) Mr. B. Davidson ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. D. Sawchuk v. - and -, 2014 MBPC 37

Citation: 2014 MBPC 37 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Mr. B. Davidson ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. D. Sawchuk and - and - ) Mr. S. Keesic ) for the accused Guimond MICHAEL JAMES GUIMOND and ) WARNER DAIRREN FLETT, ) Ms. S. Inness ) for the accused Flett Accused. ) ) Sentence delivered ) December 17, 2014 _____ CORRIN, P.J. (Orally) Mr. Guimond and Mr. Flett pled guilty to manslaughter in the death of Paris Bruce. The two accused have also pled guilty to committing the indictable offence of unlawfully causing bodily harm to the deceased in association with a criminal organization.

These are my reasons with respect to sentence. The agreed factual circumstances of the incident giving rise to the charges was that the two accused, both Indian Posse gang members, were occupants of a north end house, 310 Redwood Avenue, in Winnipeg, that was repeatedly visited by the deceased and other members of his gang, the Mob Squad. The background details were read into court by the Crown and formed the basis of the pleas. These factual circumstances as transcribed from proceedings on the 7th day of May 2014, can be found at Exhibit S1 and in particular at pages 3, 4, 5 and 7.

I will, nevertheless, give a synopsis of the circumstances of the offence. The home at 310 Redwood Avenue was a drug sales outlet known on the streets as a "crack shack". It was under the operation of the Indian Posse, a fact which was known to the Mob Squad. The Mob Squad leader had previously directed the deceased and other gang associates to attend to the crack shack to make an offer to supply the operation with Mob Squad drugs. Their overtures were apparently rebuffed on each occasion.

After the second visitation, the residents of 310 Redwood contacted the accused Flett and advised him of the Mob Squad's activities. Mr. Flett subsequently attended to the crack shack as did a number of other Indian Posse members including Michael Guimond. Around 7:00 a.m. on September 4, 2012, the Mob Squad leader, accompanied by Paris Bruce and two other associates, visited 310 Redwood for yet a third time. The Crown related that the foursome "attended to the house at Redwood and attempted one last time to take over the crack shack".

It was an agreed fact that the person who answered the door was Michael Guimond. A verbal argument ensued. As a result, the Mob Squad group picked up pieces of wood and a rock from a neighboring yard and threw these items in the direction of Mr. Guimond. Apparently one or more pieces of wood that had been thrown ended up inside the residence. Mr. Sawchuk filed photos (that is Exhibit S9) which he said depicted minor injuries to Mr. Guimond's arms that had been sustained at this stage of the incident. Almost immediately, Mr.

Guimond and several other Indian Posse members ran out of the residence in pursuit of the attacking group. The Mob Squad leader and another recruit escaped in the leader's vehicle. The deceased and one other colleague fled down the lane between Redwood and Aberdeen Avenue. Mr. Bruce was caught in the lane approximately 100 feet from 310 Redwood by five to seven Indian Posse members including Warner Flett and Michael Guimond. He suffered a severe beating at this time.

Michael Guimond admitted to striking the victim a few times at this point, "at least one of which was while others were also striking the victim and while the victim was on the ground". Warner Flett also admitted kicking the victim a number of times, "at least one of which was while others were also striking the victim and while the victim was on the ground". Flett admitted that the kick delivered when the victim was on the ground was to the victim's head. Notwithstanding his being outnumbered, the victim was able to get to his feet and run into the back yard of a nearby residence at 321 Aberdeen Avenue.

Here, in the back yard, he was once again caught by his pursuers who apparently struck him with sticks and stabbed him twice with two different knives. The Crown conceded that it could not say who inflicted the specific injuries sustained

during the back yard attack. Upon hearing someone yell, "Stop, police", Mr. Guimond, Mr. Flett and some of the other Indian Posse attackers returned to 310 Redwood. At this point it was initially agreed by counsel that the victim made his way through a gate to a side path where he collapsed to the ground and may have been struck in the head "at least one more time" by an unknown Indian Posse assailant. It is an agreed fact that Mr. Guimond and Mr. Flett both re-attended to the yard in question shortly after they had gone back to 310 Redwood in an effort to locate a cell phone belonging to Mr. Guimond.

