R. v. J.J.D. Date:, 2014 BCPC 412

Citation: R. v. J.J.D. Date: 20140417 2014 BCPC 412 File No: 1890 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.J.D. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E.F. de WALLE Counsel for the Crown: William J. Hilderman Counsel for the Defendant: Donald G. Campbell Place of Hearing: Salmon Arm , B.C. Date of Hearing: March 18, 2014 Date of Judgment: April 17, 2014

INTRODUCTION [ 1 ] The accused, J.J.D., is charged with one count as follows: That on or about from the 21 st day of November, 2008 to the 1 st day of November, 2012, inclusive, at or near Salmon Arm, Province of British Columbia, knowing that M.J.S. and R.W.K. had murdered T.W.M., did receive, comfort, or assist M.J.S. and R.W.K., for the purpose of enabling M.J.S. and R.W.K. to escape, contrary to

Section 240 of the Criminal Code . [ 2 ] The accused entered a plea of guilty to the charge and appears before this Court for sentencing. [ 3 ] The Crown has filed a Notice of Intention to Seek an Adult Sentence pursuant to Section 64(1) of the Youth Criminal Justice Act . Therefore, although the accused was a youth during a portion of the time frame set out in the Information, he is to be sentenced as an adult. [ 4 ] The circumstances of the offence, briefly were that on November 21, 2008, a young man, T.M., was shot and killed in Salmon Arm.

Two individuals, namely, M.S. and R.K. were charged with first degree murder for the killing of T.M. They are currently awaiting trial. The accused gave a .22 calibre rifle to M.S. and R.K. on the day of the killing but he did not know the gun was to be used to kill T.M. Later in the day of November 21, the rifle was returned to the accused and at that time he was told about the killing of T.M. The accused took possession of the rifle and placed it into his father’s gun cabinet in the family home.

He did not report his knowledge of the killing and the location of the rifle to the police and the crime remained unsolved until November, 2012. The rifle was the murder weapon and clearly, was a key piece of evidence for the police. POSITION OF THE PARTIES [ 5 ] The Crown submits that a fit sentence in the circumstances of this case is a jail sentence of 2 years to be followed by a term of probation for 2 to 3 years. The Crown submits that a conditional sentence is not available to the accused in this case.

The Crown further submits that even if a conditional sentence was available in this case, it would not be consistent with the principles of sentence applicable in this case. [ 6 ] Crown has drawn to my attention the following authorities: R. v. Wisdom , [1992] O.J. No. 3110 R. v. Dow , [2003] N.S.J. No. 130 R. v. Chouinard, [2005] O.J. No. 3143 R. v. Nordman , [2004] B.C.J. No. 2057 R. v. Jayawardena , [2008] O.J. No. 3406 R. v. Gwyn , [2009] A.J. No. 1510 R. v. Steadman , [2010] B.C.J. No. 1826 R. v. Gowen , 2011 NSSC 259 R. v. Alves, 2012 B.C.J.

No. 2347 [ 7 ] Defence counsel submits that the accused should be sentenced to a conditional sentence in the range of 18 months to 2 years less a day. Defence counsel drew to my attention the following authorities: Regina v. Turpin , 1990 CarswellOnt 2154 HMTQ v. Adam Frederick Lowe , Sep. 8, 2008 (BCSC) Chilliwack Reg. Preston J. HMTQ v. Gilbert, 2006 NSPC 58 Regina v. Ropchan, 1986 CarswellYukon 54 CIRCUMSTANCES OF THE OFFENCE [ 8 ] Crown and defence filed as Exhibit 1 a written Admission of Facts. I have not set out the attachments to the Admissions of Facts but they do form part of Exhibit 1.

The admissions read as follows: PURSUANT to the provision of

Section 655 of the Criminal Code of Canada , Counsel for the accused hereby admits the following facts for the purpose of dispensing with proof thereof: 1. T.M. (age 22) was found dead on the grounds of Bastian Elementary School in Salmon Arm, British Columbia, at approximately 7:15 p.m. on November 21, 2008.

