2013 MBPC 54, 2013 MBPC 54

Cite: 2013 MBPC 54 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Carrie Ritchot, for the Crown ) - and – ) ) Justin Frederick Larche, ) ) Martin Minuk, for the Accused Accused ) ) ) Sentencing Decision delivered: October 8, 2013. ) MARY KATE HARVIE, P.J. Introduction [ 1 ] As the result of an incident which occurred on October 8, 2012, the accused has entered a guilty plea to the charge of manslaughter not involving a firearm contrary to

section 236 (

b) of the Criminal Code of Canada . At issue is the appropriate sentence to be imposed. Crown counsel suggests that the appropriate range for the Court’s consideration is one of five to eight years and argues that the “higher end” of that range is appropriate. Defence counsel argues that, after giving the accused credit for his time in custody, the Court should impose a sentence that will allow the accused to serve his sentence in a Provincial institution. The Circumstances of the Offence [ 2 ] While profoundly sad and tragic, the circumstances of the offence are not complicated.

On October 7, 2012 the accused, his brother Christopher (the victim in this matter) and other family members were together at a residence in Winnipeg for Thanksgiving dinner. Throughout the evening it appears that both the accused and his brother consumed a significant amount of alcohol. At approximately 2:00 a.m. on October 8, Christopher Larche became involved in an argument with his girlfriend, aggressively following her around the house. The accused intervened between the two and the confrontation between the brothers included some verbal exchange and pushing back and forth.

All parties ended up in the kitchen, where both their mother and the deceased’s girlfriend attempted to separate the brothers. Christopher Larche pushed his mother away and advanced towards the accused, at which time the accused grabbed a knife from the dish drying rack and quickly stabbed his brother twice. Immediately upon doing so he tried to assist his brother, attempting to apply pressure to the wound and instructing his brother’s girlfriend to call an ambulance.

Christopher Larche was eventually transported to a hospital by ambulance where he died as a result of injuries. [ 3 ] Police attended and arrested the accused who provided a lengthy and emotional statement to the police admitting his involvement in the offence. The Background of the Accused [ 4 ] At the time of the incident the accused was 22 years old, with no previous criminal record.

A Pre-sentence Report completed on the accused confirms that he has no behavioural reports or disciplinary incidents during his pre-sentence detention at Milner Ridge Correctional Centre. [ 5 ] While only having a grade seven education, the accused was able to obtain two concurrent forms of employment prior to this incident, working close to full time for a moving company as well as for a foundation repair company with his father.

Both employers indicate that the accused was a good employee who was welcome to return to work upon his release from prison. [ 6 ] The accused had a relatively unremarkable upbringing other than the separation between his mother and father, which resulted in limited contact between the accused and his father during his early years. Their relationship has since improved significantly. His mother confirmed that the accused struggled with school, but otherwise gave her little trouble while he was growing up and that the relationship between her three sons and her daughter was a relatively positive one.

Since his arrest, the accused has not had any grief counselling but has discussed the incident with both of his parents. It appears that he will continue to have a relationship with both parents after his release from custody, although the status of his relationship with his sister, with whom his mother resides, is less clear.

The status of his family relationships over the long term are extremely important for this accused given that he describes having very few friends other than his previous close relationships with family members [ 7 ] The accused has never been associated with any gangs nor does he express any interest in their activity. None of his family members are involved with gangs. [ 8 ] It is noteworthy that alcohol played a significant role in this incident. When sober, the accused is described as an individual who “holds his problems in” and who “shuts down” when he is angry.

While alcohol never affected his work performance or attendance, when drinking the accused acknowledged that he would consume significant amounts. His mother had previously expressed concerns about his drinking, and the accused had unsuccessfully attempted once to maintain sobriety. He also admitted to being a regular user of marijuana. He has never attended an alcohol or drug treatment program and expressed the view that such programming would not be beneficial. [ 9 ] The accused has repeatedly expressed a significant degree of remorse for his involvement in this incident.

He recognizes the seriousness of the offence and has not attempted to minimize his involvement. In conversation with Probation Services, the accused stated “I deserve jail time for my brother’s sake so it brings justice in a way.” He also acknowledged that with respect to any punishment that “I feel like I deserve it for my brother’s sake . . . . my conscience is hurting all the time. My brother won’t be there.

