R v DL, 2023 MBPC 16

UNREPORTED : R v DL , 2023 MBPC 16 THE PROVINCIAL COURT OF MANITOBA Winnipeg, Manitoba BETWEEN His Majesty the King ) C. Ritchot ) for the Crown – and – ) ) D. L. ) G. Wiebe ) for the Accused ) ) Delivered: ) March 22, 2023 Restriction on Publication Pursuant to s. 486.5(1) of the Criminal Code , any information that could identify the witness shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. ALLEN, P.J. (orally) [ 1 ] D.L. is before the court having plead guilty to Criminal Code

section 236 (b), Manslaughter. This charge arises from an incident which took place on August 1, 2021 at a residence on Atlantic Avenue in Winnipeg. The facts of the incident were set before the court in an Agreed Statement of Facts, which was filed as exhibit number four. [ 2 ] Summarizing the facts: The victim in this case was W.S., the uncle of the accused. Mr. S. was living in a house with several of his adult children. The accused and his girlfriend were living in a basement bedroom in the house. [ 3 ] On the evening of July 31, 2021, Mr.

S., his girlfriend G.F., the accused and his girlfriend (A.R.), were drinking alcohol and playing games that involved clothing removal and touching each other’s partners. All partners had consumed alcohol. At approximately 1:45 a.m., the two women went outside to let the dog out. Ms. R. told Ms. F. that she was going downstairs to sleep and asked her to convey that to Mr. L. Ms. F. then returned to the others and conveyed the message, but the accused did not hear the message and assumed she was going to the washroom. [ 4 ] The victim did hear the information as to Ms. R. and he told Ms.

F. that he was going to speak to her to convince her to continue partying. The facts as set out in the Agreed Statement of Facts continue: 5. The victim attended to the basement where [A.R.] was alone. [D.L.] attended downstairs a short time later and saw the victim on top of [A.R.] with his penis inside her. [D.L.] inferred that [A.R.] was being sexually assaulted. 6. [D.L.] was angry but calm.

He told the victim to get off of [A.R.], to which the victim replied “can I just have 5 more minutes”. [D.L.] responded that they needed to talk “right now”. 7. [D.L.] and his uncle went upstairs to the kitchen area to talk about what had occurred. Once upstairs, the victim apologized profusely to [D.L.], claiming that [A.R.] “was OK” with what he did to her, and stating that he did not know that [A.R.] and [D.L.] were in a relationship. [D.L.] responded that they had been dating for a while. 8. The victim was very concerned that this incident not damage his relationship with [D.L.].

He and [D.L.] briefly discussed how to resolve the situation and jointly determined to resolve it by having [D.L.] punch the victim. [D.L.] originally sought 3 punches but agreed to one at his uncle’s request. [D.L.] then punched the victim once causing him to stumble backwards and then sit on the floor leaning against the fridge. When [D.L.] was walking away the victim again commented that he did not want any bad blood between them.

Sometime after [D.L.] returned downstairs the victim lost consciousness. 9. [A.R.] later advised that she had not consented to any contact with the deceased in the basement. 10. [D.L.] called his stepfather, [C.W.], in tears. He asked [C.W.] to pick him and [A.R.] up, he then left the residence with [A.R.] to wait outside for [C.W.]. [D.L.] advised [C.W.] what had happened and [C.W.] returned to check on the victim. No visible injuries were noted, the victim was breathing and [C.W.] assumed he had just passed out. 11. [T.S.] saw her father and [D.L.] in the kitchen.

She heard arguing and then a bang. [D.L.] left the kitchen and she saw her father on the floor. She was frightened and contacted her mother, [M.S.]. Her mother contacted [D.S.], who was upstairs at the residence. He checked on his father and found him unresponsive. He awoke [G.F.] and contacted 911. 12. When [D.S.] later checked his phone he had received two text messages from the accused stating: “knocked out your dad I’m

moving out” “PS your dad’s a wimp, only took 1 punch.” [ 5 ] The Crown seeks a period of incarceration for two years less a day. [ 6 ] The defence submits that incarceration is not required to meet the principles of sentencing and that an appropriate disposition would be a suspended sentence. Alternatively, the defence submits that, if the Court does not feel the principles of sentencing can be met by a suspended sentence, then the appropriate sentence is a conditional sentence order (CSO). [ 7 ] A pre-sentence report (PSR) was prepared for this sentencing. The report indicates that Mr.

