2015 MBPC 36, 2015 MBPC 36

Cite #2015 MBPC 36 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Lee Turner, for the Crown ) - and – ) ) Cody Alexander Schmidt-Mousseau ) Jeremy Kostiuk, for the Accused ) ) Judgment delivered: ) July 22, 2015 CORRIN, P.J. Introduction [ 1 ] As a result of an incident which occurred on January 2, 2013, the accused has entered a guilty plea to three charges; manslaughter, aggravated assault and breach of a firearm prohibition. At issue is the appropriate sentence to be imposed. Crown counsel suggests that the appropriate range for sentence is in the range of eight to ten years.

Defence counsel argues that his client should be sentenced to a term of five years incarceration. The Circumstances of the Offence [ 2 ] On January 2, 2013 the two victims, who are also brothers, went to a house where they were going to buy some drugs. While there, a plan was made to drive to the accused’s residence for the purpose of assaulting him. The deceased, Dean Unrau, then drove his brother and three other men to the accused’s residence on Long Plain First Nation.

The home in question was occupied by the accused’s mother, his stepfather, his younger brother Zach Mousseau and the accused Cody Schmidt-Mousseau. [ 3 ] The Unrau vehicle arrived at the accused’s residence shortly after 8:00 p.m. Shortly after the vehicle arrives, Zach Mousseau leaves the house. At this point a person named Graham Assiniboine hits Zach Mousseau with a baseball bat causing him to fall to the ground. Another individual, also armed with a baseball bat, named Keegan Assiniboine, joins in the beating.

Dean Unrau, who had once lived with the accused and his brother Zach, realizes that they have mistaken Zach for Cody but is unable to stop the others from perpetrating the beating. During the beating the accused emerged from the house carrying a rifle. At that point someone yelled “Gun” and all four men ran back to the car to escape. As the car was driving away down the driveway the accused fired several times. Police forensic experts later located two bullet holes in the trunk of the deceased’s vehicle. Both Mike and Dean Unrau were struck by bullets, both in the head.

Without anyone controlling the vehicle, it went into a ditch. [ 4 ] The vehicle then caught on fire. The accused and his stepfather pull Dean Unrau from behind the steering wheel of the burning vehicle and lay him in the snow at a distance from the burning car. After determining that Dean Unrau is dead, the accused transports his wounded brother Mike to the hospital in Portage La Prairie. [ 5 ] Police forensic experts were able to deduce that Dean Unrau was killed almost immediately after being struck by a single shot to the back of his head.

His brother Mike was also shot in the head but nevertheless made what was called a “miraculous recovery” from his injuries. Police believe that the shot that hit him must have been a deflection as usually a shot such as that is fatal. Zach Mousseau required medical intervention as a result of the assault. He later had thirteen to fourteen staples put in his skull and was noted to have suffered bruising all over his body as well as crushed fingers (from protecting his head from blows from the bats).

His fingers required surgery. [ 6 ] The accused turned himself into police on January 3, 2013, a day after the incident. The gun used in the offences was never recovered but police did recover .270 shell casings in the yard which are very common hunting rounds. The Background of the Accused [ 7 ] At the time of the offence the accused was 22 years old. He is an aboriginal man who is a member of the Long Plains First Nation. He has a relatively short criminal history which includes a conviction for failing to comply with a previous conditional sentence order in relation to a drug trafficking offence.

He has no prior history of violent involvement. The accused also has three convictions for possession of drugs between 2011 and 2013. [ 8 ] The pre-sentence report completed with respect to the accused makes no mention of any behavioral reports or disciplinary incidents during his pre-sentence detention.

[9] The accused only has a grade 9 education. In his early childhood his mother had a severe problem with substance abuse. ThePre-Sentence report indicates that the offender had difficulties in school due to being raised in an unstable home. He has been more orless reliant on social assistance since turning 18.