2. His body was located on a gravel portion of a walkway at the rear of the school, approximately ten feet from the wall. The body was face down. 3. No bullet casings, cell phones, or wallets were located at the scene. 4. An autopsy performed by Dr. James Stephen on November 24, 2008, revealed three bullet wounds in T.M.’s body and three bullets were recovered. A copy of the autopsy report is attached. 5. John Marshall, a forensic specialist with the RCMP Firearms

Section submitted a report on April 7, 2009, after examining the three bullets taken from T.M.’s body. A copy of the report is attached. 6. Marshall submitted a further report on February 20, 2013, after examining the three bullets and two calibre 22 firearms. A copy of the report is attached. 7. J.J.D. gave a statement to Cst. Blake on November 25, 2008. He said that he had seen R.K. and M.S. on November 21, 2008, but it was before 5:30 p.m. There was no discussion about murdering T.M. 8. He went to a local gym the following morning and worked out with R.K.

He found out about the murder that afternoon from his girlfriend’s parents. He was told by his father on November 23, 2008, that the victim was T.M. 9. R.K. and M.S. were identified as suspects in the murder, but the investigators could not uncover sufficient evidence for the laying of any charges. M.S. had been going out with T.M. for a couple of months, and she had previously gone out with R.K. T.M. and R.K. had a dispute over this. No eyewitnesses could be identified, nor was there any physical evidence recovered from the scene. Both R.K. and M.S. denied being involved in the murder of T.M. 10.

The Provincial Unsolved Homicide Unit took over the investigation in November, 2011. An undercover operation was commenced on June 8, 2012. The main target was M.S. Eventually

Part VI CC authorizations were obtained to intercept the private communications of R.K., M.S. and J.J.D. 11. On October 29, 2012, M.S. told undercover RCMP members that she and R.K. planned the murder of T.M. She knew that J.J.D.’s father was a hunter and that he had rifles. Earlier during the day of the murder, her and R.K. went to Bastian School and walked through how the murder would be committed. She would take T.M. to the school yard and R.K. would hide in the woods with a .22 rifle obtained from J.J.D. She would say she had to go to the bathroom and leave T.M. by himself, at which time R.K. would shoot him.

She said that this is how the murder later took place. They took T.M.’s cell phone and wallet to make it look like a robbery. They also picked up the shell casings. They then took the rifle back to J.J.D.’s residence and disposed of the casings, cell phones, wallet and R.K.’s clothing. She said that J.J.D. was R.K.’s best friend. She didn’t know if J.J.D. knew what was going to happen with the rifle. 12. M.S. thought that J.J.D. probably still had the rifle. She agreed to help the undercover members try and obtain it.

On October 29, 2012, they drove to R.K.’s house and had him come out to the undercover members’ vehicle. R.K. said her and M.S. were both there when they got the rifle from J.J.D. M.S. said they “talked about it with J. and just let him know, kind of mentioned, was going on T.” (Transcript of 2012-10-29, at page 147). R.K. said “…he doesn’t really know.” R.K. said that after the murder they put the rifle in an RV in D.’s driveway, and waited about two minutes for D. to get home. R.K. then gave D. a bag of weed “…so it looked like I was just dropping off some weed.” (Transcript of 2012-10-29, at page 159). 13.

The undercover members and M.S. then drove to J.J.D.’s residence. He came outside and M.S. asked him if he still had “…what Robin and I borrowed off of you….I really, really need it and I’ll buy it off ya.” (Transcript of 2012-10-29, at page 208). J.J.D. said he could get it, but it was in a safe that only his dad had the key for. J.J.D. went back into his residence, but agreed to meet them later at a nearby church with the gun. J.J.D. later called M.S. to say he couldn’t get the key, but said he would still meet them at the church.

At that meeting the undercover member asked J.J.D. if he knew which gun they were talking about. J.J.D. replied “I know exactly which rifle you’re talking about…I know what happened with that gun…T.M. was s-shot with that gun”. (Transcript of 2012-10-29, at page 223-224). 14. On November 1, 2012, M.S. was with the undercover members when she phoned J.J.D. The latter agreed to drop the rifle off at Elk’s Park, which was near his residence. J.J.D. was seen to put the rifle in a ditch at about 7:10 p.m. Cst. Wilton retrieved the firearm.

It was a Savage Mark II .22 calibre bolt action rifle, serial number 0237646. 15. J.J.D. provided a warned statement to Constable Naldrett on 2012-11-21. He said at page 121, “…I found out what had happened as soon after R. comes and returns the gun to me. And he tells me what he did…I said, dude, come on do you realize what you’ve just done…your best friend tells you they come up and they shot somebody…” And later, at page 148, “…R. and M. pull into my driveway and R. goes and returns this gun and then this is when he had told me what he had did.” 16.

