His Majesty the King - v. -, 2023 SKPC 59

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 59 Date: December 11, 2023 Information: 991235415 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Adrian Cote Appearing: Mr. Arjun Shankar For the Crown Mr. Christopher Gratton For the Accused SENTENCING DECISION D. KOVATCH , J Background [ 1 ] The accused, Adrian Cote, was charged that on October 12, 2022, he unlawfully caused the death of Sheldon Rosebluff and thereby committed manslaughter, contrary to

section 236 (

b) of the Criminal Code [ Code ]. On June 29, 2023, with the assistance of counsel, the accused elected trial by a Provincial Court judge and entered a plea of guilty to the charge. A pre-sentence report (PSR) was ordered. On October 6, 2023, I heard sentencing submissions from both counsel and reserved my decision on sentence. This is that decision.

The Facts [ 2 ] On October 12 of 2022, both the accused Adrian Cote and the victim Sheldon Rosebluff were inmates housed at the Regina Provincial Correctional Centre. At 8:26 a.m. and following, there was an incident in the common area in Unit 1B. This being a common area, there was video surveillance over this area. The surveillance video was made an exhibit at the sentencing hearing. Counsel prepared an Agreed Statement of Facts. Paragraph 6 of that Agreed Statement of Facts reads as follows: Surveillance video was obtained from the RPCC by Corporal Christopher Hujber, which captured the incident.

A portion of this video will be tendered into evidence as an exhibit, and its authenticity is admitted with the consent of all parties and without the need to establish how it was materially produced. The date and time of the video is also admitted. The surveillance video shows the following. a. At 8:26:22 a.m., the victim leaves his cell (#4) to get in line for breakfast in the common area; b. At 8:26:41 a.m., the accused comes into camera view from the breakfast area holding something white, presumably his breakfast, and then places it on the table closest to Cell (#9); c.

At 8:26:46 a.m., the accused goes into his cell (#9); d. At 8:26:49 a.m., just as the cell door closes, it opens again and the accused exits the cell and walks briskly towards the victim, who is still standing in line for breakfast and facing away from the accused; e. The accused approaches the victim with a clenched fist and punches the victim in the back/right side of the head; f. The victim falls, hits his head on the way down, seizes (by witness account) and remains in fetal position on the ground; and g. Correctional Officers attempt to assist. [ 3 ] Paragraph 2(

e) of the Agreed Statement of Facts states: The time of death was declared to be 8:47 a.m. [ 4 ] The provisional autopsy report was also entered as an exhibit. That report indicates that “the cause of death was acute subarachnoid haemorrhage due to or as the consequence of blunt force craniocervical injuries”. [ 5 ] As indicated in the Agreed Statement of Facts, when the victim fell, he hit his head. It is not clear to me whether the injuries suffered by the victim occurred solely as a result of being struck by the accused, solely as a result of hitting his head as he fell, or some combination of the two.

In my view, very little turns on this issue. It is clear that the victim passed away because of severe head and brain injuries that occurred directly as a result of a significant blow struck by the accused. [ 6 ] A pre-sentence report was prepared. In the PSR, it indicates that the accused heard Mr. Rosebluff was planning to stab him. He said the jail was very dangerous and he was scared. He wanted to protect himself from the victim and he waited for the breakfast tray to be handed out and punched the victim. He punched him once in the head.

He stated “he wanted to send a message but did not intend for Sheldon to die”. [ 7 ] The PSR also indicates that the accused has never known his father. His childhood was difficult. The family had little money. He witnessed significant substance abuse and violence in the family home while growing up. There are significant Gladue [1] factors. [ 8 ] The accused’s record is lengthy. The Court was advised it is very substantially related to his alcohol problem. In the PSR, the accused acknowledges he has a long-standing alcohol problem and that he needs to seek a resolution of that problem.

Along with many breach and fail to comply convictions, his record indicates seven convictions for common assault. [ 9 ] There was a victim impact statement from the victim’s mother. She described her extreme personal loss. Her husband, daughter and her son, Sheldon all passed away within a span of a year. She is fearful and has concerns for her family.