At the conclusion of the sentencing hearing, when asked by the Crown if he wished to make any comments or remarks on his own behalf, Mr. Flett acknowledged that he had returned to the yard with Mr. Guimond, and continued to beat the victim notwithstanding that Mr. Guimond had tried to stop him from doing so. The autopsy report confirmed that the deceased has suffered 29 external injuries. It went on to detail that there were 14 areas of injury to the front of his head and neck as well as two stab wounds attributable to two different knives. Nine areas of his brain suffered observable injuries.

He had sustained what was described as acute brain hemorrhage. Mr. Bruce succumbed to his injuries approximately 52 hours after the beating. The pathologist's report chronicles blunt trauma to the head as the cause of death. Among other things the evidence on sentencing consisted of Exhibit S4 which contained the record of Mr. Flett at tab 1.

Such includes the following convictions which are of particular relevance to this sentencing: - August 19, 2002 – A conviction for robbery - June 10, 2005 – A conviction for assault with a weapon - October 4, 2006 – A conviction for assault a peace officer and assault cause bodily harm - May 1, 2007 – Assault with intent to resist arrest - September 4, 2007 – Assault cause bodily harm and common assault - June 14, 2011 – Assault with a weapon, a knife - September 29, 2010 - Assault cause bodily harm, an incident committed while on probation The Crown informed the court that six different victims before Mr.

Bruce had been hospitalized as a consequence of violence perpetrated by Mr. Flett. Flett has never been sentenced to penitentiary time for any of his prior offences. His longest sentence to date, for an assault cause bodily harm, was 15 months with credit for three months time in custody. The evidence on sentencing with respect to Mr.

Guimond consists of Exhibit S5, tab 1, and includes the following convictions among others: - February 23, 1993 – Three counts of assault with a weapon - April 5, 1995 – Common assault - April 21, 1997 – Assault with a weapon - June 19, 2002 – Assault cause bodily harm - September 22, 2004 – Assault cause bodily harm - in 2004 – a conviction for assault peace officer The Crown informed the court that Mr. Guimond has been involved in a total of five attacks on victims and that two of same were killed. The Crown also filed a victim impact statement authored by family members of the deceased victim.

It was marked as Exhibit S6 in these proceedings. This sentencing exhibit was filed pursuant to the authority of Section 735(1.1) of The Criminal Code . In compliance with the family's wishes, the Crown read the substance of the victim impact statement into the record on the first sentencing date, July 16, 2014. It is apparent that Mr. Bruce was much loved and valued by his family and that they have been profoundly affected by his death. I will now deal with manslaughter sentencing generally. The case law makes clear that there are no strict guidelines or definitive principles governing manslaughter sentencing.

The offence can be committed in circumstances ranging from near accident to near murder. This results in a range of sentence that encompasses a wide spectrum from the imposition of a suspended sentence to life in prison. Recognizing that there is no starting point for the "typical" manslaughter sentence, the Manitoba Court of Appeal made some general observations related to manslaughter sentencing in R. v. Csincsa . I am not going to read the legal citations of the cases because they are recorded in the print format if somebody wishes to look them up. 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 to address the once significant discrepancy between sentences imposed for manslaughter and the mandatory dispositions associated with murder sentencing. Secondly, courts have given increasing consideration to the moral culpability of offenders and in particular, the degree of violence or brutality involved in the commission of the offence. Thirdly, the court noted that the aggravating and mitigating factors that apply

generally in the sentencing process are also relevant to the offence of manslaughter and that same, including the personal circumstances of the offender, his background, his prior involvement with the criminal justice system, his prospects for rehabilitation and remorse must all be taken into account in light of the first two factors. Of course, added to this after the Supreme Court's decision in R. v. Gladue are the so-called Gladue principles, where same are appropriate. To quote Justice Suche in R. v.