When asked about any conversations he overheard between M.S. and R.K., J.J.D. said at page 270, “T.M. was coming to Bastion. M. was trying to get T.M. to Bastion Mountain…R. and M. had this planned out before I was even part of this…I don’t know the specifics about that. All I know is that it was almost like we were going there to make sure everything was gonna work alright…” 17. J.J.D. said at page 272-273, “…they never once made me aware that T. would be dead at the end of the night…I never asked. Cause I didn’t want to know.

Cause it had nothing to do with me.” The three of them had done a “walk through” the day of the murder. J.J.D. said “…it was the three of us because of what I had to offer them.” At page 274, J.J.D. says he was talking with R.K. and “…I just said, there’s a 22 on the bed. It’s the smallest gun.” 18. And at page 276, “…I straight up told them. I’m sure you can even ask R. Said you know guys, when this was all said and done, I was just like I want nothing to do with this anymore…like when R. had told me what he had done, I had straight up told him, R., I want nothing to do with this man, nothing.

Please like nothing to do with this.”

19. J.J.D. was asked why he thought they were bringing T.M. to Bastion. He stated, at page 283, “…possibly to harm him.” Later, at page 302, he said “…the reasons why I haven’t said anything for four years is because I wanted the best for R., for myself…and I just thought to keep quiet.” 20. M.S. and R.K. have been jointly charged with the first degree murder of T.M., contrary to

Section 235 of the Criminal Code . They have been committed to stand trial. A date has not been set. DATED at Salmon Arm, in the Province of British Columbia, this 19 day of November 2013. THE ISSUES [ 9 ] The issues I must decide in this case are: 1) Whether a conditional sentence is available to the accused; 2) If so, whether it is an appropriate sentence in this case; and 3) If not, what is the appropriate sentence? [ 10 ] The central issue before me is whether, in all of the circumstances, the fit and appropriate sentence is a period of incarceration or a conditional sentence order.

IS A CONDITIONAL SENTENCE AVAILABLE TO THE ACCUSED? [ 11 ] A conditional sentence of imprisonment is dealt with in

Section 742.1 of the Criminal Code . In November, 2008,

Section 742.1 read as follows: If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. [ 12 ] Thus, the five preconditions are: (1) the offence must not be a serious personal injury offence as defined in s. 752, a terrorism offence or criminal organization offence with a maximum jail sentence possible exceeds ten years; (2) there must be no minimum sentence prescribed for the offence; (3) the sentence the court imposes must be less than two years in length; (4) the court must be satisfied that service of the sentence in the community will not endanger the community; and (5) the Court must be satisfied that service of the sentence in the community would be consistent with the fundamental purpose and principal of sentencing set out in s. 718 to 718.2. [ 13 ] In this case the accused is charged under

Section 240 of the Criminal Code which reads: Everyone who is an accessory after the fact to murder is guilty of an indictable offence and liable to imprisonment for life. [ 14 ] The Crown submits that a conditional sentence is precluded from application to

Section 240 of the Code by reason that it is a serious personal injury offence as defined in

Section 752 of the Code. [ 15 ] The phrase “serious personal injury offence” is defined in

Section 752 of the Code as follows: “serious personal injury offence” means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person; and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault, 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). R.S., c. C-34, s. 687; 1976-77, c. 53, s. 14; 1980-81-82-83, c. 125, s. 26; 2008, c. 6, s. 40 . [ 16 ] Defence counsel submits that an offence under

Section 240 of the Code is not an offence against a person but an offence against the administration of justice. Defence counsel further argues that on the particular facts of this case, namely, the act of hiding the rifle and not reporting his actions and knowledge to the police, the actions of the accused were passive in nature and did not constitute a serious personal injury offence. [ 17 ] The case of R. v. Alves is of some assistance. In that case the accused was sentenced for the offence of failing to remain at the scene of an accident, in which a pedestrian was struck and died. [ 18 ] Amendments to

Section 742 of the Code were introduced in 2006. On December 1, 2007,

Section 742.1 was amended to exclude serious personal injury offences from the conditional sentence order regime. As Judge Giardini pointed out, until 2007, serious

personal injury offences were exclusively of interest in relation to the dangerous offender regime. [ 19 ] Judge Giardini goes on to say at paragraph 16: 16. In

summary, if a person is convicted of an indictable offence for which he or she could be sentenced to imprisonment for 10 years or more, a conditional sentence is not available if - the offence involved the use or attempted use of violence or - the offence involved conduct endangering the life or safety of another person or inflicted severe psychological damage on another person; the offence involved conduct which is likely to endanger the life or safety of another person or likely to inflict severe psychological damage on another person. [ 20 ] In the Alves case, the court was considering the above noted in the context of an offender who failed to stay at the scene of the accident and render assistance where the victim died.