We won’t be able to talk again.” [ 10 ] Manitoba Corrections Assessment indicates that the accused was assessed as a medium risk to reoffend identifying as risk factors amongst other things alcohol and a drug problems. He was described as a suitable candidate for community supervision. Gladue Factors [ 11 ] The Gladue factors in this case are limited. While the accused now describes his heritage as being “Metis” and identifies with the community of St. Laurent, Manitoba, he also confirmed to the Probation Officer that he knows little about the community and has only attended there on one or two occasions.

He was unable to describe any issues affecting the community such as substance abuse, lack of employment or educational opportunities. He does feel a sense of dislocation from the community and does not speak a native language. He has not experienced any overt racism in the community. The accused confirmed that he has not experienced any family or community breakdown. There is no indication that any of his family members attended residential schools. [ 12 ] To his credit, the accused is now showing an increased interest in his heritage.

He has been attending sweats and smudging on a regular basis since his incarceration. The Position of the Parties [ 13 ] Crown counsel suggests the appropriate range is between five and eight years and urges the Court to consider the higher end of that range. She provided a number of cases from various jurisdictions which she suggests support the proposition that such a sentence is appropriate. These include: • R. v. Cioppa, 2013 ONSC 1242 , (Ontario Superior Court of Justice)- 8 years imposed after trial on an 18 year old offender.

After some “slight provocation” in a public park the somewhat intoxicated accused stabbed the victim with a large knife; • R. v. Kanate , 2011 ONCJ 770 (Ontario Court of Justice) – 7 years imposed on a 20 year old aboriginal offender who had been confronted by the victim (his cousin) with a knife. Both had been drinking. After taking the knife the accused stabbed the victim in the arm. The victim ultimately bled to death from a small wound.

Specific deterrence was identified as having an enhanced role as the accused, who had both a youth and adult criminal record, did not acknowledge his problem with anger and violence and as such presented an ongoing risk to public safety; • R. v. McKay 2010 MBQB 56 (Manitoba Queen’s Bench) – 7 years imposed after a preliminary inquiry but before trial on a 24 year old aboriginal offender. Provocation and intoxication played a role in the incident. Rehabilitation could not be “dismissed” despite the accused’s lengthy criminal record and limited background information provided to the sentencing Judge; • R. v.

Reid 2012, ONSC 7521 (Ontario Superior Court of Justice) – 8 years imposed after a preliminary inquiry on a charge of murder but before trial on a 19 year old who introduced a knife to a fight with his sister’s partner, stabbing him once in the abdomen. The accused made no attempt to assist the victim after the stabbing and attempted to deflect blame when confronted. The accused, who had a criminal record for violence and was bound by a probation order not to possess weapons, was intoxicated at the time of the incident, lacked insight into his anger management and substance abuse problems; • R. v.

Sinclair 2011 ABQB 652 (Alberta Queen’s Bench) – 5 years on a 19 year old offender who, after an evening of drinking, stabbed a friend with whom she had been arguing. While initially attempting to evade the police out of concern for her infant child, she was otherwise cooperative and entered an early guilty plea. • R. v. Tony 2010 SKQB 258 (Saskatchewan Queen’s Bench) – 7.5 years imposed on an offender who, while highly intoxicated, stabbed a family member, severing an artery at the first vertebra. Immediately after, the accused sought help for the victim, and expressed his remorse to the family of the victim.

His previous criminal record was largely property related and he had taken steps while in custody to address his substance abuse issues. [ 14 ] In each of the foregoing cases, the presiding sentencing judge considered the aggravating and mitigating factors. Unlike this accused some of the offenders had previous criminal involvement ( Kanate; McKay, Reid; Tony ). Most of the incidents were fuelled by alcohol, drug use, or involved accused with addictions problems.

In each case, the sentencing judge weighed both the aggravating and mitigating factors, and in doing so considered the “moral culpability” of the offender. Position of Defence Counsel

[15] Defence counsel provided the Court with 10 authorities, all decisions of Courts in Manitoba. The sentences in those casesranged from a conditional sentence of two years less a day to a lengthier term in the penitentiary. Conditional Sentence • R. v. Capistrano, 2001 MBQB 60 (Manitoba Queen’s Bench) - a conditional sentence order of 2 years less a day was imposed aftera jury conviction for manslaughter. After an altercation in which the deceased was the aggressor, the accused, his neighbor, struck thevictim over the head twice with a small wooden bat. The accused died from his injuries later the next day.

