R. v. Chad Date:, 2015 BCPC 422

Citation: R. v. Chad Date: 20151127 2015 BCPC 0422 File No: 202225-4-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DONALD JAMES CHAD ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.W. JARDINE Counsel for the Crown: D. Simpkin, S. Elliott Counsel for the Defendant: K. Merrigan Place of Hearing: Surrey , B.C. Date of Hearing: November 10, 2015 Date of Judgment: November 27, 2015

[ 1 ] THE COURT : These are my reasons for sentence in respect of Information 202225-4-C, a two-count Information alleging and having been pled to by Mr. Chad, the offence of manslaughter and possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code . I. INTRODUCTION [ 2 ] On August 21st, 2015, Donald James Jr. Chad pled guilty to one count of manslaughter and one count of possession of a loaded prohibited handgun. [ 3 ] At the sentencing hearing on November the 10th, 2015, Ms. Elliott and Mr. Simpkin for the Crown, and Mr. Merrigan for Mr.

Chad, filed a number of exhibits and made full submissions as to the fit sentence to be imposed by the court. Counsel provided a common casebook and filed a number of additional cases for the court.

I am indebted to all counsel for their thorough and fulsome arguments on the law and the facts on this serious sentencing case. [ 4 ] The circumstances of this case provide a glimpse into the sordid, squalid and violent lifestyle of persons living in or frequenting a house being used for drug use and trafficking in illicit substances, including heroin, opiates, methamphetamine, crystal methamphetamine and cocaine. [ 5 ] Counsel have provided me with arguments focusing on the issues and, in each instance, focusing on their suggested range of sentence.

They have focused this sentencing such that they are only three years apart in terms of what they say the starting point is for the global sentence. I am indebted to them for that focusing. II. SENTENCING PROVISIONS [ 6 ]

Section 236 (

a) of the Criminal Code is the sentencing provision dealing with the offence of manslaughter. It provides that: Every person who commits manslaughter is guilty of an indictable offence and liable (

a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years. [ 7 ] Section 95(2)(

a) is the sentencing provision dealing with the loaded prohibited firearm. It provides that such an offence is an indictable offence and the person is "liable to imprisonment for a term not exceeding ten years." That provision has been read down as a result of the decision in R. v.

Nur in the Supreme Court of Canada, April the 14th, 2015. [ 8 ] Pursuant to s. 655 of the Criminal Code of Canada , the following facts were admitted by counsel for the purpose of dispensing with the truth thereof at trial and for the purposes of this sentencing. [ 9 ] Counsel broke the admissions into a number of headings and I will read those admissions as these facts inform the applicable law. Count 1 - The Residence 1. In October and November of 2013, Corey Bennett lived in a basement room at a house located at 2619 King George Boulevard in Surrey, British Columbia ("the residence"). Jennifer Taylor, Mr.

Bennett's ex-girlfriend, lived with Mr. Bennett in the residence. 2. Lane Neighbour and Lee Marcoux were also permanent residents of the residence. Each had their own rooms downstairs. 3. Other bedrooms upstairs in the residence were from time to time occupied by people who settled there without paying rent. Various other people would attend the residence to obtain and consume drugs. 4. Corey Bennett dealt drugs, crystal methamphetamine and heroin, out of the residence. The Events Leading Up to the 9th of November 2013 5.

The accused attended at the residence two times approximately two weeks prior to the 9th of November, 2013. On the first occasion, he requested to speak with and did meet with Mr. Bennett in Mr. Bennett's bedroom. On the second occasion, the following day, the accused again requested to speak with Mr. Bennett. He supplied crystal methamphetamine to people who were in the upstairs of the residence and questioned occupants of the residence about the supply and sale of drugs in the residence. 6.

On this second visit, the accused was forcibly removed from the residence by unidentified individuals armed with baseball bats at the request of Mr. Bennett. The Events of the 9th of November 2013 7. On the 9th of November, 2013, at approximately 2300 hours, the accused returned to the residence in the company of two other males. The accused was armed with a loaded rifle concealed in a bag. 8. At that time, there were a number of people inside the residence. Those who have been identified include Mr. Marcoux, Mr. Neighbour, Ms. Taylor, Tyrone McDougall, Taylor Kozakow and Sarah Dalziel. 9. Mr.

Neighbour opened the door and let the three males into the residence. He came from the garage workshop attached to the residence where he had been with an individual known by the nickname "Boxer."

10. At least one of the males who entered the residence went upstairs where Mr. McDougall, Ms. Kozakow and Ms. Dalziel and possibly others were consuming drugs and alcohol and demanded their cell phones. 11. Around the same time that the accused arrived at the residence, Michelle Bliss came to the residence to purchase drugs from Mr. Bennett. She proceeded downstairs to Mr. Bennett's bedroom and knocked on the door. Ms. Taylor recognized Ms. Bliss and unlatched the deadbolt, which was normally in place to secure the room, to allow Ms. Bliss entrance. As Ms.

