r v. KIERAN BURBANK, 2023 QCCQ 8076

R. c. Burbank 2023 QCCQ 8076 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU CITY OF GATINEAU “Criminal and penal Division” No: 550-01-126511-221 DATE: November 2, 2023 ______________________________________________________________________ BY THE HONOURABLE ANOUK DESAULNIERS, J.C.Q. ______________________________________________________________________ THE KING Prosecutor v.

KIERAN BURBANK Offender ______________________________________________________________________ DECISION ON SENTENCING ______________________________________________________________________ [ 1 ] On the evening of June 15, 2022, the victim, Trevor Turner, was playing billiards and consuming alcohol at Billard Flixx in Aylmer when Evan Bellaar-Spruyt entered the bar with a bloody mouth, saying that someone just hit him with a billiard cue. Trevor Turner and his friends went outside to check on the situation. [ 2 ] The offender, Kieran Burbank, also exited the bar for the same reason.

He proceeded to punch in the face several persons he suspected of being responsible for hitting Evan Bellaar-Spruyt. Trevor Turner intervened and got into a fight with the offender. At one point during the altercation, the offender was on the ground and receiving blows from three males, including Trevor Turner. The offender took out a knife and struck Trevor Turner several times. The victim suffered fatal wounds to the chest and, tragically, died shortly after. [ 3 ] The offender pleaded guilty to manslaughter.

The Crown and the defence jointly agreed to recommend a sentence of five years in custody, from which the Court should deduct a credit of 735 days to reflect the 490 days the offender has served in pre-sentence custody. [ 4 ] The Court must decide whether to accept the parties’ joint submission on sentencing. ANALYSIS 1. The purpose and principles of sentencing [ 5 ] The purpose and principles of sentencing are provided at sections 718 to 718.2 of the Criminal Code ( Cr.

C. ). [ 6 ] The objectives of sentencing include denunciation, deterrence, rehabilitation of offenders, acknowledgment of the harm they have done, and reparations for this harm. [1] [ 7 ]

Section 718.1 Cr. C. provides, as a fundamental principle in sentencing, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is achieved by reconciling the need to individualize the sentencing process (i.e., considering the accused themselves and the offence they committed) and the need for parity of sentences. [2] [ 8 ]

Section 718.2 Cr. C. provides that a sentence should be adjusted to reflect aggravating or mitigating circumstances and be similar to other sentences imposed in similar circumstances on similar offenders. [3] 2. The facts of the case [ 9 ] The Agreed statement of facts supporting the offender’s guilty plea includes, inter alia , the following:

- On May 28 th , 2022, the victim, Trevor Turner (2000-01-01), had been with friends at the Flixx bar since 9:30 p.m. to consume alcohol and play billiards. At one point, a young man, Evan Bellaar-Spruyt, enters the bar and says that someone hit him with a billiard cue. His mouth is bloody. - The victim and his friends leave the bar and find themselves outside. - Kieran Burbank had been told by Evan that he was assaulted by multiple people outside. Kieran Burbank went outside to see who was responsible for the assault. He approached Keegan Cooper-Wyant and asks, "it is you?".

Without answering Keegan Cooper-Wyant turns his head over and Burbank punched him in the face and caused him to fall to the ground. - It is at this point Jason Goulet-Moore is pushed by the accused. - Burbank also punched Jacob Picard in the face. He did so believing that all of these people were responsible for assaulting Evan. - Faced with this, the victim, Trevor Turner, intervened by initiating a confrontation with Kieran Burbank and that's when a fight began. - The fight was captured by several people present at the scene with their cell phones.

At least two other males intervened on the side of Trevor Turner and also assaulted Kieran Burbank. One of these males was actively preventing Burbank’s friends from coming to his rescue. This portion of the altercation is captured on cell phone video. - During this fight, Burbank was on the ground receiving blows from three males including Trevor Turner.

While he was on the ground being assaulted, Kieran Burbank took a knife out of his fanny bag and struck Trevor Turner several times. - Around 1:54 am, the emergency services were called by the many people attending the scene. - Upon arriving at the scene, the police found that the victim, lying on the ground, was bleeding profusely, and provided unsuccessful first aid. - Trevor Turner was brought quickly to Hull Hospital where he was pronounced dead at 2:45 a.m. - Kieran Burbank fled the scene before the arrival of help.

He did not offer any assistance to Trevor Turner following the stabbing. - Kieran Burbank subsequently travelled with his friend, Malcolm Smith, to the Maniwaki area based on analysis of their cell phone records. - The accused admits that the stab wounds he inflicted on the victim's body resulted in five injuries, two of which, in the chest area, are fatal. - According to the report of forensic pathologist Dr.

