HER MAJESTY THE QUEEN - v. -, 2003 NBQB 133

R. v. Stevens, 2003 NBQB 133 S/CR/13/02 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: HER MAJESTY THE QUEEN - and - DAVID LLOYD STEVENS BEFORE: Justice Hugh H. McLellan HEARING HELD: St. Andrews, N. B. DATE OF HEARING: March 17 th & 21 st , 2003 DATE OF SENTENCING: March 21 st , 2003 COUNSEL: Randy W. DiPaolo, Esq., appearing on behalf of the Crown Brian D. Munro, Esq., for David Lloyd Stevens

SENTENCING DECISION MCLELLAN, J. (Orally) David Lloyd Stevens was convicted that he, on or about the 26 th day of August, A.D., 2002, at or near St. George, in the County of Charlotte, and the Province of New Brunswick, did unlawfully kill Michael Charles Anderson and thereby commit manslaughter contrary to

Section 236 (

b) of the Criminal Code of Canada and amendments thereto. He was convicted of this charge by a jury on the 12 th of February, 2003. At that time, the jury had to consider whether or not the Crown had proven the original charge of murder in the second degree or the included offense of manslaughter. The jury concluded, after lengthy deliberations, that Mr. Stevens was guilty only of the included offense of manslaughter. It is now my duty to impose an appropriate sentence on Mr. Stevens. I emphasize that the offense for which he is being sentenced is manslaughter, not murder.

The jury decided it was manslaughter and the sentence must be a sentence only for manslaughter and not for murder. There are a number of principles of sentencing that apply that I will elaborate on. The critical principle of sentencing is that a sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender. In plainer words, the sentence must fit the crime of which the accused has been convicted. There are other purposes and principles of sentencing that are summarized by Parliament in the Criminal Code of Canada .

They are that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that are one or more of the following objectives: to denounce unlawful conduct, to deter the offender and other persons from committing offenses, to separate offenders from society where necessary, to assist in rehabilitating reoffenders, to provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

The sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender.

A Court that imposes a sentence shall also take into consideration the following principles: A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offense or the offender and without limiting the generality of the foregoing, evidence that the offense was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, color, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor, evidence that the offender in committing the offense abused the offender’s spouse or common-law partner or child, evidence that the offender in committing the offense abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances, evidence that the offense was committed for the benefit of, at the direction of or in the association with a criminal organization or evidence that the offense was a terrorism offense shall be deemed to be aggravating circumstances.

A sentence should be similar to sentences imposed on similar offenders and similar offenses committed in similar circumstances. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances and all available sanctions, other than imprisonment, that are reasonable in the circumstances, should be considered for all offenders with particular attention to the circumstances of aboriginal offenders.

I have to consider those principles in the context of the circumstances and nature of the offense that occurred. The offense occurred on a fish plant floor on a hot afternoon in August, the 26 th of August of 2002. I mention it was a hot afternoon because I suspect that everybody working in that plant would rather have been somewhere else than on the line that day. They had a brief break because of a water main failure that extended their lunch hour and that afternoon, a hot afternoon in August, probably everyone would rather have been somewhere else.

Perhaps because of the nice weather and the hard work, people were a little less patient and a little less relaxed than they might otherwise have been. Unfortunately, an argument or a disagreement arose between a number of people on the plant floor. Mr. Stevens was part of that argument. He was also at that time under a little stress because of another argument about paying for his carpool arrangements and he was worried that he might not be able to continue to get to work. Unfortunately, there were rude words exchanged between people on the plant floor. Mr. Stevens was part of that exchange.

After some angry words and some interruption, some time passed and there was an afternoon break. During the break, it appears that Michael Charles Anderson (then 32 years of age, one of the workers at the plant but not a person who had been involved in the discussion on the floor) became aware of the disagreement that had occurred and the angry words that had been exchanged. Mr. Anderson felt that it was necessary for him to intervene in that earlier discussion by confronting Mr. Stevens. The evidence is clear that there was some shoulder butting, initiated by Mr. Anderson to get Mr.