L. was 23 years old at the time of this incident and is 25 now. [ 8 ] Additionally, 11 reference letters were filed on behalf of Mr. L. Amongst these were letters from his mother and sister. A common theme in the letters is that D.L. is a “kind-hearted” person who has been known as being even-keeled and calm. [ 9 ] From the letter of K.B., a friend of Mr. L.: “[D.L.] has always displayed a cool, calm and collective manner. I can say I never saw any hostile or aggressive behavior from [D.L.]. The [D.L.] I know is an intelligent, quiet and down to earth person.” [ 10 ] And, from his teacher at R.B.

Russell: In the time that I have known him from when he was in my class until now, he has never shown a propensity for anger or aggression. He has only ever been kind, respectful and polite. From what I have seen during his time at R.B. Russell, I have also known [D.L.] to be an extremely loyal and caring friend to those he befriended. [D.L.] was always a wonderful student to work with, and within the time that I have known him, he has been steadfast in his upstanding character. [ 11 ] A very poignant letter was received from the subject’s stepfather, C.W. This letter detailed the childhood experienced by Mr. L.

That childhood included abandonment by his birth father and for a time his mother, his mother’s alcoholism, exposure to violence and near poverty. He also speaks with pride as to how, despite chaos, upheaval evictions, etc., D.L. managed to graduate with honours from St. Norbert Collegiate. Mr. W. also said something that is found in most of the supporting letters: Throughout his life, teachers and other leaders (IE church youth groups) have iterated what an amazing kid he is and how he helps everyone with anything. [D.L.] had rarely drank alcohol and only has had a few drinks a night from what I can tell.

I’ve never personally seen [D.L.] acting drunkenly. He would always be the responsible one in the room. He even scolds me when I drive over the speed limit a little bit. [ 12 ] From the letter of D.B.: The thing that impacted me the most about [D.L.] was not only how truly friendly he was to me, but how he was to others. . . Never have I met someone so kind hearted until he came into my life. I truly have to be honest that the daily calls between us as a friend group, especially from [D.L.], helped me go through the death of my own mother who died of cancer.

I was in a truly dark place but I will forever be eternally grateful to him. My good friend [D.L.] I can truthfully say that I can not imagine my life without him. He is truly the definition of a kind person. A friend of mine and truly a friend to all. [ 13 ] From his friend, A.L.: If you were to ask me to think of the most delightful or most compassionate people I know, [D.L.] is one of the first to come to mind. . . I remember I had a dreadful breakup which put me into a deep depression, and lashed out against many of my friends. None other than [D.L.] understood my pain and handled my grief.

Not once did he himself lash out or pull away. To be able to take such hurtful words I, ashamedly, spoke to him and offer nothing but compassion shows true character. ( sic ) [ 14 ] The reference letters in my mind establish that this offender has significant family and community support. They also provide compelling evidence that Mr.

L. is a hard working, normally gentle person, who is extremely valued by those he interacts with. [ 15 ] The PSR writer at page three says: The Agreed Statement of Facts was reviewed with the subject, and he offered no attempts to rationalize, minimize, or excuse his behaviour, while expressing remorse. The subject spoke of his relationship with the victim over the course of his life, and advised they had a good relationship prior to the offence.

He acknowledged the gravity of his circumstances. [ 16 ] The PSR reports that due to his father’s disappearance and his mother’s alcohol abuse problems, he lived with his maternal grandparents until age five. He was returned to his mother’s care at that age and began living with her and her partner C.W. and

numerous stepsiblings. As stated earlier, a period of stability followed which was basically eroded by his mother’s increased abuse of alcohol. [ 17 ] At present, Mr. L. lives with his girlfriend A.R. and her family. Ms. R. told the PSR reporter that since the events before the court happened, Mr. L. has “shut down” and keeps to himself. [ 18 ] S.R., A.R.’s sister, says that since the offence Mr. L. has “slowly become a recluse” (PSR, page 8). [ 19 ] Mr. L.’s mother is from Opaskwayak Cree Nation and his father is from Long Plains.