Yann Dazé, who performed the autopsy of the victim's body on May 30 th , 2022, the death of Trevor Turner (2000-01-01) was caused by a thoraco-abdominal trauma by a sharp weapon. - The victim, Trevor Turner, was 22 years old at the time of his death.

- Kieran Burbank had a criminal record of assault at the time of the commission of the crime and was subject to a release order in case number 550-01-126698-226 prohibiting him from possessing weapons including knives. - On the night of the events, Kieran Burbank had consumed cocaine and alcohol and was intoxicated. 3. The victim impact statements [ 10 ] Section 722(1) Cr.

C . provides that, when determining the sentence to be imposed on an offender, the court shall consider any victim impact statement of a victim filed with the court describing, among other things, the emotional harm suffered by the victim as the result of the offence and the impact of this offence on them. [ 11 ] At the sentencing hearing, family members and friends of Trevor Turner prepared detailed statements in which they describe the immeasurable loss and emotional harm they suffered because of the offence.

Victim impacts statements were filed by the following persons: - Sharon Renaud, mother of the victim (exhibit S-3); - Dave Turner, father of the victim (exhibit S-4); - Vanessa Turner, sister of the victim (exhibit S-5); - Sarah Turner, sister of the victim (exhibit S-6); - Joshua Lelièvre, friend of the victim (exhibit S-7); - Daphné Taitt, friend of the victim (exhibit S-8) [ 12 ] Words are not enough to adequately reflect the amount of pain, suffering and frustrations expressed by these bereaved persons over the sudden and absurd loss of their cherished son, brother and friend.

They are innocent victims of this crime and their lives have been tragically altered forever. [ 13 ] The harm they have suffered is an aggravating factor that the Court will take into account. [ 14 ] The Court, however, must disregard one aspect of some of the statements filed. Indeed, a number of these statements include remarks suggesting that the offender committed a murder and deserves to be sentenced as such. But the offender was charged with the lesser offence of manslaughter, which involves a lower degree of moral blameworthiness than the offence of murder.

And the offender pleaded guilty to the offence of manslaughter as charged. [ 15 ] Subsection 722(4) Cr. C . provide that victim impact statements must be prepared using Form 34.2 in

Part XXVIII, which prohibits “any comments about any offence for which the offender was not convicted”. Crown counsel should have ensured that the statements prepared by the family and friends of Trevor Turner were compliant with the instructions listed in this form. [4] [ 16 ] Subsection 722(8) Cr.

C. provides that “the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion .” (Emphasis added.) [ 17 ] While in no way seeking to minimize the tragedy experienced by the family and friends of Trevor Turner and while being empathetic about the terrible loss they have suffered, the Court shall disregard the portions of their statements where they accuse the offender of being a murderer and imply that he should be sentenced as such. 4.

The profile of the offender [ 18 ] The offender was 20 years old at the time of the events in May 2022. Three years earlier, he had been convicted in youth court for the following offences: Dates Offences Sentences 2019-03-25 Assault 20 hours of community service and 6 months of supervised probation 2019-12-16 Breaking and entering; Failure to comply with a disposition $400 donation and 12 months of supervised probation [ 19 ] A presentencing report was prepared and filed. [5] From it, we learn, among other things, that the offender comes from a “middle-class socio-economic background”.

His parents separated when he was 4 years old. The offender lived with his mother and experienced a troubled childhood in a dysfunctional environment:

“ After his parents separated when he was 4 years old, he moved with his mother, older sister, and brother to Aylmer in Gatineau. The Burbank children lacked supervision from then on, largely due to the fact that the mother developed a drinking problem due to her continuous state of depression. She then developed a chronic opioid addiction following an operation. The father worked overseas and was not very present.

The [offender] explained that he and his siblings did not listen to their mother, were often left without supervision, and that he was regularly beaten up by his brother and sister. ” [6] [ 20 ] When he was about 6 years old, the offender experienced an incident when he thought he was being followed by a stranger and was going to be kidnapped. Lacking proper parental support to reassure him, the offender developed an irrational fear and a compulsive need to have weapons on hand.

Among other things, he hid knives and hammers under his bed as a child and carried pepper spray with him at secondary school. [ 21 ] Not surprisingly, the offender struggled in school, where he was disruptive and undisciplined. He was diagnosed with attention deficit hyperactivity disorder when he was 6 years old and was medicated, with mitigated success, until his teenage years.