Stevens’ attention and some shoving. It is clear that Mr. Anderson wanted to get a message across to Mr. Stevens not to argue or threaten women who worked on that plant floor. Mr. Anderson could be described as a man of honour who saw it as his responsibility to intervene and stand up for women who he thought were on the receiving ends of what he thought were threats or rudeness from Mr. Stevens. Mr. Stevens said a couple of times to Mr. Anderson, when the shoulder butting or pushing started, something along the lines of “don’t be bothering me.” Mr. Stevens is also a man of principle or honour.

From his point, he had to defend himself by pushing back or butting back when he was butted or pushed or when there was some confrontation. That should have been the end of it. Tragically, Mr. Stevens didn’t let it go. Instead he swung his filleting knife with a six inch steel blade, into the left side of the late Mr. Anderson, above his hipbone, below his rib, angled up slightly. Mr. Stevens was guilty of a grossly exaggerated response to a disagreement or exchange of words or pushing or shoving.

As far as the law is concerned, responding to pushing or shoving or angry words with a knife thrust in circumstances like that is absolutely wrong. This situation did not call for any knife work. It was absolutely wrong of Mr. Stevens to escalate this trifling confrontation with a knife and it was even worse that he would escalate it by plunging a knife into the late Mr. Anderson’s side. Four days later, Mr. Anderson was dead. Mr. Stevens was arrested minutes after the incident and cooperated immediately with the police and has been in custody since.

The Court must try to impose a sentence that reflects the legal principles that apply and is consistent with other sentences imposed in similar circumstances. The Court has to consider the various sentencing principles in the circumstances of Mr. Stevens and the victim impact statements, relating to the impact that this tragedy has had on the family of the late Mr. Anderson. Counsel have cited a great many cases on the issue of sentencing in manslaughter matters.

The sentences vary dramatically, depending on whether or not the manslaughter was what could be called almost an accident at one extreme or almost murder at the other.

I’ve considered the cases that were referred to in the arguments of counsel. I’ve also studied and considered the presentence report. It indicates that Mr. Stevens has had some difficulties with life, which may have been made worse by his encounters with Karl Toft and at Kingsclear when he was a boy. Despite those troubles, Mr. Stevens has tried to make the best he can of his life with some troubles in between times with addictions and bad habits. He’s had some difficulty holding steady work and he’s traveled a bit, moved around the country.

He’s managed to father six children and his mother is very concerned about him, as no doubt are his children and others. His difficulties over the years, have also shown themselves through a sad set of convictions. He’s often been in trouble with the law. To his credit, he’s never had to go to a Federal penitentiary. To his discredit, he’s had countless convictions for crimes that suggest a lack of anger management and self-discipline. Most of the sentences for those many offenses were relatively short but he still has a long depressing record of acts of violence.

Despite those troubles, there’s indications that he’s been able to straighten up a bit at home in Saint John and into a relationship that has some promise. He has been involved with Church and other activities that are more promising. Through the auspices of his Pastor he was able to get a job in this salmon plant, despite his record and troubles. It’s commendable to see people like Pastor of his Church and his family and friends in Saint John helping straighten him out as best they could and get him into the workforce and the economy.

I would note that it’s also a credit to the employer at the salmon plant that they were also willing to give Mr. Stevens a chance, despite his intermittent work history. Counsel for Mr. Stevens emphasizes his youth, which at 49 years old, is not very young. He emphasizes the potential that Mr. Stevens has to reform and straighten up, especially since despite a long record, he’s never been in the penitentiary. Those arguments would have had much more force twenty or thirty years ago than now. At age 49, with his many encounters with the police and the courts, it seems to me that Mr.

