R. v. Vallee Date:, 2012 BCPC 167

Citation: R. v. Vallee Date: 20120523 2012 BCPC 0167 File No: 59082-3C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD VALLEE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MACKAY Counsel for the Crown: C.M. Kramer Counsel for the Defendant: L.D. Myers, Q.C.; B. Anderson Place of Hearing: Chilliwack , B.C. Date of Hearing: April 23, 2012 Date of Judgment: May 23, 2012 [ 1 ] Richard Vallee has entered a guilty plea to a single count of manslaughter of Ken Ronald Paquette. As presented, the killing

of Mr. Paquette occurred in Hope, British Columbia, on May 27, 2011. [ 2 ] This matter was before me on April 24, at which time counsel made submissions and filed books of authorities in support of their positions. I provided a brief oral

summary of my reasons in court today and indicated that these more detailed and complete reasons would follow shortly afterwards. [ 3 ] The brief filed on behalf of Mr. Vallee contained letters of support for Mr. Vallee and some documentation of his attendance and completion of several programs whilst in custody awaiting sentencing. Additionally, the Crown filed five exhibits consisting of: 1. Report of Post Mortem Examination prepared by Dr. J.D. Charlesworth; 2. Eight colour photographs of the scene where the incident took place; 3. A

summary of Mr. Vallee’s criminal convictions; 4. A letter from R. Imai (a Probation Officer) dated April 19, 2012, regarding Mr. Vallee’s performance on probation between October 2010 and May 27, 2011; and 5. A Victim Impact statement dated April 16, 2012, written by Mr. Paquette’s sister. BACKGROUND FACTS [ 4 ] At the time of the offence, Mr. Vallee was 43 years old and lived in a unit at the Thunderbird Motel (“the Thunderbird”), in Hope. He lived with his girlfriend, Ms. John, who was then 33.

I am told she suffered from schizophrenia, and it is also relevant that she worked as a prostitute at around the time of these events. [ 5 ] The victim, Kenneth Paquette, was 67 years old at the time of the offence. He was of First Nations heritage and earned some money from selling his art which he would display on the roadside near the entrance to the Thunderbird. He resided in a different unit at the Thunderbird and was a friend of both Mr. Vallee and Ms. John. [ 6 ] On May 27, 2011, Mr. Paquette was in receipt of some money. This came to the attention of Ms. John, who went over to visit Mr.

Paquette to drink beer with him. At some point, Mr. Paquette propositioned Ms. John. She agreed to provide him with oral sex. In the course of the sexual activity between them, Mr. Paquette also performed oral sex on Ms. John. [ 7 ] Just after Mr. Paquette and Ms. John had finished their sexual encounter, Mr. Vallee happened by. He saw Ms. John through the window of Mr. Paquette’s unit. She was in the process of dressing. Ms. John also caught sight of Mr. Vallee and fled into the bathroom. [ 8 ] From the bathroom, Ms. John heard the door to Mr. Paquette’s unit being kicked in.

After some time elapsed, she opened the door to the bathroom and saw Mr. Paquette lying on his side by the bed. She heard Mr. Vallee say, “Stay away from my wife” or words to that effect. [ 9 ] Ms. John noted that Mr. Paquette was bleeding and saw that he was breathing through his mouth. She was concerned for him but, at Mr. Vallee’s urging, left with Mr. Vallee. They bicycled towards the downtown area of Hope, but Ms. John turned back at some point en route. [ 10 ] The hostilities between Mr. Paquette and Mr. Vallee were witnessed by others.

A witness named Parsons, who was having a nap in an adjacent unit, overheard a verbal argument but did not recognize the voices. This argument took approximately ten minutes. Parsons later saw Mr. Vallee carrying two plastic bags and looking sweaty. Parsons was aware that Mr. Paquette was a “drinker”, but did not know him to be violent. [ 11 ] Jerome Gaffar was also a resident of the Thunderbird. He witnessed Ms. John go over to Mr. Paquette’s unit and appears to have seen her leave. Immediately after seeing Ms. John leave, he saw Mr. Paquette at the doorway to his unit and noticed a lot of blood on his clothing.