He has been employed at several different restaurants in Portage La Prairie over theyears but only for very short periods of time. [10] The Pre-Sentence report observes that his mother was adopted into the 1960’s “scoop”, which was described as a governmentassimilation policy wherein apprehended aboriginal children were placed to be raised by non-aboriginal families. It is also noted that hisgrandparents were residential school attendees, a situation which the Pre-Sentence report describes as causing him to have littleinvolvement with traditional aboriginal cultural practices.

The author of the pre-sentence report describes the accused as being a victimof physical and emotional abuse in his early childhood. [11] The accused has repeatedly expressed a significant degree of remorse for his involvement in this incident. He recognizes theseriousness of the offence and has not attempted to minimize his involvement.

He advised the Court that he never meant to kill or evenstrike any of the persons in the vehicle notwithstanding that at least two of his shots were fired at the back of the car. [12] It is the accused’s position that he didn’t know who the people in his yard were when he got his rifle. According to him, heperceived the situation as an unexplained attack on his brother. He maintains that he had no context in terms of what was occurring. It ishis position that he was in an emergent situation that he found to be extremely stressful, incomprehensible and dangerous.

Court wastold that he felt that he saved his brother’s life that night by chasing the assailants off with the rifle.

He rejects the Crown’s allegationthat he was dispensing vigilante justice, stating that the decision to shoot was made virtually spontaneously on the spot with little or nopremeditation or forethought. [13] The Pre-Sentence report concludes by describing the accused as a young person who is impacted by the after-effects ofcolonisation as he “was not raised in a stable home, his mother was part of the 1960’s scoop and Cody Schmidt-Mousseau did not havethe opportunity to learn his Ojibway culture and teachings that would have provided him with a positive self-image as a First Nationsperson.” The Position of the Parties [14] The Crown filed a number of cases to assist the Court in coming to an appropriate sentence.

All but three of the cases werefrom out of province. The other was a 2007 decision of the Provincial Court of Manitoba. [15] R. v. Peterson was a decision of the Manitoba Court of Queen’s Bench cited as 2012 MBQB 305. This decision, made byMadam Justice Suche was unsuccessfully appealed to the Manitoba Court of Appeal in 2013. The case involved two drug users whowere awaiting shipment for their drugs. One of them performed an unsolicited and unwanted sex act on the other who had fallen asleepon the accused’s bed.

Upon waking up and finding the victim performing oral sex on him, the accused grabbed a hammer that wasnearby and struck the victim at least nine times with what were described as “very powerful blows”. The evidence of the pathologistwas that any one of the blows was likely fatal. The accused was charged with manslaughter and sentenced to nine years notwithstandingthe provocation presented by the sexual assault. The Court agreed that Mr. Peterson’s reaction had been immediate and without anyplanning. The Court stated that the degree of violence used was “very concerning” and “gratuitous”.

The Court also opined that Mr.Peterson’s walking away and leaving Mr. Cruickshank to die was an aggravating feature of the offence. It is noteworthy that Mr.Peterson did not plead guilty and at trial had asserted that he was acting in self-defence. It is further noteworthy that Justice Sucheindicated that she saw “no signs of any real remorse”. It is also significant that Mr. Peterson had a criminal record which included threeprior acts of violence for which he had gone to prison. Mr. Peterson was also, unlike Mr. Schmidt-Mousseau, no longer a younger man.

Indeed, he was 33 years of age at the time of the incident. [16] The next Manitoba case referred to by the Crown was The Queen. v. Erron Troy Hogg, a judgment of the Manitoba Court ofAppeal delivered June 29, 2004 and cited as R. v. Hogg, 2004 MBCA 114. The context of this case was an appeal from a conditionalsentence of two years less a day imposed on an accused for aggravated assault. The assault was described as being “brutal”. Theaccused, believing the victim to be someone with whom he had previously quarreled, followed the victim to his home more than half-way across the city.