Stevens could and should have learned to control his temper and to not overreact to a disagreement or minor confrontation. Although his difficulties with people like Karl Toft and Kingsclear can be seen as mitigating circumstances, his lengthy record and the fact that despite so many encounters with judges and police that he’s not yet learned to control his anger, leans towards being aggravating circumstances.

I have considered the victim impact statements and it’s very clear from them that any words that I could utter would not begin to address how awful the family of the late Michael Charles Anderson feel about his death. For them, people like his mother and his sister and his brothers, the lady of his life, but most especially his three boys, this just does not make sense why after words and a shoulder butt or a shove he should be stabbed just does not make sense. All he was trying to do was to protect women who he thought were the subject of unfair words or threats from Mr. Stevens.

I have to impose a sentence that considers all these principles and circumstances. I mentioned that all available sanctions, other than imprisonment, that are reasonable in the circumstances shall be considered for all offenders with particular attention to the circumstances of aboriginal offenders. I appreciate that there’s some emerging legal authority to the effect that that concept should also be applied to black offenders. Mr. Stevens is black.

As I see this case, the colour of his skin has got nothing to do with the incident, with the circumstances of it or with the appropriate disposition of the sentencing at this time. It seems to me that this is not a case where his colour should in any way be relevant. What is relevant is not Mr. Stevens colour but situations such as his difficulty with Kingsclear and Karl Toft that’s referred to in the pre- sentence report. That complication in his life long ago can be one of the circumstances that is taken into account and overall is a partially mitigating factor here. It helps slightly to understand why Mr.

Stevens would not be as cool in a confrontation as he should have been. It also helps explain why he lost his cool in this confrontation. That brings me to the last detail I want to emphasize. Mr. Stevens did not go to work that day, planning to do anybody any harm. He didn’t plan to get in a fight, get in an argument, get in a disagreement. He was not thinking that way at all. He was just working through the shift, doing his job. His circumstances are not at all like somebody planning a deliberate murder or anything like that. He lost his cool.

In a period of a few seconds he went from working with this knife at the plant to being in a confrontation when he’s got a knife in his hand and overreacting and losing it. That’s absolutely wrong. He should not have done that. It’s a serious crime but I emphasize that this is not like some of the situations where there is more planning and deliberation.

Counsel for the Crown has referred to the number of cases where sentences in the order of ten years have been imposed in manslaughter cases and a number of cases where lesser sentences have been imposed. I thought of one when he was making that where I think the manslaughter sentence I imposed was fifteen years on a plea of guilty where it was the second such incident that the accused had committed. This is nothing like that. Counsel for the defense have raised a number of instances of various types of manslaughters where much lesser sentences were imposed. Some of those were near accidents.

Some of those also were battered spouses losing control and a tragedy resulted. I have considered the submissions, the evidence, pre-sentence report, victim impact statements, criminal record and all the circumstances of this case in the light of what’s been done in other cases and other times and I have to impose a sentence that balances all these conflicting pressures. I also have to allow some credit for the almost seven months that Mr. Stevens has been on remand awaiting trial and the completion of this case.

Because the prisoners in jail on remand have limited privileges and spend most of their time in their cells, the practice has developed to allow double-time for the remand time as a credit. Here the right calculation of remand credit would be seven months remand times two or fourteen months. As well I’d note that in appropriate sentences, judges have to impose victim service fees on offenders. In the circumstances of this case, such a service fee is inappropriate and the victim service fee is waived. Mr. Stevens, I’d ask you to stand please.

After considering all this, it’s my duty to impose a term of imprisonment on you, based on a total of eight years in Federal penitentiary, less fourteen months for remand credit, which would be a total of six years and ten months net, which will be on the warrant; I repeat equivalent to a sentence of eight years in penitentiary, eight years minus fourteen months, six years ten months. Sheriffs’ Officers, take him away. __________________________________ Hugh H. McLellan A Judge of the Court of Queen’s Bench of New Brunswick March 31, 2003 Saint John, N. B.