R. v. Braun, 2018 BCPC 169

Citation: R. v. Braun 2018 BCPC 169 Date: 20180511 File No: 241699-1; 241699-4-C; 245107-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JORDAN BRAUN EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. GORDON BAN ON PUBLICATION 486.5(1) CCC Counsel for the Crown: M. Donnelly Counsel for the Defendant: V. Aldosky Place of Hearing: Vancouver , B.C. Date of Hearing: May 11, 2018 Date of Judgment: May 11, 2018 [ 1 ] THE COURT: Jordan Braun comes before the court for sentencing on two Informations.

[2] He pled guilty on Information 245107 to a charge of Manslaughter, having originally been charged with the offence of seconddegree murder.

As well, on Information 241699, he pled guilty to one count of Break and Enter with an intent to Commit IndictableOffences at four separate residences. [3] With respect to the second Information, Crown and defence counsel have jointly submitted that whatever sentence I deemappropriate for the Manslaughter, that a sentence of six months consecutive is appropriate for the Break and Enter. [4] They have spent months discussing a file that they are both intimately familiar with.

In those circumstances, it is absolutelynot for me to question the appropriateness of that recommended sentence, and at the end of the day I will of course go along with therecommendation that was jointly placed before me. [5] With respect to the Manslaughter, what occurred is that on April 16, 2015, Mr. Braun and his two friends, one known only asC.P. and the other Mr.

Bobby Tutlam, had been consuming a number of substances, including Cocaine and Xanax. [6] At a certain point in the early morning hours, they ran out of those substances and decided that the best way to get more wouldbe to find someone on the street to rob so that they could order more drugs. [7] They had all been at Mr. Braun's residence. They armed themselves with weapons, Mr. Tutlam with a knife, Mr. Braun with ascrewdriver and Mr. C.P. perhaps with something akin to a machete, and they left the residence essentially hunting for a victim. [8] They did not find someone for a period of time. Mr.

C.P. got bored, hailed a cab to go back to the residence, but Mr. Braun andMr. Tutlam continued on. [9] Mr. Tutlam saw one who tragically was Mr. E.L. and he walked ahead of Mr. Braun to Mr. L. Mr. L. must have sensed thedanger because he apparently armed himself with a piece of wood on the street. Mr. Tutlam responded to that and the two of them gotinto some sort of physical altercation, wherein Mr. Tutlam stabbed Mr. L. [10] Mr. Braun intervened because Mr. L. was defending himself, and poked Mr. L. twice in the back with the screwdriver that hehad. Neither of the pokes had any effect particularly on Mr. L.

He died from the stab wound that was inflicted by Mr. Tutlam. [11] Mr. L. was a recent immigrant to Canada from the Philippines. He came to join his sisters who were here, and he left behindhis wife, two children and an infant who has since been born because his wife was pregnant when he left for Canada.

It was his intentionto establish himself sufficiently financially that he could bring his family over. [12] By all accounts, he was a wonderful human being and had come to Canada looking for a better life. [13] I have received victim impact statements from his various family members and to a person, as Crown counsel has pointed out,they say mostly what can only be expected, which is essentially what will be a lifelong fear for their own security. [14] More importantly of course, they feel the pain of his loss.

And that is something that I cannot imagine that they will not befeeling every day for the rest of their lives. The pain will never go away. They just might get used to having the pain. [15] Remarkably, Ms. M.A., in her victim impact statement, wrote a letter essentially to Mr. Braun, and she wrote: He came to Canada with a great dream for himself and his loving wife and for his three beautiful and smart kids, but sadly his life wastaken away to this place he considered home, to this place where he threaded his dreams that one day they will all live here as one happyfamily but this can no longer happen.

I miss him every day. I feel devastated every time I remember his untimely passing. I feel sorryfor my parents that they have to lose a son. I felt like I wasn't able to protect him. I can't forget my brother. I don't think what happened to him is okay but forgiveness is not about condoning violence or renouncing justice. It is about settingyourself free from anger so that it does not consume you.

That energy can then be used to bring people together. [16] I just found that absolutely remarkable that in the depths of her pain, she is able to see the broader picture. [17] The sentencing process for any crime is to consider the crime and of the individual. There is no reparation that can repair theviolence, particularly in a case where someone has been killed. There is no sentence that could repair that because the life cannot bebrought back. [18] I have no doubt from reading the victim impact statements, and from having heard of the not infrequent contact betweenMs.