[ 10 ] The accused’s aunt, Elaine Cote, also spoke. She made an impassioned plea for leniency. She advised that the accused was raised by her mom and sister. Both are now deceased. The accused was raised in a very dysfunctional home. For about a year prior to this incident, the accused lived in her home. She very passionately stated that this incident does not represent who the accused is. He is a good person, and not a monster. His children and Elders in the community are praying for him. They love him and he has a future in their community.

I thank the aunt and the other family members for their presence and their comments. [ 11 ] The accused advised how very sorry he is for this incident and for the loss that Mr. Rosebluff’s family have incurred. He asked for their forgiveness. I accept that the accused’s remorse is genuine. Counsel arguments [ 12 ] Both counsel referred to cases like R v Keepness , 2010 SKCA 69 , 359 Sask R 34 and R v Bird , 2023 SKKB 54 , and the various authorities cited in those two cases. Both counsel agreed, on the basis of these decisions, that the general range for sentences in manslaughter cases is 4 years to 12 years.

Both counsel also referred to R v Laberge , 1995 ABCA 196 , 165 AR 375 [ Laberge ]. They referred to paragraph 6 from the Laberge case, which in part, explains the wide range of sentences for manslaughter. That paragraph states: [6] All unlawful act manslaughter cases have two common requirements - conduct which has caused the death of another; and fault short of intention to kill. However, despite these common elements, the offence of unlawful act manslaughter covers a wide range of cases extending from those which may be classified as near accident at the one extreme and near murder at the other.

They also refer to the Laberge case as authority for the Court assessing the degree of moral culpability attributable to the accused, and then placing the factual situation along the spectrum from near accident to near murder. At this point however, the submissions of counsel significantly diverged. [ 13 ] Crown counsel, Mr. Shankar, said the accused suckered punched the victim from behind. He stated it appeared that there was some deliberation or planning of the attack. The accused was sober and of clear mind. He was sending a message. This was not a mere accident, nor was it an impulsive act.

He advised the accused had a number of assault convictions, and is a repeat violent offender. The Crown’s view was that this is a mid to high range manslaughter case, and accordingly, a sentence in the range of 8 to 10 years should be imposed. [ 14 ] Mr. Gratton, for the accused, agreed that the accused took a direct line to the victim and sucker punched him. He stated however, that there was just one blow. He agreed that there was a risk of bodily harm. But said there was no risk of serious harm or death. On this basis, he argued that this is a low range manslaughter case.

He referenced the significant Gladue factors, and argued for a 4-year sentence, less any remand credit. Analysis and Decision [ 15 ] In R v Bellegarde , 2019 SKPC 22 , His Honour Judge Lang very nicely set out and discussed the various principles of sentencing. I quote that passage from his judgement: [19] In determining the appropriate sentence for this offence, I am guided by the provisions of sections 718 to 718.2 of the Criminal Code . A sentence must be one that fits the particular offence and the individual offender before the Court. [20] In order to achieve the fundamental purpose of sentencing outlined in

section 718 of the Criminal Code , namely contributing to respect for the law and the maintenance of a just, peaceful and safe society, the sentence I impose must be a just sanction. It must pursue one or more of the following objectives: denunciation of unlawful conduct; deterring the offender and others from committing offences; separation of the offender from society if necessary; rehabilitation; providing reparation to the victim and community; and promoting a sense of responsibility and acknowledging the harm done.

The relative emphasis to be placed on each of these objectives must be appropriate for the circumstances of this offence and this offender. [21] Even though the emphasis given to the sentencing objectives listed in

section 718 may vary according to the circumstances of the case, the resulting sentence must respect the principle of proportionality.

Section 718.1 of the Criminal Code states that the

fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender: R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 [Nasogaluak]. [22] I must also have regard for the secondary sentencing principles listed in

section 718.2 of the Criminal Code, includingconsideration of aggravating and mitigating circumstances, totality, parity, the need to consider all available reasonable sanctions otherthan imprisonment, and the need to consider the circumstances of Aboriginal offenders. [23] Denunciation and deterrence are paramount principles in this case, and it is clear from the jurisprudence that denunciation anddeterrence are of primary importance in sentencing for manslaughter (R v Kurek, 2018 SKQB 168 at para 33 [Kurek], see also R vMacLeod, 2018 ABQB 520 at para 65 [MacLeod]).

