Victoria for Mr. Albrecht's move. Mr. Albrecht and Mr. Campbell were coming and going to the driveway from the basement suite door which was located on the north

face of the house around the corner from the front door. 38. Mr. Monsour, Mr. Hart and Mr. Dark arrived on Carey Road and parked at the curb on the east side of the street, facing northwest a few houses north of the Carey Road residence. 39. At approximately 3:14 PM, Mr. Monsour and Mr. Hart, moving quickly and armed with hammers, walked south to the Carey Road residence driveway. Mr. Dark followed. 40. Mr. Monsour and Mr. Hart ran down the driveway along different routes around the Highlander and the Crown Victoria, to the location where Mr.

Campbell was alone between the closed garage door and the back of the Crown Victoria. Mr. Albrecht, who was closer to the north side of the house, heard "S'up, goof" as they approached Mr. Campbell. Recognizing Mr. Monsour, Mr. Campbell said, "Nate." This may have been Mr. Campbell's last utterance. 41. Mr. Monsour and Mr. Hart attacked Mr. Campbell who had no time to react. Mr. Campbell was struck and quickly taken to the ground. Mr. Campbell was unarmed. 42. Mr. Monsour, Mr. Hart, Mr. Dark, Mr. Campbell and Mr. Albrecht were the only people in the driveway during the attack. Mr. Monsour, Mr. Hart and Mr.

Campbell were near the garage doors. Mr. Dark paced back and forth in the driveway close to the road, and at no point attempted to render assistance to Mr. Campbell or Mr. Albrecht; and Mr. Albrecht returned to the driveway from the north side of the house as the attack began. 43. Mr. Monsour and Mr. Hart were the only participants in the attack on Mr. Campbell. 44. The attack by Mr. Monsour and Mr. Hart on Mr. Campbell included: a. Being taken to the ground; b. An assaultive blow to Mr. Campbell's right arm; c. Punching Mr. Campbell; d. Delivering a hammer blow to the back of Mr. Campbell's head; and e.

Delivering a hammer blow to the area above Mr. Campbell's right eye. 45. After Mr. Monsour and Mr. Hart ran down the driveway and began the attack on Mr. Campbell, Mr. Albrecht moved towards them in an effort to assist Mr. Campbell. Mr. Hart, reacting to Mr. Albrecht's movement, moved towards Mr. Albrecht. As he did so, Mr. Hart swung a hammer at Mr. Albrecht several times, and missed as Mr. Albrecht retreated between the Highlander and Crown Victoria in the driveway. Mr. Albrecht was unarmed. One of the hammer strikes glanced off Mr. Albrecht's left arm and skipped to his chest, leaving Mr.

Albrecht with bruises. Mr. Albrecht said to Mr. Hart, "Look, he's done," referring to Mr. Campbell in an attempt to stop the attack. In response, Mr. Hart turned and looked at Mr. Campbell and appeared surprised. 46. At some point during the attack, Mr. Albrecht heard a sound he described as "the crack of the bone splitting." He also heard, at some time, "That's what you get for beating your wife." 47. Mr. Hart and Mr. Monsour began to run from the driveway. Along with Mr. Dark, the three of them ran back to Mr.

Monsour's truck, got in, and drove away northbound on Carey Road turning on Columbine Street returning to the Granderson Road residence. They did not call Emergency Services for assistance for Mr. Campbell. 48. The hammers used in the attack were wiped and discarded from the vehicle on the way back to the Granderson Road residence. Later, Mr. Monsour and Mr. Hart returned to visit Ms. MacDonald again at VGH, this time in Mr. Hart's vehicle. 49. Unable to reach Mr. Campbell any sooner, Mr. Albrecht attempted to administer first aid to Mr. Campbell as the assailants fled and then Mr.

Albrecht called 911 at 3:17 PM. 50. From start to finish, the incident in the driveway took less than one minute. 51. As a direct consequence of Mr. Monsour's and Mr. Hart's attack on Mr. Campbell, Mr. Campbell sustained the following injuries: a. Skull fractures, resulting from blunt force trauma that were five-and-a-half centimetres in diameter, from which brain matter was extruding, on the right side of Mr. Campbell's forehead near his right eye. There were also lacerations near his right eye, and surrounding abrasions measuring four centimetres by three centimetres. He had a hematoma to his right eye; b.

A laceration on the back of his head which was two-and-a-half centimetres in length with haemorrhaging but no associated skull fracture; c. A puncture wound half a centimetre by three-quarters of a centimetre in size, and swelling at his right elbow; d. Bruising on the underside of his left arm 10 centimetres by two centimetres in size; e. Bruising on the right side of his torso on his lower back; and f. Bruising on his lower legs. 52. Mr. Campbell's brain injury from the skull factures was unsuitable for surgery. A diagnosis of brain death was confirmed on

Monday, October 1, 2018, and life support was withdrawn on Wednesday, October 3, 2018. Mr. Campbell did not regain consciousness after his head injury occurred on Saturday, September 29th, 2018. [ 20 ] From these facts and other circumstances that I will now discuss, it must be determined to what degree both Mr. Hart and Mr. Monsour are morally responsible for the death of Mr. Campbell. Circumstances of the Offenders [ 21 ] In terms of understanding the individual circumstances of both Mr. Monsour and Mr. Hart, this court ordered that a presentence report be prepared for each. In the case or Mr.

Monsour, the report was prepared by Probation Officer, Selena LeBlanc. Mr. Hart's report was prepared by Probation Officer, Jennifer Bonderoff. [ 22 ] Before dealing with each report individually, it bears noting that both defendants take issue with elements of each of their reports. Indeed, Crown counsel utilized parts of the reports, those parts dealing with remorse and insight into the offending behaviour, in particular, in support of its sentencing position. Counsel for Mr. Hart asks this court to consider the reports in context.

They are, I am told, the result of interviews, but also of answers given by each of the defendants to a questionnaire. That much is clear on the face of the reports. [ 23 ] The defendants submit the process offered constraints and led to misunderstandings of their comments, particularly around remorse. As an example, where the presentence report writers view the defendants' answers as to why they attended at the Carey Road residence and assaulted Mr. Campbell as signalling a lack of remorse, the defendants submit the constraints of the process left them with little choice.

They were, it is submitted, admitting that they did what they did for the reasons they had. It was not a deflection of guilt or remorse, rather a filling in of details that should not have the effect of prejudicing them in this sentence. [ 24 ] On the question of remorse, each of the defendants spoke at the sentence hearing. Mr. Hart wrote four letters and read each out aloud in court. These letters are addressed to Mr. Albrecht whom he assaulted, Mr. Campbell's parents, his daughter, Hailey, and finally the court. The letters, entered as exhibits, demonstrate a deep insight by Mr.