Donnelly and the family, that the family is aware of the principles that I am required to consider in reaching the appropriate sentencefor this case. [19] Crown counsel is seeking a sentence for the Manslaughter of five to six years less time in custody. Defence custody, as Iunderstand it, is asking that I credit 729 days’ time served, which would be two years less one day, plus six months for the break andenters, followed by a period of probation. [20] I have been provided with a number of judicial authorities from both counsel: R. v. C.A.M., (SCC), [1996]1 S.C.R. 500; R. v. Ipeelee, 2012 SCC 13; R. v.

Pop, 2013 BCCA 160; R. v. Johnson, 2017 BCSC 1240; R. v. Johnny, 2016 BCCA 61;R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Vikilani, 2017 BCSC 2074; and R. v. McGoran, 2004 BCSC 1737. [21] With respect to the offence of Manslaughter, the Criminal Code provides that the available sentences range anywhere from thesuspension of sentence to life imprisonment. That is because the offence may be committed in the most disparate manners, from what isconsidered near accident to, at the end of the range, near murder. [22] In R. v.

Pop, Madam Justice Bennett, reviewing the appropriate authorities, concluded that generally the range is three to eight

years, and that generally the outside of that range is anywhere from one to ten years. [ 23 ] Each Manslaughter case is factually unique so that any authority that is provided to a Court is simply the appropriate sentence on that fact pattern, bearing in mind the offender who committed the offence. And this case is no different because there are very unique facts. [ 24 ] Mr. Braun comes before the court now 21 years of age. He will be 22 in December. He was 18 at the time of the Manslaughter. [ 25 ] He was born in New Westminster and he is one of his mother's five children.

Each of her children has his or her own father. [ 26 ] Mr. Braun's father is a First Nations individual, from Lytton, British Columbia. He left the family when Mr. Braun was five and Mr. Braun knows that he left Mr. Braun's mother, but sadly Mr. Braun has had to accept that, at that point in time, his father also elected to leave him, which was the first of many horrific scars which were inflicted upon Mr. Braun absolutely through no fault of his own. [ 27 ] Prior to his father leaving the family, though, Mr. Braun, his mother and his older sister had resided on his father's family reserve for a period of time.

Once his father elected to leave the family though, Mr. Braun's connection to his First Nations heritage was pulled away from him, and he has not been able, at least through his family, and at this point in his life, to reconnect to that heritage and take comfort from any aboriginal spirituality, if I may use that expression. [ 28 ] His mother had, obviously, significant demons that resulted in addictions to alcohol and to narcotic substances. Throughout Mr.

Braun's childhood, she frequently elected to consume substances rather than feed her children, and he learned that sometimes young people have to steal food simply to survive. [ 29 ] Luckily for Mr. Braun, throughout the course of his life, he met people who saw in him his humanity, and cared for him, and they continue to care for him. I have been provided with a number of letters of reference, all of which actually speak volumes about Mr.

Braun because they point out to me his humanity, and that when he was not under the influence of his own perhaps inherited demons, he was an amazing -- and is an amazing individual. [ 30 ] Clearly also, those individuals, none of whom condone the offences that he committed, feel remarkable guilt for not having intervened at various times in his childhood, and those include a stepfather who is present in court, a teacher, and actually a member of the Vancouver Police Department, all of whom had connections with Mr. Braun. [ 31 ] Mr.

Braun dropped out of high school in grade 10 and for a period of time was living on the street. Then he was able to connect with the Ministry and receive support as a youth, not living with his parents, and he began living with his girlfriend. [ 32 ] Something occurred after he aged out and he was simply not in receipt of any government assistance. It is unclear to me what happened or why, but eventually he began living with his girlfriend in a house. There was no one to tell them what to do and they began partying. Mr.

Braun, to support that activity, committed criminal activity which included the robbery of drug dealers, the tragedy of the death of Mr. L., and breaking into several residences. [ 33 ] Remarkably though, prior to his arrest and in the midst of all of this, he decided that he did not like the life he was living and he went back to school. He obtained his high school education and a forklift certificate, and he was hoping then to go on to study to be a plumber, and of course his arrest intervened, and he has been in custody since his arrest on November 26, 2016. [ 34 ] Mr.