Proportionality [24] Proportionality is central to the sentencing process: Nasogaluak; R. v. Solowan, 2008 SCC 62, [2008] 3 SCR 309. It is the mostimportant of the factors codified in sections 718 to 718.2: R v Arcand, 2010 ABCA 363, 264 CCC (3d) 134 [Arcand].

In R v Ipeelee, 2012 SCC 13at para 37, [2012] 1 SCR 433 [Ipeelee], Justice LeBel described proportionality as the "sine qua non" of a just sanction,saying that a sentence which properly respects the principle of proportionality inevitably ensures that secondary goals such asdenunciation, restraint, promoting justice for victims, and maintaining public confidence in the administration of justice, are met. [25] In R v Yuzicapi, 2011 SKCA 134, 377 Sask R 133 Chief Justice Klebuc emphasized the importance of proportionality insentencing, and provided guidance as to its application.

At paragraph 28, he wrote: The gravity of an offence and the moral culpability of the offender in committing the offence are the principal factors to be considered insentencing. In Keshane this Court stated the gravity of an offence lies in three considerations: (

i) the nature and comparative seriousnessof the offence, (ii) the circumstances of its commission, and (iii) the harm caused by it. Parity [26] Consideration needs to be given to similar cases, and especially to those decided in Saskatchewan. The Supreme Court has notedat R. v. M. (C.A.), (SCC), [1996] 1 SCR 500 at para 92: Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similarcrime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected tovary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencinggoals will depend on the needs and current conditions of and in the particular community where the crime occurred. [16] While all of these principles must be considered and applied in this sentencing decision, the sentence here must also fallwithin the range specified by other sentencing cases.

As mentioned above, counsel are agreed that the sentencing range here is 4 to 12years. [17] In the Laberge case, the Court indicated that the sentencing judge must assess the moral culpability of the accused. The levelof moral culpability is directly related to the nature of the unlawful act causing death.

The Court stated: [9] Unlawful acts may be divided into three broad groups: those which are likely to put the victim at risk of, or cause, bodily injury;those which are likely to put the victim at risk of, or cause, serious bodily injury and those which are likely to put the victim at risk of, orcause, life-threatening injuries. Defense counsel Mr. Gratton, argued that the blow struck here by Mr. Cote put the victim at risk of bodily injury, but did not put him atrisk of serious bodily injury or life threatening injuries.

On this basis, he said this was a low-end manslaughter which should result in asentence near the bottom of the range. [18] I respectfully disagree with this submission. Under any description of the events, one would have to describe this as a surpriseattack with a very significant hard blow to the head of the victim. I begin by noting that the accused is a fairly large man, as in more thansix feet tall. He is not overweight.

He appears to be in good physical condition and fairly powerful. [19] It seems to me that in the past number of years, there has been a great deal of discussion in the law, in sports andentertainment, and in medical circles, about the fragility of the head and brain. Further, of the very significant and far-reachingconsequences of trauma to the head and brain. See for example the case of R v Lemmon, 2012 ABCA 103 at para 28, 285 CCC (3d)419. The Court stated as follows: [28] A moments reflection will reveal the reason for that. Rendering a person unconscious, whether by choking, strangulation or

suffocation, is an inherently dangerous act that is easily capable of causing death, or brain injury with very devastating lifelong consequences. (citations omitted) The difference in the outcome, between unconsciousness, brain damage and death, may be only a matter of a few additional seconds of pressure. This specific passage was adopted and quoted by our Court of Appeal in R v Bear , 2018 SKCA 22 , [2018] 6 WWR 516. In my view, while this passage discusses a brain injury in relation to strangulation or choking, it is instructive here.

I am not prepared to say that a surprise attack from behind and a hard blow to anyone’s unprotected head is a relatively minor matter or one that places the victim at only risk of bodily injury. In my view, the facts here placed the victim at risk of serious personal injury. As a result, in my view, this is a mid-range manslaughter case. [ 20 ] There are a large number of cases dealing with sentencing for manslaughter in the mid-range area. In R v Lafontaine , 1997 SKCA (SentDig) 22, a 7-year sentence was imposed.

