R v. McIntyre 2014 NBPC 42 File number, 2014 NBPC 42

R v. McIntyre 2014 NBPC 42 File number: 05726910 CANADA PROVINCE OF NEW BRUNSWICK CAMPBELLTON PROVINCIAL COURT B E T W E E N: HER MAJESTY THE QUEEN - vs. - BURNIE MCINTYRE IMPOSITION OF SENTENCE BEFORE: Judge Brigitte Sivret PLACE OF TRIAL: Campbellton, New Brunswick DATE OF HEARING: June 19, 2014 DATE OF SENTENCE: July 18, 2014

APPEARANCES: For Her Majesty the Queen: Mrs. Suzanne Crawford For the Defense: Mr. David Lutz, Q.C. I - Introduction [ 1 ] The accused, Burnie M c Intyre, was convicted after trial of attempted murder and aggravated assault on Donald Doucet. [ 2 ] I must now determine the appropriate sentence for Mr. M c Intyre. Before doing so, I will first deal with the issue of whether one of the two charges should be conditionally stayed, based on the Kienapple principle. (See R. v. Kienapple ,[1975] I.S.C.R. 729). [ 3 ] According to the well-known principle established by the Supreme Court of Canada in R. v.

Kienapple (supra), the Court must decline to enter convictions for more than one offence when, in substance, only one crime has been committed. This principle would be applied where the charges arise out of the same transaction and the offences constitute a single wrong or a single crime. [ 4 ] In this case, the Crown concedes that the offence of aggravated assault is impacted by the Kienapple principle and it should be conditionally stayed. Therefore, the only issue remaining is determining the appropriate sentence for attempted murder in the circumstances of this particular case.

II – Backgrounds [ 5 ] On September 8, 2013, Burnie M c Intyre was traveling on Main Street in the small village of Eel River Crossing. A friend, Gloria LeBlanc, was with him, sitting as a front passenger. When they approached the convenience store, Mr. M c Intyre saw Donald Doucet park his vehicle at the convenience store. He said to Gloria: “I got to see that man”. He then turned around, entered the convenience store parking lot, backed-up his vehicle close to the store, facing Donald Doucet’s vehicle.

He then got out of his vehicle and picked up a sharp knife wrapped in a plastic bag from the backseat of his vehicle. He placed the knife between the two front seats. Mr. M c Intyre then sat and waited for Mr. Doucet to come out of the store. [ 6 ] As Mr. Doucet left the store and walked toward his vehicle, Mr. M c Intyre got out of his vehicle, pulled out the sharp knife and started running after Mr. Doucet. He then grabbed Mr. Doucet by his neck, pushed him down, jumped on Mr. Doucet and stabbed him in the chest, very close to Mr. Doucet’s heart. While he stabbed Mr. Doucet, Mr.

M c Intyre told him, in French: “ T’as fini de me donner de la misère ”. [ 7 ] After receiving the first stab, Mr. Doucet raised his arms and legs to protect himself from further stabbing. He was also lucky enough to be able to grab Mr. M c Intyre’s right hand together with the knife, which disabled Mr. M c Intyre from continuing to stab. [ 8 ] In fact, Mr. Doucet was fighting for his life as he was holding the blade of the knife with his left hand and suffered serious injuries as a result. Mr. M c Intyre explained that he could not continue the stabbing because Mr. Doucet was holding the knife with a death grip.

[9] The assault on Mr. Doucet came to an end as two male witnesses intervened at the scene and Mr. McIntyre gave up. [10] As a result of the assault, Mr. Doucet was transported to the closest hospital and, from there, was redirected to the Saint JohnRegional Hospital, where medical specialists were able to help him with his injuries. The knife injury was deep and life threatening.Fortunately, the knife missed the heart cavity but caused damage to the left internal thoracic artery or vein. The injury also caused his leftlung to collapse. Although Mr. Doucet lost a lot of blood, he survived the attack.

His hand injuries were treated but he will continue tosuffer from permanent damage. In addition to the physical injuries he suffered, Mr. Doucet is left with some psychological effects such asstress, nervousness and anxiety. [11] The above-described attack was the second time Mr. McIntyre attempted to kill Donald Doucet. On February 21, 2004, at 3 o’clock in the morning, Mr. McIntyre threw two lit bottles of gas through the kitchen window of Mr. Doucet’s house. He wanted to burnMr. Doucet and his wife to death. The attempt failed as Mr. Doucet woke up in time and was able to extinguish the fire. [12] Mr.