Braun has been together with his girlfriend for seven years. They are in a very loving relationship. I have received a letter of reference from her father. [ 35 ] Anyone who knows him speaks very highly of him and, most importantly to this Court, of his prospects for rehabilitation. Everyone who knows him believes that he is not beyond redemption. [ 36 ] He has a young daughter who he does not know and who he will not know until he has finished serving whatever sentence I impose today. [ 37 ] Mr.

Braun entered guilty pleas to the charges which of course show legal remorse, but most importantly, he has told me how badly he feels for the offence and he has spoken to Mr. L.'s family and he appears genuinely contrite. [ 38 ] The issue for this Court is the appropriate sentence, bearing in mind his culpability for this offence, combined with the empathy that he deserves from the absolutely chaotic life in which he was raised wherein.

While of course he knew that all of his criminal activity was wrong, he was not raised in an environment where it was, if I may use this expression, as wrong as it would have been if he had had the benefit of loving, non-addicted, parents. [ 39 ] Mr. Braun has spent 530 days in custody. Because of the nature of pretrial facilities, where individuals do not get to see fresh air and are permitted to take only limited educational and other programming, individuals are entitled to enhanced credit for their time in custody. [ 40 ] Mr.

Braun is entitled to 795 days of enhanced credit, or about 65 days more than two years. I cannot conclude that that is sufficient for the offence of Manslaughter in this case. [ 41 ] While he was not the individual who inflicted the wound that killed Mr. L., he was very much a party to the offence. He went along in looking for someone to rob and poked at Mr. L. when Mr. L. was on the ground. [ 42 ] Having said that, however, there are a number of factors which persuade me that he ought not to go to a penitentiary.

[ 43 ] First and foremost, are penitentiaries themselves. They are horrific places. They are filled with people who have made a life of criminality, and they are filled with drugs. [ 44 ] Mr. Braun comes from a family with addiction issues and he himself certainly is not free from the dangers of addiction.

He is entitled to the recognition of every aspect of his background having hampered him, but he is also entitled, not only by virtue of his youth for my consideration of his prospects of rehabilitation, but what I think what I can conclude are his demonstrated prospects of rehabilitation because everyone who knows him believes that he is capable. [ 45 ] And with that assurance, I am satisfied that the penitentiary is the absolute inappropriate place for this young man. [ 46 ] As a result, with respect to information 245107, the offence of Manslaughter, there will be a sentence of 730 days time served plus 18 months. [ 47 ] In addition, with respect to information 241699-C-4, the Break and Enters, there will be a sentence of six month less one day consecutive.

So the total sentence, sir, would have been four years and two months. [ 48 ] All of which is to be followed by two years probation. [ 49 ] Keep the peace and be of good behaviour. [ 50 ] Report to probation services for supervision within 72 hours of your release from custody and thereafter as and when directed. [ 51 ] You are to attend for, participate in and complete to the satisfaction of the probation officer, all counselling, programming and treatment as directed by the probation officer, which is not limited to but ought to include substance abuse management, programming assisting you to reconnect with your First Nations heritage, and educational opportunities. [ 52 ] I just say this so that people understand the number that I have arrived at.

Probation services, when they speak with judges, asked that judges give no more than 50 hours of community service work because of the difficulty they have in placements and their conclusion that if someone actually performs the 50 hours, that they are working hard. [ 53 ] So in the result, there will be 50 hours of community service work to be completed to the satisfaction of the probation officer and to the community service work supervisor within the first six months following your release from custody. [ 54 ] For the first year of the order, you will have a curfew every day of the week, from 9 o'clock p.m. until 6 o'clock a.m. [ 55 ] You will be allowed outside of your residence during curfew hours only if you have the prior written permission of your probation officer or there is a medical emergency, in which case you will have to notify the police in advance of leaving your residence which hospital you are en route to. [ 56 ] You may not possess any weapons as defined by the Criminal Code of Canada , inclusive of firearms, imitation firearms, ammunition and explosives, except for knives to be used only for the preparation and consumption of meals, or in the course of employment. [ 57 ] I just wish to turn to Mr.