The accused approached the victim, calling to him in a friendly manner and advanced towards him. When theaccused put his hand out to shake that of the victim he struck the victim with a metal “club” device used to lock a car’s steering wheel. Not content with the damage he had done to the accused’s skull, the accused then proceeded to kick the victim when he was down. Theaccused continued to kick the victim when he was upon the ground notwithstanding that some friends who were with him tried to draghim away. The injuries suffered by the victim were both extreme and to some extent permanent.

The victim underwent surgery for anextensive skull fracture and underlying damage to his brain. The brain damage caused severe deficit in his ability to speak. Thisproblem required “intensive post-operative therapy”. The victim’s working memory, speech and ability to read were permanentlyimpaired. The Crown asked the Court of Appeal to sentence the accused to four years imprisonment.

The Court of Appeal followed thatrecommendation, sentencing the offender to four years imprisonment less credit for the time he had been subject to the restrictions of hisconditional sentence. [17] The other cases, which were all distinguishable from the facts of our case, were as follows: R. v. Beaulieu et al 2007 MBPC R. v. McNeil (NS CA) R. v. Pearson 2002 NBQB 218 R. v. Toon 2006 ABQB 285 R. v. Pitter (ON SC)

R. v. Wall 2010 BCSC 972 The Position of the Defence [18] Defence counsel provided the Court with five authorities, two of which were decisions of Manitoba superior courts. Although Ihave reviewed all of the case law submitted I will now provide a description of the two aforementioned Manitoba precedents as same isnot only instructive but binding on this Court. [19] In R. v. Abraham, 2011 MBQB 299, Madam Justice McKelvey dealt with a matter where the accused had pled guilty tomanslaughter. The accused was ultimately sentenced to five years in custody with a two for one credit for time served in pre-trialcustody.

The accused and his wife had been walking along the roadway when they encountered the deceased, who is alleged to have runtowards them in a threatening manner. As a consequence, the accused threw the victim to the ground and then started to punch and kickhim in self-defence. Justice McKelvey stated that there was no question that the force used in the circumstances went well beyond self-defence or defence of others. She found that it was, in the circumstances, both unreasonable and excessive. It was noted that he hadimmediately expressed remorse for what he had done when confronted by law enforcement officers.

Abraham was 31 at the time ofsentencing and the father of a young daughter. He had a criminal record dating back to his youth but most of his prior convictions wererelated to property crimes as well as failures to comply with court orders. He had a conviction for assault cause bodily harm in 2003 andfor spousal assault in 2004. He had been free of convictions since 2006. McKelvey acknowledged certain Gladue factors but determinedthat notwithstanding the accused should be dealt with in the same manner as a non-aboriginal offender. The Crown asked for anincarceratory term of six to eight years relying on R. v.

Csincsa (1993) (MB CA), 85 Man.R. (2d) 241 (MBCA), R.v. Crane (1993) (MB CA), 88 Man.R. (2d) 17 (MBCA), R. v. Sinclair, 2009 MBCA 71 and R. v. Sinclair 2011 SCC40 , 2011 SCC40 in support of its position. The defendant had requested a three and one half year term of imprisonment. Theaggravating factors in this case were described as being as follows; Abraham’s callous disregard for life by leaving Starr lying injured onthe side of the road in harsh winter conditions, his criminal record which particularly related to crimes of violence and his failure to callfor medical assistance.

Justice McKelvey imposed a sentence of five years in custody which sentence was reduced by a two for onecredit for the time the accused had spent in pre-trial and pre-sentence custody. [20] The other Manitoba decision relied upon by the defence was R. v. Cascisa, 2001 MBCA 168, a decision of the Manitoba Courtof Appeal. In this case the accused pled guilty to a charge of manslaughter involving a death resulting from a drunken fist-fight. Theaccused was previously on probation for an assault conviction at the time of the offence. The Crown had appealed a sentence of twoyears less a day.