At 11 years of age, he was hospitalized briefly in a mental health institution (Pierre Janet Hospital) but his treatment there had to be shortened as he was found in possession of a knife and was overly disruptive. [ 22 ] Between the age of 11 and 14, the offender lived with his father, who was able to provide a more stable environment. When he was 14, the offender returned with his mother, where he enjoyed more freedom and easier access to the city. [ 23 ] The offender has a good relationship with his paternal grandparents, whom he visited regularly as a child and teenager.

He is said to have been respectful and helpful with them. They have maintained contact with him and continue to reinforce the need for him to correct his path. [ 24 ] The offender witnessed drug abuse from his mother and brother. His father reports that the offender “took it upon himself to try and ‘watch over’ them, worrying constantly and checking on them frequently, not sleeping to ensure they were ok.” [7] [ 25 ] When he was 17 years old, the offender found his brother in bed not breathing, apparently struggling from a drug overdose.

He attempted CPR unsuccessfully, called 911, and was witness, tragically, to his brother’s death. [ 26 ] Two weeks later, the offender was again involved in a traumatic incident when he found that his mother had locked him out of their home and had attempted to take her life. He called 911 again. Police arrived and his mother was taken away on a stretcher. [ 27 ] His father reports that the offender was never the same after these events. He became depressed and resentful. [ 28 ] The offender has expressed remorse for causing the death of Trevor Turner.

In a handwritten letter addressed to the vicitim’s family and friends [8] , which he read at the sentencing hearing, the offender apologized for the pain he has caused. He adds that, having seen and experienced it himself, he knows firsthand what losing a child will do to a mother and father, what losing a brother will do to a sibling, and how it “wreaks havoc” in a family.

He expressed shame, disgust, and regret for what he has done and commented that he should have never been carrying a weapon. [ 29 ] While the family members and friends of Trevor Turner read their respective victim impact statements in the courtroom, the offender unflinchingly accepted the resentment and outright hatred being directed at him. At times he put his head in his hands, seemingly overwhelmed by all the anger and pain expressed. This must have been a very difficult experience for him, especially considering that he is still a young adult, but he made no attempt to shield himself from the blame. 5.

Aggravating and mitigating factors 5.1 Aggravating factors [ 30 ] The Court notes the following aggravating factors: - The offender has a criminal record for assault. It was in Youth Court, however, and the offence was a fairly minor one, judging from its disposition of 20 hours of community service. - At the time of the offence, the offender was under an order of release prohibiting him from carrying any weapon.

He breached this order by carrying a knife on him, which he used to stab Trevor Turner. - The offence was violent and involved the use of a weapon. - The offender caused five stabbing wounds to the victim, including a fatal wound to his chest that was 4.5 centimeters deep. - Following the stabbing, the offender did not offer any assistance to the victim, who was bleeding profusely. He fled the scene instead.

- The family and friends of Trevor Turner suffered immeasurable harm over the sudden and absurd loss of their cherished son, brother and friend . [9] 5.2 Mitigating factors - The offender had a troubled childhood, being raised mainly by his single mother who suffered from depression as well as alcohol and opioid additions. - During his teenage years, the offender lived in an environment plagued by the drug use of his mother and brother; he took it upon himself to play the role of a guardian with them. - At 17, the offender tried unsuccessfully to save his brother from a fatal drug overdose; this left the offender depressed and resentful. - Two weeks later, he had to call the police to help his mother who had just tried to take her own life. - The offender was very young at the time of the offence (20 years old). - The offender pleaded guilty; he did not request a preliminary inquiry and he waived his right to trial; [10] - This is the first time he is convicted and sentenced as an adult, and he had never served any time in custody before. - The offender was intoxicated on the night of the events. [11] - The stabbing occurred when the offender was on the ground receiving blows from three males including the victim. [12] - The offender reported himself to the police, albeit late. - The offender apologized to the family and friends of Trevor Turner; in Court as well as during an earlier conversation with his father, he expressed sincere shame, disgust, and regrets over his actions. 6.

Sentences imposed for manslaughter [ 31 ] The offence of manslaughter covers a wide variety of conducts and different degrees of moral culpability. In the case at bar, the Crown and the defence agree that the offence of manslaughter committed by the offender is one involving a dangerous act, namely the act of stabbing the victim with a knife, as well as an objective risk that this act will cause serious bodily harm to the victim. In its 2017 decision in R. v.