Hart into these offences and their effects on all of the victims. It also evidences some understanding of the circumstances that led Mr. Hart to this moment - the choices made or not made. [ 25 ] Mr. Monsour spoke extemporaneously largely directly to Mr. Campbell's family members in the courtroom and expressed with considerable emotion his remorse for having caused Mr. Campbell's death. Mr. Monsour also sought to correct what he says are misunderstandings arising out of his presentence report and I will address those shortly. [ 26 ] As far as expressions of remorse go, I found these convincing.

I am satisfied that they are sincerely given. Of course, as each of the defendants acknowledged, expressions of remorse, apologies for having done then what in hindsight must seem not only nonsensical, but completely and utterly unnecessary, cannot heal the wounds suffered by Mr. Campbell's family and friends. Mr. Campbell's life was taken. His daughter, mother, father, other family members, and friends are left to carry on without him. Mr. Hart and Mr. Monsour live on. They will, when released from custody, carry on with their lives.

Their children, family members, and friends will not bear the infinite scars of bereavement. [ 27 ] Still, apologies and expressions of remorse play an important role in the sentencing process. Among other things, they signal that an offender is capable of rehabilitation. Moreover, while apologies do little to heal raw wounds, no apologies and no remorse on the part of an offender can make coming to terms with such a senseless act as this manslaughter much more difficult. Nathen Monsour [ 28 ] Turning to the presentence reports, I will start with the information provided on behalf of Mr. Monsour.

Nathen Monsour comes before the court at age 34 with no criminal record. Mr. Monsour is the only child of a single mother in whose care he remained until age 13 when he went into foster care before going into independent living at age 15. Mr. Monsour has worked in some capacity or another since approximately age 12. He has, he maintains, always been able to work, always been able to pay for accommodations and food. [ 29 ] Mr. Monsour reports a dysfunctional upbringing. His mother, whom he suspects may suffer from bipolar disorder, drank and consumed drugs while he was in her care.

The household as described was chaotic and unfit for a child. Mr. Monsour recalls being placed in the care of others for long periods of time. His relationship with his mother is today tenuous. He does not know who his father is. [ 30 ] Mr. Monsour is also the father of a child now eight years of age. He and the child's mother are friends, good friends, it seems. She describes Mr. Monsour as a good father, a caring co-parent, and a kind friend. Since being released on bail on June 8, 2020, following his arrest on March 6, 2020, Mr.

Monsour has lived in a basement suite in the home of his ex-partner's parents, Matthew and Holly Yurnick. Both Mr. and Mrs. Yurnick act as sureties on Mr. Monsour's release order. They have been present throughout this sentence hearing and they support Mr. Monsour. [ 31 ] Mr. Monsour reports a modest history of drug use, but nothing that has interfered with his ability to work. If there was anything in Mr. Monsour's antecedents that might have helped to explain this offence it was what the presentence report writer thought was his stated habit of associating with a negative peer group.

The writer thought she perceived an inconsistency in this regard as Mr. Monsour is said to have also reported he had no negative peers. Mr. Monsour denies telling the report writer he had a negative peer group. The inconsistency, he maintains, is a misunderstanding. What led to this offence, Mr. Monsour instructs, is a bad decision on September 29, 2018, based on what he advises were threats by Mr. Campbell to him, his child, and to Mr. Campbell's own wife and child. [ 32 ] This latter allegation is controversial. Crown does not accept Mr.

Monsour's statement that he was motivated that day by fears of retaliation by Mr. Campbell, or that he had been threatened by him. Crown submits that Mr. Monsour's reasoning is as set out in the agreed statement of facts: that Mr. Monsour was inclined to lay a beating on Mr. Campbell to avenge Ms. MacDonald. It is, of course, also the case, as set out in the agreed statement of facts, that Mr. Monsour knew Mr. Campbell had broken his truck window and damaged his home. The agreed facts include that Mr. Monsour did not know what Mr. Campbell would do next.

[33] The threat allegation is presented as a form of explanation for some of Mr. Monsour's actions on the day of the assault. It could,arguably, if accepted, reduce his moral culpability however slightly. In argument, Mr. Monsour asserted that the threats made againsthim by Mr. Campbell occurred days before the assault at a dinner in which he, Mr. Campbell, and Mr. Albrecht were present. As Crownsubmitted in reply, the dinner was the subject of evidence at the preliminary hearing. Mr. Albrecht recalled it being friendly. It is, as theCrown concedes, possible the threats were made out of Mr.

Albrecht’s hearing range. It is equally possible the threats were not made. [34] Certainly, these were never discussed by Mr. Monsour until before the presentence report writer. He did not report these topolice, although he did report the damage to his property. Mr. Monsour suggests in submissions he had no opportunity to make such areport, but I find that unlikely. Mr. Monsour, with no hesitation, reported property damage to police. Had his life and the life of his childand other children been threatened by Mr. Campbell, I have no doubt Mr.

Monsour would have reported that fact to police along with thereport of property damage. [35] What I do accept is that Mr. Campbell was nearly manic with jealousy in the days and hours before the assault. He was at onepoint prepared to walk from the Carey Road residence to Sooke. He, in fact, started to do so. Mr. Campbell did break Mr. Monsour'struck window and did cause further damage at Mr. Monsour's home. It is not trifling damage even though the criminal charge likelywould have been one of mischief. Mr. Monsour knew, also, that Mr. Campbell had been violent with Ms. MacDonald. He and Mr.

Hartseemed to believe Mr. Campbell might have had access to weapons. I do not know what to make of that other than to accept that theymay have thought this. [36] So, on the day of the assault, Mr. Monsour knew Mr. Campbell's jealousy-fuelled anger was escalating. He could expect Mr.Campbell might act unpredictably, but his intention that day, I find, was to avenge Ms. MacDonald. That much is easily inferred on theagreed statement of facts including that Mr. Albrecht overheard one of the two defendants say to Mr.

Campbell during the assault,"That's what you get for beating your wife."While I do not doubt many thoughts were going through Mr. Monsour's mind that day and hewould, obviously, have been thinking about the damage to his truck and to his home, I do not accept, on the evidence before me, that thethreats of death or bodily harm even to children was made on balance and I will not attribute this as amounting to some form of self-defence or provocation so as to reduce Mr. Monsour's moral culpability for Mr. Campbell's death.