Peterson , "[7] An appropriate sentence for manslaughter must be tailored to the moral culpability of the offender, in light of the primary considerations of denunciation and deterrence which will apply in any case of culpable homicide. [8] R. v. Stone ... the Supreme Court of Canada adopted the view of the Alberta Court of Appeal in R. v. Laberge ... that in considering this issue, ... the court must look not only at the physical characterization of the act itself, but must assess a range of other considerations.

These include the choice of weapon used to effect the unlawful act, the degree of force the offender used in perpetrating the act, the extent of the victim's injuries, the degree of violence or brutality, the existence of any additional gratuitous violence, the degree of deliberation involved in the act, the extent to which the act reflected forethought of action or planning, the complexity of the act, what, if anything, provoked the act, the time taken to perpetrate the act and the element of chance involved in the resulting death." Mr.

Davidson, on behalf of the Crown, asked the court to emphasize protection of the public as well as deterrence and denunciation in its sentencing of the two accused. He argued that the prolonged and vicious nature of the beating made the offence closer to a murder and as such, the offence was one that required significant condemnation by way of a maximum life sentence. The court was also reminded that the fact that the victim Bruce was under 18 years of age was also a statutory aggravating factor which invited a more punitive and denunciatory sentence. Mr.

Davidson also encouraged the court to sentence the two accused in the context of the group's collective actions as opposed to attempting to assess their individual involvement and degree of responsibility for the victim's death in isolation. In so doing, he cited Alberta jurisprudence, notably R. v.

E.B.C. , a decision of the Alberta Court of Appeal, wherein it was noted that when crimes were committed by a gang, the sentencing judge should consider the group's collective actions in that each member of the group should be taken to have known that by committing individual assaults upon a victim, that he was advancing and even encouraging the violence of the others. In this respect Mr.

Davidson drew the court's attention to paragraph 9 that states that, "accordingly, when a person acts in concert with members of a group or gang to victimize a single victim, that person must accept the consequences that flow from the group action". In such respect, Mr. Davidson drew the court's attention to a decision of Justice Spivak of the Manitoba Court of Queen's Bench in R. v. Ryle, Cote, Coaster and Myran , wherein the E.B.C. principle was cited with approval. On this basis it was Mr.

Davidson's contention that both offenders were therefore fully responsible for the outcome of the group's assault on the deceased and its ultimate consequences. He contended that only life sentences would be proportionate to the gravity of the offence and the degree of responsibility of the offenders. The court was reminded that Code

Section 718.2(iv) deems criminal offences to facilitate gang crime as an aggravating factor. It was Mr. Davidson's submission that the context of this incident was more about maintenance of the gang's drug trafficking resources than a personalized altercation flowing from the Mob Squad's provocatively aggressive actions. Mr. Davidson submitted three Manitoba cases by way of sentencing precedents: R. v. Ryle, Cote, Coaster and Myran ; R. v. Howard James Mason ; and R. v. Lulonda Lynn Flett .

I note that Mason was a 2012 decision of the Manitoba Court of Appeal and Flett was a 2013 decision of the Manitoba Court of Queen's Bench. In Ryle, et al , three of the accused were convicted by a jury of manslaughter in the death of a fellow penitentiary inmate and gang colleague. The victim died following a meeting of the gang wherein a decision was made to implement a disciplinary beating upon him. Apparently the deceased had been threatening other gang members. The deceased had been beaten by several gang members. Mr. Ryle, the gang leader, had selected the other accused to conduct the beating.

Justice Spivak observed that this "was a serious and violent case of manslaughter" (at paragraph 21). She also observed that the crime, having been committed in prison, was a particularly aggravating feature that "required a judicial response that emphasized specific and general deterrence and denunciation in clear terms" (that can be found at paragraph 20). The Crown sought a sentence of 10 years for Mr. Ryle and 15 years for Mr. Coaster and Mr. Cote.

Justice Spivak observed that the cases most instructive, with respect to an appropriate sentence, were those involving homicides committed by offenders in the penitentiary. At paragraphs 23 through 26, she describes several such cases where sentences ranged from four to 12 years. Most of the cases fell in the eight to 12 year range. The longer sentences reflected cases where the accused had been involved in a higher level of planned involvement. Justice Spivak sentenced Mr. Cote, who had a significant prior history of violence, to 11 and one-half years of imprisonment; Mr.