Both parties were highlyintoxicated. The aboriginal accused had a troubled upbringing and had successfully complied with her bail conditions for over 4 years; • R. v. Clemons, 2003 MBCA 51 (Manitoba Court of Appeal)- Crown counsel unsuccessfully appealed a conditional sentence orderof 2 years less a day imposed after a guilty plea to manslaughter. After a period of provocation the highly intoxicated accused “suckerpunched” and stabbed the victim multiple times. Provincial institution • R. v.

Cascisa [2001] MBCA 168 (Manitoba Court of Appeal) - A sentence appeal of a sentence of 2 years less a day was allowed tothe extent that the Court added 2 years of supervised probation. After a fight was instigated by the victim, the accused knocked thevictim unconscious and violently kicked him in the head. The intoxicated accused had a record for assault, was on probation at the timeand had anger management problems which meant a conditional sentence was not appropriate. • R. v.

Beardy 2009 MBPC 54 , 2009 MB PC 54 (Manitoba Provincial Court) – A sentence of 12 months was imposed on a19 year aboriginal offender, who while intoxicated, stabbed the victim once in the chest with a screwdriver. The accused had no priorcriminal record, was remorseful, and had good rehabilitative prospects; • R. v. Young 1998 CanLi 1777 (Manitoba Court of Appeal) – A sentence of 4.5 years was replaced on appeal with a sentence of 2years less a day plus supervised probation for a 22 year old aboriginal woman who stabbed her very aggressive and intoxicated aunt at awedding.

The victim resisted treatment for her injuries. The accused, who had a previous record for assault and was on probation at thetime of the offence, had a difficult upbringing but good rehabilitative prospects. Penitentiary sentence • R. v. McDougall 2009 MBQB 299 (Manitoba Queen’s Bench) – A 3 year sentence was imposed on a 22 year old aboriginaloffender who, while intoxicated, stabbed her husband. There was little evidence of provocation. The accused had no previous record, hadtaken steps to address her drinking and had the support of the community. • R. v.

Abraham 2011 MBQB 299 (Manitoba Queen’s Bench) – A sentence of 5 years was imposed on a 31 year old aboriginaloffender with a previous criminal record who, while not intoxicated, beat the victim after being confronted by the victim. The accusedwas remorseful, entered a guilty plea and had participated in some programming. • R. v. Pearce 2012 MBQB 248 , 2012 MB Q.B. 248 (Manitoba Court of Queen’s Bench) – A sentence of 5.5 years wasimposed after the accused was convicted of manslaughter by a jury.

The accused was 39 years old at the time of the offence, had noprevious criminal record, had a grade 12 education and had been gainfully employed. The accused had been in a relationship with thevictim, who died as a result of multiple injuries. • R. v. Stacie Beaulieu – A sentence of 5 years was imposed on an aboriginal offender who, as part of a group, beat and stabbed thevictim.

The accused has a tragic upbringing and had expressed a willingness to participate in treatment [16] The wide range of the sentences available to the Court for the offence of manslaughter has repeatedly been the subject of judicial comment. In R. v. Sinclair (1980), Man. R. (2nd) 257 (Man. C.A.) Freidman CJM made the following observation: The offence of manslaughter presents the widest possible range for sentencing among all of the offences in the Criminal Code.

Asentence of life imprisonment may in one set of circumstances not be too much, and a suspension of sentence may in a different set ofcircumstances, not be too little. [17] Recognizing that there is no “starting point” for the “typical” manslaughter sentence, a review of the case law resulted in some general observations by Philp J.A. in R. v. Csincsa (1993), 85 Man R. (2nd ) 241 (Man. C.A.).

First, concerns related to publicprotection have resulted in an increase, in some instances, in the sentences imposed for manslaughter, addressing the once significantdiscrepancy between sentences imposed for manslaughter as opposed to the mandatory disposition imposed for the offence of murder. Secondly, courts have given increasing consideration to the “moral culpability” of the accused and by extension the violence or brutalityof the actions of the accused in committing the offence.