He attended Mr. Paquette, assisted him to a seat and called 911. This call was made at 5:41 p.m. He also noticed blood on the floor of Mr. Paquette’s unit. [ 12 ] The 911 operator had a brief conversation with Mr. Paquette about what had happened. The account given by Mr. Paquette made no reference to any sexual activity. He claimed that he was set upon while he was in bed and told the operator that he did not know why he was beaten up. He was lucid at this time. [ 13 ] Two paramedics from Emergency Health Services (“EHS”) attended to deal with Mr. Paquette.

They noted that he was bleeding from his nose and right eye. He related a coherent account of what had transpired and advised the incident had occurred approximately one hour previously. He was transported to the Fraser Canyon Regional Hospital (“Fraser Canyon”) for further treatment. [ 14 ] At Fraser Canyon, Mr. Paquette appeared lucid, oriented and cooperative. He was diagnosed as suffering head trauma, lacerations to his eye and a hematoma to his left ear. It was noted that his left eye was swollen shut. Mr. Paquette did not complain of any pain.

He provided an account of what happened - essentially the same as he related to the 911 operator. He was treated for his injuries. [ 15 ] At or about 9:00 p.m., an emergency physician at Fraser Canyon noted that Mr. Paquette seemed disoriented. Although he was aware that he was in Hope, he did not seem to know he was in hospital. Consequently, arrangements were made for his transfer to Chilliwack General Hospital where a further diagnosis indicated he was suffering from a subdural hematoma, subarachnoid bleeding and an orbital fracture.

It was then decided that he should be transferred to Royal Columbian Hospital in New Westminster. Shortly after he arrived at Royal Columbian, he suffered a cardiac arrest and was pronounced dead.

[ 16 ] In the autopsy report, marked as Exhibit 1, Dr. Charlesworth found that acute blunt force craniocerebral trauma sustained within the preceding 12 hours was the cause of Mr. Paquette’s death. Dr. Charlesworth made note of extensive blunt force injuries to Mr. Paquette’s head and face including a fractured nasal bone, contusions and swelling about the left side of the face, scalp and brain area. The mechanism of death was Mr. Paquette’s brain bleeding and swelling inside of his skull. It was also noted that Mr. Paquette’s right ring finger was fractured which was classified as a defensive injury. [ 17 ] Mr.

Vallee was initially arrested for aggravated assault of Mr. Paquette as well as for breaking and entering his unit. The arrest was some time prior to the death of Mr. Paquette. Mr. Vallee was wearing different clothes from what he had been seen in that morning. He was cooperative. He made a spontaneous statement at, or shortly after his arrest saying, “I asked for a smoke and I got punched.” [ 18 ] Mr. Vallee was detained at the police station. He was given proper access to counsel.

There is no issue with the adequacy of the reasons for arrest, Brydges advice and police warning that were provided to him by Constable Eaton at the time of arrest. [ 19 ] At approximately 4:50 a.m., the police learned that Mr. Paquette had died. At this time, Mr. Vallee was re- Chartered , re- warned and given another opportunity to contact counsel. He opted to wait to speak to a lawyer of his own choosing rather than duty counsel. At some point later in the morning of May 28, 2011, counsel called back and spoke with Mr.

Vallee. [ 20 ] Police sought and were granted a “one party” authorization to intercept communications from Mr. Vallee. An officer posing as a fellow detainee was put in Mr. Vallee’s cell. In the course of conversation, Mr. Vallee admitted hitting Mr. Paquette although he claimed that Mr. Paquette had hit him first. He made it clear that he did not plan to kill, but reacted to seeing Ms. John with Mr. Paquette. As he put it, he “lost his marbles.” Later in the morning, the cell plant officer noted Mr. Paquette seemed pensive. His account remained essentially the same.

