Her Majesty the Queen - v. -, 2012 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 011 Date: January 9, 2012 Information: 36106837 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Parker James Butterfield Appearing: Elizabeth Hilts For the Crown Michael Tochor , Q.C. For the Accused SENTENCING DECISION J. D. KALMAKOFF , J I. INTRODUCTION [ 1 ] Parker Butterfield pled guilty to dangerous operation of an aircraft causing death, contrary to section 249(4) of the Criminal Code .

The offence occurred in Fort Good Hope, Northwest Territories, on May 20, 2010. After being charged, Mr. Butterfield arranged for the charges to be waived to Saskatchewan for a guilty plea.

[ 2 ] This is my decision on sentence. II. FACTUAL BACKGROUND [ 3 ] At the time of the offence, Mr. Butterfield was 23 years old. He was a commercial pilot employed by North Wright Airways. The victim of the offence, 26 year old William Bleach, was similarly employed. On May 20, 2010, Mr. Butterfield had piloted a cargo flight from Norman Wells to Fort Good Hope. Mr. Bleach was also at Fort Good Hope that day, having arrived there earlier with a flight of his own. He remained at the airport to assist in unloading Mr. Butterfield’s plane. [ 4 ] In addition to being a pilot, William Bleach also enjoyed photography.

People who knew him described him as a “shutterbug”. Once Mr. Butterfield’s plane was unloaded, Mr. Bleach asked him to take off again and perform a flight manouevre known as a “low and over”. This meant that Mr. Butterfield was to fly his plane, a Cessna 207, low to the ground and past where Mr. Bleach stood with a camera, attempting to capture interesting photos or video footage. The inherent danger in such a manouevre was obvious, as it would require the plane to be flown low to the ground and in close proximity to where Mr. Bleach would be standing.

Furthermore, on this occasion, the danger was exacerbated by the fact that there were strong, gusty winds. Despite being aware of the significant dangers involved, Mr. Butterfield agreed to perform the manouevre. He took off from the runway, turned the plane around, and attempted to fly low to the ground past Mr. Bleach. As he did so, the plane encountered a gust of wind, and was blown off course so that the wing of the plane struck Mr. Bleach and caused injuries that were ultimately fatal. III.

POSITION OF THE PARTIES [ 5 ] The Crown seeks a period of imprisonment in the range of 12 - 18 months, given the gravity of the offence. The defence argues that a period of imprisonment is not necessary, and suggests instead that in light of Mr. Butterfield’s personal circumstances and the low risk that he poses to re-offend, a community-based sentence such as a suspended sentence would be more appropriate, notwithstanding the serious nature of the offence. IV. THE OFFENDER [ 6 ] Parker Butterfield is now 24 years old.

He has no previous criminal record, and there is no evidence of any other record of offences relating to the operation of motor vehicles or aircraft. He graduated from high school in 2005, and secured a commercial pilot’s licence in early 2007. From June of 2007 until the date of the offence, he was employed as a pilot. Since the offence, he has been continuously employed in other businesses. He does not have any problems with addictions or substance abuse. The pre-sentence report was overwhelmingly positive, and points out that the risk of him re-offending is negligible.

Letters of reference filed with the Court describe him in glowing terms. He entered a guilty plea, and accepts full responsibility for his actions. I accept that he is genuinely remorseful regarding the offence. V. RELEVANT LEGAL PRINCIPLES [ 7 ] While I must be mindful of the circumstances of the offender, they cannot be my sole focus in determining the appropriate sentence. My decision must be guided by the provisions of sections 718 to 718.2 of the Criminal Code . [ 8 ] According to

section 718 , the fundamental purpose of sentencing is to contribute to respect for law and the maintenance of a just, peaceful and safe society by imposing just sanctions having one or more of the objectives set out in that section. Those objectives include denunciation of unlawful conduct; deterring the offender and others from committing offences; separation of offenders from society where necessary; rehabilitation of offenders, providing reparations to the victim and community; and promoting a sense of responsibility in offenders as well as acknowledgment of harm done.