Judge Giardini concluded that the life or safety of the victim was likely to have been endangered by the offender leaving the scene of the accident and failing in his duty to assist. Therefore, a conditional sentence was not available to the accused. [ 21 ] In R. v. Dhaliwal 2012 MBQB 155 the court considered whether an offender charged under s. 252(1.3) of the Code was eligible to receive a conditional sentence.

The court said that, when considering whether an offence is a serious personal injury offence, it is necessary to consider and focus on both the conduct of the individual accused and the context of the case in its entirety. The court also said that a determination of whether a serious personal injury offence occurred will vary depending on the particular legal context and the fact situation. [ 22 ] After a careful consideration of the evidence in this case, I am unable to conclude that the admitted actions of the accused constituted a serious personal injury offence.

I have carefully considered and focused on both the conduct of the accused and the context of the case in its entirety. The offence committed by the accused did not involve conduct endangering or likely to endanger the life or safety of another person. Although the rifle used in the killing of T.M. came from the accused, the admitted facts indicate that the killing and the use of the rifle took place without the knowledge of the accused.

What the accused did was to put the rifle back into his father’s gun case in the family residence and not report his knowledge to the police. [ 23 ] The essence of the case against the accused is that by failing to report his knowledge of the killing, after the fact, and his action of hiding the rifle used in the killing, he allowed the perpetrators to avoid arrest for four years. [ 24 ] Likewise, I am unable to conclude that the particular actions of the accused inflicted severe psychological damage on another person.

That material is not before me. [ 25 ] As well, there is no material before me to suggest that the conduct of the accused was likely to endanger the life or safety of another person or likely to inflict severe psychological damage on another person. [ 26 ] I will not speculate on the question of whether the

Section 742.1 exclusion regarding “serious personal injury offence” could never apply to an offence under

Section 240 of the Code . It is my finding, on the evidence of this case, that a conditional sentence is not precluded through the application of the words “serious personal injury offence”. IS A CONDITIONAL SENTENCE CONSISTENT WITH THE FUNDAMENTAL PURPOSES AND PRINCIPLES OF SENTENCING? [ 27 ] In crafting an appropriate sentence a significant consideration when considering whether a conditional sentence is appropriate is whether, in the circumstances, imposing that sentence rather than a period of incarceration would be consistent with the fundamental purposes and principles of sentencing set out in

Section 718 and 718.2 of the Code. In the circumstances of this case, a major consideration, is whether such a sentence will be consistent with the principles of denunciation and deterrence. The principles of specific deterrence and rehabilitation do not require emphasis in this case. [ 28 ]

Section 718 of the Criminal Code states that the fundamental purpose of sentencing “is to contribute … to respect for the law and the maintenance of a just, peaceful and safe society”. This is to be achieved by imposing sentences which have, among others, the following objectives: - separating offenders from society, where necessary; - denouncing unlawful conduct; - general and specific deterrence; - rehabilitation; and - the promoting of a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. [ 29 ]

Section 718.2(

d) states that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances” and s. 718.2(

e) states that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”. [ 30 ] In R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206, the Supreme Court of Canada considered the principles of sentencing set out in the Criminal Code and indicated that any sentence imposed, regardless of the weight given to the factors set out in ss.718.1 to

718.2 of the Criminal Code , must “respect the fundamental principle of proportionality” (at para. 40): The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality.

Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider "all available sanctions other than imprisonment that are reasonable in the circumstances”, with particular attention paid to the circumstances of aboriginal offenders. [ 31 ]

Section 718.1 of the Criminal Code states that any sentence imposed must be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” This is the fundamental principle of sentencing in Canada: see R. v. Ipeelee , 2012 SCC 13 at para. 36 ; R. v. Solowan , 2008 SCC 62 at para. 12 ; and Nasogaluak at para. 41 . [ 32 ] The expectation of reasonable and fair-minded people is that punishment will bear some direct proportionality to the moral culpability of the offence. Regina v . Sweeny (1992), 71 C.C.C. (BCCA) at 91. [ 33 ] In R. v.