Gladue Factors Relating to Nathen Monsour [37] As the Criminal Code provides and as the courts have emphasized, an offender's Indigenous status may operate to reduce moralculpability for an offence. This arises from not only s. 718.2(

e) of the Criminal Code, but also from the reasons of the Supreme Court ofCanada in R. v. Gladue, (SCC), [1999] 1SCR 688 and subsequently in R. v. Ipeelee, 2012 SCC 13. In sentencingIndigenous offenders, the court must bear in mind the Gladue factors. [38] Here, as noted earlier in these reasons, Mr. Monsour self-identifies as Métis. As a child going into foster care, he recalls receivinga Métis status card. It has long since been lost, but he is working to replace it. Mr. Monsour knows little more than this. He does notknow if he is Métis on his father's side or his mother's. He does not know who his father is. He believes his mother, born in Palo Alto,California, may be

part Cree,

part Cherokee. Mr. Monsour does not know if any of his family members attended residential school oneither side of the border. [39] Of course, the intergenerational cultural and social impacts of residential schools on Indigenous persons and cultures are welldocumented. For this part of the report, the presentence report writer connected with the Métis Native Association of Greater Victoria.The Association reports that, at least prior to COVID, it was able to offer cultural activities such as potlucks, Métis dancing, and classesincluding language classes.

Other resources include the Native Friendship Centres located through Vancouver Island which offerprogramming such as life skills and addiction programming, Family Support Workers, cultural programming, and employment trainingprograms. This constitutes the sum total of the information in this Gladue component of the presentence report prepared for Mr.Monsour. [40] This court accepts that Mr. Monsour self-identifies as an Indigenous person with Métis heritage. As such, Gladue factors must begiven consideration in this sentencing. The question is to what end.

The case law as presented in this hearing is somewhat inconsistent. [41] The Crown submits that while the court must bear in mind Mr. Monsour's Indigeneity in this sentencing, there is no basis onwhich to utilize the Gladue factors to reduce his moral culpability for his role in the death of Mr. Campbell. The Crown relies on therecent decision of our Court of Appeal in R. v. Taylor, 2021 BCCA 283. In Taylor, the court dealt with a Gladue report or, moreaccurately, a Gladue component of a presentence report, similar to that which I have before me in this hearing.

At para 27 of Taylor thecourt writes that there, as here, the report provides no specific information about "unique systemic and background factors which mayhave played a

part in bringing the appellant before the court" or about any of the types of sentencing procedures or sanctions that mightbe appropriate. [42] I would add that there, as here, the report provides no specific information about Métis culture and how it was affected by theforces of colonialism.

Even without such information, I am prepared to accept that Métis people have suffered just as other Indigenousgroups, that their children, too, were forced into residential schools with consequential catastrophic effect, that they have faced racismboth systemic and express, and that historical forces have unravelled their communities leading to family breakups or dysfunction,alcohol and drug addiction disorders, abuse, unemployment, and poverty. It is, as the court writes in Gladue and Ipeelee, precisely whycourts must not judge Indigenous people so harshly for criminal offences. [43] I agree with Mr.

Monsour's submissions, also, that it could be these very same historical forces that have caused his familialdislocation making it near impossible to trace his ancestral background. I can accept, as was argued in Taylor, that background factorsrelevant to a Gladue analysis in this case include: (

a) an absent father; (

b) Mr. Monsour's mother's struggles with alcohol and drug abuse; and

(

c) his going into foster care at a young age. [ 44 ] I cannot attribute Mr. Monsour's mother's mental health to Gladue factors, necessarily, at least not without much more information. Still, as the court writes at paragraph 29 of Taylor , while these unfortunate circumstances are often linked to displacement and general mistreatment of Indigenous persons, they are regrettably common. What the report lacks is anything suggesting these circumstances are related to Mr. Monsour's Métis heritage as opposed to other factors. [ 45 ] Mr. Monsour relies on R. v.

Jack , 2008 BCCA 437 , an appeal from a three-year sentence imposed on Mr. Jack for his role in the vicious beating of another member of the Cowichan First Nation. Mr. Jack was one of four members of the Cowichan First Nation sentenced in that case. A Gladue report was prepared for some of the other co-accused. It outlined the general suffering of the Cowichan First Nation brought on by colonialism and then the specific link between the acts of the co-accused, that history, and their offending. On the other hand, the court found Mr. Jack grew up bearing none of the burdens suffered by those others.

His was a pleasant childhood not marred by alcohol abuse or family dysfunction. His Indigenous status seemed to bear no relationship, at least as the sentencing judge found, to his offending behaviour. Nonetheless, his sentence was substantially reduced based on Gladue factors and, more importantly, as I read the decision, on the steps he had taken in conjunction with the Cowichan community toward rehabilitation. That was the observation of the court in R. v.

Russell at paragraph 91 where Justice Schultes observed that: The sentencing judge in Jack was strongly, I would say almost uniquely, motivated towards intra-community reconciliation, a fact that is not present here. [ 46 ] The sentence in Jack was upheld by the Court of Appeal, yet it is difficult to reconcile that decision with the reasons of the court in R. v. Taylor . In Taylor , the Court of Appeal cites the decision of the Ontario Court of Appeal in R. v. F.H.L. , 2018 ONCA 83 , particularly at para 45.

As F.H.L. states at paragraphs 38 to 39 , while there is no need for a causal connection between an Indigenous offender's background and the offence committed, the mere assertion of individual heritage or recognition of systemic and background factors affecting Aboriginal people in Canadian society are insufficient.

The correct approach is said to be as follows: For an offender’s Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender’s life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender’s case. [ 47 ] This, too, is consistent with the reasoning of the court in Ipeelee at para 83 which acknowledges that cultural oppression, social inequality, and systemic discrimination visited on Indigenous Peoples by Canadian Governments would render it difficult, if not impossible, to draw a correlation between these and the events leading to an Aboriginal person to commit a crime.

The court continues by stating: … the operation of s. 718.2(

e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence.

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. [ 48 ] Taylor , citing F.H.L. in support, makes it clear, R. v. Jack notwithstanding, that if the Gladue factors are to influence a sentence, they must be shown to have some bearing on the offender's moral culpability for an offence. With the information before me in this Gladue component of the presentence report, I find that it has not been shown.

It is not, I find, open to me to determine in what way Mr. Monsour's moral culpability must be attenuated based on his Indigenous status. Even still, Mr. Monsour reports an extremely difficulty childhood that may have been caused in part by historical injustices perpetuated on Aboriginal Peoples. I accept that can attenuate his moral responsibility somewhat, though not to any large degree. Lee Hart [ 49 ] Lee Hart is before the court today aged 40, with a criminal record dating back to 2000. Most of the offences are alcohol or drug related, but in May 2015, Mr.

Hart was convicted of the offence of assault with a weapon contrary to s. 267 (

a) of the Criminal Code : an offence for which he is also to be sentenced in this proceeding. Even despite the record, as his counsel submits, Mr. Hart had, up to March 2020 when he was arrested and charged with the second degree murder of Mr. Campbell, not spent a day in jail. Mr. Hart has been in custody since his arrest on this matter on March 6, 2020. While in custody, Mr. Hart has successfully participated in and completed a number of programs including the substance abuse management program and Living Without Violence twice.