Coaster, who also had a significant history of violence, to 10 and one-half years; and Mr. Ryle, who was not present when the beating occurred, to eight and one-half years. The Mason case involved circumstances where the accused had deliberately set fire to a couch in a rooming house where nine people lived and then left the premises without alerting anyone to the fire. Two of the residents died in the fire and a third sustained burns to over 55 percent of her body. The accused turned himself in to police and pled guilty to two counts of manslaughter and one count of arson causing bodily harm.

The sentencing judge had imposed the maximum sentence of life imprisonment on each of the manslaughter

counts and 10 years concurrent on the arson cause bodily harm count. This was the offender's third arson-related offence and there had been a clear escalation in the seriousness of such conduct. The Court of Appeal found that the offender's degree of moral blameworthiness was very high. Accordingly the appeal was dismissed. In the Flett matter, the accused had pled guilty to five counts of manslaughter and one count of arson with respect to a fire she had set in a rooming house in which five people perished and one person was seriously injured.

At the time of the incident she was described as having had "an uncontrollable fit of anger fueled by alcohol". The Crown had argued that anything less than a sentence of life imprisonment would be inconsistent with the purposes and principles of sentencing due to the offender's high moral culpability and the fact that her actions were deliberate and had caused the death of five people.

Noting that, "in addition to denunciation and general deterrence, the court must also affirm society's respect for human life and dignity" (and this is from paragraph 30 of the decision), Justice McCawley reasoned that the sentence she imposed must bear a proportional relationship to the harm done notwithstanding the fact that Ms. Flett was truly remorseful for what she had done. Stating that Ms.

Flett would be eligible for parole in seven years if a life sentence was imposed and accordingly, if paroled, would be required to be under community supervision for the rest of her life, Justice McCawley sentenced the accused to life imprisonment on each count of manslaughter to be served concurrently. Mr. Davidson's position respecting the appropriate length of the

Section 467.12 criminal organization offences was five years consecutive to the manslaughter sentences. In this respect he conceded that there were few analogous precedents due to the limited available Manitoba jurisprudence which was all related to drug trafficking situations where the sentencing range was 15 months to two and one-half years. Mr. Davidson reasoned that the taking of a life warranted a sentence that was at least twice the length of involvement in a drug trafficking operation. Mr. Sawchuk made submissions in this respect on behalf of Mr. Guimond.

He urged the court to consider the reduced moral culpability of his client when considering his role relative to the overall circumstances of the manslaughter offence. In this regard he spoke of the provocative actions of the deceased and the spontaneous reactive manner of Mr. Guimond's response. Mr. Guimond's response was characterized as being in the nature of self-defence. Mr. Sawchuk also stressed his client's efforts to dissuade Mr. Flett from continuing his attack on the deceased after their return to 321 Aberdeen.

He further encouraged the court to favourably consider the significant and seemingly genuine degree of accountability and remorse which had been expressed by Mr. Guimond after his arrest as well as mitigating Gladue factors relating to his client's family history, upbringing and early life experiences. Mr. Sawchuk provided the court with 15 authorities, nine of which were decisions of courts in Manitoba. Seven of the nine cases emanated from the superior courts.

The sentences in those seven cases ranged from a conditional sentence of two years less a day to lengthier terms in the penitentiary, the longest being 11 and one-half years in relation to a second degree murder. I will now deal with the seven cases I have referred to. The first of these was R. v. Capistrano , a decision of the Manitoba Court of Queen's Bench in 2001. 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 neighbour, struck the victim over the head twice with a small baseball bat. Both parties were highly intoxicated. The accused was found to have overreacted to the victim's aggressive behaviour. The accused had a very limited record which included a single conviction for common assault five years earlier. Alcohol was found to play a major role in her violent overreaction. The court was satisfied that her various post offence measures to address her substance abuse problem ensured future community safety. The second case is R. v.