Bliss went into the room, she was knocked over by the accused who followed her in. Mr. Marcoux saw the accused, with the gun mostly concealed in a bag in his hand, enter Mr. Bennett's bedroom and retreated to his own bedroom. 12. Mr. Bennett was sleeping on the bed. Ms. Taylor had returned to the bed after opening the door for Ms. Bliss. Ms. Bliss was knocked down to the floor. The accused jumped on the bed and poked Mr. Bennett with the rifle mostly concealed in the bag. He shouted demands at Mr. Bennett. 13. At some point during the incident, the following occurred. The accused pointed the firearm at Mr.

Bennett's face and body. Mr. Bennett awoke and was flailing his arms and legs. The accused removed the firearm from the bag and Ms. Taylor fell backwards off the bed, possibly making contact with the accused. The accused's gun discharged. The accused did not intentionally discharge the firearm. 14. Ms. Bliss, Ms. Taylor and Mr. Marcoux, from his neighbouring room, heard the shot. 15. Once the other males who arrived with the accused entered the room, Ms. Bliss slipped out of the room and attempted to leave the residence but was stopped by the third male. 16.

At some point during the incident, either the accused or one of his associates or both demanded to know where Mr. Bennett's money and drugs were located. After the gunshot, the accused and another male searched the room and Mr. Bennett's person. The other male removed the bag that was strapped across Mr. Bennett's body. 17. The accused and the other male left the room and the three males fled the residence. 18. Mr. Bennett was unresponsive. Ms. Taylor believed that Mr. Bennett had suffered a heart attack. Ms. Bliss attempted to perform CPR while waiting for the arrival of Emergency Services. 19.

Ambulance and fire department personnel responded to a cardiac arrest call at around 2320 hours where it was determined that Mr. Bennett sustained a gunshot wound. Mr. Bennett was transported to Peace Arch Hospital but was pronounced deceased upon arrival. Post-Mortem of Mr. Bennett 20. Mr. Bennett's body sustained a single perforating gunshot wound with the entrance on the posterior surface of the left thigh and it exited at the right posterior lateral flank. Mr. Bennett's death is attributed to the organ and vascular injuries sustained as a result of the perforating gunshot wound.

Recovery and Analysis of the Expended Cartridge Case and Fired Bullet 21. On the 11th of November, 2013, Cpl. Lin of the Forensic Identification Services attended the residence to document and examine the physical evidence. 22. Among other items, police seized a fired bullet from the middle of the room ("the fired bullet") and a casing from the floor near the bedside table below the window ("the expended cartridge case").

The fired bullet and expended cartridge case were fired in/from a firearm and "were probably fired in or from a rifle in 7.62 times 39 mm calibre with the rifling characteristics of four land and grooves with a right twist. Common probabilities include semiautomatic rifles manufactured by Valmet and CZ." Count 2 23. The Surrey Strike Force Team ("SFTT") was tasked with attempting to locate and arrest the accused in relation to the homicide of Mr. Bennett. On 22 November, 2013, the SFTT conducted surveillance on a vehicle associated to the accused.

At 0042 hours, the vehicle stopped for gas at the Petro-Can gas station located at 15211 Fraser Highway in Surrey, British Columbia. 24. SFTT arrested the accused, the driver of the vehicle, without incident. The accused was wearing a black Kevlar vest. The accused had $525 in Canadian currency, $1,600 in Chinese currency, a black Nexus LG cell phone and a B.C. driver's license in the name of Edmond Percy. 25. SFTT searched the accused and located a shoulder harness which contained a loaded P. Webley and Sons model, the British Bulldog revolver, in .450 centre fire calibre, serial number 61323 ("the revolver").

The revolver had four bullets in the chamber. The revolver is a prohibited firearm. 26. Mr. Chad did not hold an authorization or license under which he was permitted to possess the firearm and had no registration certificate for the firearm. Those are the relevant facts for the purposes of this sentencing. III. THE LAW [ 10 ] As I indicated, counsel provided a common casebook and a number of other loose authorities to the court.

I have also, during the course of my review of the materials and the cases, obtained one further case to which I will simply advert and, that is, the recent decision in the British Columbia Court of Appeal in R. v. Farrell , [2015] BCCA 477. It is a decision on November the 24th of 2015 which also deals with the issue of sentencing as it relates to s. 95(1), "Offences." The only consideration of that decision is that it follows

the same analysis as the Court of Appeal in the case provided by counsel, R. v. Holt . [ 11 ] I have considered the cases provided by counsel as part of understanding their careful submissions. The following cases, in chronological order, were considered by me: R. v. Widen , [2001] BCSC 97; R. v. Barton , [2003] BCCA 206; R. v. Thurston , [2004] BCCA 526; R. v. Espadilla , [2005] BCSC 358; R. v. Aubin , [2008] BCSC 400 and [2008] BCCA 418; R. v. Peynado , [2011] BCCA 524; R. v. Nur , [2013] ONCA 677 and [2015] SCC 15, which is the April the 14th, 2015, decision to which I referred earlier; R. v.