Berner , 2013 BCCA 188 at para. 9 , the British Columbia Court of Appeal recently indicated that the purpose of sentencing is to protect the public through sanctions a court imposes upon a person found guilty of committing an offence. Each codified objective of sentencing is designed to further the protection of the community. [ 34 ]

Section 240 of the Code provides that “everyone who is an accessory after the fact to murder is guilty of an indictable offence and liable to imprisonment for life”. Thus, this

section is one which places the maximum sentence, upon conviction, at life imprisonment. [ 35 ] A number of cases dealing with sentencing for an offence contrary to

Section 240 of the Code have been referred to me. [ 36 ] In the often referred to decision of R. v. Wisdom , the accused was a young man with no prior criminal record. He pled guilty to being an accessory after the fact to murder. His participation in the offence charged was considerable. The sentencing judge stated at paragraph 16: It would not be an unwarranted observation that, within the range of activity that would constitute an accused an accessory after the fact to murder, there is a considerable universe of conduct. The participation of some is much more substantial than is that of others.

In this case, the accused was one of, if not the prime mover, in the clean-up operation. He enlisted the assistance of another. The scheme was carefully crafted to remove any and all traces of the offence having been committed, a fortiori, the identity of its authors. By all accounts, the results were quite remarkable. The activity extended over a period of two (2) days. It was no momentary lapse, rather a dedicated effort to assist the principal, LeBlanc, for the purpose of enabling him to escape. Wisdom was sentenced to five years imprisonment. [ 37 ] The court in R. v.

Dow accepted a joint submission in sentencing the accused to a five year jail sentence. Dow pleaded guilty to acting as an accessory after the fact of murder by taking possession of the murder weapon and placing it in a secure hiding spot. The weapon was never recovered. Dow had a lengthy criminal record that included 29 prior convictions. [ 38 ] At paragraph 3 Wright J. stated: The objective seriousness of this crime is established by Parliament which has imposed a maximum sentence of imprisonment for life.

However, this is one of those offences which can be committed in a wide variety of factual circumstances in which the degree of moral blameworthiness and responsibility may vary significantly. Hence, the range of sentence for this offence is very wide. Indeed, Crown counsel have provided the court with a series of 14 cases which illustrate that the overall range of sentence for a case like the one at bar is generally between three and ten years. [ 39 ] And at paragraph 6 the sentencing judge stated the following: Accessory to murder after the fact is a very serious offence.

There is a need for this court to send a message to the offender, and others who would knowingly assist the perpetrator of a murder for purposes of enabling that perpetrator to escape liability, that it is a serious offence which carries with it very serious consequences. [ 40 ] In R. v. Nordman , Rice J. imposed a conditional sentence of 18 months where the accused got rid of a knife that was used in a murder. Nordman was convicted of the offence under Section 139(2) of the Code , referred to as “obstructing justice”. [ 41 ] Although the facts in Nordman are not identical to the case at bar, they are similar.

As the sentencing judge stated at paragraph 8: The defendant also argues that this was an impetuous and not a planned offence, and that is so, but there was time to reconsider before Mr. Nordman got rid of the weapon and an opportunity to speak to the police afterwards. He did not know of the death of the victim at the time that he took the knife and got rid of it, but he did know later and he did not speak to the police afterwards when they sought to contact him. He was absolutely uncooperative with them.

This speaks to his sense of remorse, and his remorse, if any, was not revealed in a guilty plea. [ 42 ] The case of R. v. Steadman is more recent and also instructive. Steadman assisted in disposing of the victim’s body and a knife, the murder weapon. For many years, it was uncertain what happened to the victim. The court pointed out that Steadman concealed the offence for a number of years to the great prejudice of the victim’s family. This case also required a massive use of police resources to

uncover the true situation. On an appeal of the sentence of 4 years imposed by Barrow J., the Court of Appeal stated the following in paragraph 18, 19 and 20: On this appeal, counsel have cited to us cases where the range of sentence for these offences appears to be between a high of seven years and a low of probation. The Crown submits that in the lower end of this range, three years or less, all of the cases except R. v. Miller , a decision of the B.C.