The relative emphasis to be placed on each of these objectives varies according to the circumstances of the offence and the offender. [ 9 ] The fundamental principle of sentencing, as set out in

section 718.1 of the Criminal Code , is that a sentence must be

proportionate to the gravity of the offence and the degree of responsibility of the offender. This means that, whatever emphasis is givento the sentencing objectives listed in

section 718, the resulting sentence must respect the fundamental principle of proportionality. [10]

Section 718.2 requires a sentencing judge to have regard for secondary sentencing principles, including consideration ofaggravating and mitigating circumstances, totality, parity, and the need to consider all available reasonable sanctions other thanimprisonment.

a) Proportionality: gravity of the offence, and the degree of responsibility of the offender [11] Proportionality is central to the sentencing process (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Solowan, 2008SCC 62, [2008] 3 S.C.R. 309). It is the most important of the factors codified in sections 718 to 718.2 (R. v. Arcand, 2010 ABCA 63). Itserves the principle of restraint by requiring that a sentence not exceed what is just and appropriate, given the moral blameworthiness ofthe offender and the gravity of the offence.

It also seeks to ensure that offenders are held responsible for their actions and that thesentence properly reflects and condemns their role in the offence and the harm caused (R. v. M. (C.A.), (SCC), [1996] 1S.C.R. 500, at para. 81 - 82). [12]

Section 249 of the Criminal Code reads, in part, as follows: 249(1) Every one ... who operates... ... (

c) an aircraft in a manner that is dangerous to the public... ... (4)...and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term notexceeding fourteen years. [13] A mere accident or momentary lapse in concentration is not sufficient to make out the offence of dangerous operation; asignificant deviation from normal, safe practices is required. In the case of dangerous operation of an aircraft, this takes a markeddeparture from the standard of care of a reasonable and prudent pilot (R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49).

The maximumpenalty for dangerous operation of an aircraft causing death is fourteen years imprisonment. By definition, it is a very serious offence. [14] As with any offence, there are varying degrees of severity in the manner in which dangerous operation may be committed. For instance, cases involving deliberately dangerous acts will be seen as more serious than those that are closer to accidents. Offencesinvolving acts of longer duration are generally more serious than those of shorter duration.

Those involving operating while under theinfluence of alcohol or drugs may also be looked upon as more serious than those in which alcohol and drugs are not a factor. [15] In this case, Mr. Butterfield was not under the influence of alcohol or drugs at the time of the offence. He did notintentionally strike Mr. Bleach with the airplane. The dangerous operation in which he engaged was not carried out over a protractedperiod of time. It is common ground that Mr. Butterfield undertook the flying manouevre that ultimately led to Mr. Bleach’s death atMr. Bleach’s request. [16] That said, it is clear that Mr.

Butterfield was not a novice pilot on May 20, 2010. He had nearly three years of commercialflying experience. The act in which he agreed to participate was unnecessary and inherently dangerous. It involved low-level flight inclose proximity to an unprotected person standing on the runway, for a purely recreational purpose. It was made even more dangerousby the strong, gusty winds that existed at the time, and the fact that Mr. Butterfield was flying a small plane that would be morevulnerable to such winds. Mr.

Butterfield was fully aware of the risks that existed, and still chose to fly the plane in the manner he did,and because of that, William Bleach is dead. Although the tragic consequence of Mr. Bleach’s death was not intended, it was hardlyunforeseeable. [17] I consider both the gravity of the offence and the degree of Mr. Butterfield’s responsibility in this case to be very significant.

b) Purposes of Sentencing -

section 718 [18] Mr. Butterfield has no prior criminal record, no significant personal issues which need to be addressed, and is seen as a verylow risk to re-offend. I am satisfied that he does not need to be specifically deterred from committing further offences by the sentencethat I impose, as I am confident that the consequences of his conduct, namely the death of a friend and subsequent criminal proceedings,are likely all the deterrence he needs.

There is no specific area in which he requires rehabilitation, and because he is such a low risk tore-offend, it is not necessary to separate him from society for the sake of public protection. [19] However, the sentence cannot focus entirely on Mr. Butterfield; there are other interests at stake. The nature of his crime issuch that the sentence I impose must adequately denounce the conduct, and must be sufficient to deter others from committing similaroffences. While no sentence I impose can adequately compensate the victims, including Mr.