Beltran , also a decision of the Manitoba Court of Queen's Bench in 2006. Mr. Beltran had originally been charged with murder but a jury had found him guilty of manslaughter. He was the victim of an unprovoked assault by the deceased. He had been cornered in his back yard by the deceased and another assailant. They were both bigger than him. He stabbed both attackers, killing one of them. The sentencing judge noted that he had been justified in using some force to defend himself in the circumstances but the stabbing had been found excessive by the jury.

He was sentenced to the two years and five months he had already spent in custody. The Crown had recommended a further three years. In R. v. Clemons , a 2003 decision of the Manitoba Court of Appeal, the Crown unsuccessfully appealed a conditional sentence order of two years less a day imposed after a guilty pleas to manslaughter. After a period of provocation, the highly intoxicated 23-year- old accused "sucker punched" and then stabbed the deceased. The victim had drawn a knife which the accused had managed to take away prior to the fatal stabbing. The accused had then stabbed the deceased 9 times.

The attack was described as vicious. The accused had no record of violence and the attack was described as being "out of character". The fourth case defence referred the court to was R. v. Young , 1998 decision of the Manitoba Court of Appeal. In this case a sentence of four and one-half years was replaced with a sentence of two years less a day plus supervised probation for a 22-year-old woman who stabbed her very aggressive and intoxicated aunt at a wedding party. The victim had resisted treatment for her injuries, a contributing cause for her death.

The accused had a limited history for assault and was on probation at the time of the offence. She was nevertheless determined to have good rehabilitative prospects. The court found the circumstances of the offence placed the accused at "the low end of the culpability scale". The fifth cases, which we have already heard about, is R. v. Ryle, Cote, Coaster and Myran , a decision of the Manitoba Court of Queen's Bench in 2013. As this case was also submitted by the Crown and discussed in detail in an earlier

section of these reasons, I will forego repeating the facts of the incident. Suffice to say it was the incident involving the penitentiary beating. All of the accused were charged with second degree murder in relation to a gang related homicide occurring at the Stony Mountain Penitentiary. Mr. Myran was acquitted and the other 3 were found guilty of manslaughter. Their sentences ranged from eight and a half years, for the gang leader who had ordered but not participated in the attack, to 11 and a one-half years. All the accused had records for violence. The sixth case is R. v.

Weedmark , a decision of the Manitoba Court of Queen's Bench orally delivered in Winnipeg on December 9, 2012. Three youths beset the aboriginal accused and his girlfriend in their residence in the middle of the night. During this break-in both were assaulted. Mr. Weedmark's girlfriend was struck in the head by a baseball bat wielded by the 12-year-old deceased. Mr.

Weedmark had disarmed the youth and then struck him two to four times with the bat, causing injuries which soon led to his death. The jury rejected the accused's claim that he had acted in defence of his girlfriend, that he feared for her life and found him guilty of manslaughter. Weedmark was sentenced to time in custody of six years and nine months. The seventh case was R. v. Wood, et al , an oral decision delivered by Justice Martin in Thompson, Manitoba on May 16, 2014.

This case involved two accused who had entered guilty pleas for manslaughter in circumstances where the accused's residence, the scene of a birthday party, had been visited by the deceased and his brother who wanted to buy, or obtain for free, some liquor. The accused had chased them away. The two deceased had then enlisted two or three friends to go back to the residence to confront the Wood brothers and engage them in what the Crown described as a fight. This time the accused and their guests came outside armed with golf clubs and what was described as other weapons.

One of the brothers was stabbed with an unknown weapon and eventually succumbed to his injuries. There was a paucity of evidence as to who actually stabbed the deceased during the melee. Both accused had serious records. The court sentenced both accused to three years' incarceration. The Crown had, as the sentencing judge put it, "put a cap of four years" on the recommended range of sentence. It was Mr. Sawchuk's opinion that his client should be sentenced to four years with respect to the manslaughter charge with a 1.5 to one time in custody credit.

He further recommended the imposition of a one-year sentence to be served consecutively with respect to the criminal organization charge. In this regard, he relied on a range of sentences recently imposed on a number of Manitoba Hells Angels gang members, acknowledging that all were by way of joint recommendation and therefore uncontested. Ms. Inness spoke with respect to sentence on behalf of Mr. Flett. Ms.