He has also completed some skills programming. [ 50 ] The report writer, Probation Officer Jennifer Bonderoff, writes that Mr. Hart accepts full responsibility for his actions and states the offences are "not like him." Probation Officer Bonderoff does write that Mr. Hart does appear to justify his actions, first, noting he did not know why Mr. Albrecht approached him in Mr. Albrecht's own driveway as Mr. Campbell was being beaten with a hammer and, secondly, by alluding to rumours that Mr. Campbell was in possession of a weapon. Having listened to Mr.

Hart's expression of remorse in this court, I am, as I have already noted, convinced of his remorse. These comments in context do not signal to me a lack of remorse. [ 51 ] At first blush, Mr. Hart's antecedents, as outlined in the presentence report, appear uneventful in the sense that there is little in his background that could help to explain or place his actions in context. His upbringing appears to have been uneventful, but for one unsettling instance when he was 13 where he was found with another child in a hotel room of a sexual predator in circumstances strongly suggesting sexual assault.

That remains unresolved to this day much to the dismay of Mr. Hart's mother. Mr. Hart appears to have no recollection of the incident. [ 52 ] As his counsel expanded on in submissions, Mr. Hart was diagnosed with ADHD in his teens and used Ritalin for a short while. He stopped and appears to have been self-medicating since. Mr. Hart does appear to suffer from a drug addiction disorder, if not alcohol abuse disorder. In either case, he was able to function well enough to train as a glazier and work full time. This self-abusive behaviour figured to some degree in these offences in that Mr.

Hart maintains he was doing drugs for days before the early afternoon of September

29, 2018. It is, therefore, to his credit that he is engaging in relevant programming while in custody. [ 53 ] Mr. Hart submits this in terms of what may constitute a mitigating factor on sentencing arising out of his antecedents: Mr. Hart's ADHD coupled with a peripatetic upbringing involving constant moving of housing and schools causing him to suffer socially. Mr. Hart had difficulty making friends and was glad to make the ones he did. It made Mr. Hart both beholden and a follower, but also someone intensely loyal to his friends. Mr.

Hart's mother writes to this court that her son's association with Jamie Dark is a case in point. Mr. Hart's mother considers Mr. Dark a bad influence. [ 54 ] As the agreed statement of facts makes out, in the early afternoon of September 29, 2018, Mr. Hart was at Mr. Dark's. It appears everyone was drinking and, as I have noted, Mr. Hart maintains he was using drugs. Mr. Hart agreed to join Mr. Monsour and Mr. Dark to find Mr. Campbell. Mr. Hart barely knew Mr. Campbell. The two had no issues. Still, Mr. Monsour, Mr. Dark, and Mr. Hart visited Ms. MacDonald at the hospital and then continued on to find Mr.

Campbell at the Carey Road residence. Mr. Hart agrees he formed an intent with Mr. Monsour to beat up Mr. Campbell to avenge Ms. MacDonald. Otherwise, Mr. Hart had no reason to fear Mr. Campbell, though he might well have thought Mr. Campbell had access to a weapon. [ 55 ] As Mr. Hart stated to the court in this hearing, he was foolish to go along with Mr. Monsour and Mr. Dark that day. He had no reason to assault Mr. Campbell. He bore him no ill will. He was, his mother writes, engaged in his usual pattern of following along and this is the result. Mr.

Hart's mother is very supportive of her son to the point, as was learned in this hearing, that she has virtually raised his stepson and his biological daughter. Both are young adults and both attended this sentencing hearing and wrote letters in support of their father. Mr. Hart intends to live with his mother and his children once he finishes his sentences for these offences. Victim Impacts [ 56 ] When he passed away, Shawn Campbell was the biological father of two children and an acting parent to others. He was also a son and a friend to many, Mr. Albrecht among them. Mr.

Campbell's oldest child, Hailey, now 17, wrote a victim impact statement and read it aloud at this hearing. In it, she expresses her anguish at having now at such a young age been denied the company and support of her father. Like many young persons from time to time, Hailey had a falling-out with her father. Most children can expect to make amends, to re-establish broken ties, to apologize for past slights. Here, Hailey cannot. That chance was taken from her. These kinds of senseless deaths are difficult for anyone to adjust to. Such loss is unbearable even for the most robust among us.

For a young person, this uninvited tragedy now forms part of that person's life story. It is a heavy burden to bear as was clear from Hailey's words and presentation. [ 57 ] Hailey's mother, Ms. Tracy Cheetham, with whom Mr. Campbell was separated but actively raising their child, also gave a victim impact statement as did Mr. Albrecht. [ 58 ] Mrs. Elaine Campbell is Shawn Campbell's mother. Mrs. Campbell, with a great deal of difficulty, gave a victim impact statement to Jennifer Bonderoff, the author of one of the presentence reports. Ms. Bonderoff reports that Mrs. Campbell is devastated by grief.

Suffering from ill health before her son was killed, Mrs. Campbell now suffers from depression even as she fights cancer. Mrs. Campbell loved her son. She described him as a good person. His death, she says, has caused her to reconsider her faith. [ 59 ] Mr. Campbell's father, though asked, did not, and I suspect could not, provide a victim impact statement. Still, he advised through Crown counsel that, in addition to mourning the loss of his son, the family is left with no access or contact to Mr. Campbell's youngest child, the one he shared with Ms. MacDonald. [ 60 ] Shawn Campbell's family and his friend, Mr.

Albrecht, mourn his loss deeply. Hailey and Ms. Cheetham were present when medical authorities advised he would never again regain consciousness. It was devastating news. There is no pretence in their statement that Mr. Campbell was the perfect father or the perfect partner, but he was valued. Mr. Campbell was obviously a complex individual capable of showing great love, but also capable of showing and acting on anger. It is clear in the victim impact statements that Mr. Campbell lived a life of ups and downs, but there is a consistency evident in the statements, even despite that. Mr.

Campbell was loyal and he valued loyalty. It will take years before Mr. Campbell's children come to terms with exactly what they have lost, less so for Ms. Cheetham and less so for Mr. Albrecht. Each of these adults admit to feeling anger, anxiety, depression, fear, and hatred. Forgiveness will not come easily. [ 61 ] This assault took place in broad daylight in a residential area in Greater Victoria. The defendants' actions were there to be seen and were seen by, among others, Mr. Marcaccini, a B.C. Transit bus driver. Mr. Marcaccini was shocked by what he saw and remains affected by that to this day.

It is critical in sentencing to consider the impact on victims, not to drive the sentence to a particular end, but to do what can be done to promote a sense of responsibility in offenders and an acknowledgment of the harm done to victims. Here, in a case such as this, the harm is nearly irreparable. A life taken can never be given back. [ 62 ] In this sentence, Mr. Hart and Mr. Monsour will be sentenced for these offences. Those sentences will be based on the purposes and principles of sentencing set out in the Criminal Code . The length of the sentence of each will depend on a number of factors.