Martinez , [2015] BCSC 653; R. v. Holt , [2015] BCCA 302; R. v. Plowman , [2015] BCCA 423; R. v. Marshall , [2015] ONCA 692; R. v. Rutledge , [2015] ONSC 6625 (October the 27th, 2015); R. v. Farrell to which I have referred. [ 12 ] I have also considered on the issue of the law and the authorities the provisions of the Criminal Code in s. 718 and I will deal with each of the purpose and principles of sentencing more fully later in my reasons. IV. CIRCUMSTANCES OF THE OFFENDER [ 13 ] Mr. Chad had a chaotic early life. His mother and father had substance abuse issues and he was neglected as a child.

There was a great deal of family conflict. It is apparent from Exhibit 8, the pre-sentence report, that it is common to all of the parties in dealing with his early background that he excelled academically in elementary school but that by the time he got to Grade 9 he had lost interest and he subsequently stopped going to school. [ 14 ] As to education, it is apparent that while in custody during his early years, he completed the General Equivalency Diploma but he has not pursued his education further. [ 15 ] His work history is sporadic and is explained by his extensive criminal history.

His criminal record, Exhibit number 1, reflects his long-term substance abuse issues which began during his teen years but, in terms of his adult existence and his criminal involvement involving drugs and trafficking, it commenced in 2002.

It also goes to explain his early gang involvement and his subsequent long-term association as an adult with other drug users and criminal associates. [ 16 ] It is apparent from his record that he has continued to associate with other illicit drug users and drug traffickers who support themselves by criminal activity. [ 17 ] He has not responded positively to community supervision or programs directed towards rehabilitation. He remains an offender who has repeatedly failed to comply with court or parole conditions. [ 18 ] These offences occurred within three months of his release on parole in August of 2013.

On release, he relapsed into crystal methamphetamine addiction and reverted to a criminal lifestyle, engaging in drug trafficking and culminating in these offences. [ 19 ] His criminal record is instructive and informative. He has a conviction in 2002 for drug trafficking. He has a conviction in 2003 for drug trafficking and he has another conviction in 2004 for drug trafficking. [ 20 ] As to previous violence, his first crime involving violence as an adult was in 2003 when he was convicted of robbery. In 2004, there was a firearm in his possession, contrary to a court order.

In 2008, he was convicted of dangerous driving causing bodily harm. In 2009, aggravated assault and unlawful confinement. In 2009, he was also convicted of the offence of uttering threats. [ 21 ] In 2012, on November the 30th, he was sentenced to one year on a possession of stolen property offence, possession of house- breaking instruments and possession of controlled substances. He was sentenced to a one-year period.

He was released on parole August the 1st of 2013 and these offences subsequently followed. [ 22 ] It is significant from the perspective of his non-compliance with court orders that he has a 2004 lifetime ban on possession of firearms or ammunition or explosive substances and that he has a similar order again in 2009 following his conviction on the aggravated assault and unlawful confinement. [ 23 ] Since his conviction and prior to the sentencing hearing, he has again received statements of support from his mother, Yvonne Kelly, and from his father, Donald James Chad Sr.

His father wrote a letter, Exhibit 7, in which he has said that he will continue to support his son throughout his incarceration and that he will provide him with whatever assistance he can at the conclusion of his imprisonment. [ 24 ] We have as well received from Mr. Chad an eloquent s. 726 statement to which I will refer later in the course of my reasons. [ 25 ] I have taken the circumstances of Mr. Chad and his background from Exhibit 8, the pre-sentence report, and Exhibit 1, his record, as both are, in my view, particularly significant to the determination of the fit and proper sentence in this case. V.

VICTIM IMPACT [ 26 ] The Bennett family has been present throughout the court proceedings, including when I presided over the preliminary inquiry when they were present on almost a daily basis. They have also been present throughout these proceedings and we have had the benefit in considering the impact of these offences on the family as a whole through four victim impact statements: Exhibit 3, Exhibit 4, Exhibit 5 and Exhibit 6. [ 27 ] Exhibit 3 is from Carl Bennett, the father of the deceased; Exhibit 4 is from the eldest first cousin, Ms. Mareno; Exhibit 5 is from his sister, Ms.