Inness asked the court to sentence her client to a total of seven to eight years' incarceration with six to seven years attributed to the manslaughter and one year consecutive for the criminal organization offence. It was her submission that the Crown agreed that her client should receive a 1.5 to one credit for time in custody. The main thrust of Ms. Inness' submission was based on stare decisis. It was her contention that the Crown's recommendation for sentence was out of line with the relevant, fact related jurisprudence.

She also reminded the court of her client's emotional and psychological issues which stem from his chaotic and unsettled upbringing which she attributed to Gladue factors which in turn have predisposed him to family dysfunction as well as alcohol and drug abuse. She went on to observe that her client had been depressed and drinking heavily the night of the incident because of a break up with his long time partner and that during the last two years of the relationship he had been out of the gang lifestyle and living in Beausejour with his partner and their children. Mr.

Flett, she stated, did not know that the victim was only 16 years old and was deeply ashamed and remorseful for his actions. Ms. Inness filed a number of superior court cases in support of her position. These were as follows: - R. v. Ryle , which we have already referred to - an Alberta decision, R. v. Holloway - a Saskatchewan decision, R. v. Keepness - a Manitoba decision, R. v. Marsden - another Alberta decision, R. v. Steer - a New Brunswick decision, R. v. Palmer from 1997 - a British Columbia decision, R. v. Sipes , given in 2013 - and finally R. v. Torres , a 1998 Manitoba decision.

All of these cases involved violent assaults leading to the victim's death. The basic range of sentences were between eight and 15 years. Torres, who was a youth that had been raised to adult court, had been sentenced to three and one-half years in a penitentiary for his role in a drive-by shooting of a 13-year-old who he had thought to be a member of a rival gang. The cases in question involved sentencing circumstances where some of the offenders were noted to have shown no remorse, serious violence related records and significant gang related involvement. In one case, R. v.

Sipes , the sentencing judge stated that the accused, who had ordered beating of a gang colleague, should receive a sentence at the highest end of the usual range for manslaughter which he pronounced to be 15 years. The Crown had sought a sentence between 15 to 18 years. The manslaughter was committed to further the ends and benefit the accused's gang related activities. There were numerous aggravating factors described by the sentencing judge. The other cases Ms. Inness referenced conveyed a similar theme with respect to the high end of the usual sentencing range in other provinces. R. v.

Keepness , a 2010 decision of the Saskatchewan Court of Appeal involving a gang related home invasion scenario where several men participated in what was described as a "brutal attack" on three teenaged occupants, seriously injuring two of them and killing the third, the appeal court imposed sentences of 15 years for the manslaughter, replacing sentences of 11 and one-half years. The court observed that the sentencing judge's sentences were not proportionate to the gravity of the three offences and the responsibility of the offenders. The Crown had sought sentences of 19 years.

In Keepness , the reviewing court expressly indicated that the sentencing judge had erroneously concluded that she was bound by a four to 12 year range of sentence unless exceptional circumstances presented. The high court concluded that a review of the recent appeal court and superior trial court sentencing decisions did not bear this out as the gravity of those cases was less than that presenting in Keepness.

Justice Jackson, speaking for the court, describes a sentencing range as a tool to measure the fitness of a sentence and then goes on to perform a comprehensive review of the relevant Saskatchewan jurisprudence in relation to manslaughters that had been committed in the most egregious of circumstances. In the Marsden case, a decision of the Manitoba Court of Appeal, the court took much the same approach in its sentencing calculations, extensively reviewing both Manitoba and extra-provincial sentencing decisions as part of its calculus. Justice Steele

observes, at paragraph 42, that, "there is a very wide range in the degree of moral blameworthiness in cases of manslaughter, and the severity of a sentence will vary considerably (from a conditional sentence to life imprisonment) according to the circumstances of a case." Marsden was a case where two accused, both Indian Posse members, planned to rob a taxi driver. The other accused stabbed the victim. Marsden was determined to have agreed to violence to achieve their objective but not the use of a weapon. He did not know that the other accused had a knife in his possession.