Thirdly, the aggravating and mitigating factors, including the personalcircumstances of the offender, any previous record, remorse, and rehabilitative prospects must all be taken into account in light of thefirst two factors. Added to this, in more recent years, are the principles set out in R. v. Gladue, 1999 CanLI 679 (S.C.C.) whereappropriate. [18] Defence counsel urges the Court to consider the reduced “moral culpability” of the accused when considering the overallcircumstances of the offence.

He points to the somewhat provocative actions of the deceased, the involvement of alcohol, thespontaneous manner in which the offence was committed, and the immediate attempts to assist the victim after the stabbing. Added tothis is the significant and genuine degree of remorse expressed by the accused as well as his high rehabilitative prospects. [19] Considering the circumstances leading up to this offence, it is surprising, troubling and purportedly out of character for theaccused to have acted in such a violent manner.

Considering the antecedents of the accused, the only conclusion is that his violentresponse to the situation was one that was triggered by alcohol. To that end, I agree with Crown counsel that it is of significant concernthat the accused has not taken steps to seek counselling for his abuse of alcohol or for anger management. Although the accused

participated in the Thinking Awareness Group (TAG) while at Milner Ridge Correctional Facility, he did not complete the required materials as he was described as having “shut down” during the last week of the program. It is of note that this description of the accused’s reaction to dealing with anger issues is similar to that provided by family members. When asked to address his lack of participation in the program, the accused pointed out that he had completed other portions of the program materials, but that overall he did not feel that the program “is for him”, further stating “I don’t think I need help.

I just want to live my life.” The accused did report having seen a psychiatric nurse while in custody, but the advice he relates having received was unhelpful. [ 20 ] The accused’s somewhat simplistic desire to serve his time, return to the work force, and continue a relationship with his family fails to recognize his need to address issues of anger management, addictions and grief. Without professional help, he remains a risk to act out again in a violent fashion.

The sentence imposed must be of sufficient duration to allow him to access counselling and programming prior to his release from custody. [ 21 ] The principles of sentencing set out in Criminal Code sections 718- 718.2 require a careful balancing when applied to any case, but none more than in the offence of manslaughter.

In this case, the aggravating factors include: • The use of a knife against an unarmed man; • The infliction of more than one stab wound; • The victim was his brother, and the incident has had an impact on the entire family; • Notwithstanding the accused had some awareness that he had an issue with alcohol, he has not sought any professional help to address his substance abuse prior to his involvement in this incident; • His lack of insight with respect to his need for professional help to address issues of anger management and substance abuse. [ 22 ] In mitigation, the Court must consider the following factors: • The incident began with some provocation on the part of the victim; • Immediately after the incident the accused sought medical help for his brother; • Upon being arrested, the accused admitted his involvement to the police; • He has repeatedly made genuine expressions of remorse for his actions and has not sought to minimize the impact of the incident; • He expressed an early intention to resolve the matter and entered a guilty plea prior to any hearing dates being set; • He is a relatively young man with no previous criminal record and no gang or criminal friends or connections; • Prior to the incident he held down two jobs, and appears to have viable employment prospects available upon his release from custody; • He appears to have some continued family support despite the fact that his brother is the victim in this matter. [ 23 ] The senseless and tragic loss of life calls for a sentence which denounces violent actions and sends a deterrent message to both the accused and to the community at large.

In this case, weighing both the aggravating and mitigating factors, I conclude that such a message cannot be sent by imposing a sentence which would see this offender remain in a Provincial institution, as suggested by defense counsel, even taking into account credit for time the accused has already served. Rather, the actions of the accused on the night in question calls for the imposition of a penitentiary sentence. Having said that, it is important to recognize that rehabilitation is an important factor in this case which must temper the length of the penitentiary sentence to be imposed.

To that end, I am satisfied that the “moral culpability” of the accused is significantly less than that of the offenders described in the authorities relied upon by Crown counsel. [ 24 ] Taking into account all of the forgoing, I am satisfied that the appropriate sentence in this case is one of four years, less credit on a one-to-one basis for the time spent in custody.

As the accused has spent one year in pre-trial detention, he will be required to serve a further three years. [ 25 ] The accused will be required to provide a sample suitable for DNA analysis within the next 30 days. [ 26 ] The accused will be the subject of a mandatory lifetime weapons prohibition pursuant to Criminal Code

section 109. [ 27 ] Given the nature of this sentence, costs and surcharge are waived. “Original signed by” MARY KATE HARVIE, P.J.