There have been issues with alcohol abuse for multiple generations in his family and additional collateral issues of domestic violence. [ 20 ] I am satisfied that there are Gladue factors in this case that should be considered in assessing Mr. L.’s moral culpability. This offence took place when both victim and offender had been drinking. [ 21 ] Mr. L. is described by literally all who know him as normally gentle, calm and not given to anger or emotional outbursts. [ 22 ] At page 18, paragraph two of the PSR, the report says: The subject does not present with a problematic history of anger or violence.

All sources contacted for this report denied the subject had any difficulties dealing with emotional regulation as a child or adult. In fact, he is roundly described as being calm in most situations. The subject has not been diagnosed with any mental health problems. With regard to alcohol and drug use, the subject acknowledged having used alcohol at the time of the offence. Regular alcohol use may have been a problem that was developing at that time, as per his partner. The subject was raised with excessive alcohol use around him, and there is a family history of such.

He reported occasional cannabis use prior to the offence, but no experimentation with other substances. To his credit, all source[s] indicate that he has abstained from alcohol and drugs since his release on this offence. [ 23 ] Gladue factors are elements of the subject’s life that are commonly found amongst Indigenous peoples and are normally attributed to racism and the cataclysmic overthrow of traditional Indigenous culture which resulted from colonial settlement in Manitoba. Mr.

L.’s childhood contains multiple of these factors and they are in my opinion a moderate component of the offence before the court. [ 24 ] Ultimately the offender was assessed by the PSR reporter to be a low risk to re-offend and probation was not considered to be required. [ 25 ]

Section 718.2 (

a) of the Criminal Code reads: “[A] sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”. [ 26 ] In this case, it is notable that Mr. L. has managed despite difficult circumstances to graduate from high school with honours and is employed at a full-time job. Additionally, he is well liked, one might even say highly valued, by his family and friends. [ 27 ] He is youthful and has no history of previous violent or angry behaviour. [ 28 ] It is also notable that in this case, Mr.

L.’s violence towards the deceased victim was agreed to by the victim and resulted from significant provocation. [ 29 ] Additionally, it is a positive factor that all indications are that Mr. L. is remorseful as to what happened. The purported change in his behaviour, as reported by Ms. R. and others, is evidence of the impact this event has had on his life. [ 30 ] It is aggravating that this event occurred after the deliberate application of force. This was not an accidental occurrence. It is aggravating that the victim was unprotected and vulnerable. Clearly, Mr.

L. was reckless as to the potential consequences of punching the victim. It is aggravating that after applying significant force against his uncle, Mr. L. did not adequately support or assist the victim. This concern is reduced somewhat by the fact that the victim was still conscious and speaking when Mr. L. left him and that Mr. L.’s stepfather checked on the victim and reported that he was okay. [ 31 ] Ultimately, this sentencing decision comes to a question as to whether the principles of sentencing, as set out in the Criminal Code require a period of incarceration or alternatively some other sentence. [ 32 ]

Section 718 of the Criminal Code sets out the principles of sentencing. One of these principles is denunciation. [ 33 ] In this case, an appropriate sentence must denounce senseless violence which resulted in death. Our society cannot function wherein violence is a fit solution for any issue or disagreement. Mr. L.’s conduct in punching his apparently intoxicated uncle as a result of an agreement must be significantly denounced. Additionally, behaviour of this nature must be deterred. There cannot, under any circumstances, be a free pass for violence, whether agreed to or not. [ 34 ] Criminal Code

section 718.2 (

b) reads: “[A] sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [ 35 ] To this end, both the Crown and defence filed case books and cited cases. I will refer below to those that I found most significant for this sentencing. [ 36 ] The Crown referenced the Nova Scotia Court of Appeal case of R v Henry , 2002 NSCA 33 . In that case the offender was answering for a one-punch assault which resulted in the death of the victim. The Court of Appeal sentenced Mr. Henry to jail for four years. In my opinion, this case was dissimilar to the case at bar in that the sober Henry pursued the victim after any provocation had

ended and then sucker-punched his drunk and smaller victim. The victim had no idea the punch was coming and no opportunity todefend himself. [37] As stated by the Court at paragraph 29: In Proulx, [2000 SCC 5], Lamer, C.J.C. noted at §106: . . . there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable wayin which to express society’s condemnation of the offender’s conduct. This is one of those cases.