McIntyre was arrested and, soon after, declared not criminally responsible for his violent actions against Donald Doucet and his wife. As a result, Mr. McIntyre spent six years under the authority of the New Brunswick Review Board. III – The Positions of the Parties [13] Counsel for the Crown proposes a sentence of 18 years in the penitentiary. Counsel for Mr. McIntyre submits that an appropriate range of sentence is between eight to 10 years less time spent in custody by McIntyre as a result of his offence. According to defense counsel, Mr.

McIntyre should be credited for time already spent in jail pending sentence at a ratio of 1.5 days for every day alreadyserved in custody since September 8, 2013. [14] In support of its position, counsel for the Crown relied on the following cases: R. v. Adamson 2013 ONSC 2365 , [2013] O.J. No 2100; R. v. McArthur (ON CA), [2004] 182 C.C.C. (3d) 230; R. v. Varga (ON CA), [2001] 159 C.C.C. (3d) 502; R. v. Chevers 2011 ONCA 569 , [2011] O.J. No 3893; R. v. Tasew 2011 ABCA 241 , [2011] A.J. No 880; R. v. Tan 2008 ONCA 574 , [2008] O.J. No 3044; R. v. Spurway (ON CA), [1996] O.J. No 3160; R. v.

Davrieux [2008] N.B.Q.B. 51; R. v. Roussel (NB CA), [1992] 129 N.B.R. (2d) 327; R. v.Nason [2013] N.B.Q.B. 343. [15] Counsel for Mr. McIntyre invited the Court to consider the following additional cases in support of its recommendations: R. v. Ipeelee [2012] S.C.C. 13; R. v. Alvarez [2014] O.N.S.C. 902 ; R. v. Fortin [1999] O.J. No 5142; R. v. Cormier (NB CA), [1999] N.B.J. No 83; R. v. Lawler [1993] N.B.J. No 413; R. v. Summers [2014] S.C.C. 26. I also reviewed a number ofattempted murder cases from all Canadian provinces. IV – The Principles and Objectives of Sentencing [16]

Section 718 of the Criminal Code of Canada set out the fundamental purpose of sentencing.

Section 718 reads as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law andthe maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences;

(

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 1995, c. 22, s. 6 . [ 17 ] From the relevant cases I have reviewed, it is clear to me that the principles of denunciation and general and specific deterrence must be the overriding consideration in the determination of a fit sentence for someone who attempted to murder another person. [ 18 ]

Section 718.1 of the Criminal Code of Canada provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 19 ]

Section 718.2 of the Criminal Code of Canada provides other sentencing principles that a Court, in imposing a sentence, shall take into consideration. The relevant portion of 718.2 reads as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. V – The Accused [ 20 ] Mr. M c Intyre is a 71-year-old single male with no children who lives in Campbellton, New Brunswick. He worked as an electrician for 15 to 20 years. He then opened a small antique business in Montreal, took care of his older mother in New Brunswick for about four years, returned to Montreal and moved back to New Brunswick in 2001 and lived in his mother’s home in Eel River Crossing, which he inherited in 2004.

[ 21 ] Between 2001 and 2004, Mr. M c Intyre experienced various problems with the Eel River Crossing property and started to blame his neighbor, Donald Doucet, for all of those problems. It is during that period of time that Mr. M c Intyre developed a deep hatred toward Mr. Doucet. [ 22 ] On February 21, 2004, Mr. M c Intyre attempted to kill Donald Doucet and his wife by burning their house while they were sleeping. The attempt failed. Mr. M c Intyre was found not criminally responsible and was diagnosed with a “bipolar” disorder.

He was then admitted to the Restigouche Hospital Centre under the authority of the New Brunswick Review Board. He received a conditional discharge and was released to a Level 2 care home in November 2004. [ 23 ] Mr. M c Intyre was readmitted at the Restigouche Hospital Centre in July 2008 by Court Order following a breach of his conditional discharge. He had assaulted a resident at the home where he was living. He was found fit and responsible for his actions but continued to be under the authority of the New Brunswick Review Board. [ 24 ] Finally, Mr.