England; Exhibit 6 is from his uncle, Wayne Bennett, who is the brother of his father, Carl. [ 28 ] It is apparent that the Bennett family has a belief in hope, in redemption, in rehabilitation and reformation. That is difficult for them when they are dealing with proceedings such as the one they are attending here today. [ 29 ] From Exhibit 3, I was able to glean that the Bennett family is close-knit. Mr. Carl Bennett is haunted by his son's death. His

poignant letter expresses the pain of his loss. He provided a different picture of his deceased son and the struggles that he had with his own addiction. It is difficult to reconcile his description or the letters from his cousin, his sister and his uncle with the man who was resident in the crack house acting in the role of a drug trafficker. What it does is it highlights the insidious aspect of addiction to hard drugs and what that leads to in our community. That does not mean he deserved to die. [ 30 ] I was particularly struck by Mr.

Bennett Sr.'s lament to the fact that his son would never have a chance to become drug-free. It is not clear on the materials before me, nor do I have any evidence how long he was addicted, but it is readily apparent that he struggled and that in order to pursue his addiction, he was trafficking and he was trafficking to the extent that he had muscle remove Mr. Chad from the residence two weeks prior to the incident leading to his death. [ 31 ] In Exhibit number 4, Ms. Mareno, as the eldest first cousin, described how the circumstances of Mr.

Bennett's homicide have shaken her sense of security and affected her emotional health. It was clear that she continues to experience pain at the thought of how he has died and the fact that he died as a result of violence in his drug lifestyle. [ 32 ] Exhibit 5 represented the victim impact statement of Ms. England. As the sister of Mr. Bennett, she is struggling not only with missing her brother each and every day but also with having taken on the responsibility of providing to the other members of the family the emotional and stability aspects that Mr. Bennett brought to those within their family unit.

Her grief cannot be measured or described but relates to her no longer feeling comfortable knowing that those members of the family will never have her brother again being a contributing member, either emotionally or integrating back into the family. [ 33 ] Exhibit number 6 was the statement from the uncle of the deceased, Wayne Bennett, who, by the conduct of returning home from premises in California and in his expression of words, declaring his awareness of the deceased as a boy and the family's belief in hope, redemption, rehabilitation and reformation.

He, together with his brother, lamented the fact that he would not have the opportunity to rehabilitate himself. [ 34 ] The victim impact is obvious when we are dealing with a homicide but it is even more obvious when it is also expressed very eloquently in the course of an accused's statement to the court. Mr. Chad expressed very eloquently his awareness of the pain his conduct has caused. Some of his words I will quote, as they reflect his insight and awareness of the pain that he has caused to the Bennett family. He said, and I quote: I took a dad, a brother, a son. I caused parents to have to bury their son.

I would highlight this: There is no fixing what I did. [ 35 ] I want the Bennetts to know that there is nothing in what I am going to do today in imposing this sentence which in any way is going to fix the pain, or the loss, or your missing your son. In fact, my responsibility is to ensure that I do not allow emotion to get in the way of the determination of a fit and proper sentence while, at the same time, being sensitive to the consequential harm caused by the conduct of this offender.

It is, again, a balance of the moral blameworthiness, the seriousness of the offence and the impact on you, as a family, and on the community as a whole, of such criminal conduct. VI. THE CROWN'S POSITION [ 36 ] I had the benefit of Mr. Simpkin leading the evidence, as it related to victim impact. I will not relate that again. [ 37 ] I also had full submissions from Ms. Elliott in her usual careful fashion, who submitted that in the circumstances of these offences and this offender, that the range of sentence reflecting both offences was globally a starting point of an effective sentence of 13 years. [ 38 ] Ms.

Elliott took the court through a number of decisions. Of particular import, in my view, were her characterizations of the Court of Appeal analysis by Mr. Justice Frankel in Aburto , particularly at paragraphs 19 and 20, in R. v. Plowman by Madam Justice Neilson, particularly in paragraphs 39 and 40 and Ms. Elliott expressed clearly, in respect of Count 1, the manslaughter case, that the Crown argument in paragraph 53 represented the current range of sentences for manslaughter.

The Crown pointed to paragraph 53 and 54 as outlining the conclusion of the court in Plowman that there is a broad continuum when one is dealing with manslaughter sentencing cases but she submitted that, based on Aburto, Plowman and Peynado , that the range moves from four to 15 years and that this case warrants a disposition at the higher end of the range due to the circumstances of this offender and the facts of the case. [ 39 ] Ms. Elliott submitted that the aggravating factors in this case were the following: 1. Mr. Chad had a principal role in the planning and execution of the attack on Mr. Bennett. 2. Mr.

Chad was motivated to retaliate for the forcible violence initiated by Mr. Bennett where he was beaten with baseball bats and removed from the house: page 5 of Exhibit 8, the pre-sentence report. 3. Mr. Chad was engaged in robbing Mr. Bennett at gunpoint to obtain drugs and money. 4. The weapon was a loaded rifle. 5. The invasion of the dwelling place was an aggravating factor and, as well, it was aggravating that Ms. Bliss was an innocent party and Ms. Taylor was Mr. Bennett's common law spouse and was present during the course of the forcible entry into the bedroom. 6. Mr.