Although he did relate that he had tried to dispose of his bloody clothes, he also stated that he tried to assist Mr. Paquette after striking him by providing towels to help stop the bleeding. [ 21 ] Mr. Vallee was seen by a nurse while in the police cells. Although he complained of pain in his wrist, no bruises or cuts were observed on him. [ 22 ] The photographs, which were collectively marked Exhibit 2, show blood on the floor of Mr. Paquette’s unit. This is also visible near the toilet bowl – perhaps the result of an effort to clean up the wounds. As Ms.

Kramer very fairly noted, the photographs indicate that whatever happened between the two men was not a sustained event – there were no blood splatters detected and the room, although untidy, did not bear many signs of a major altercation. The physical evidence, in other words, is consistent with all of the accounts provided. Although there is nothing in the physical evidence to substantiate that Mr. Vallee was struck first, there is also nothing to rule this out. [ 23 ] In

summary, it is clear from the evidence that the unfortunate death of Mr. Paquette was not planned. It clearly came about as a consequence of Mr. Vallee coming upon a provocative situation which caused him to react with anger and jealousy. The precise way in which the altercation came about remains obscured, so that it is impossible to rule out some sort of consensual aggression by both the accused and the deceased. Of course, any potential suggestion of a consensual fight does not vitiate the infliction of force to the degree which obviously occurred here. It does, however, affect the extent of Mr.

Vallee’s moral blameworthiness and is a proper consideration on sentence. THE OFFENDER [ 24 ] Mr. Vallee is now 44 years old. He was the product of a good upbringing by his mother and stepfather, although it appears he did spend some time in foster care. His early years were spent in Montreal, but he moved with his mother and stepfather to B.C. where he finished high school and went on to study engineering at BCIT. This led to steady employment in the sawmill industry in this province. [ 25 ] Mr. Vallee is father to one son, Lee, who is also following his career path.

They are close and the letter from Lee Vallee which was filed sets out that Mr. Vallee was an active, involved father throughout his childhood – coaching soccer and taking his son fishing and camping. He notes that his father’s life deteriorated after a divorce from his mother. In that period, his father lost his employment and began using drugs, which, I am told, included cocaine. Lee Vallee remains supportive of his father, and noted that his father has completed anger management and other course during the time he has awaited sentencing. [ 26 ] Mr. Vallee’s sister, Linda, echoes the views of Lee Vallee.

She describes the family as close and says that Mr. Vallee has a loving heart. She indicates that Mr. Vallee has prayed for forgiveness for his offence and hopes that he will have another chance at life. Similar positive observations and comments were made in the letter written by Deborah Jorgensen, another of Mr. Vallee’s sisters. [ 27 ] A letter from Tara Dillon was filed as well. Ms. Dillon is Mr. Vallee’s niece. She describes him as being a supportive, family oriented person and says that Mr. Vallee is remorseful for what happened with Mr. Paquette.

She says he would never intentionally take someone else’s life. [ 28 ] Henry James Davis is Mr. Vallee’s stepfather. He has been essentially the only father that Mr. Vallee has known. He confirms Mr. Vallee’s good character growing up. He describes Mr. Vallee as being well-liked, loyal to friends and family, and possessed of a strong work ethic. He too describes the remorse that Mr. Vallee has expressed. As well, he echoes Lee Vallee’s observation that Mr. Vallee’s downfall came about as a result of the breakup of his marriage and loss of his career. [ 29 ] A consistent picture of Mr.

Vallee emerges as someone who essentially fell from grace. In a pivotal period of his life he lost his career, went through the breakup of his marriage and became involved with very dangerous drugs. As Mr. Myers aptly put it, he stumbled, fell and didn’t get up. By the time of Mr. Paquette’s killing, Mr. Vallee was leading a scavenger’s life – residing in a somewhat dilapidated motel and involved with Ms. John who, as noted, had an abundance of her own misfortunes. It is testament to the person he was that his family has stood by him through all of the miseries he has endured.