The accused and the victim had voluntarily attended a parking lot and engaged in a consensual fight. After the accusedhad knocked the victim unconscious he continued to kick him in the head with such violence that a shoe imprint was left on the victim’sforehead. In addition the accused left the victim naked from the waist down, revealing what was described as “significant insensitivityand cruelty on his part”. The accused was noted as appearing to have been genuinely remorseful and was also regarded as being ofgeneral good character.

The appeal court determined that the custodial sentence of two years less a day was not an unfit sentence. [21] The defence also filed three other cases, which I reviewed: R. v. Larche 2013 MBPC 54 R. v. Pop 2013 BCCA 160 R. v. Mulligan-Brum 2013 BCCA 231 Provocation in Relation to the Offence of Manslaughter [22] Defence counsel submitted that the two victims’ actions in accompanying their friends to the accused’s residence for thepurpose of assault amounted to provocation such that his client should receive a diminished sentence. In R. v.

Pearce, 2012 MBQB 248a 2012 Manitoba Queen’s Bench decision, Madam Justice Greenberg commented, after reviewing several case precedents, that it was herconclusion that manslaughter sentences where provocation was involved typically suggest a range of four to nine years if “the accused isof previously good character” (see para. 22). In Pearce, the 39 year old offender, a responsible citizen with no prior criminal history,committed a vicious and deadly assault on his long-time life partner when he learned his partner had knowingly exposed him to AIDS. The attack was described as being both brutal and prolonged.

The accused was found guilty at trial notwithstanding that the Crown hadagreed that he should be tried for manslaughter, not murder as originally charged because they were satisfied that Mr. Pearce hadcommitted the act as a result of provocation. Justice Greenberg stated that specific deterrence was not a concern in Pearce and describeddenunciation and retribution as being the paramount sentencing considerations. She observed that the Supreme Court in R. v.

Stone(1999) (SCC), 2 S.C.R. 290, a decision in 1999, had emphasized that provocation must be considered in assessing thedegree of moral blameworthiness of a given offender. She also observed that the Crown in her case, as in the case at bar, had argued thatthe circumstances of the offence required “significant condemnation”.

Conceding that the circumstances of manslaughter offences andoffenders tend to vary a great deal from case to case, Justice Greenberg set out to determine whether a review of the pertinent case lawcould help her to establish a range of appropriate sentence in relation to manslaughter committed in provoked circumstances. Afterreviewing five cases, one from the Supreme Court and two from Provincial appellant courts, she concluded that a range from four to nineyears was discernible for such cases where the accused was of previously good character.

After reviewing four other Manitoba superiorcourt sentencing precedents, as well as concluding that the offender posed little threat to the community at large, Mr. Pearce wassentenced to seven years incarceration less a two for one credit for the time he had spent in custody prior to being released on bail. Manslaughter Sentencing [23] The case law makes clear that there are no strict guidelines or definitive principles governing manslaughter sentencing. Theoffence can be committed in circumstances ranging from near accident to near murder.

This results in a range of sentence thatencompasses a wide spectrum from the imposition of a suspended sentence to life in prison. Of course, because of a relatively recentamendment to the Criminal Code involving firearm offences, the range of sentence in the case at bar is restricted to a minimum four yearmandatory sentence.

[24] Recognising that there’s no starting point for the “typical” manslaughter sentence, the Manitoba Court of Appeal made somegeneral observations related to manslaughter sentencing in R. v. Csincsa (previously cited). Such observations fell into three categories. Firstly, that concerns related to public protection have resulted in an increase in some instances, in the length of sentences in order toaddress the once significant discrepancy between sentences imposed for manslaughter and the mandatory dispositions associated withmurder sentencing.

Secondly, courts have given increasing consideration to the moral culpability of offenders and in particular, thedegree of violence or brutality involved in the commission of the offence. Thirdly, the Court noted that the aggravating and mitigatingfactors that apply generally in the sentencing process are also relevant to the offence of manslaughter and that same, including thepersonal circumstances of the offender, his background, his prior involvement with the criminal justice system, his prospects forrehabilitation and remorse must all be taken in account in light of the first two factors.