Chad has a lengthy, serious criminal record with two lifetime bans on possession of firearms and he was, within three months of his release on parole, in a circumstance where he had relapsed into his crystal methamphetamine addiction and was fully engaged in a

criminal lifestyle of drug trafficking and using firearms for personal protection. [ 40 ] Ms. Elliott highlighted as an aggravating factor the intentional risk-taking by Mr. Chad that, in this case, resulted in a culpable homicide. When one takes a fully-loaded firearm into such a confrontation, this was a reasonably foreseeable consequence. [ 41 ] Ms. Elliott highlighted that Mr.

Chad continued his criminal conduct, as evidenced by the concealment and possession of a powerful, loaded handgun at the time of his arrest some 13 days later, as well as the fact that he was protected by a Kevlar vest at the time of his arrest. [ 42 ] In Ms. Elliott's submission, the only mitigating factor was the guilty plea tendered August 21st, 2015. [ 43 ] In conclusion, and having regard to the principles of totality and parity, given these offences and the range of sentence, Ms.

Elliott submitted that the court should consider imposing a sentence of ten years on the manslaughter offence and three years' consecutive on the firearms offence. [ 44 ] On question from the court, Ms. Elliott submitted that, based on Holt and Nur , that the range of sentence for possession of the firearm by a person with the background and antecedents of Mr.

Chad was four to six years but that she had taken into account in arriving at her recommendation as to the fit and proper disposition, a reduction to three years such that the total effective sentence of 13 years was the fit and proper disposition. [ 45 ] Ms. Elliott also submitted that the time-in-custody credit under s. 719 was 735 days and that Mr. Chad should be credited on a one-and-a-half basis with that credit such that, as of today, he would obtain a credit of 1,103 days of pre-sentence custody. VII. THE DEFENCE SUBMISSIONS [ 46 ] Mr.

Merrigan made thorough, focused and realistic arguments on behalf of Mr. Chad. He submitted the fit sentence on the manslaughter was globally seven years following the continuum and range of sentence. In particular, in arriving at that stage, he relied upon three cases. Of particular note was the Supreme Court trial decision at sentence of Mr. Justice Thackary in Widen .

He also relied upon Martinez, Espadilla, Aubin to suggest that, taking into account the principle of parity on the manslaughter charge herein, that the fit sentence would be, within a guideline for this offender on these facts, a sentence in the range of six to ten years. [ 47 ] Given the mitigating effect of the chaotic early life of Mr. Chad, his prospects for rehabilitation, the support of his parents in their now decade-long sobriety and his guilty plea, acceptance of guilt and expression of remorse, Mr.

Merrigan submitted the court should impose a sentence to the lower-middle of the range such that the court should start with an effective sentence on the manslaughter offence of seven years. [ 48 ] Mr. Merrigan forcibly submitted that his client has the means to reform and become rehabilitated. He pointed to the element of provocation present in this case. Mr. Bennett had directed the forcible removal of Mr. Chad from the house just weeks prior. Mr. Chad was beaten with baseball bats. Mr. Chad was drug-addicted, in pain and on the streets. He was desperate. The history between Mr. Bennett and Mr.

Chad had to be considered. Mr. Bennett was not an innocent victim. He, too, was in the drug trade. He was in control of a crack shack. He was not a victim chosen at random. While these were not mitigating factors, Mr. Merrigan argued that these points warranted that the court give consideration to them as part of the weighing process and a consideration of where on the continuum of manslaughter sentences the court should place this case. [ 49 ] As a result of all of those factors, Mr. Merrigan argued the court should consider moving to the lower-middle range. [ 50 ] As to Count number 2, Mr.

Merrigan very properly conceded the firearms count in all of the circumstances warrant a consecutive sentence. Having regard to the principle of totality in s. 718.2 (

c) of the Criminal Code , he submitted that the fit global sentence was, therefore, an effective sentence of ten years. Based on that, and the credit of 1103 days, Mr. Merrigan submitted that that was the level of approbation required having regard to both of these offences. [ 51 ] In respect of the ancillary orders appropriate, Mr. Merrigan conceded that all of the ancillary orders sought by the Crown with respect to s. 109, firearms prohibition, s. 487.051, a DNA sample and s. 490, forfeiture of the firearms, the ammunition and the vest were all not opposed and, in his submission, appropriate. VIII.

DISCUSSION [ 52 ] I am of the view, having considered the authorities provided by counsel and their submission, that the range of sentence in the case at bar set out by the cases, particularly having regard to the decision of Mr. Justice Frankel in Aburto , is a range of four to 15 years. [ 53 ] In respect of that finding as to the appropriate guideline, I have relied upon paragraphs 15 through 19 of Aburto . I am particularly struck by paragraphs 17, 18 and 19 and I will, therefore, relate those as part of my reasons. Mr.