The aggravating circumstances of this case, especially the respondent’s continued notion that his action wasjustified, and the predatory callousness of his intentional assault on a smaller, intoxicated man, demonstrate a moral blameworthiness thatplaces this offence well beyond the near accident point on the spectrum. A sentence that emphasizes deterrence and denunciation isrequired. As Pugsley, J.A. remarked in R. v. G.A.M., (NS CA), [1996] N.S.J.

No. 52 at § 93: The sentence imposed by this Court should reflect society's recognition of the unique gift of life and the seriousness with which we viewthe actions of those who trivialize that gift by taking it from another. [38] Similarly, in R v Isenor, 2007 NSPC 70, from the Provincial Court of Nova Scotia, the offender killed the victim with onepunch. The victim had been verbally harassing the offender outside a bar. The offender decided that the victim “deserved a punch in themouth”. This was not a consensual fight nor was the victim expecting to be struck.

Additionally the perpetrator, right up to thesentencing, continued to maintain that what happened was an accident and believes, “to some degree, that his actions were justified onthe basis of [the victim’s] behaviour” (para 31). [39] Again, there is in my opinion, significant difference between an unanticipated assault and the circumstances in the case at bar. [40] The final case cited by the Crown is R v Sharpe, 2019 BCSC 1754, another one-punch causing death case. [41] In that case the offender had been told by his girlfriend that the victim had been harassing her in her car while she waited forhim, while he was in a bank.

She told him that the victim had thrown a lit cigarette on her while she sat in her car. She then pointed out toMr. Sharpe that the offender had gone into a nearby Starbucks. The offender went into the Starbucks, saw the victim and withoutwarning, punched him. [42] In that case the act was intentional, the victim was no longer a threat and the perpetrator had time to compose himself. He wassentenced to incarceration for two years. [43] Again, in my mind the Sharpe case differs from the case at bar in that the victim had no idea that an assault was about tohappen and had no opportunity to defend himself.

The victim did not agree to or accept being assaulted. [44] Returning to the R v Henry case, where at paragraph 19 it says: A significant distinguishing factor between cases where a low or non-penitentiary term is appropriate and those where a lengthy sentenceis imposed for manslaughter is the moral blameworthiness or fault of the offender (Creighton, [ (SCC), [1993] 3 SCR3]).

The court, while of course giving due weight to all the principles of sentencing must assess the extent of moral blameworthiness in aparticular case, and should consider where on the spectrum, from almost accident to almost murder, the particular offence falls. Obviously, the nearly equivalent to murder offences will, in general, attract a sentence higher than the majority, for example Julian,[ (NS CA)], and those closer to an accidental killing will generally fall below the average, for example, R. v. Owens,[1986] B.C.J. No. 401 (B.C.C.A.). As noted in R. v.

Myette (1985), (NS CA), 67 N.S.R. (2d) 154 at § 47: The offence of manslaughter carries a maximum sentence of life imprisonment. The range of sentences imposed in Nova Scotia has beenfrom suspended sentence (e.g., R. v. Cormier (1974), (NS CA), 9 N.S.R. (2d) 687 (N.S.C.A.)), to twenty years'imprisonment (R. v. Julian (1973), (NS CA), 6 N.S.R. (2d) 504 (N.S.C.A.)). Lenient sentences have been imposedonly where very strong mitigating factors exist or where the act, though culpable, was close to being an accident.

In the great majority ofmanslaughter cases sentences range from four to ten years. (emphasis added [in Henry]) [45] As well, at paragraph 20 the Court listed examples of mitigating factors which have influenced courts to be lenient in theimposition of sentences in manslaughter cases. These factors included: “extreme stress or provocation”, which in my opinion is found inthe case at bar in light of the victim’s behaviour towards the offender’s girlfriend; “poor family background, abuse as a child” – in thecase at bar there is considerable evidence as to an unfortunately chaotic childhood for Mr.