Supreme Court from 1988, where the sentence on one of the two parties, an accessory, was two years, resulted from guilty pleas, which was a mitigating factor absent in the case of this appellant, who was found guilty after a trial before a jury. The appellant submitted at the time of sentence and before us that the delay between the time of the charges and his trial whilst he was on bail has worked hardship on him. The judge was aware of this and referred to it, but he considered that the delay had not been particularly onerous on the appellant.

The judge particularly noted that the stress associated with being a bit of an outcast in his community after the events came to light arose not from any delay but from what he had been involved in the case and its publicity arising from the trial of Ronda Black. The Crown submitted that the circumstances of this offence militated against any consideration of a conditional sentence and, in its written materials, says that the sentence of four years is an appropriate one within the range of sentences imposed on other offenders for this class of offence.

This is a case of a mature adult, not related to the perpetrator of the murder, participating in a series of events calculated to conceal this serious crime and to throw investigators off the trail. The sentence judge was cognizant of all the circumstances of the offence and the offender and took them into account when he sentenced the appellant. This was not a case of a young person or a relative of the perpetrator being suddenly enlisted to assist in covering up a homicide. The appellant was not bound to go to the authorities and tell them that Ms.

Black had killed her husband, but he was certainly not acting as a responsible citizen when he assisted in planning how to dispose of the body and taking an active role in concealing the crime. The result of the activities of the appellant and, of course, of Ms. Black, who convicted of homicide, was to conceal the offence for a number of years to the great prejudice of the family of the victim and to require a massive use of police resources to uncover the true situation. There is clearly a need to denounce this sort of conduct because it has an insidious effect on the administration of justice as noted by Mr.

Justice Watt in the Wisdom case. Having regard to what I would call the quite egregious circumstances of the activities engaged in by this appellant, I do not consider that the sentence imposed has been shown to reflect any error in principle. I think leave to appeal was previously granted so I need not deal with that but I would dismiss this appeal from sentence. [ 43 ] Several cases were also referred to me by defence counsel. In R. v. Turpin , the accused was in a residence where her husband was murdered. She assisted in cleaning up the crime scene and lied to police afterwards.

A significant factor in sentencing was that Turpin was being sentenced 7 years after the murder. There was a positive pre-sentence report and the accused was the mother of young children. The court sentenced her to a suspended sentence and a 3 year term of probation. [ 44 ] In R. v. Lowe , the accused was sentenced to a conditional sentence of 1 year. The accused assisted in disposing of the body of the victim of a murder. The sentencing judge noted that the accused was charged with a serious offence and referred to the decision in Wisdom . [ 45 ] Lowe was 54 years of age and had no prior record.

There was a positive pre-sentence report and he had served 61 days in jail, as he was originally charged with murder. He had also been threatened by others to keep quiet about the murder and the subsequent cover up. [ 46 ] Preston J., when sentencing the accused, stated the following in paragraphs 31 and 32: [31] I am satisfied, considering the exceptional circumstances and making an allowance for the seriousness of the offence and giving consideration to the period of incarceration that Mr.

Lowe has already served, sixty-one days, that the appropriate sentence is one year imprisonment. [32] I am satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental principles of sentencing set out in s. 718 to 718.2. [ 47 ] In R. v. Gilbert , the accused, mother and son, came into possession of a knife following a fight where the victim was stabbed to death. The accused’s son took the knife and hid it, with the knowledge of the mother. Neither accused told the police about their involvement.

The case also involved the application of Gladue principles. [ 48 ] At paragraph 27 of the case, the sentencing judge states: The crime is serious involving the death of a young man. Although neither of the accused participated in any way in the killing… both frustrated arrest of the perpetrator to the detriment of the victim’s family, law enforcement officials and the community. [ 49 ] MacDougall PCJ concluded his reasons in paragraph 31 where he states that a sentence of two years less a day was appropriate to satisfy the principles of sentencing set out in

Section 718 . He was also satisfied that the sentence could be served in the community without endangering the safety of the community. [ 50 ] Finally, in the case of R. v. Ropchan , the accused pled guilty to a charge of being an accessory after the fact to murder. The headnote to the case states that the accused witnessed a brutal murder, drove the murderer to Edmonton, helped him to get rid of evidence and was unforthcoming with police. The accused feared for his life, had no criminal record and spent 22 days in pre-trial custody. [ 51 ] Stevenson J. of the Yukon Supreme Court concluded that any crime, let alone this crime, was out of character for the accused.