The sentence will take into account the nature of the offences in the case, the impact on the victims, but the sentences, no matter what they will ultimately be, however long they will be, can never make up for the death of Mr. Campbell. No sentence can compensate his family and friends for their loss. It can offer little in the way of solace for this unspeakable act, but it can provide a measure of justice. It can do what must be done, what justly must be done, to ensure, as best the criminal justice system can, that Mr. Monsour and Mr.

Hart and others like them inclined to take the law into their own hands will not be tolerated. That the courts will do what they can, within the bounds of sentencing principles, to save other families and other friends from the pain suffered by the victims in this case. Purpose and Principles of Sentencing [ 63 ] As I noted at the outset, the issue in this sentencing is length of sentence. As in every sentence, determining a fit sentence in this instance requires a consideration of the purposes and principles of sentencing as I have just noted.

Section 718 of the Code sets out the fundamental purpose of sentence which is to, along with other crime prevention initiatives, protect society and contribute to respect for the law and maintenance of a just, peaceful, and safe society. This purpose is accomplished by imposing just sanctions that have certain

objectives, themselves designed to accomplish the purpose of sentencing given the individual circumstances. [ 64 ] These objectives include denouncing unlawful conduct and its resultant harm, deterrence both general and specific, separating offenders from society where necessary to protect the public, assisting in rehabilitation, providing reparation for harms done, and promoting responsibility in offenders and acknowledging the impact of their conduct.

The sentencing objectives in this case, given the nature of the offences, include deterrence, general more than specific; denunciation as there can be no doubt of the necessity to communicate through this sentence society's condemnation of the defendants' conduct; retribution in the sentence; the sentence must appropriately reflect each of the defendants' moral responsibility for Mr. Campbell's death; and rehabilitation given their age and backgrounds. [ 65 ]

Section 718.1 and 718.2 of the Criminal Code set out various sentencing principles that guide judges in crafting a just sanction that will give meaningful effect to one or more of the codified sentencing objectives.

Section 718.1 specifically provides that a sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. 718.2 provides that 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. [ 66 ] As I have noted, s. 718.1 provides, in particular, that the sanctions in this case must conform with the principle of proportionality. A sentence must be proportional to the seriousness of the offence and the degree of responsibility or moral blameworthiness of the offender.

Proportionality is a particularly apt concept in sentencing for manslaughter given the sheer range of penalties available, as I have already discussed. These concepts are given further consideration in R. v. Poorman , 2020 BCSC 1420 , particularly at para 72 where the court, quoting from reasons in R. v. Badhesa , 2019 BCCA 70 , observes: The offence of manslaughter encompasses conduct which has caused the death of another … and falls short of intentional killing.

It covers a wide range of cases extending from “near accident” to “near murder” and different degrees of moral culpability attach along a continuum within that spectrum. A sentencing judge assesses moral culpability for manslaughter by considering the offender’s mental state in the context of the unlawful act itself and the offender’s personal characteristics, blending and balancing all in combination.

Factors that weigh in the balance include intentional risk-taking, the harm caused, the normative character of the offender’s conduct, the degree of deliberation involved, the existence of provocation and the element of chance involved in the resulting death … [ 67 ] This issue was also given consideration in R. v. Plowman , 2015 BCCA 423 , a case involving the swarming of a 21-year-old victim who died as a result of his injuries. At issue on the sentence appeal was the degree of moral culpability assigned by the sentencing judge to one of the defendants.

There, at paragraph 40, the court writes as follows: In C.A.M. , at para. 80, the Supreme Court suggested that an assessment of the moral culpability of an offender requires an examination of his intentional risk-taking, the consequential harm he has caused, and the normative character of his conduct. In Stone , at para. 247, that Court affirmed this more extensive list of factors for consideration from Laberge : [23]…Therefore, the court must look not only at the physical characterization of the act itself, but must assess a range of other considerations.

These include the choice of weapon used to effect the unlawful act, the degree of force the offender used in perpetrating the act, the extent of the victim's injuries, the degree of violence or brutality, the existence of any additional gratuitous violence, the degree of deliberation involved in the act, the extent to which the act reflected forethought of action or planning, the complexity of the act, what, if anything, provoked the act, the time taken to perpetrate the act and the element of chance involved in the resulting death. [ 68 ] Thus, the LaBerge decision is applied in British Columbia.

Assessing the Defendants’ Moral Culpability [ 69 ] The fundamental physical activity at issue herein with respect to the manslaughter charges is the delivery by one or both of the defendants of a hammer blow to the back of Mr. Campbell's head, and the delivery of a hammer blow to the area above Mr. Campbell's right eye. These blows were preceded by a taking down of Mr. Campbell to the ground, an assaultive blow to his right arm, and punches. Mr. Hart and Mr. Monsour took time to find and get to Mr. Albrecht's residence where they knew or were confident that they would find Mr. Campbell.

They came armed with hammers. They brought with them another individual. Both Mr. Campbell and Mr. Albrecht were outnumbered, though it is not alleged Mr. Dark did anything other than stand around. [ 70 ] I agree that it is not possible to determine from the agreed statement of facts how long the assault was in the planning. The common intention was unlikely to have been formed before Mr. Monsour arrived at Mr. Dark's home where Mr. Hart was present. It is, I find, evident on the agreed statement of facts that planning may have occurred before the three left to visit Ms.

MacDonald as Victoria General Hospital arriving around 2:20. They left the hospital at 2:27 and arrived at the Carey Road residence sometime just before 3:14 p.m. The time between is unaccounted for in the agreed statement of facts. The plan may well have been perfected during this time. Certainly, the travel distance between Victoria General and Carey Road cannot account for all of that time or even much of it. [ 71 ] The acts leading to Mr. Campbell's death in this case were planned. The planning need not have taken long, but this was not an

unplanned spontaneous event. It was a calculated event, a plan hatched among two persons at least with another present at all material times. No one seems to have considered or reconsidered the wisdom of setting upon Mr. Campbell while armed with hammers. In assaulting Mr. Campbell with the hammer, the defendants knew they were engaged in dangerous behaviour. The possibility of causing harm, even serious harm, would have been evident. The assault on Mr. Campbell was violent. He was taken by surprise. He had no weapon. When he was attacked, Mr. Campbell was helping load some of Mr.

Albrecht's belongings in his trunk. He was not in a position to defend himself against the hammer attack. Even if both defendants thought Mr. Campbell might have had a weapon, it would have been clear to them before they commenced the assault that he had no weapon. They had time to back off or drop their weapons. [ 72 ] Mr. Campbell's death in no way came about as anything like an accident. That much is conceded by both defendants. They submit, however, that the circumstances leading to Mr.

Campbell's death are not closer to the near murder end of the manslaughter spectrum, certainly not close enough to justify a sentencing range of seven to eight years particularly when considering other cases. [ 73 ] I will, as I must, briefly discuss the many cases relied on by all counsel in this hearing, but at this point, it bears noting only that there are cases in which more objectively vicious assaults have received sentences for four years and cases where less serious assaults have resulted in sentences of much more than eight years. It demonstrates only that each case must be considered on its own merits.