Bleach’s family and friends, the sentencemust acknowledge the harm this offence has caused to the victims and the community. [20] In cases such as this, denunciation and deterrence play a significant role in maintaining public confidence in the administrationof justice (See R. v. Blackwell (1999), (SK CA), 180 Sask. R. 102 (C.A.)). As the Alberta Court of Appeal noted inArcand, supra, denunciation is an important aspect of sentencing in serious crimes, very much tied to the proportionality principle.

Inlight of the serious circumstances of this case, denunciation and deterrence must be given priority in deciding the appropriate sentence.

c) Relevant aggravating and mitigating factors [21] In this case, I consider the fact that Mr. Butterfield was fully aware of the significant risk his conduct involved to be anaggravating factor. He was aware of the risk, but still chose to run that risk. The devastating impact of Mr. Bleach’s death upon hisfamily, most particularly his mother, is also an aggravating factor. [22] There are a number of mitigating factors in this case, which include the following: • Mr. Butterfield’s guilty plea, which occurred prior to trial or preliminary inquiry; • The fact that Mr.

Butterfield stayed on scene to do what he could to help Mr. Bleach in the aftermath of the offence; • Mr. Butterfield fully cooperated with police and accepted full responsibility for his actions; • Genuine remorse, which was conveyed to Mr. Bleach’s family; • His lack of criminal record, and otherwise exemplary conduct in the community.

d) Parity: sentences in similar cases [28] The principle of parity is embodied in

section 718.2(

b) of the Criminal Code. It dictates that an offender’s sentence shouldbe similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. Parity, however, does notmean uniformity. The proportionality principle, and the individual nature of sentencing means that disparity can exist wherecircumstances warrant. Such disparities, however, should not be egregious, or unjustified. [29] Counsel have brought to my attention two cases involving operation of aircraft in which death was caused, and criminalcharges resulted: R. v. Tayfel, 2008 MBQB 101, 226 Man. R. (2d) 302. In this case, the accused was the pilot of a small commercial aircraft that ran out

of gas while in flight, and had to make a crash landing on a major street in Winnipeg, killing one passenger, and injuring four others. Hewas convicted of criminal negligence causing death, and four counts of criminal negligence causing bodily harm. The accused was seenas a low risk to re-offend, and was extremely remorseful. The sentencing judge considered the breach of trust involved by failing toproperly fuel the plane as a major aggravating factor.

The trial judge imposed a two year less a day conditional sentence, noting the needto focus on denunciation, and commenting that a suspended sentence would not be sufficient for that purpose. R. v. Page (1991), (AB CJ), 121 A.R. 325 (P.C.). This case involved a crop sprayer who, while crossing a highway,flew his ultra light plane too low and struck a vehicle, killing its driver. The accused had no record, and was seen as a low risk toreoffend. The Court imposed a sentence of one day in jail, followed by probation.

However, this sentence was in large part based on thefact that the Court considered the only fault of the accused to be failing to keep a proper lookout, and noted that the case did not involvefactors such as stunt flying or other recklessness, or a disregard for prevailing conditions such as wind or obstacles that would affect thecare expected of the accused. [1] While there is some guidance to be taken from these cases, their value as precedent is limited. The accused in Tayfel wasconvicted at trial of criminal negligence causing death, which is a more serious offence than dangerous operation causing death.

Theconviction for criminal negligence causing death was overturned on appeal (2009 MBCA 124, leave to appeal to S.C.C. refusedDecember 9, 2010, 416 N.R. 386n), and a conviction for dangerous operation was substituted. The Court of Appeal never dealt with theissue of sentence, as the accused ultimately abandoned his appeal in that respect. [2] I consider Page to be distinguishable because the manner in which the aircraft was operated in that case was a much lesssignificant departure from the standard of care of a reasonable and prudent pilot than I view Mr.

Butterfield’s actions to be. [3] In considering the principle of parity, it is important that I examine sentences imposed in other cases of dangerous operationcausing death, but I need not restrict my consideration to cases involving dangerous operation of aircraft. Dangerous operation causingdeath in section 249(4) carries the same maximum penalty whether the conveyance being operated is a car, truck, ship, train, motorcycle,aircraft, snowmobile, or any of the other methods of transportation listed in section 249(1).