M c Intyre received an absolute discharge from the New Brunswick Review Board in January 2010 to a Level 2 care home. [ 25 ] Mr. M c Intyre has no criminal record. [ 26 ] A presentence report (PSR) was prepared in order to assist the Court in determining a fit sentence in this case. The report was prepared on March 6, 2014. At the time of the report, Mr. M c Intyre had already been in custody for approximately six months following the stabbing of Mr. Doucet. [ 27 ] The PSR revealed that Mr. M c Intyre is acknowledging his actions and accepts to take responsibility for them. However, Mr.

M c Intyre is still blaming Mr. Doucet for the alleged damages done to his home in Eel River Crossing and the change of the property line. [ 28 ] In fact, I find quite disturbing the fact that Mr. M c Intyre is expressing a desire to maintain his hatred toward Mr. Doucet. According to the statement reported by the probation officer, Mr. M c Intyre is not sure if he will attempt to hurt Mr. Doucet again. [ 29 ] The PSR also revealed that Mr. M c Intyre is still considering the possibility of keeping the property line issue alive as he is considering the costs of resurveying his property.

I am reproducing the relevant part of the PSR: “In

summary, BURNIE MCINTYRE explained that the present offences were the result of “rage” that “mounted” over a number of years concerning alleged damages done to his home in Eel River Crossing, NB and his property line. BURNIE MCINTYRE asked: “How would you react if this was done to you?” The accused blamed the victim for the destruction done to his home, the “turmoil” that it caused him, the “nervous breakdown” that he suffered and for him “going to jail”. The accused said that he was “satisfied” that he “hurt” the victim, adding that “I don’t think that I will hurt him (victim) again. I can’t say.

Feelings change. You don’t know until it happens”. The accused noted that previous psychological counseling sessions and hospitalizations were not helpful in any way. In his opinion, physical activities, social interactions and an anger management program would prove more beneficial in his case. The accused added that the jail setting is “mental torture” and that it offers “nothing to help rehabilitate” him.” [ 30 ] During the sentencing hearings, counsel for the Crown expressed some concerns over Mr. M c Intyre’s abilities to ease his hatred toward Mr. Doucet.

Since having been found guilty on January 23, 2014, Mr. M c Intyre contacted the local RCMP office and complained that Mr. Doucet had damaged the windows of his house. The RCMP visited Mr. Doucet and the investigation revealed that no windows at Mr. M c Intyre’s house were broken. This complaint was in fact just another attempt by Mr. M c Intyre to cause trouble to Mr. Doucet.

VI – The Analysis [ 31 ] The crime for which Mr. M c Intyre has been found guilty of carries a maximum punishment of imprisonment for life. Section 239(1)(

b) reads as follows: ATTEMPT TO COMMIT MURDER “239(1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable

b) in any other case, to imprisonment for life.” [ 32 ] This is a clear indication that Parliament intended to emphasize the seriousness of this type of offence. [ 33 ] In fact, there is very little distinction to be drawn between murder and an attempted murder which carries an automatic sentence of imprisonment for life. [ 34 ] The Ontario Court of Appeal in R. v. M c Arthur and R. v.

Varga (supra) made the point that the only difference between a murder and an attempted murder is luck. [ 35 ] In M c Arthur , at paragraph 47 , Doherty J.A. stated: “Without diminishing the seriousness of any of the crimes committed by the respondent, it can be safely said that the four attempted murder convictions are the most serious crimes. Under our law, a person can only be convicted of attempted murder if he or she intended to kill. The moral culpability of the attempted murdered is at least equal to that of a murder.

He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed .” (Underlying is mine.) [ 36 ] In Varga , at paragraph 95 , Doherty J.A. stated: “It is also significant that the slight tilt of Ms. Suzana’s head was literally the difference between a murder and an attempted murder. The appellant fired a Ms. Suzana’s head from close range fully intending to kill her. He stands convicted of attempted murder rather than murder by pure luck.

His culpability is hardly distinguishable from that of a murderer .” (Underlying is mine.) [ 37 ] The same reasoning applies in this case. The only reason Mr. M c Intyre is guilty of attempted murder instead of murder is because Mr. Doucet survived the vicious attack. It is fair to say that Mr. Doucet was “lucky” that Mr. M c Intyre missed his heart by very little and that he was able to grab the knife with a death grip to stop the stabbing. [ 38 ] It is clear to me that Mr. M c Intyre intended to kill Mr. Doucet and that he must serve a lengthy term of imprisonment.