CRIMINAL RECORD OF THE ACCUSED [30] As for Mr. Vallee’s record, he comes before the court with a number of convictions that appear commensurate with the darkperiod of his life. There are 20 convictions in total – all but one of which date from 2004. The earliest conviction is for possession of anarcotic from 1991 and appears to have been dealt with by way of a conditional discharge. [31] There are five convictions for crimes of threatened or actual violence. The most serious of these appear to date from 2006 and2008.

The earlier conviction was for two counts of assault with a weapon, mischief, two counts of theft under $5000.00, and a breach ofundertaking. This was dealt with by the imposition of a conditional sentence. The conditional sentence was breached three times whichresulted in Mr. Vallee serving periods of imprisonment in 2006 and 2007. [32] The 2008 conviction was for assault causing bodily harm.

He was sentenced to a traditional jail term of six months. [33] The most recent conviction prior to the commission of this offence was an assault which resulted in a jail sentence of sevenmonths, followed by an 18-month term of probation. He was, therefore, subject to probation at the time that this offence was committed.I understand that this offence involved Mr. Vallee, as Ms. John confronted another male she had previously had some encounter with. Itseems that Mr. Vallee acted out of anger and jealousy, and perhaps a misguided attempt to stand up for Ms. John on that occasion. [34] Ms.

Kramer tendered a letter dated April 19, 2012. This was marked Exhibit 4 at the sentencing hearing and was written byMr. Vallee’s probation officer. It outlined Mr. Vallee’s performance on the 18-month probation order referred to above. According to theauthor, Mr. Vallee either refused or neglected to meet with an addictions counselor who had been set up to meet with him. As well,according to the author of the letter, Mr. Vallee did not appear receptive to the Substance Abuse Management Program as he professed tohave “everything under control”. The concluding observation was that Mr.

Vallee had made little effort to rehabilitate himself whilstbeing subject to the probation order. VICTIM IMPACT STATEMENT [35] Ms. Kramer tendered a victim impact statement prepared by Brenda Mailhot – a sister of Mr. Paquette’s. Ms. Mailhotindicated that her brother had told her he was turning his life around. She had been looking forward to visiting him as they had not seeneach other for 20 years. Her grief was magnified by the fact that another brother had died just two months before Mr. Paquette. Sherelated struggling with depression and problems with her marriage as a result of the offence.

Understandably, she stated that the killingaffected her whole life. She, nevertheless, expressed hope that Mr. Vallee got “the help he needs to turn his life around”. [36] Ms. Mailhot’s loss is very real and, needless to say, devastating to her. While she does comment on the senselessness ofMr. Vallee’s actions, she appears to support the idea that Mr. Vallee should be given an opportunity to rehabilitate himself. In this, itmust be said, she displays mature and compassionate insight that speaks well of her own character. CROWN SUBMISSIONS [37] Ms.

Kramer put a number of authorities before me in support of her submissions. These include R. v. Billings, 2004 BCSC 653[Billings]; R. v. Fujimori, 1995 B.C.C.A., Vancouver Registry No. CA020355 [Fujimori]; R. v. Gillies, (BC CA),[1998] B.C.J. No. 1153 (C.A.) [Gillies]; R. v. Henry, 2002 NSCA 33 , [2002] N.S.J. No. 113 (N.S. C.A.) [Henry]; R. v. Ly,1994 B.C.C.A. Vancouver Registry No. CA18059; R. v. Ly and Nguyen, 1994 B.C.C.A. Vancouver Registry No. CA018060; R. v.Morris, 2011 ONSC 5206 [Morris]; R. v. Seymour, 2011 BCSC 1682 [Seymour]; and R. v. D.W.J., 2012 BCPC 15 [D.W.J]. [38] Ms.

Kramer noted the broad range of sentences that apply to manslaughter and referred to the often applied continuumbetween cases of near accident and those of near murder. She argues that this case, while clearly not in the former category, is more thanmerely an accident. She points, in particular, to the degree of force and violence used by Mr. Vallee which reflects a tendency on his partthat can be seen in the prior convictions.