Cases are helpful to ensure parity and certainly as sentencing guides, but in every case involving sentencing for manslaughter, the court must still locate the offender's position on the rung of moral culpability based on the facts at hand. [ 74 ] Mr. Hart submits the evidence in this case is insufficient to determine whether the assault lies close to near murder. For example, some cases such as R. v. Engebretsen , 2016 BCCA 182 , involved the direct stabbing of a victim through the heart. There, the blow that caused death and the circumstances of the blow that caused death was clear.

It was a case, the court concluded at paragraph 8, that was close to near murder but for the accused's intoxication. [ 75 ] By way of contrast, the circumstances in this case do not allow for such clarity. I agree with Crown it is incorrect to refer to the assault of Mr. Campbell as a melee. It was not. It was, as the still photographs taken from the passing transit bus show, two persons armed with hammers setting upon a defenceless man on the ground in a very vulnerable position.

I agree also, though, I cannot know how in the course in the assault which lasted less than a minute, when what ended up being the fatal blow or blows was administered. Was it an intentional aiming at the head akin to Mr. Engebretsen's stab at the heart of his victim or simply a series of hammer swings as Mr. Campbell moved around trying to protect himself that caused the fatal injuries? On the evidence before me, I am unable to determine that fact. [ 76 ] Moreover, again, to distinguish this case from others such as the swarming case of R. v.

Plowman where gratuitous violence is applied well after a victim is rendered unconscious, here, I accept that when Mr. Albrecht yelled, "He's done," no further violence was applied to Mr. Campbell. Rather, Mr. Hart, Mr. Monsour, and Mr. Dark all ran and subsequently disposed of the incriminating hammers. Mr. Albrecht yelled, "He's done" because Mr. Campbell was obviously grievously injured. That much is apparent from the description of his injuries in the agreed statement of facts. Only Mr. Albrecht went to the aid of Mr. Campbell. Though I accept that neither Mr. Monsour nor Mr. Hart intended to cause Mr.

Campbell's death, they knew he was injured. They offered no aid, though, of course, none would have made a difference, but it is, as in other cases, an aggravating factor on manslaughter sentencings. [ 77 ] In terms of where the defendants could be situated on the moral culpability ladder, I find I agree with Mr. Hart that the evidence in this case does not permit this court to situate the incident as being near murder. Stabbing a person in the heart comes very close to signalling an intention to kill that person.

Beating a person with a hammer to teach them a lesson, even though it is an inherently dangerous activity, signals less of an intention to kill than a recklessness as to the possibility of serious bodily harm. [ 78 ] Death was not intended here. I doubt it was expected, but bodily harm clearly was. The weapons used, the fact that Mr. Campbell was assaulted by two persons armed with hammers, that, and I do infer this from the agreed statement of facts, the hammers were used as weapons once Mr.

Campbell was on the ground, all satisfy me that, though bodily harm was intended, both defendants were reckless as to whether serious bodily harm would likely ensue. I find, to paraphrase the court in Larson at paragraph 44, that this makes both defendants highly morally culpable for Mr. Campbell's death, not as morally culpable as if they had intended his death or intended to cause serious bodily injury, but highly culpable by being reckless to that possibility.

Their moral culpability does not extend to gratuitous violence as I have described, but it does include planning. [ 79 ] As for the planning and the defendants' respective roles, there is no evidence as to how or when it occurred. A rough period of time during which the planning must have occurred can be inferred from the agreed statement of facts as noted. As for the roles, I find it can also be inferred from the agreed statement of facts, including the acknowledgment that Mr. Hart barely knew Mr. Campbell or Ms. MacDonald, as well as based on information received during the sentencing hearing that, while Mr.

Hart was a willing and ultimately an equal participant in the assault causing Mr. Campbell's death and therefore equally liable with Mr. Monsour, Mr. Hart was essentially following along. Application of the Sentencing Principles [ 80 ] Given this finding, it does remain to be determined what is a fit sentence. That, in turn, depends on other sentencing considerations such as aggravating and mitigating factors, factors which may or may not attenuate moral culpability, and of course factors such as the sentencing principle of parity.

The sentencing principle of parity provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. For that reason, courts must be mindful of the range of sentencing as well as other sentencing precedents. As the court writes at para 49 of Larson , sentencing precedents are useful as they provide and apply sentencing principles providing a sort of road map; they provide guidance as to a fit sentence; and they help to preserve the principle of parity.

Beyond that, every sentence is an individualized exercise turning on its own set of facts. [ 81 ] While the maximum sentence for manslaughter is life, the range is said to extend from four to 15 years and, for authority for that, the following cases are cited: R. v. Green , 2001 BCCA 672 , at paragraph 10 ; R. v. Buchanan , 2021 BCSC 1584 , at paragraph 34 ; R. v. Carte , 2017 BCSC 2421 , at paragraph 67 , then quoting from Engebretsen , 2016 BCCA 182 , at paragraph 13 ; R. v. Plowman , 2015 BCCA 423 , at paragraph 53 ; R. v. Smith , 2018 BCSC 2344 , at paragraph 27 ; and R. v.

Armstrong , 2018 BCSC 2260 , at paragraph 58 .

[82] In R. v. Gillies, (BC CA), 107 BCAC 157, Chief Justice McEachern held, at paragraph 11, that the range formanslaughter was some four to six years and up to eight to 10 years in extremely serious cases. Crown submits that Gillies has beenovertaken by more recent case law and it is hard not to agree. The cases citing a range from four to 15 years are numerous and clearlyaddress the range. Still, as Mr. Hart conceded, the low end for sentencing for manslaughter has always been four years. Only in veryexceptional circumstances should a court go lower.

In effect, absent very special circumstances, four years would be the minimumsentence for either a case of manslaughter closest to an accident or one pregnant with mitigating and other attenuating circumstances. [83] In considering the range of sentencing, I am mindful of the Court of Appeal comments at paragraph 33 of R. v. Henderson, 2005BCCA 3, that, by range, what is meant is a range of sentence for an offence that has been approved by appellate courts meant to serve asa guideline for sentencing judges.

Cases for the Crown [84] Within the range, as that is defined, the Crown relies on the following cases in support of its submission that a fit sentence in thiscase on the manslaughter charge is eight years, and those include: R. v. Plowman, R. v. Henderson, R. v. Glover, R. v. Buchanan, R. v.Poorman, 2020 BCSC 1420, R. v. Smith, R. v. Armstrong, R. v. McKay, 2018 BCSC 1549. [85] R. v. Plowman is a sentencing appeal in which two of three accused were sentenced to seven years for manslaughter while ayounger co-accused received a five-year sentence.