L.; “genuine remorse” – in the case at bar I amsatisfied that the evidence before the court establishes that Mr. L. is genuinely remorseful about the death of his uncle; “youth ofaccused” – clearly Mr. L. is a very young individual; and finally, “ready admission of responsibility” – in this case, Mr. L. co-operatedwith police and in the opinion of the PSR writer, fully accepted his responsibility for the death of the victim. [46] In the Manitoba Court of Appeal case of R v Colin Clemons, 2003 MBCA 51, Mr.

Clemons was given a two-year CSO formanslaughter despite having stabbed the victim nine times. [47] In the case at bar, Mr. L. went downstairs to check on his girlfriend and found his uncle having sex with her. Ms. R. says thiswas not with her consent. This is the framework from which an agreement was reached that Mr. L. should punch the deceased. While itis easy to question the thinking behind this agreement, it is also easy to understand that finding his uncle apparently sexually assaultinghis girlfriend would be substantial provocation.

[ 48 ] Further, despite the fact that Mr. L. did not immediately strike the uncle but instead said “upstairs now”, I do not believe that given the circumstances of the drinking involved, etc. that the provocation would have worn off or somehow dissipated. I am satisfied that the circumstances before the court indicated that there was substantial provocation in this matter. [ 49 ] In R v Senner , 2005 BCSC 1279 , the offender was given a two-year CSO.

One of the factors considered in the sentence was a jury finding, which the Judge supported, that the offender had been provoked by discovering infidelity on the part of the deceased. In that case, during a struggle, the offender stabbed the victim in the groin and he died as a result of loss of blood. [ 50 ] As stated earlier, an appropriate sentence in this case must denounce a crime that resulted in the loss of life. In R v Proulx , 2000 SCC 5 , Lamer CJ said at paragraph 102: Denunciation is the communication of society's condemnation of the offender's conduct.

In M. (C.A.), supra , at para. 81, I wrote: In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74 , at p. 77 : “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”.

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. [ 51 ]

Section 718.1 of the Criminal Code says that a sentence must be proportionate to the gravity of the offence and the responsibility of the offender. [ 52 ] In this case, the gravity of the offence is obvious. The harm done when a life is lost is clearly demonstrated in the victim impact statement (VIS) provided by the victim’s wife. He’s gone and we never had a chance to see what would have come next. We never had a chance to say goodbye. My kids should have had a dad to see them graduate, see them become adults. My husband should have had a chance to see our kids get married or be a grandfather some day.

He was always the one to take care of whatever the kids needed for birthdays or Christmas. He was only 41 years old, he could have been around for another 40 years. These possibilities was taken from us and we can never get them back. Nothing we can do to change what’s happened. Living with this is so very hard. I break down daily whenever something triggers a memory or a thought about my husband. My youngest daughter is struggling immensely. She was the only one in the house who heard what happened. She is unable to go to school. She has anxiety and she doesn’t want any social interactions.

She panics if I don’t answer the phone right away. She has trouble getting to sleep. It will be a lifetime of healing for her. [ 53 ] In this case the gravity is clear. [ 54 ] It is not as easy to set out Mr.

L.’s responsibility, as his responsibility is tempered by the above discussed Gladue factors and by the provocation that occurred prior to the fatal blow. [ 55 ] In my opinion, this case can be differentiated from many of the precedent cases filed as to this not being a surprise attack but an agreed upon solution. [ 56 ] In my opinion, the principles of sentencing in this case cannot be met by the imposition of a suspended sentence. The gravity of the offence and the aggravating components enumerated above, require the imposition of a custodial sentence. [ 57 ]

Section 742.1 of the Criminal Code sets out the regime for conditional sentences. [ 58 ] In this case, balancing all of the sentencing principles discussed above, I am satisfied that a penitentiary term is not required to meet the principles of sentencing. Given the assessment in the PSR that probation is not called for, I see no value in a probationary period. Given the fact that Mr.

L. has no previous criminal record and there is no evidence of violent behaviour in his background, I am satisfied that service of his period of incarceration in the community would not endanger the community. [ 59 ] I am also satisfied that a CSO in this case does adequately denounce this crime and meet all other relevant sentencing principles as set out in

section 718 of the Criminal Code . [ 60 ] Accordingly, Mr. L. will be sentenced to a period of incarceration for 18 months. This incarceration will be served in the community pursuant to

section 742.1 of the Criminal Code . Original Signed by Judge Allen H. L. ALLEN, P.J.