While she does not maintain that this act was a vicious assault, she does categorize it as forceful.Although there seems to be an absence of gratuitous violence and a lack of forethought, she says that provocation is not as prominent afeature of this offence as one might otherwise expect given that Ms. John was a prostitute. [39] Ms. Kramer pointed out that Mr. Vallee was younger and stronger than Mr. Paquette, and was not under the influence ofalcohol at the time. She notes that Mr. Vallee unlawfully entered Mr.

Paquette’s unit by kicking in the door which, of course, in and ofitself is a serious offence. [40] Having regard to the authorities she referred me to, Ms. Kramer asserts that the proper range for an offence of this sort wouldbe four to six years. The Crown is specifically seeking a five-year sentence, given the mitigating and aggravating circumstances presentin this case. While she acknowledges potential for rehabilitation, she argues that the primary objectives of sentencing here aredenunciation and deterrence. DEFENCE SUBMISSIONS [41] Mr. Myers and Mr.

Anderson also made reference to Billings in the defence Brief of Authorities. As well, they referred to R.v. Cascisa, [2001] M.J. No. 448 (Man. C.A.) [Cascisa]; R. v. Hickey, [2011] N.S.J. No. 244 (N.S.S.C.) [Hickey]; R. v. Johnny, (BC CA), [1994] B.C.J. No. 1373 (C.A.) [Johnny]; R. v. McGoran, [2004] B.C.J. No. 2865 (S.C.); and R. v. Cahoose,unreported, March 25, 2011, S.C.B.C., Kamloops Registry No. 90534-2 [Cahoose]. [42] Mr. Myers submitted that the cases put forward by Ms.

Kramer are generally to do with more aggravated circumstances.Billings, for example, was described as a case of “near-murder”; and Gillies, in which the accused had his sentence reduced to sevenyears on appeal, featured the infliction of 17 stab wounds in the course of the killing. While the assault in Henry did not feature aweapon, the sentencing judge found the accused displayed little remorse. The Court of Appeal in that case increased the jail term fromprovincial time to four years. Fujimori was a case where there was excessive violence.

[ 43 ] In terms of aggravating and mitigating factors, Mr. Myers submitted that only the prior criminal record was aggravating here. He stresses the mitigating circumstances of provocation, self-defence and the rendering of some assistance to Mr. Paquette after the blows were struck. This demonstrates that Mr. Vallee did not appreciate the extent of the injuries he inflicted. [ 44 ] The cases put forward by Mr. Myers feature occurrences where the accused either engaged in a consensual fight or spontaneous assault which produced unintended consequences.

He noted that the six-year sentence in Billings was deemed appropriate for a case of “near murder”. That result, accordingly, supports the defence position. In Cascisa , the accused kicked the deceased in the head during a fight. Hickey featured a spontaneous assault and Johnny a single punch. All of these cases were viewed as somewhat accidental and drew sentences under four years. Mr. Myers submitted that these cases are factually closer to the circumstances before the court and urged me to consider a sentence in this somewhat lower range.

SUBMISSIONS ON PRE-SENTENCE CUSTODY [ 45 ] Given the date on which this offence occurred, I am bound to consider section 719(3) of the Criminal Code , R.S.C. 1985, c. C-46 [ Criminal Code ]. This

section came into force on February 22, 2010, and provides as follows: 719

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. [ 46 ] There are exceptions to this general rule which are set out in the subsections which follow:

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) [if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, in which case “the justice shall state that reason in writing on the record”] or the person was detained in custody under subsection 524(4) or (8) [these two sections deal with a justice cancelling a summons etc. because of a breach of terms or because the person committed an indictable offence when bound by a summons, and so forth].

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.

(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.” [See Form 21.] [ 47 ] In this case, Mr. Vallee has been in custody since the date of the offence to today. This amounts to 361 days, by my calculation. The period from the entry of the guilty plea to date is 119 days. The defence position is that Mr. Vallee should be given credit at 1.5:1 for the entire period.