The essential point is that this was a sentencing for manslaughter in which the courtfound each of the accused was engaged in objectively dangerous behaviour when they joined in the swarming and would haverecognized that the assault would subject the victim to risk of bodily harm that was neither trifling nor transitory. Still, none were foundto know that at least one attacker had a knife and none, consequently, foresaw that a knife would be used. [86] The defendants in R. v.

Henderson were convicted of manslaughter for having caused the death of a customer at what isdescribed as a crack house in which they were employed. Their joint act was first to bring the victim to the ground while the otherstomped on the victim's head. Mr. Henderson and Mr. Richter were each sentenced to eight years effectively. On the sentence appeal, thecourt declined to interfere with the sentence for Mr. Henderson. [87] As Mr. Hart points out, it is a significant fact in that sentencing that Mr.

Henderson was on probation having been sentenced tofour years on a conviction for robbery, reduced to five months with time served. That robbery was serious, involving the shooting deathof a homeowner by Mr. Henderson's co-accused. In the manslaughter case, Mr. Henderson's co-accused, Mr. Richer, appeared onsentencing as a young man with no record who looked on Mr. Henderson as a sort of older brother. Nonetheless, he too was sentenced toeight years as was Mr. Henderson. That sentence was reduced on appeal to seven years on the grounds that the sentencing judge hadplaced too little emphasis on Mr.

Richer's prospects for rehabilitation. [88] R. v. Glover involves a manslaughter sentencing in which the accused was sentenced to 10 years for having caused the death ofMr. Mitchell in

an act of revenge. Mr. Glover admitted to striking the victim on the head, after which a co-accused, who received a lifesentence for his role, stabbed the victim to death. Mr. Glover was sentenced to 10 years minus three served even though the court wassatisfied he did not appreciate his assault on the victim would trigger his co-accused to kill the victim. Here, despite his intoxication, Mr.Glover was found to have been highly morally responsible for the victim's death as he had spent hours planning to assault the victim andarmed himself for the purpose. [89] In R. v.

Buchanan, the defendant was sentenced to six-and-a-half years for having caused the death of his drug dealer. This wasan unusual case and one in which provocation figures largely in the decision. As the court writes at paragraph 10, “…the deceased wasprone to act violently towards the accused.” [90] The accused, described as a sort of a client or even servant of the deceased, appeared to be at his mercy. Still, it was a fact in thecase that the accused beat the victim to death by delivering multiple blows about his head. As Mr.

Hart submits, here, the sentence wassix-and-a-half years despite significant aggravating factors including a lack of remorse. At paragraphs 42 and 43 of the decision, thecourt writes of Mr. Buchanan's successful rehabilitation from a serious long-term opioid addiction. It determined that rather than "drophim into the maw of the penitentiary system where his progress might well be reversed," it was more in the public interest to issue asentence that would see the defendant remain in provincial custody. [91] The defendant in R. v.

Poorman received a nine-year sentence for carrying out a brutal assault on his brother-in-law leading tothe victim's death. The sentence was imposed after taking into account Mr. Poorman's reduced moral culpability based on the Gladuefactors. Mr. Poorman's Gladue report was characterized as a thorough and detailed report chronicling the history of Mr. Poorman'sfamily. Both of his parents were residential school survivors. Both struggled with alcohol and drug abuse disorder. Both neglected and/orabused Mr. Poorman in his youth. In turn, Mr. Poorman struggled with alcohol abuse disorder.

His lifetime of substance abuse beganwith glue-sniffing at age five, paint thinner by nine, and alcohol by 10. Mr. Poorman experienced racism as a child at school in additionto household dysfunction. Unsurprisingly, by the time of his sentence, his record included 50 adult convictions. [92] There was in Poorman clear evidence of a direct link between colonialism and the impact of colonialism on Mr. Poorman'sfamily and his criminal behaviour. Despite this, and because of the brutality of the death of the victim and similar sentences for similartypes of manslaughter, Mr. Poorman was sentenced to nine years.

Still, it is also the case, as Mr. Hart submits, that Mr. Poorman had alengthy criminal record and so the sentencing involved that aggravating factor. [93] By way of contrast, of course, the defendant in R. v. Jack received a sentence of three years for having joined in the beating of avictim who had caused family friction. It was characterized by the sentencing judge as a cowardly act of vengeance. Mr. Jack, who wasgrossly intoxicated at the time, was encouraged to beat the victim and did so. The beating was said to have occurred while the victim wasrendered unconscious. After Mr.

Jack finished, three others continued to beat the victim who ultimately succumbed to his injuries. [94] On sentence appeal, the court acknowledged that the sentence was low, particularly as the sentencing judge characterized theoffence as serious. Still, the sentence turned on a particular set of Gladue factors in that case. First, as the court acknowledged, all of thedefendants in the case were members of the Cowichan First Nation. The reasons seemed to indicate Mr. Jack was sentenced alongside

three co-defendants, all described as young people taking positive steps within the community and under the guidance of the community toward rehabilitation. [ 95 ] Mr. Jack, while found at paragraph 39 not to have been exposed to any of the ill effects suffered generally by the Cowichan People, nonetheless had made significant efforts towards rehabilitation within the community by the time of sentencing. This was clearly an example of the court placing emphasis on the principles of restorative justice already underway at the time of sentencing. [ 96 ] In R. v.

Smith , Justice Church sentenced a 58-year-old offender with a dated, but not insignificant, criminal record to seven-and-a- half years for striking the victim on the head twice with such force as to cause the victim's death. After the victim died, the defendant dismembered his body and received an additional sentence for offering an indignity to remains. What is notable about this sentence of seven-and-a-half years is that the sentencing court was not and could not be entirely sure what happened during the assault leading to the victim's death. In order to determine Mr.

Smith's moral blameworthiness, the court drew inferences from the evidence at trial of the victim's injury being so severe the court concluded that Mr. Smith intended to cause serious bodily harm when he assaulted the victim. The case includes a number of aggravating factors including that the defendant may have left the victim to die and, having dismembered the victim to hide his offence, Mr. Smith misled police for nearly two years, leaving members of the family to suffer. [ 97 ] The accused in R. v.

Armstrong was sentenced to six years for manslaughter and an additional four for also offering an indignity to remains. As in Smith , Mr. Armstrong tried to hide his crime. As in Smith , intoxicating submissions were involved. Unlike Smith , there is in Armstrong clear evidence that when Mr. Armstrong hit the victim on the head with the hammer, he had been abusing drugs including crack cocaine for weeks and for no reason struck his partner, the victim, on the head as she sat on their bed. He then hid the body and misled police.