Of course, added to this after the SupremeCourt’s decision in R. v. Gladue are the so-called Gladue principles, where same are appropriate. [25] To quote Justice Suche in R. v. Peterson (previously referred to herein): [7] “An appropriate sentence for manslaughter must be tailored to the moral culpability of the offender, in light of the primaryconsiderations of denunciation and deterrence which will apply in any case of culpable homicide.” [8] “In R. v. Stone (1999) (SCC), 2 S.C.R. 290...the Supreme Court of Canada adopted the view of the Alberta Court ofAppeal in R. v.

Laberge (1995) 1995 ABCA 196 , 165 A.R. 375 that in considering this issue, the Court must look not only atthe physical characterization of the act itself, but must assess a range of other considerations.

These include the choice of weapon usedto affect the unlawful act, the degree of force the offender used in perpetrating the act, the extent of the victim’s injuries, the degree ofviolence or brutality, the existence of any additional gratuitous violence, the degree of deliberation involved in the act, the extent towhich the act reflected forethought of action or planning, the complexity of the act, what if anything provoked the act, the time taken toperpetrate the act and the element of chance involved in the resulting death.” [26] In Laberge the Court also divided unlawful acts in the nature of manslaughter 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, or cause, life-threatening injuries...

The Court also held that the offender’s mental state at the time of the commission of the offence must be evaluated in the context of therelative degree of seriousness of the crime. Of course, the deliberate act of firing the gun at the vehicle multiple times was, in thecontext of our case, quite serious.

The Purpose and Principles of Sentencing [27] The fundamental purpose of sentence is to contribute along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions. [28] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In the case atbar Mr. Schmidt-Mousseau has accepted that responsibility. [29]

Section 718 of the Criminal Code sets out a number of objectives a sentencing Judge should bear in mind when approaching thetask of sentencing.

The objectives of the sentence in this case include denunciation, deterrence, separating the offender from society,assisting in the rehabilitation of the offender, promoting a sense of responsibility in the offender and acknowledgement of the harm doneto the victims and their family and to the community. [30] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to eitherthe offence or the offender. [31] The mitigating factors in this case include: • The accused’s guilty plea; • His very evident remorse which he has expressed throughout; • The fact that Mr.

Schmidt-Mousseau was not initially the aggressor which may have caused him to act instinctively to protect hisbrother and himself against any further unprovoked attack; • His efforts to provide medical assistance to the victims; • The incident began with considerable provocation on the part of the victims. [32] The aggravating factors in this case include: • The use of a firearm, which of course, results in a minimum mandatory sentence being imposed; • The accused fired directly at the vehicle on more than one occasion. Gladue Analysis [33] In R. v.

Ipeelee, the Supreme Court of Canada clarified what they had meant in R. v. Gladue in reference to offenders not

bearing a burden of establishing a direct cause or link between Gladue factors and the offending behaviour.

Speaking for the Court at paragraph 83, Justice LeBel states as follows: “Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.” [ 34 ] In the case at bar I am not of the view that anything arises from the accused’s circumstances as an aboriginal person which would justify any departure from a proportionate sentence based on and informed by reference to an appropriate range of sentence.

I am not satisfied that the personal circumstances of the accused figure as a mitigating factor in the context of this case, in the sense that his background would serve to reduce his moral culpability for his involvement in this offence. I perceive no meaningful connection between the deleterious consequences of First Nation status and the commission of the offence before the Court. I do not believe that Gladue factors in any way predisposed the offender to commit these crimes. [ 35 ] This Court further notes that paragraph 71 of Ipeelee states that “s. 718.2(

e) should not be taken as requiring an automatic reduction of a sentence or a remission of a warranted period of incarceration, simply because the offender is aboriginal”. Paragraph 60 of Ipeelee also states that Gladue related factors “do not necessarily justify a different sentence for aboriginal offenders”. [ 36 ] Although I have considered the unique situation and circumstances of the accused I am nevertheless of the firm opinion, in the context of this particular case, that the sentence imposed upon Mr. Schmidt-Mousseau should not be mitigated by the application of Gladue principles.