Parliament has recognized that dangerousoperation of any of the types of vehicles or conveyances listed in section 249(1) is criminal, because the consequences are potentiallydeadly. In my view the relevant “similarity” of the offence, for the purpose of considering the parity principle, is to be found in thenature of the operation, including the inherent risk involved in the conduct, and the extent of departure from the reasonable operationstandard that it represents, rather than in the type of vehicle involved. [4] As I see it, these are the important points of comparison in Mr.

Butterfield’s case: • An offender with no criminal record or other record of non-criminal driving offences; • An offence involving intentional risk-taking, with appreciation of dangers involved; • No alcohol or drugs involved; • A remorseful offender, of otherwise good character, and low risk to re-offend; • Offending conduct of relatively brief duration, despite devastating consequences. [10] In this respect, I consider the following Saskatchewan cases to be of particular relevance: R. v. McKay (1997), (SK KB), 157 Sask. R. 168 (Q.B.), affirmed (1998), (SK CA), 168 Sask. R.176 (C.A.).

In this case, the accused was an ambulance driver, transporting a patient in a non-emergency situation during a snowstorm. In attempting to pass a tractor-trailer unit on a two-lane highway, he pulled into the oncoming lane in zero-visibility conditions, andstruck another vehicle head-on, killing one passenger. The accused had no criminal record, glowing character references, and was seenas a minimal risk to reoffend. The trial judge imposed an 18-month conditional sentence of imprisonment, which was upheld by theCourt of Appeal. R. v. Delaittre (1998), (SK CA), 168 Sask. R. 195 (C.A.).

The accused was a male, aged 19 at the time of the

offence, and 21 at the time of sentencing. He and another individual were driving down a busy city street, weaving in and out of traffic. While doing so, the accused struck and killed a pedestrian. The accused had no criminal driving record, but had four convictions for exceeding the speed limit before the offence, and two more after. The Court of Appeal increased his sentence to 15 months imprisonment, which the Court described as being at the “bottom of the range”. The Court of Appeal also noted the need to focus on deterrence. R. v. Blackwell , supra .

In this case, the accused was 18 at the time of the offence, and 20 at the date of sentence. He was traveling 100 km/h in a 50 km/h zone, when he broadsided a car at an intersection, killing a young child in that car, and injuring the other occupants. He also had previous convictions for provincial traffic offences such as speeding and disobeying a stop sign.

The Court of Appeal increased a 15 month conditional sentence imposed at trial to one of 18 months custodial incarceration, noting that such a sentence was necessary to comply with the proportionality principle of sentencing, and also to maintain public confidence in the administration of justice. The Court focused on deliberate risk-taking by the accused as a significant factor which elevated the gravity of the offence, thereby requiring the Court to focus on deterrence and denunciation as sentencing goals. R. v. Decap , 2003 SKQB 450 , 239 Sask. R. 244.

In this case, the accused was convicted of dangerous driving causing death, and dangerous driving causing bodily harm. He had been drinking, and was traveling more than 120 km/h in a 100 km/h zone. Passengers in the accused’s vehicle were throwing beer bottles at signs as they drove down the highway. The accused drove over to the shoulder to get closer to a sign so his passenger could throw a bottle. In doing so, he lost control on the shoulder of the road, rolling the vehicle, and killing one passenger. The accused was 20 years old, remorseful, and considered a low risk to re-offend.

He had one previous conviction for impaired driving. The Court imposed an 18 month jail sentence and three year driving prohibition, noting that anything less than incarceration, in the circumstances, would not adequately reflect the gravity of the offence or the degree of responsibility of the offender. [11] There are a number of Saskatchewan cases in which much lengthier terms of imprisonment have been imposed for dangerous operation causing death. However, for the most part, lengthier terms of imprisonment are associated with cases involving either an offender with a lengthy criminal record (See R. v.