The question that remains to be determined is how long of a term would constitute a fit sentence? [ 39 ] In considering the cases referred to me by both parties and the others that I have reviewed, it is obvious that the range of sentences imposed for attempted murders is very vast. Sentences from five years to life imprisonment have been drawn to my attention.

[ 40 ] In this particular case, I am satisfied that the appropriate sentence range is between a minimum of ten years and the statutory maximum of life imprisonment. A term of imprisonment less than ten years would underscore the seriousness of the crime committed and undermine the sentencing objectives as provided by the Criminal Code of Canada . [ 41 ] From both counsels’ representations, I understand that they are suggesting that the rage of sentence should be between ten to eighteen years. In my view, a rage should be used with prudence and only as a guide.

Too much emphasis on a range could lead to an incomplete analysis of relevant factors in a particular case. [ 42 ] Therefore, I must determine what would be the appropriate term of imprisonment in order to achieve the overriding objective of denunciation and general and specific deterrence of such conduct and to assure the protection of the public, including the victim in this case. [ 43 ] I suspect that members of our society wonder how severe or outrageous does the offence has to be to warrant the maximum sentence. [ 44 ] Traditionally, the appellate courts believed that the maximum sentences should be reserved for the worst offence committed by the worst offender.

However, this approach was set aside by the Supreme Court of Canada in favor of a proper analysis of all relevant factors provided by the Criminal Code of Canada on a case-by–case basis. In R. v. Cheddesingh , Chief Justice M c Lachlin wrote: “The first issue is whether the trial judge erred by using the concept of “stark horror” in imposing a life sentence. We agree with the appellant’s counsel that terms such as “stark horror”, “worst offence” and “worst offender” add nothing to the analysis and should be avoided. All relevant factors under the Criminal Code , R.S.C. 1985, c. C-46, must be considered.

A maximum penalty of any kind will by its very nature be imposed only rarely (see A. Manson, the Law of Sentencing (2001), at p. 106) and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness . As is always the case with sentencing, the inquiry must proceed on a case-by-case basis.

Here we are satisfied that the sentencing judge considered all the relevant factors and exercised his discretion judicially in sentencing the appellant to life imprisonment.” (Underlying is mine.) [ 45 ] Therefore, a maximum penalty will only be imposed if the offence is of sufficient gravity and if the accused displays sufficient blameworthiness to warrant that sentence. It is difficult to imagine a situation in which the gravity of offence of attempted murder would be higher than the one presented in this case.

The gravity of the offence does not necessarily lie on the circumstances in which the attack was carried. Instead, the gravity is drawn from the fact that it is the second time that Mr. M c Intyre tries to kill Donald Doucet in the last nine years. [ 46 ] What is more troublesome, in this case, is the fact that Mr. M c Intyre is still contemplating the possibility of hurting Mr. Doucet again. He is not sure that he won’t try to attack him again. In fact, his actions during his presentence custody, since he was found guilty, are raising serious doubts as to whether Mr.

M c Intyre could be rehabilitated and deterred from having similar behaviors. He still wants to cause trouble to Mr. Doucet. He still justifies what he did by blaming Mr. Doucet for his misfortune and he still believes what he did was appropriate. [ 47 ] In a few words, Mr. M c Intyre is still, today, nourishing his deep hatred for Mr. Doucet. [ 48 ] In fashioning a fit sentence, I must consider the principles and objectives of sentencing as provided by the Criminal Code of Canada together with the mitigating and aggravating factors. [ 49 ] The particularities of Mr. M c Intyre’s state of mind toward Mr.

Doucet lead me to believe that the only potential objective of sentencing to achieve in this case would be to protect the public, including the victim and his family, by separating the offender from society. [ 50 ] In my opinion, there is very little hope to achieve rehabilitation, specific deterrence or promoting a sense of responsibility in Mr.

M c Intyre. [ 51 ] I now must consider the mitigating and aggravating factors.

a) Aggravating Factors In my opinion, these are aggravating factors: - the use of a sharp knife during the attack; - the lack of provocation on the part of the victim; - the extent of the injuries suffered by the victim and the consequences on his life and members of his family (as expressed in the victim impact statements filed by Mr.

Doucet and members of his family); - the fact that the accused tried to kill the same victim nine years prior to committing this offence; - the fact that the two attacks on the life of the victim are caused by the same unjustified reasons; - the fact that the accused is now 71 years old, which declines the chances of rehabilitation; - the clear and specific intent to kill Mr. Doucet; - the ongoing hatred toward the victim; - the conduct of Mr. M c Intyre after being found guilty (he continues to blame the victim and continues to cause trouble to Mr. Doucet); - the fact that Mr.