The accused had no previous record and was intoxicated while confronting the victim about sexual abuse issues in his family. As they struggled over a shotgun, the victim was fatally shot. [ 21 ] In R v Key , 2000 SKCA 127 , 199 Sask R 239 the accused had a significant record. A total sentence of 11 years was imposed. In R v Thorne , 2000 SKCA 131 , 199 Sask R 278 a co-accused to Mr. Key who did not participate in the stabbing was sentenced to 5 years. In R v Blind , 2000 SKQB 536 , 200 Sask R 14, there was an argument in the accused’s home and he ordered everyone to leave.

As they were leaving, the accused fired a shot into their car and a teenage girl was killed. The accused was sentenced to 7 years. In R v Campbell , 2005 SKCA (SentDig) 13, the accused had a significant record. The accused and his roommate were both intoxicated. He stabbed his roommate twice causing death. He was sentenced to 9 years. In R v Dhanda , 2005 BCCA 533 , two people came to the accused’s home to vandalize it. The accused shot the victim twice from close range. The Court concluded this was provocation but not self-defense.

An 8-year sentence was imposed. [ 22 ] In R v Strongquill , 2016 SKQB 397 , there was a confrontation between two groups of men. It appears all were intoxicated. As the victim attempted to flee, the accused ran after him and stabbed him. A sentence of 8 years was imposed. [ 23 ] In R v Rodgers , 2012 SKQB 80 , 394 Sask R 152 the accused became involved in an altercation with the complainant. The accused stabbed the complainant. She was sentenced to 7.5 years imprisonment. [ 24 ] R v Langevin , 2018 ONSC 6020 involved another case of stabbing. The accused was sentenced to 8 years imprisonment.

In R v Whitehead , 2016 SKCA 165 , 344 CCC (3d) 1, the complainant attacked the accused’s aunt with a hammer. The complainant then fled. Three individuals, including the accused, gave chase, caught the complainant and severely beat the complainant with a table leg, their fists and feet. The complainant died of his injuries. The Court of Appeal sentenced the accused to 8 years imprisonment. This case is also significant because the Court of Appeal specifically accepted and considered the Gladue considerations in relation to Mr. Whitehead, and reduced the sentence from 9 years to 8 years.

The Court stated: [86] Finally, I accept the sentencing judge’s finding that Mr. Whitehead’s culpability for his crime is lower by reason of R v Gladue considerations. I have taken all of this into account alongside my assessment of the extent to which systemic and background factors had a bearing on Mr. Whitehead’s moral culpability for the killing of Mr. McKay. In the result, I find a fit sentence in all of the circumstances of this case is 8 years of imprisonment. [ 25 ] No two cases are identical.

In looking at any sentencing precedent, arguments can be made that the sentence and the case at bar should be higher or lower than the precedent case. As mentioned above, in my view, this is a mid-range manslaughter case. On the basis of the various sentencing precedents, I would determine that an appropriate sentence here is between 7 and 8 years. [ 26 ] I do however, take into account the Gladue considerations and the difficult childhood that Mr. Cote has lived. Mr. Cote’s reaction to the victim could never be justified under the heading of provocation or self-defense. However, I do understand why Mr.

Cote, having had prior violent confrontations, and having been a victim of an attack or assault, might have a much different response to a perceived threat than I would. In my view, that response was substantively coloured by the circumstances of his upbringing. I am impressed with Mr. Cote’s remorse and his desire to do better. I am also impressed with the support from his aunt and others in his community. [ 27 ] On the basis of all of the above, I have determined that an appropriate and fit sentence for this crime is 6.5 years imprisonment in a federal institution. I calculate 6.5 years at 2374 days.

I note that Mr. Cote has been in custody since the date of the

offence, being October 12, 2022. By my calculation that is 425 actual days from the date of the offence to today’s date. Applying the usual 1.5 to 1 ratio, by my calculation he has served 638 days on remand. As a result, I sentence Mr. Cote to 1736 days going forward from today’s date. [ 28 ] This is a primary designated offence within

section 487.04 of the Code . Accordingly, there will be an order allowing the authorities to take suitable bodily samples from the accused for forensic DNA analysis and registration in the DNA databank. [ 29 ] There will also be a firearms prohibition order pursuant to

section 109 of the Code for the life of the accused. [ 30 ] I waive any criminal victim surcharges. Dated at the City of Regina, in the Province of Saskatchewan, this 11th day of December 2023. ____________________ D. Kovatch, J