Belly , 2011 SKCA (SentDig) 19), or cases involving alcohol or drug use as a significant aggravating factor (See R. v. Smith, 2009 SKCA 38 , 324 Sask. R. 142), or a combination of the two. To the extent possible, I have left such cases out of my consideration, as the presence of such aggravating factors makes them inappropriate for comparison. [12] I have also considered cases from other jurisdictions which, while not binding, are helpful because they involve offenders and conduct which I consider to be similar. R. v. Currie , 2002 CarswellOnt 2128 (Ont. S.C.) , affirmed (2004), 8 M.V.R. (5 th ) 171 (C.A.) .

This case involved an accused who deliberately drove his car towards the end of a pier, intending to stop just short of the end, to give his passengers a thrill. He was unable to stop, and drove off the end of the pier, resulting in the death of a passenger. The accused was 39, and had a previous record for dangerous driving and impaired driving. The Court imposed a jail sentence of two years less a day, noting the need for deterrence and denunciation, given the deliberate risk-taking involved, and the past record of the accused.

The Court noted that a jail sentence was “...required to denounce this conduct and to act as a deterrent to any other persons who might be inclined to use a motor vehicle in like circumstances to give someone a thrill...”. R. v. Palliser , 2011 QCCQ 1475 (C.Q.). In this case, the deceased was the passenger in the accused’s car. The deceased got out to “car surf” by riding on the roof. Knowing this, the accused kept driving. The deceased fell off and died. The accused was 35, employed, married, and the father of two children. He had no record, and was highly regarded in his community.

He was remorseful and entered an early guilty plea. It was agreed that he was not the instigator of the “car surfing”. The Court imposed a 10 month jail sentence, followed by 1 year of probation. R. v Doucette , 2005 NBQB 124 . In this case, the 19 year old accused was driving a van full of his friends. Over a distance of less than one kilometer, and a time span of less than one minute, he swerved the van intentionally a number of times, eventually rolling it, and killing one of his passengers. He had no previous criminal record.

The Court imposed a one year jail sentence, followed by two years probation, noting the need to focus on denunciation and deterrence as the primary sentencing objectives. At paragraph 31, the Court said “...crimes like dangerous driving causing death are offenses of public concern; they are not just private civil wrongs. The law requires the courts to denounce such misconduct to deter other people from committing such offenses.” R. v. Brown; R. v. Stickley , (1993 Nfld. P.C.) This case involved two young men, aged 20 and 22, each of whom were driving

snowmobiles. One of them was pulling a komatik sled behind with an 11 year old passenger on it. When the accused began to race, the11 year old boy was thrown from the komatik and died. Each of the accused was convicted of dangerous operation causing death. Bothwere sentenced to 6 months imprisonment, followed by two years probation.

e) Restraint [13] Sections 718.2(

d) and (

e) require that an offender not be deprived of liberty if less restrictive sanctions are appropriate. It alsorequires that a sentencing judge consider all available sanctions other than imprisonment that are reasonable in the circumstances. [14] Almost all the cases of dangerous operation causing death that I have reviewed involved sentences of actual imprisonment, orterms of imprisonment served in the community as conditional sentences pursuant to

section 742.1 of the Criminal Code. [15] Had this offence occurred before December 1, 2007, Mr. Butterfield would have been a good candidate for a conditionalsentence, given his lack of previous record and the low risk he poses to re-offend. However, as of that date, amendments to the CriminalCode made “serious personal injury offences”, as defined in

section 752, ineligible for conditional sentences. In the circumstances of thiscase, dangerous operation of an aircraft causing death is a serious personal injury offence (See R. v. Littlecrow, 2011 SKQB 393; R. v.Langan, 2010 SKPC 3; R. v. Biernat, 2009 ONCJ 273). [16] In R. v. Proulx, 2000 SCC 5; [2000] 1 S.C.R. 61, the Supreme Court of Canada pointed out that a conditional sentence is asentence of imprisonment. It is a punitive sanction, capable of achieving the objectives of denunciation and deterrence.

In this sense, itis unlike a suspended sentence, which is primarily a rehabilitative sentence, not designed to punish the offender and therefore notdesigned to have a denunciatory or general deterrent effect (see R. v. Dunn, 2011 NBCA 19; R. v. Taylor (1997), (SKCA), 163 Sask. R. 29 (C.A.)). Where the nature of the offence is such that the sentence must give primary consideration to denunciationand deterrence, a suspended sentence with probation is inadequate. [17] I have considered all reasonable alternatives to imprisonment in this case.