The sentencing court surmised from the victim's injuries and the weapon used in that case that that case was not a near accident, but obviously far less planning than that which occurred in this case was involved. [ 98 ] R. v. Larson is another case relied on by the Crown. It acts, in my view, as a sort of a contrast to demonstrate sentences for acts much less calculated than at issue here, yet still leading to death. In the course of engaging in a kitchen fight with a much larger man, the victim in this case, Mr. Larson found himself trapped and grabbed a knife. As the two tussled, Mr.

Larson swung the knife striking the victim in the chest near an artery. Had the knife not punctured the victim's body where it did, the victim would have easily recovered. The court found Mr. Larson highly morally culpable. He was sentenced to five years, five months. [ 99 ] Finally, with respect to the Crown's cases, in R. v. McKay , Justice Devlin issued a sentence of 14 years in a case which bears some similarities to the facts in this case. Mr. McKay learned or at least was told by his partner, a Ms. Markel-Rempel, that the victim, Mr. Anderson, had "raped" her. Shortly after receiving this information, Mr.

McKay took into his possession a Rapid 11 hammer. He carried the weapon to the home he knew Mr. Anderson to be at. Mr. Anderson was lying on his couch when Mr. McKay struck him on the head with the hammer a number of times. The pathologist found more than 15 lacerations. Mr. Anderson was taken to hospital and never recovered. [ 100 ] Mr. McKay had a lengthy record and was on probation at the time of the killing. He nonetheless pled guilty, a mitigating factor, and apologized for his offence. He also suffered from myriad mental health issues.

In determining the sentence, the court in McKay writes at paragraph 21 that the principles of deterrence and denunciation are paramount in that case, as here. It was, the court writes, "a brutal and vicious attack on a defenceless man." Whatever was McKay's motivation, the taking of the law into ones own hands cannot and will not be tolerated. Cases for the Defendants [ 101 ] In turn, the defendants rely on a number of cases in support of a range of four to six years. Those include: R. v. Pop , 2013 BCCA 160 ; R. v. McPherson , 2013 BCCA 551 ; R. v. Engebretsen , 2016 BCCA 182 ; R. v.

Brisson , 2009 BCSC 1606 ; R. v. Touchie , 2015 BCSC 1833 ; R. v. Feng , 2015 BCSC 1447 ; R. v. Beaver , 2021 ABCA 227 ; R. v. Okemow , 2016 MBQB 240 ; and R. v. Vallee , 2012 BCPC 167 . These cases are often cited for the proposition that, in instances involving much greater violence than at issue here or many more aggravating factors, sentences in the range of four years have nonetheless been imposed. In one case that I have already referred to, R. v. Jack , an even lower sentence was imposed in the case of vigilantism and involving significant violence and so-called gratuitous violence. [ 102 ] In R. v.

Pop , the accused, who had already spent nearly three years in custody at the time of sentence, received an additional 31- month sentence plus three years' probation. Mr. Pop and a co-accused stabbed a man with whom they had been drinking and he was stabbed 34 times. Everyone, including the victim, were extremely intoxicated. Mr. Pop was 21 at the time of the offence with no criminal record. He expressed sincere remorse and regret and a willingness to accept treatment for alcoholism. As an Indigenous man, Mr. Pop was clearly a victim of multigenerational abuse and exposure to alcoholism. On appeal, Mr.

Pop's sentence was reduced so that he ultimately served some four years. [ 103 ] R. v. McPherson is cited in support of a sentencing that places more emphasis on rehabilitation than on deterrence and denunciation. Mr. McPherson, a convicted bank robber and serial offender, clumsily attempted to rob a bank solely to be arrested and placed back in custody. He could not, it was submitted, deal with life outside a custodial institution. At the time of sentencing, Mr. McPherson had come to grips with that dilemma and with treatment and was prepared to try life on the outside.

A sentence that focused on his rehabilitation rather than his continued incarceration made good sense. [ 104 ] In R. v. Brisson , the defendant was sentenced to a term of 58-and-a-half months in custody for his role in the death of a victim who was found to have first threatened Mr. Brisson with a baseball bat. Still, the court found that Mr. Brisson, who reacted by stabbing his assailant, did not act in self-defence. Rather, he overreacted in what was described as an explosive and extremely violent manner. Mr. Brisson was aged 19 at the time of the offence and 22 at the time of sentencing.

He had the support of family who considered the incident out of character. The purpose of this case in this sentencing is for its discussion at paragraph 89 of the decision of the Court of Appeal in R. v. Cuthbert , 2007 BCJ No. 2523 . There, the court held it is appropriate in some circumstances, where time on bail can be said to be onerous, to treat that time as a mitigating factor. In Brisson , the court held, at paragraph 94, that Mr. Brisson's bail terms were no more onerous than those in Cuthbert . In Cuthbert , the Court of Appeal upheld the sentencing judge's decision not to treat bail time as

a mitigating factor even though it involved house arrest. [ 105 ] In this instance, I am asked to consider treating Mr. Monsour's time on bail, at least from June 2020 to June 2021, as a mitigating factor. During that time, Mr. Monsour was on house arrest. He was able to work and, as Crown advises, conditions were varied to allow him to take swimming lessons, to go for runs, attend at a dentist, and so forth. During all of his time on release, simply by virtue of the location of his residence, Mr. Monsour enjoyed time with his child and the Yurnicks.

While the court does have a discretion to treat bail as a mitigating factor, there is, in my view, no justification for that in this case. [ 106 ] In R. v. Touchie , the defendant was sentenced to three years and three-and-a-half months for his role in the death of a victim to whom Mr. Touchie, at least, appeared to be engaging in

an act of sexual assault on an acquaintance. Mr. Touchie appeared at his sentencing as a 25-year-old Indigenous man with no record. Still, as a young person, he had been the victim of sexual abuse and the sight of the assault triggered an uncontrollable fury and rage. The act was immediate and impulsive. Mr. Touchie, who was grossly intoxicated at the time, deeply regretted his role in the death of the victim. [ 107 ] Mr. Hart notes the case is helpful for the court's comments on the utility of a lengthy probation order at paragraph 55.

Paragraph 54 is also notable for its reference to the court's finding there that Mr. Touchie's Aboriginal background played a substantial role in limiting the extent to which he was morally culpable for the crime. Mr. Touchie presented as a young Indigenous man with a significant history of substance abuse, self-destructive behaviour, and anger management problems arising out of childhood trauma. Mr. Touchie's mother was a residential school survivor who herself had a difficult upbringing characterized by chronic alcoholism, drug abuse, and sexual abuse. Mr.

Touchie was a clear victim of intergenerational dysfunction brought on by the impact of colonialism on his family and his community. There was a clear nexus between this history and Mr. Touchie's crime. That, as I have noted, is lacking in this case. [ 108 ] In R. v. Feng , the defendant was sentenced to four-and-a-half years for his role in the death of the brother of his girlfriend. It was an accepted fact on the sentencing that the deceased, Mr. Wong, had once threatened Mr. Feng at knifepoint. He was also reported to have physically abused his sister

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