Aburto's position is that since "the ten year mark delineates where parole ineligibility for murder begins", and "the moral culpability for murder is considered higher than that for manslaughter," a manslaughter sentence should exceed ten years only in "exceptional circumstances." In support of his first argument, he relies, as he did at the sentencing hearing, on the following statements by Chief Justice McEachern in R. v.

Gillies (1998), 107 B.C.A.C. 15 : [11] ...While the Criminal Code prescribes a range of from suspended sentence to life, four to six years has been the usual range for most manslaughter cases for as long as I can remember. [12] There are, of course, other cases where sentences of eight to ten years or more have been given. In most of those cases, however, there were other factors that made the offence much more serious. Cases were cited where there was torture, long records of violent offences, violence against a spouse, woman or child, and killing in the course of a robbery.

Then in 18: In Gillies, this Court reduced an effective sentence for manslaughter from ten years to seven years. Mr. Gillies, who was 17 years old atthe time of the offence, stabbed another young man to death in a melee fuelled by alcohol and drugs. Although his criminal recordincluded convictions for possession of a weapon and assault, the Chief Justice described it as "minor." 19: As this Court has previously noted, the ranges referred to in Gillies, are no more than suggestions. They do not impose upper limits onwhat sentences can be imposed for manslaughter.

Each case has to be decided on the circumstances of the offence, the principles ofsentencing, and any relevant aggravating and mitigating factors: R. v. E.H., 2005 BCCA 3 , 192 C.C.C. (3d) 366 at paras. 33,34; R. v. Ansari, 2009 BCCA 381 at para. 42. The submission that there is a de facto ten-year "cap" on manslaughter sentencesis not borne out by this Court's judgments, of which the following are but examples. He then cites a number of cases. [54] Having considered Aburto, Plowman and the cases cited, I am of the view that the range of sentence is from four to 15 years.

The reason that the continuum is that broad is that the circumstances range from negligence without other criminal activity to intentionalrisk-taking in the course of criminal activity and prolonged periods of confinement or acts of brutality. [55] In respect of this case, I am of the view, having regard to all of the circumstances, that in terms of Count 1 and the analysisrequired in s. 718.1, the fundamental principle of sentencing, that the following aggravating factors establish the seriousness of theoffence and the moral culpability of Mr.

Chad. [56] I found the following factors were significant in my assessment and determination of where this case fits on the continuum. Iconsidered: 1. The criminal record of Mr. Chad. It is lengthy and contains a number of offences involving violence. 2. Mr. Chad is on parole at the time of these offences. He is still short of the date of the expiry of the Warrant of Committal of theprevious sentence. 3. Mr. Chad went armed with a loaded firearm, contrary to two lifetime firearm bans on a planned, premeditated, unlawful entry into adwelling house to intimidate, extort, rob and humiliate Mr. Bennett.

His role was as a principal; he had others with him to help preventinterference with their activity and to assist in the robbery. 4. There was, in this case, trickery to get into the house in the first place. There was then forcible entry into the locked room of Mr.Bennett and an assault of Ms. Bliss as he entered the room, stepping onto the bed to confront Mr. Bennett. Mr. Chad pointed the firearmat close range, prodding Mr. Bennett with the firearm and causing him to waken. 5. I found as well the continued criminal activity and lifestyle of the post-offence conduct of Mr.

Chad to be an aggravating factor inrespect of the manslaughter offence. I am not in this situation, though, going to make the mistake of saying that that should cause adoubling-up in respect to the sentence because that is, as well, a major factor in determining the seriousness of the offence, as it relates tothe s. 95 count and I must be careful not to cause overemphasis on that point. [57] The mitigating circumstances that I found in respect of the manslaughter are the following: 1. The guilty plea. 2. The fact that there was a short duration of time in the room. 3. That Mr.

Chad was jostled during the course of the interaction with Mr. Bennett by Ms. Taylor, as she fell from the bed. That therifle discharged and that, in the Agreed Statements of Fact, the Crown and the defence have stated that, "The accused did notintentionally discharge the firearm." There was a single gunshot. 4. There has been a sincere, genuine expression of remorse. [58] As to Count number 2 and the provisions of s. 718.1, the principle of proportionality, on November the 22nd of 2013, at thispublic gas station at 1:00 a.m., he was wearing a Kevlar vest.

He had a .450 calibre Webley revolver, centre fire, concealed in a shoulderholster on his person. It is obvious that Mr. Chad, notwithstanding his involvement in the homicide of Mr. Bennett, was continuing acriminal lifestyle. [59] I am not going to quote each of the provisions; I am going to refer to them as I have considered them in arriving at my analysisof the discussion points in this case. I have considered s. 718(

a) to (

e) and, in particular, I have considered that I have a responsibility toexercise a measure of restraint and, as well, having regard to the imposition of consecutive sentences which are appropriate, given thelanguage of the sentencing cases and s. 718.3 is appropriate of these two offences separated in time and place. [60] I am also aware of my responsibility that if I am imposing consecutive sentences that the principle of totality applies and that aglobal sentence should be a proper determination without improper reliance or emphasis on one aspect of the case. [61] I am also mindful of the parity principle and the need that similar offenders be sentenced to similar periods of incarceration forsimilar offences. [62] However, balancing the factors outlined above and the submissions of counsel and the applicable law, I am of the view that theparamount principles of sentence applicable in this case are deterrence, denunciation and protection of the public.