Vallée , the Court of Appeal of Quebec determined that the penalties for this category of manslaughter will usually range from 5 to 7 years of imprisonment. [13] [ 32 ] Our Court of Appeal reiterated this sentencing range in at least two subsequent decisions. [14] This sentencing range has also been adopted in a number of decisions from the Superior Court of Québec. [15] [ 33 ] For example, this sentencing range of 5 to 7 years was considered in 2019 by the Superior Court of Québec in R. v. Gourd- Morris . [16] The facts involved a knife fight outside a bar between young men who were intoxicated by alcohol.

One of the co-accused, Kenneth Oteng, was stabbed in the arm by the victim. He grabbed the knife and rushed towards the victim, who fled. Oteng caught up

with him and stabbed him a first time, then, a few moments later, he stabbed him a second time while the victim was struggling on the ground. In total, 5 stab wounds were made to the victim, two of which were fatal. Several of the aggravating and mitigating factors in this case were similar to those in the case at bar. The Superior Court ruled that a sentence of 50 months of imprisonment, or 4 years and two months, was appropriate in the circumstances. [ 34 ] In R. v. Poulin-Agostino [17] , the Superior Court of Québec sentenced the offender to 5 years of imprisonment for the offence of manslaughter.

The offender had stabbed the victim twice outside a bar during a fight. He was 23 years-old at the time of the events and did not have a criminal record. Several of the aggravating and mitigating factors in this case were similar to those in the case at bar. [ 35 ] Other decisions, this time from the Court of Québec, used the same sentencing range of 5 to 7 years of imprisonment and imposed similar sentences for manslaughter offenses involving fatal wounds. [ 36 ] For example, in R. v.

Gosselin , [18] the Court of Québec imposed 5 years of imprisonment on a 72-year-old offender with a considerable criminal record who caused the death of a lady in a bar by three stab wounds because she refused to buy him a beer. The Court took into account the fact that the offender was very intoxicated at the time of the events. [ 37 ] In R. v. Pelletier [19] , the Court of Québec imposed a sentence of 5 years of imprisonment on an offender who hit one of his friends twice on the head with a telescopic stick during a fight, causing his death.

The Court took into account, among other things, the fact that the offender was only 21 years old at the time of the events, was intoxicated, and that the victim had been aggressive that evening. 7.

Joint submissions on sentence [ 38 ] Joint submissions on sentence occur when, following resolution discussions between Crown and defence counsel, both parties agree to recommend a particular sentence to the trial judge in exchange for the accused entering a plea of guilty. [ 39 ] In the present case, the “Agreed statement of fact supporting a guilty plea” [20] reflects the offender’s wish to plea guilty [21] after having been informed of the parties’ joint submission. [22] [ 40 ] The higher courts of this country, including the Supreme Court of Canada, recognize that joint submissions on sentencing help resolve most criminal cases in Canada and are essential to a fair and efficient criminal justice system. [23] Such agreements are routinely presented before the courts and are usually approved by judges without any difficulty. [ 41 ] From the Crown’s perspective, resolution agreements are desirable because they come with the guarantee of a conviction.

The Crown’s case may suffer from flaws, such as an unwilling or unreliable witness, or evidence that is potentially inadmissible. By agreeing to a joint submission in exchange for a guilty plea, the Crown avoids the risk of an acquittal. Also, the Crown may consider it best to resolve a particular case to spare victims and witnesses the anguish of a trial.

Moreover, victims may obtain find some comfort from a guilty plea, which may be an indication of an accused’s acknowledgement of responsibility or an expression of remorse. [24] [ 42 ] For the offender, resolution discussions imply that they would give up their right to a trial. In return, the most obvious and common benefit of joint submissions on sentencing is that the Crown agrees to recommend a more lenient sentence than the offender might expect after a trial or a contested sentencing hearing.

Also, for an offender who is remorseful, a guilty plea offers an opportunity to begin making amends. [ 43 ] But how should a judge react where the parties’ joint submissions appear to be unduly lenient? In its 2016 decision in R. v. Anthony-Cook , the Supreme Court of Canada ruled that judges should only depart from joint submissions where the proposed sentence would bring the administration of justice into disrepute or would otherwise not in the public interest.

This is a very stringent test with a high threshold intended to foster confidence in offenders, who have given up their right to a trial, that the joint submission they obtained in return for a guilty plea will be respected by the sentencing judge. Offenders will not give up their right to a trial unless they have some assurance that sentencing judges will in most cases honour agreements entered into by the Crown. [ 44 ] According to the Supreme Court of Canada in R. v.

Anthony-Cook , rejection of a joint submission “denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down .” [25] [ 45 ] Thus, the test for departing from a joint submission on sentence is not whether the judge finds it unfit or inappropriate , but, rather, whether the parties’ agreement on sentencing is so unreasonable that it would bring the administration of justice into disrepute or would otherwise not be in the public interest. [ 46 ] The Court of Appeal of Québec has hammered home this message in numerous decisions since R. v.