The Crown position is that he is only eligible for this from the date of the entry of the plea – the shorter period measured from January. [ 48 ] Ms. Kramer drew my attention to the Morris , Seymour and D.W.J . decisions with respect to the issue of pre-sentence credit for time served. She noted the above referenced changes to the law require exceptional circumstances for the sentencing judge granting enhanced credit for time served. She does agree that Mr. Vallee ought to receive 1.5:1 credit for the period from January to date, given that his plea was entered in on January 25, 2012.

Otherwise, she says that the period from arrest to plea only merits 1:1 credit. She argues that there were no “exceptional” circumstances in Mr. Vallee’s case that would justify enhanced credit. [ 49 ] Mr. Anderson, who spoke to the issue of pre-disposition credit on behalf of Mr. Vallee, relies upon the Cahoose decision from the Supreme Court of this province. That case considered the disparity between persons who are granted release on bail and those who, like Mr. Vallee, are detained. The court in Cahoose , for reasons of parity and fairness, interpreted subsection (3.1) liberally. Mr.

Anderson pointed out that this decision was not referred to in Morris or Seymour . He says it is really the only binding decisions as Seymour can be distinguished and did not refer to Cahoose at all. [ 50 ] In Seymour , Madam Justice Smith dealt with a situation where the accused was detained under s. 524(8) of the Criminal Code. The accused there appears to have been returned to custody because of poor performance on bail. The proposition that he, nevertheless, should be entitled to enhanced credit was premised on evidence of actual “hard time” that he was subjected to after detention.

Her Ladyship reviewed various decisions on the issue of when the subsection was properly invoked and noted a disparity between authorities which considered a longer effective sentence for persons in custody versus those who made bail. She identified that disparity to result from the unavailability of remission or parole to detained persons – in effect, the same point as was made by Mr. Anderson.

She noted that several courts did not see the simple fact of pre-sentence detention alone as an exceptional circumstance and appears to have applied another decision which required evidence about the impact of such detention. As there was none before her, she did not accede to the defence submission. [ 51 ] In D.W.J ., my brother Brecknell, J. canvassed numerous authorities on the effect of s. 719(3.1). These included both Seymour and Cahoose.

That case featured a delay in sentencing because of the need for the preparation of a Gladue report, allegations of substandard conditions at the pretrial detention centre where the accused was housed, and the point made by Mr. Anderson before me with respect to lack of eligibility for remission. [ 52 ] Brecknell, J. found that the Cahoose decision turned on the early guilty plea by the accused, rather than lost remission time. With great respect to Mr. Anderson’s well-crafted argument, I have arrived at the same conclusion. The case before me is different on the facts on which Cahoose was decided.

I do not read that decision as authority for the proposition that all persons subject to detention orders warrant enhanced credit. Although I appreciate the point made about the disparity created by the changes in the Criminal Code , Parliament must be presumed to have been aware of this effect when the law was drafted. In this regard, I find the reasoning in Morris on

statutory

interpretation to be persuasive. I further find that I am bound by Seymour . Accordingly, as there is no evidence before me of the sort Madam Justice Smith made reference to, I find that Mr. Vallee is entitled to credit on a 1:1 basis for the period from May 27 2011 to January 24, 2012. By my calculation, this amounts to 241 days. [ 53 ] As agreed between counsel, I will credit Mr. Vallee on a 1.5:1 basis from January 25 to date. This period totals 119 days which I will “round up” to result in a credit of 179 days. The total credit for time served, therefore, will be 420 days.

APPLICABLE PRINCIPLES OF SENTENCING [ 54 ] As set out in the Criminal Code and as augmented by the ruling cases, the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society. This is to be achieved by imposing just sanctions having regard to one or more of the objectives set out in s. 718 of the Criminal Code . [ 55 ] Of the various objectives mentioned in s. 718 , denunciation of unlawful conduct, deterrence and the need to separate Mr. Vallee from society are paramount here.

I am mindful, however, that he is someone who has made productive use of his time while awaiting sentencing. As well, it is clear to me based on the materials filed that Mr. Vallee is capable of and motivated to make positive changes. Ultimately, such changes are the best long term protection that society has against recurrence of this or any other type of criminal activity by Mr. Vallee. I will recommend, therefore, that he be permitted to serve his time in such custodial institutions that will provide him with maximum access to appropriate counselling, education and programmes.

AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 56 ] It is a fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code s. 718.1. As noted, the punishment imposed for manslaughter will vary in the extreme according to the circumstances. Obviously, the offence is very grave – a human life was taken because Mr. Vallee was unable or unwilling to control himself. His degree of responsibility is high. His criminal record is aggravating and suggests a propensity to use violence to get his own way.

He did not learn the necessary lessons from his past convictions. A violent attack was made upon a smaller, older individual who was set upon in his own home. I consider all of these circumstances to be aggravating. [ 57 ] From his record and from the report filed from his last probation officer, it is clear that he has not respected court orders in the past. This too is properly considered aggravating. [ 58 ] Balanced against these I take into account the remorse Mr. Vallee has shown.

This is, in part, attributable to his guilty plea, which I do not doubt was entered at an early stage having regard to the need to fully explore and consider his situation with the benefit of counsel’s advice. Remorse is also evident in the tone and content of his own remarks made the last day in open court. I find these to have been genuinely uttered and heartfelt. [ 59 ] It is also a mitigating circumstance that his behaviour was triggered by what he perceived as Mr. Paquette taking advantage of a vulnerable person. This may not fully reflect the objective situation, but I am convinced that Mr.

Vallee perceived the situation this way. Additionally, whatever may be the truth about Ms. John’s participation in sexual behaviour with Mr. Paquette, I accept that the circumstances of this coming to Mr. Vallee’s attention provoked him to respond in an impulsive and angry manner. His behaviour, while certainly not inexcusable, is capable of being understood in this light. [ 60 ] I am also of the view, that Mr. Vallee’s substantial efforts to avail himself of programs whilst in custody is mitigating.

This is the best thing he could be doing, in my view, to ensure that a reoccurrence of violent actions towards others will not take place. As well, it obviously reduces his risk to the community once he is released from prison. [ 61 ] But for Mr. Vallee’s criminal record, I would accede to Mr. Myers’ submissions and sentence Mr. Vallee to serve something less than two years. He clearly did not mean to kill his friend, now regrets that act and is doing all he can to change his ways.

The fact of his prior record, however, leads me to conclude that a sentence at the low end of the Crown range is appropriate here. [ 62 ] While determining a fit sentence is a notoriously difficult task, the circumstances of the specific offence together with Mr. Vallee’s attributes lead me to conclude that a sentence of 4 years would best address all of the appropriate principles I have discussed. This is the term I would impose for this offence absent pre-sentence credit. As discussed, I have calculated this to be 420 days which I determine to be equivalent to 14 months.

This shall be credited against the 4-year sentence. This produces, by my calculation, a resultant sentence of 34 months. [ 63 ] The other orders sought by Crown are not controversial. Accordingly, I will make those orders as sought. There will be a DNA order that samples of such bodily substances as are deemed to be required be taken from Mr. Vallee in accordance with s. 487.051(1) (

a) of the Criminal Code . [ 64 ] There will also be an order under s. 109 of the Criminal Code prohibiting Mr. Vallee from possessing firearms and all the other items set out in that section. That will be for a period of 10 years. [ 65 ] In conclusion, I wish to express my gratitude to counsel for the thoughtful submissions made. To Ms. Mailhot, other family members and friends of Mr. Paquette, I express my condolences for their loss. Words are insufficient to express how tragic his death is. I am certain that his absence from your lives will be felt for a long time to come. [ 66 ] Finally to Mr.

Vallee: I hope that this dreadful episode has been sufficient to convince you to continue to change the way you approach your life. Unlike many who fall afoul of the law, you have the love and support of family and friends who would like nothing better than to see you succeed in rehabilitating yourself and becoming a useful productive member of society. You will not be able to fully make amends for taking Mr. Paquette’s life, but that does not give you any legitimate reason to return to the self-centered and negative existence that characterized your life over the past number of years.

______________________ R.C. MacKay Provincial Court Judge