M c Intyre does not eliminate the potential of attacking Mr. Doucet again; and - the fact that the accused was planning to attack Mr. Doucet as soon as he had an opportunity to do so (element of planning).

b) Mitigating Factors In my opinion, these factors are mitigating factors: - the accused truly admitted stabbing Mr. Doucet; - the accused expresses a willingness to take

part in a treatment plan, although he claims that the six years he spent receiving treatments under the New Brunswick Review Board did not help him at all; - the accused was diagnosed in 2004 of suffering from a bipolar disorder; - the accused is not known in the community as being a violent person; and - the accused has no substance abuse problem identified. [ 52 ] I must also consider the impact on the victim and his family. Mr. Doucet filed a statement in which he expresses not understanding why Mr. M c Intyre wants to kill him.

He explains that he and his wife had a hard time dealing with the psychological effects caused by the first attempt on their lives. Since then, his wife died of medical reasons. Mr. Doucet definitely fears a third attack if or when Mr. M c Intyre would be released from custody. [ 53 ] Mr. Doucet’s son and daughter-in-law also filed statements. It is clear from their statements that the attempt and its life threatening consequences on the life of their father deeply affected them.

At the same time that their father was in a serious medical condition at the Saint John Regional Hospital, Shawn Doucet, the victim’s son, was waiting for his own son to undergo an emergency surgery in Campbellton. The entire ordeal also caused Mr. Doucet’s family financial distress that has been eased by donations from the local Lions Club. [ 54 ] I do not accept, as counsel for Mr. M c Intyre submits, that a sentence of eight to ten years is appropriate. Such a sentence would,

in my opinion, undermine the principles and objectives of sentencing and would be inadequate to reflect society’s value in protecting human life. The mitigating factors are insufficient to justify the range of sentence submitted by Mr. M c Intyre’s counsel. [ 55 ] As for the sentence of eighteen years suggested by the Crown, I am not convinced that such a sentence could ensure the protection of the public from Mr. M c Intyre. Unless something happens that would drastically change Mr. M c Intyre’s attitude and, more importantly, his hatred toward Mr. Doucet, I consider Mr.

M c Intyre a dangerous person that needs to be separated from society to eliminate the risk of recidivism. If it was not for Mr. McIntyre’s continuous attitude towards Mr. Doucet, I would have considered the Crown’s submission as an appropriate sentence. [ 56 ] There is no doubt, in my opinion, that this is a rare case for which the maximum penalty shall be considered. [ 57 ] In fact, the gravity of the offence and the high degree of blameworthiness displayed by the offender, in this case, are sufficient to justify the maximum penalty. How often does Mr. M c Intyre need to attempt to kill Mr.

Doucet to justify the maximum penalty? [ 58 ] Mr. M c Intyre already attempted to kill Mr. Doucet twice. He is not prepared to eliminate the potential of attacking his victim again. He claims that therapies are not helpful and continues to nourish his hatred toward Mr. Doucet. His behavior leaves very little hope, if any, for rehabilitation and specific deterrence. Therefore, the only objectives left to achieve, in this case, is to protect the public, including the victim and his family and also to deter any other person from using acts of violence to resolve neighborhood disputes.

VII – The Disposition [ 59 ] In my opinion, after considering all of the facts and circumstances of this case, the case law cited by counsels as well as many others rendered by Courts of other provinces, the sentencing principles and objectives set out in the Criminal Code of Canada , the psychiatric assessment filed on October 4, 2013, the presentence report, the victim impact statements filed with the Court and having balanced the mitigating and aggravating factors, the proper sentence, in this case, is imprisonment for life.

Therefore, Burnie M c Intyre is ordered to serve a term of imprisonment for life. [ 60 ] I also order Burnie M c Intyre to comply with a Firearms Prohibition Order issued pursuant to Section 109(1) of the Criminal Code of Canada for life. [ 61 ] I further authorize a peace officer to take or cause to be taken from Burnie M c Intyre a number of samples of bodily substances that are reasonably required for forensic DNA analysis pursuant to

Section 487.051(2) of the Criminal Code of Canada . Dated at Campbellton, N.B., this 18 th day of July, 2014. ___________________________ BRIGITTE SIVRET Provincial Court Judge