Anthony-Cook . Most recently, in Labonté Martin c.

R ., for example, our Court of Appeal explicitly reminded sentencing judges that they must exercise restraint and refrain from intervening simply because the recommended sentence seems unfair or manifestly inappropriate: « Un juge doit donc faire preuve de retenue et se garder d’intervenir dans le processus simplement parce que la peine recommandée lui paraît injuste ou manifestement non indiquée . » [26] [ 47 ] A few months earlier, our Court of Appeal ruled again that judges must not depart from the joint submission to simply impose the sentence they consider more fit in the circumstances: « En matière de recommandation conjointe, la jurisprudence de la Cour est constante.

Les juges ne doivent pas « utiliser le critère de l’intérêt public pour simplement imposer la peine qu’ils estiment appropriée ». [27] (Références omises.)

[ 48 ] To summarize, it is now well established that sentencing judges may not depart from a joint submission on sentence simply because they find it to be unfit or clearly inappropriate. This is considered an error and judges who apply this test are overturned on appeal.

Instead, sentencing judges must apply the “public interest test” and consider whether accepting the joint submission “would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down”. [28] Another way to paraphrase this is to determine that a joint submission is against public interest where it would cause “an informed and reasonable public to lose confidence in the institution of the courts. ” [29] [ 49 ] With such a high threshold, only in these rarest of circumstances is the “public interest” ever met.

Sentencing judges have very little discretion to depart from a joint submission. 8. Is the parties’ joint submission against public interest? [ 50 ] Let us now turn to the ultimate question posed to the Court: Should it accept the parties’ joint submission on sentencing in the case at bar? [ 51 ] As outlined above, pursuant to the principles set out in R. v.

Anthony-Cook and subsequent decisions from the Court of Appeal of Québec, sentencing judges may not depart from a joint submission simply because they find it to be - more lenient or harsh than the sentence they would have imposed; - unfit; or - clearly inappropriate. [ 52 ] Instead, sentencing judges must consider whether accepting the joint submission would cause an informed and reasonable public to lose confidence in the institution of the courts, or otherwise be against public interest. [ 53 ] The Court finds that, in light of all the factors discussed above, the agreement on sentence reached between the Crown and the defense in the case at bar, although lenient and situated at the bottom of the usual sentencing range, is not “so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, to believe that the proper functioning of the justice system had broken.” [30] . [ 54 ] In coming to this conclusion, the Court takes into account the following factors, among others: - The Crown has entered into an agreement with the defense, in light of which the offender waived his right to a trial. - Joint submissions on sentence help resolve most criminal cases in Canada and are essential to a fair and efficient criminal justice system.

Inasmuch as possible, judges must honour this type of agreement to promote certainty in resolution discussions. - In addition to the aggravating factors, the joint submission takes into account several mitigating factors, including: o The offender’s young age. o He was intoxicated at the time of the events. o He suffered traumatic and disruptive events during his teenage years, i.e., losing his brother to a substance overdose and having to rescue his mother from an attempted suicide; o The offender stabbed the victim while he was on the ground receiving blows from three males, including Trevor Turner. o The offender expressed remorse and guilt. - Although lenient, the joint submission falls within the range of penalties usually imposed for this category of manslaughter, as identified by our Court of Appeal. - Although each case is unique, the joint submission is consistent with sentences imposed by the Superior Court and the Court of Québec in cases bearing factual similarities with the present case.

[ 55 ] This does not necessarily mean that the Court finds that the proposed sentence is fit or appropriate in the circumstances. That was not the question asked of it. Rather, the Court concludes that the joint submission, considered in light of all the circumstances of the offence and the offender, is not lenient to the point of bringing the administration of justice into disrepute. CONCLUSION [ 56 ] The Court accepts the parties’ joint submission recommending a sentence of 5 years of imprisonment, or 1825 days.

From this, a credit of 735 days must be subtracted for the 490 days that the offender served in pre-sentence custody, leaving 1090 days to be served. FOR THESE REASONS, THE COURT: SENTENCES the offender to 5 years of imprisonment, or 1825 days, less 735 days for pre-sentence custody, which leaves 1090 days to be served. __________________________________ ANOUK DESAULNIERS, J.C.Q. Mtre Isabelle Bouchard Counsel for the prosecutor Mtre Leonardo Russomano Counsel for the offender Date of hearing: September 27, 2023