Analysis [ 37 ] The circumstances presenting in the case of R. v. Beltran , 2006 MBQB 45 , (Man.QB.), are somewhat similar to those in this case. In Beltran a number of individuals began attacking Mr. Beltran in the backyard of a residence. The sentencing Judge, Justice Hanssen, found the circumstances surrounding the commission of the offence to be a major mitigating factor in that case. He noted that the accused had been the victim of an unprovoked assault by the deceased.

As such, the Court took into account that the accused was clearly justified in using some degree of force to defend himself in the circumstances notwithstanding that he had used excessive force. Mr. Beltran had originally been charged with murder but found guilty of manslaughter by a jury. Beltran was given a two for one credit for time served and released from custody. The effective length of his sentence was almost five years as he had spent two years and five months in custody. The Crown had recommended a further three year sentence. [ 38 ] Another case worthy of some consideration is that of R. v.

Capistrano , 2001 MBQB 60 (Man.QB.). In Capistrano a conditional sentence order of 2 years less a day was imposed after a jury conviction for manslaughter. After an altercation in which the deceased was the aggressor, the accused, his neighbor, struck the victim over the head twice with a wooden bat. The accused died from his injuries later the next day. Both parties were highly intoxicated. [ 39 ] Another case worthy of some consideration is R. v. McDougall , 2009 MBQB 299 (Man.QB.).

In this case a three year sentence was imposed on a 22 year old aboriginal offender who, while intoxicated, stabbed and killed her husband. There was little evidence of provocation. The accused had no prior record and had taken steps to address her drinking. [ 40 ] Defence counsel urged the Court to consider the reduced moral culpability of his client when considered in the light of the overall circumstances of the offence. In such regard he pointed to the provocative actions of the victims and their friends as well as the spontaneous manner in which the offence was committed.

He also reminded the Court of the immediate attempts to assist the victims after the shooting. He further reminded the Court of the significant and genuine remorse expressed by the accused. [ 41 ] I agree with defence counsel that the evidence of provocation is probative as to the accused’s mental state at the time of the shooting. I also agree with Justice Greenberg’s conclusion in Pearce respecting the appropriate range of sentence which should pertain in a case such as this. [ 42 ] My view of this aspect of the case is that Mr.

Schmidt-Mousseau’s level of moral culpability is significantly reduced by the emergent nature of the over-all incident; the reason being that he was reacting almost impulsively to an exceedingly threatening situation, one that he couldn’t avoid in the over-all circumstances. That being said, the firing of the rifle directly at the fleeing vehicle was calculably high risk as it put the victims at risk of life-threatening injuries. [ 43 ] Having considered the submissions of counsel, it is my view that the appropriate sentences in this case should be pronounced concurrently and not consecutively.

This decision is predicated on my determination that the three offences were interrelated and not separate and distinct. In other words I see the offences to be sufficiently interconnected to form a single criminal transaction, thereby attracting concurrent sentences. That being said, and having taken into account the accused’s personal mitigating circumstances as well as the other unique factors bearing on this case, I impose a sentence of five years in custody on the manslaughter charge.

The Court also imposes a three year concurrent sentence with respect to the aggravated assault and one year concurrent sentence with respect to the firearm related breach. The Court notes that the accused is also to be credited at 1.5:1 for time served in custody to date. [ 44 ] I also order a DNA order and a mandatory lifetime weapons prohibition order pursuant to

section 109 of the Criminal Code . “Original signed by”

CORRIN, P.J.