[ 52 ] Stevenson J. also considered the mitigating and aggravating factors. At paragraph 8 he states: I conclude that any crime, let alone this crime, is out of character. Nonetheless, it is a serious offence. It is an affront to the administration of justice, in a way, in a very rough way, analogous with the crime of perjury as an affront to the administration of justice.

Those who are minded to assist in an escape, notwithstanding apprehension or fear, must be fully aware and must understand that there will be severe consequences or significant consequences imposed. [ 53 ] Ropchan was sentenced to a term of imprisonment of 3 months. [ 54 ] The cases provided to me display a full range of sentence, from probation, to conditional sentences, to jail terms ranging up to 5 years. Each case is dependent on its own unique facts and, in particular, a consideration of the mitigating and aggravating factors. CIRCUMSTANCES OF THE ACCUSED [ 55 ] The accused is 23 years of age.

He is single and has no children. The accused was raised by his parents in a very supportive, loving and positive environment. He has a younger sister with whom he has a close relationship. [ 56 ] The charge against the accused has led to considerable angst in the family. Word of the case spread quickly in the small community of Salmon Arm leading the parents to relocate to Prince Rupert and the sister to leave the area as well. [ 57 ] The accused is now living and working in the City of Prince Rupert. The accused completed Grade 12 but started working for his father’s company when he was 14 years old.

He excelled in the high school apprenticeship program and worked as a heavy equipment operator both when in high school and following his graduation. The accused is described as a hard worker and talented employee. In the summer of 2013, the accused moved to Prince Rupert where he continues to work full time with a company operated by his father. [ 58 ] In January 2014, the accused made a decision to change careers to become a heavy duty mechanic. He is now enrolled in a 4 year apprenticeship program that will involve 12 weeks of school later in 2014 and another 12 weeks of schooling in 2015.

He has a plan to buy his own service truck to secure work as a heavy duty mechanic. [ 59 ] The accused has no youth or adult criminal record. [ 60 ] As a young person growing up in Salmon Arm, the accused was active in sports. He played hockey from age 4 to 17 and excelled to the point where he played on the midget rep team. He also volunteered at the Salmon Arm summer hockey school program. [ 61 ] A detailed pre-sentence report was prepared in this case by an experienced probation officer. The report can only be described as very positive.

The accused was fully cooperative in the preparation of the report and expressed “tremendous” remorse for his actions. [ 62 ] The accused has never had any substance abuse issues. [ 63 ] A folder containing a total of 70 letters of character in support of the accused were filed in this sentence hearing. The letters come from a variety of sources, including family members, friends, teachers, a former girlfriend, employers and fellow workers.

The picture of the accused that quickly emerges on a reading of these letters is that of an individual who is caring, thoughtful, hardworking, mature and possessing a great personality. [ 64 ] Many of the letters also express the belief that the offence before the court was completely out of character for the accused and that the accused is not a risk to the public. MITIGATING FACTORS [ 65 ] The mitigating factors in this case are as follows: • the accused entered a guilty plea to the offence. • the accused has no prior criminal record. • the young age of the accused.

He was 17 when the victim was killed and is now 23 years of age. • the accused was on conditions of bail for 1½ years without incident.

His bail supervisor relates in the pre-sentence report that the accused was “super compliant” while on bail. • the accused is remorseful for his actions and takes responsibility for his action in hiding the rifle and his failure to contact police. • the accused is prepared to accept the consequence of his actions. • the accused is gainfully employed and has a specific plan to commence a heavy duty mechanic apprenticeship program. • on arrest the accused provided a full written confession to police. • the accused was not aware that T.M. was going to be killed and was not present at the time of the killing. • the offence is completely out of character for this accused. [ 66 ] I would also note that the accused spent 26 days in custody following his arrest and prior to being granted bail.

AGGRAVATING FACTORS [ 67 ] The aggravating factors in this case are as follows: • The offence of being an accessory after the fact of murder is a serious offence that strikes at the heart of the justice system. • The accused was told that the .22 rifle supplied by him was used in the killing of TM. He returned to the rifle to his father’s gun case in the family residence and remained silent about his knowledge of the rifle for a period of four years. The rifle was clearly an important piece of evidence in this case. • The police were required to engage in a lengthy and complex “Mr.