[63] Of secondary importance, is the reformation and rehabilitation of Mr. Chad, particularly given his antecedents. However,rehabilitation cannot be completely discounted in this case and it requires that I pay attention to, in the course of my reasons, theprospects for rehabilitation for this offender. [64] As counsel pointed out during the course of their review of the case law, sentencing is an individual process. Therefore, whileparity must be considered, the sentence must still be fit and proper for this convicted offender, having regard to the fundamental principleof sentencing set out in s. 718.1.

Therefore, while I have found that the cases provided by counsel are informative and instructive, I amof the view that none of the cases are particularly sufficiently similar to enable me to incorporate a sentencing precedent in this case. Rather, I am of the opinion that the cases provided by counsel reflect the range of sentence to which I have referred. [65] This sentence must be crafted with the authorities in mind and with the principles of sentencing applied to inform the fit andproper sentence, tailored to particular circumstances of these two offences, and the antecedents and background of Mr.

Chad. [66] I have also, during the course of the discussion, considered the conflict between the victim impact description of the deceasedvictim, Mr. Bennett, and the drug lifestyle conduct of Mr. Bennett. It is of, in my view, little analytical importance to my determinationof the fit sentence in this case. What is of importance was his defenceless position, lying asleep at the time that Mr. Chad made hisforcible entry into the room, stepping up onto the bed and waking him up with demands for money and drugs. [67] I am further of the view that the weight to be given to the s. 726 statement of Mr.

Chad, given two years after the fact as toremorse, while a sincere apology must be considered as being of less importance and weight when viewed in the context of his continuedcriminal conduct between November the 9th, 2013 and November the 22nd, 2013. IX. CONCLUSION [68] As I have set out above, and for the foregoing reasons, I have made a full consideration of the statutory provisions withemphasis on the proportional analysis of the seriousness of the offences and the degree of moral culpability of the offender, Mr. Chad.

This balance of aggravating and mitigating factors is mandated by the provisions of the Criminal Code and the sentencing case law and Iam particularly aware of the fact that it is an aggravating circumstance where a death has resulted as a result of intentional criminalconduct. [69] Mr. Chad is no longer a young man. His record and his conduct demonstrates that he continues to be a danger in thecommunity. His relapse into a violent, drug-trafficking lifestyle, his motive and his intent in the commission of this offence, being toretaliate, intimidate, extort, rob and humiliate, is troubling.

His previous convictions and sentence have not deterred him. [70] On balance, I find that there are significant aggravating factors, as I have outlined above but I must give weight to the followingmitigating factors: 1. The guilty plea. 2. The fact that, although to be given less weight, the s. 726 statement of Mr. Chad contained a sincere and genuine apology to theBennett family. Mr. Chad demonstrated, through his s. 726 statement, that he is articulate, intelligent, insightful and remorseful. It is toobad that he made that decision and came to that insight so late. 3. Mr.

Chad has the support of his now-sober parents who have demonstrated their intent to help him by coming to court and offeringhim a place to stay and work assistance on his release. 4. I am also aware of the fact that he did not intentionally discharge the firearm and I must give weight to that fact. [71] Weighing the aggravating and mitigating factors, I am of the view that the aggravating factors are of more significance than thebalancing analysis.

While his rehabilitation is important, at this time, the paramount considerations are denunciation, deterrence andprotection of the public. [72] For the foregoing reasons and balancing the factors and circumstances, I am of the view that the fit and proper sentence for themanslaughter standing alone is nine years. I place it in that middle of the continuum because of the fact that we are dealing here with aguilty plea and we are dealing here with a non-intentional firing of the firearm. That is the sentence that I would impose if the offencewas standing alone.

However, given the course of conduct between the November the 9th event and November the 22nd, I am of theview that balancing the aggravating and mitigating factors of the possession of the Webley revolver, that the fit and proper sentence forthe firearm count standing alone would have been five years. [73] A simple addition of those two, and having regard to the fact that the firearms count should be a consecutive sentence, wouldinvolve a sentence of 14 years.

However, I must take into consideration the principle of restraint in imposing combined sentences and, inparticular, I am having regard to the language of the Supreme Court of Canada in R. v.

M.(C.A.), (SCC), [1996] 1 SCR500, at pages 557 and 558 where Justice Lamer said the following: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender's conduct.