I have concluded that none are appropriate. [18] The operation of the aircraft which led to Mr. Bleach’s death involved a significant departure from the standard of care of areasonable and prudent pilot. It involved Mr. Butterfield appreciating significant risks, including the wind conditions, and deciding toignore those risks. The authorities from Saskatchewan and other provinces make it clear, in my view, that non-custodial options such asfines or a suspended sentence with probation would not be adequate to reflect the gravity of the offence and the degree of responsibilityof the offender.

Non-custodial options would not be adequate in this case to denounce the offence, nor would they be sufficient to deterothers from committing such an offence. A non-custodial sentence would also, in my view, offend the principle of parity in thesecircumstances. [19] In R. v. Proulx, supra, the Supreme Court noted that there may be certain circumstances in which the need for denunciation isso pressing that incarceration is the only suitable way to express society’s condemnation of the offending conduct. This, in my view, issuch a case.

It requires the imposition of a period of imprisonment to reflect the seriousness of the offence, as that is the only availablesentence which is proportionate to the gravity of the offence and the degree of responsibility of the offender. [20] In considering length of sentence, I note that the Saskatchewan cases I have reviewed are of some assistance, but also havesignificant factual differences from this case. In Delaittre the Court of Appeal described the fifteen month sentence imposed as beingtoward the “bottom of the range”. However, in that case, the offender had a provincial driving record, and, unlike Mr.

Butterfield’s case,the victim was not a willing participant in the offence. The same can be said for Blackwell. In Decap, alcohol was involved and theoffender had a previous conviction for a criminal driving offence. In McKay, while the offender’s personal circumstances were similarto Mr. Butterfield’s, the sentence imposed was a conditional sentence of imprisonment, which may involve different considerations thancustodial imprisonment when determining the appropriate length. [21] Of the cases I have reviewed, I consider this case most similar to the circumstances in R. v. Palliser, supra.

In that case, theaccused knowingly agreed to participate in conduct which was inherently risky. As here, the risky conduct was something in which thevictim was an equal and willing participant. The offender had no previous record, was remorseful, and was highly regarded in the

community. He was seen as a low risk to reoffend. Doucette, Brown, and Stickley , in my view, also involve similar levels of culpability on the part of the offender, and are offences of similar gravity. [22] Taking all of those things into account, I am satisfied that a term of imprisonment of nine months strikes the appropriate balance. It is long enough to meet the objectives of denunciation and deterrence, and also gives appropriate credit for the mitigating factors and Mr. Butterfield’s personal circumstances.

In short, it is proportionate to the gravity of the offence and the degree of responsibility of the offender. VI. CONCLUSION [ 23 ] I sentence Mr. Butterfield to a term of imprisonment of nine months, to be served in a Provincial Correctional Centre. [ 24 ] In addition to that, pursuant to section 259(1) of the Criminal Code , Mr. Butterfield is prohibited from operating an aircraft, anywhere in Canada, for two years. That was the term jointly recommended by counsel, and it is appropriate, in all the circumstances. [ 25 ] Finally, counsel jointly submitted that a firearm prohibition order under

section 109 is mandatory. With the greatest of respect, I disagree. In this case, the offence committed by Mr. Butterfield is a serious personal injury offence as defined in

section 752 of the Criminal Code because it involved conduct endangering the life of another person, not because it was a violent offence. Dangerous operation of an aircraft causing death it is not by definition an offence involving the use or attempted use of violence against another person, and the circumstances of this case did not involve violence or attempted violence in the commission of the offence. For the purposes of sections 109 and 110, “violence” involves some directed or intentional application, or threat of application, of force against another person. This case did not. Nor did it involve the commission of any of the offences listed in subparagraphs (b), (c), or (

d) of

section 109. In my view, a firearms prohibition is neither mandatory under

section 109, nor within my discretion under

section 110 in the circumstances of this case. Accordingly, I decline to make such an order. [ 26 ] In light of the sentence of imprisonment imposed, the surcharge is waived. [ 27 ] Dated at the City of Regina, in the Province of Saskatchewan this 9 th day of January, A.D. 2012. ____________________________________ J. D. Kalmakoff, J.