Big” operation to bring a resolution to their investigation into the death of T.M. • For a period of four years the victim’s mother, in particular, and the people of Salmon Arm lived with the fact that there was an unsolved killing. ANALYSIS [ 68 ] The accused was 17 years of age when he obtained the rifle back from M.S., the day T.M. was killed. He returned the rifle to the gun locker in his parents’ home. He did not go to the police and the killing of T.M. remained unsolved for four years.

The accused was motivated to protect his friends as well as himself and his family. [ 69 ] The authorities are clear that a crime, such as the one committed by the accused, is a crime that strikes at the heart of the administration of justice and must be strongly repudiated and denounced. ( R. v. Wisdom ) [ 70 ] As I have concluded that the offence, on the facts of this case, is not to be considered a “serious personal injury” offence, a conditional sentence order under

section 742.1 was, at the time the offence was committed, a possibility for the accused. [ 71 ] I am also satisfied that having the accused serve a sentence in the community would not endanger the safety of the community. [ 72 ] The major consideration in this case is whether a conditional sentence order would be consistent with the principles of denunciation and deterrence. In my view, specific deterrence and rehabilitation of the accused are not significant factors in this case. [ 73 ] I have also concluded that a sentence of two years, or more, is not appropriate in this case. [ 74 ] The case of R. v.

Proulx [2002] 1 SCR 500 , is the leading case in Canada on conditional sentencing. And as Lamer, C.J. points out in Proulx : “Conditional sentences can provide significant denunciation and deterrence with more serious offences resulting in longer and more onerous conditional sentences.” [ 75 ] The mitigating factors in this case are substantial. I must be mindful of the individual circumstances of the accused, as well as the circumstances of the crime. The accused is, and continues to be, a productive and contributing member of society.

His role in the offence was to remain silent and to hide a rifle that he believed was used in the death of T.M. Other cases referred to me describe situations where the accused participated in the crime and assisted in disposing of the victim’s body and covering up the crime scene. Those aggravating factors are not present in this case. [ 76 ] I am mindful that the maximum penalty for this offence is life imprisonment. I have concluded that, in all the circumstances, a conditional sentence is appropriate in the circumstances of this offender and the offence to which he is charged.

I am satisfied that a lengthy conditional sentence will give appropriate weight to the principles of denunciation and deterrence, particularly general deterrence. [ 77 ] Accordingly, I sentence the accused, J.J.D., to a period of imprisonment of 2 years less a day to be served in the community by way of a conditional sentence order. He will receive credit for 26 days of pre-trial custody, resulting in a conditional sentence of 709 days. I find no compelling reason why a probation order should follow the conditional sentence. [ 78 ] The terms of the Conditional Sentence are as follows: 1.

Keep the peace and be of good behaviour. 2. Appear before the court when required to do so by the court. 3. Report to a supervisor in Salmon Arm, today before 4 pm and thereafter, report when and in the manner required by the supervisor. 4. Remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is given by the court or the supervisor. 5. Reside at an address approved in writing by your supervisor, and not to change your address without the prior approval, in writing, of your supervisor. 6.

You shall obey a curfew by being inside your approved residence between the hours of 8 p.m. and 6 a.m. each day, except with the written consent of the supervisor; or when travelling directly to, or returning directly from, your place of employment, or while in the course of such employment; or when travelling directly to, or returning directly from an educational institution at which you are enrolled, or while in the course of classes or extracurricular activities approved by the supervisor at such educational institution; or in the event of

a medical emergency and then only when travelling directly to, or returning directly from a hospital emergency ward or a medical clinic. This curfew provision will extend for a period of 12 months. 7. You shall present yourself at the door to your residence when any peace officer or supervisor attends there for the purpose of determining your compliance with the curfew condition of this order. 8. You shall not possess or consume any alcohol or any drugs unless prescription drugs as prescribed to you by a physician or dentist. 9.

You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premise where the primary commodity sold is liquor. 10. You shall not possess any weapon as defined in

section 2 or item listed in

section 109 of the Criminal Code or any imitation thereof. 11. Under the direction and supervision of your supervisor you shall successfully complete 50 hours of community work in the first 12 months of your sentence. 12. You shall have no contact or communication, directly or indirectly, and/or attend within 50 meters of the residence of M.S., R.K., B.M., and/or any member of B.M.’s family. 13. You attend, participate in and successfully complete any assessment, counselling or program if and as directed by the Supervisor. [ 79 ] I also make a DNA order and also direct that you pay a victim fine surcharge of $200.00. The Honourable Judge E.F. de Walle