Furthermore, unlike vengeance,retribution incorporates a principle of restraint; retribution requires the imposition of -- I would highlight this: -- a just and appropriate punishment, and nothing more. [74] The Crown submitted that the fit and proper global sentence was 13 years. The defence has submitted that the fit and proper

global sentence commences at ten years. I am of the view, accordingly, that while a simple addition of the fit, standing alone, effective sentences would be 14, that the fit sentence, having regard to all of the submissions and the positions of counsel, is 13 years. [ 75 ] That will be imposed in the following, Madam Registrar: there will be nine years on the manslaughter; there will be four years' consecutive on the firearms count. [ 76 ] That would lead to an effective sentence of 13 years and, by virtue of the credit of 1103 days, it would lead to ten years minus 18 days.

That is the sentence which I impose. [ 77 ] As to the ancillary orders, pursuant to s. 109(2)(b), I am making a further firearm prohibition that you will be prohibited by the provisions of the Criminal Code in that

section to possession of any firearm, crossbow, prohibitive weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, explosive substance or any of those things for life. [ 78 ] Pursuant to s. 487.051, you will provide a sample of your DNA, as this is a primary designated offence. That will be such that into the database will go a recent sample. [ 79 ] Pursuant to s. 490(9) of the Criminal Code , there will be a forfeiture order of the Webley revolver and the ammunition, as well as the Kevlar vest. [ 80 ] The money, Mr. Merrigan, with respect to the forfeiture order? [ 81 ] MR.

MERRIGAN: The $1600 in Chinese currency, Your Honour, Mr. Chad is asking that that not be forfeited, as it was the property of his brother. It was sent to him from China to try to assist him. It's not the proceeds of crime and he'd like to see it returned to his brother or perhaps one of his family members. [ 82 ] THE COURT: Ms. Elliott? [ 83 ] MR. MERRIGAN: As to the other items that are listed on the -- [ 84 ] THE COURT: The Canadian cash? [ 85 ] MR. MERRIGAN: No, that can be forfeited. [ 86 ] THE COURT: Ms. Elliott, with respect to the Chinese currency? [ 87 ] MS.

ELLIOTT: No issue, Your Honour. [ 88 ] THE COURT: All right. Then the $1600 may be returned to Mr. Chad; the other items seized from him at the Petro-Can station and on his arrest will be forfeited to Her Majesty. [ 89 ] MR. MERRIGAN: Thank you, Your Honour. [ 90 ] THE COURT: Victim fine surcharge? [ 91 ] MR. MERRIGAN: He's not in a position to pay, Your Honour. I'm in your hands as to how to -- [ 92 ] THE COURT: Well, I do not have any discretion, with respect. [ 93 ] MR. MERRIGAN: He will need a very long time to pay. I mean I suggest that. [ 94 ] THE COURT: All right.

I will give him six months upon the conclusion of his incarceration to pay the victim fine surcharge. [ 95 ] Any other matter, Ms. Elliott? [ 96 ] MS. ELLIOTT: Your Honour, just two matters. Dealing first with the order of forfeiture. I'll make an amendment. I've done it -- I've done two. I did the firearm under s. 491 -- [ 97 ] THE COURT: Yes? [ 98 ] MS. ELLIOTT: -- and the other items, the Kevlar vest, Canadian currency, cell phone and Edmond Percy driver's license under 490(9). Is that okay if I prepare -- [ 99 ] THE COURT: Yes. [ 100 ] MS. ELLIOTT: -- that in that way?

And secondly, just referring to s. 743.2, I'm asking that the pre-sentence report and your reasons be submitted to -- forwarded to the Correctional Service of Canada. [ 101 ] THE COURT: Any issue? [ 102 ] MR. MERRIGAN: No, thank you. [ 103 ] THE COURT: I will order a copy of the Reasons, therefore, Madam Registrar, and I will order that my Reasons and the pre- sentence report be provided to Corrections Canada. [ 104 ] Before I conclude, Mr. Chad, I want you to understand something, sir.

You demonstrated in your 726 statement, if you wrote it, that you have the ability and the insight to communicate with the victims of these offences. You are now in a situation, at 32 years of

age, where this is truly a crossroads for you. You are going to prison for a lengthy period of time and that is appropriate, sir. The only issue is whether or not you are going to utilize it to change your ways. That is sometimes difficult in imprisonment settings, particularly if there are associates with whom you have interacted over the past 13 years. This is the time. You are capable of reforming. It is up to you. Good luck. [ 105 ] Thank you. We will conclude. [ 106 ] MR. MERRIGAN: One last thing, Your Honour.

I can assure the court that that statement was crafted by my client and my client alone. [ 107 ] THE COURT: Then my words have even more import. Your client is more than capable, if he chooses, to reform. [ 108 ] MR. MERRIGAN: Yes, Your Honour. [ 109 ] THE COURT: He has been involved in that criminal lifestyle for a long time now. (REASONS FOR SENTENCE CONCLUDED)