L.'s family. Do you wish an order protecting you that he have no contact with you? [ 58 ] UNKNOWN SPEAKER: Yes, please. [ 59 ] THE COURT: All right. You may have no contact, directly or indirectly, with any member of the family of Mr. E.L. You may not attend at any residence, place of employment, place of education or place of worship of any of those individuals that are known to you or become known to you. [ 60 ] Do you understand all those conditions, sir? [ 61 ] THE ACCUSED: Yes, I do. [ 62 ] THE COURT: All right.

There are a few other orders. [ 63 ] You are to provide a sample of your DNA to the authorities today. [ 64 ] Did I miss something? [ 65 ] MS. DONNELLY: Yes, a no-contact order with Mr. Tutlam, please. [ 66 ] THE COURT: Oh yes. You may have no contact, directly or indirectly, with Mr. Robert Tutlam. You may not attend at any residence, place of employment, place of education or place of worship of Mr. Tutlam that is known to you or becomes known to you. [ 67 ] Now I am going to add something. Because I have made the order, it cannot be printed, but I need C.P.'s first name. [ 68 ] MS.

DONNELLY: I'm sorry, I should know it off the top of my head very easily. [ 69 ] THE COURT: What is C's first name? [ 70 ] MS. DONNELLY: It's just disappeared from my brain. [ 71 ] THE COURT: I am asking the officer.

[ 72 ] UNKNOWN SPEAKER: Can I write it down for you My Lady, just because -- [ 73 ] THE COURT: Sure. [ 74 ] MS. DONNELLY: Oh, right. Sorry, yes, I'll write it down. I am sorry. I have a bit of a brain freeze. [ 75 ] THE COURT: Okay. Can I just see that? [ 76 ] MS. DONNELLY: Here, I will hand it up. [ 77 ] UNKNOWN SPEAKER: Paragraph 12. [ 78 ] THE COURT: All right. So, Mr.

Registrar, with respect to the name -- this name that I have just squared, you may have no contact, directly or indirectly, with an individual whose name is -- initials are C.P. but the name will be typed on the probation order. [ 79 ] You may not attend at any residence, place of employment, place of education or place of worship of that individual that are known to you or become known to you. [ 80 ] On all Counts there would have been a $200 surcharge, but in default of payment, two days concurrent, so you do not have to pay any money. [ 81 ] May I impose a prohibition for life, or is the maximum ten years? [ 82 ] MS.

DONNELLY: If I might have a moment, I do think it's a maximum of ten years. [ 83 ] THE COURT: So do I, but that is what I am asking you to check. [ 84 ] MS. DONNELLY: Yes, I will. [ 85 ] THE COURT: I am going to impose the maximum that I am able to -- [ 86 ] MS. DONNELLY: Yes. [ 87 ] THE COURT: -- but I just want to know what the maximum is. [ 88 ] I am going to ask you this, sir. There is a program on Vancouver Island called Guthrie House where individuals who have had addiction issues are able to go -- it is a minimum security facility -- and then reintegrate into the community.

Do you want that recommendation from me, or you don't? [ 89 ] THE ACCUSED: Yes. [ 90 ] THE COURT: All right, I am going to recommend that you be considered for Guthrie House. [ 91 ] THE ACCUSED: Okay. [ 92 ] MS. DONNELLY: Sorry, this is going to take me a moment, sorry. [ 93 ] THE COURT: We have time. [ 94 ] MS. DONNELLY: Okay. [ 95 ] THE COURT: While you are looking that up, I want to thank everyone who came here. I want to thank the family of Mr. L. I know how difficult this was for you.

It breaks everyone in this room's heart, the pain that you go through. [ 96 ] But your views of the justice system are remarkable, and you are remarkable people, and you need to know that. [ 97 ] And to the family and friends of Mr. Braun. You have actually, all of you, painted a picture to me of a human being, which is important, and your compassion and caring for him will help him while he is in prison, and he will know that, when he gets out, he has friends and family to return to positively. And I am thanking all of you for helping me find a just sentence in this case. Thank you. [ 98 ] MS.

DONNELLY: Well, the

section provides a minimum of ten years -- s. 109(1)(a). [ 99 ] THE COURT: All right. Do you presently own or possess any firearms, ammunition or explosives? [ 100 ] THE ACCUSED: No. [ 101 ] THE COURT: For the rest of your life, you are prohibited from owning or possessing any firearms, ammunition or explosives. [ 102 ] Good luck, sir. [REASONS FOR SENTENCE CONCLUDED]