Marsden had a minimal criminal record but was also on bail release at the time of the offence. The court described the exceptional vulnerability of taxi drivers and the prevalence of this type of crime in the community as exceptional aggravating factors warranting imposition of "a much heavier sentence". Citing the accused's youth, his minimal criminal record and the possibility for rehabilitation, the court reduced a 14-year sentence to one of 10 years. After a thorough review of all the cases she was relying upon, Ms.

Inness reminded the court that several of the cases she had mentioned where sentences had been above the general range she was requesting, had also involved premeditated criminal offences in the nature of robberies, assaults and home invasions where violence had been an integral part of the plan. I will now deal with the applicability of the Gladue principle. It is clear from the sentencing reports that both accused have experienced negative consequences arising either directly or indirectly from their First Nation status.

But that having been said, the accused are not automatically entitled to receive a discount from an otherwise appropriate sentence simply because of their unfortunate life histories caused by Gladue related factors. In Ipeelee , the Supreme Court of Canada clarified what they had meant in Gladue in reference to offenders not bearing a burden of establishing a direct causal 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." This passage clearly clarifies often referenced previous paragraphs, 72 and 73, in which LeBel discusses at length a sentencing court's need to consider even an indirect link between an accused's circumstances as an Aboriginal offender and the offence committed.

In the case at bar I am of the view that nothing arises from the accuseds' circumstances as aboriginal persons which would justify any departure from a proportionate sentence based on and informed by reference to an appropriate range of sentence. I am simply not satisfied that the personal circumstances of either accused figure as a mitigating factor in the context of this case, in the sense that such backgrounds serve to reduce their moral culpability in the context of this case.

I perceive no meaningful connection between the deleterious consequences of First Nation status and the commission of the offences before the court. While the devastating intergenerational effects of colonialism may, earlier in life, have led the two accused to gang affiliate they did not, in my view, compel them to flagrantly eschew basic moral responsibility in order to earn their livelihoods as adults. Gladue factors did not predispose the offenders to commit these crimes.

These crimes are about maintenance of a viable, sophisticated and highly profitable illegal drug trafficking business, basically about the unscrupulous pursuit of easy money. They are not about dysfunctional behaviour precipitated by the unique debilitating experiences of First Nations peoples in Canada. This is certainly not a situation where the accused were involved in low level drug trafficking to support personal addictions that arose in the context of Gladue factors.

Rather, this case involves offenders who pose as great a threat to future generations of First Nations people as did some of our colonial forbearers. As such, I do not agree with defence counsel that they should be sentenced any differently than non-Aboriginal offenders. This

interpretation of the common law as expressed in Gladue and Ipeelee is also consistent with the Supreme Court of Canada's

interpretation of

Section 718.2 (

e) of the Criminal Code , that Gladue related factors "do not necessarily justify a different sentence for Aboriginal offenders" (this can be found in Ipeelee at paragraph 60) and " 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" (That quote is found at paragraph 71 of Ipeelee ).

In conclusion, while I have considered the unique situations and circumstances of the two aboriginal offenders as mandated both by Parliament and the Supreme Court of Canada, I am nevertheless of the firm opinion, in the context of this particular case, that the sentences imposed should not be mitigated by the application of Gladue principles as to do so would significantly detract from the primary sentencing consideration in a gang related case of this sort, the need to impose a fit and proper sentence which emphasizes personal and public deterrence and denunciation.

While I agree that the cumulative trauma of colonization may have precipitated a need for a surrogate family and a sense of belonging that may have resulted in the accuseds' initial gang affiliation, I do not agree that such a choice necessarily justifies their continuing subscription to anti-social and predatory gang values after they became mature adults. I therefore do not agree with defence counsel's suggestion that their clients moral culpability should be reduced in relation to their Gladue related factors.

That having been said, I concede that Gladue factors most probably would been taken into account if the 16-year-old deceased was an Aboriginal person and had killed or contributed to the death of one of the Indian Posse members during this gang related incident as there is good reason to believe that Gladue factors contribute to gang affiliations among vulnerable Aboriginal youth. But, in this particular case, after having given attention and consideration to the unique background and systemic factors affecting the offenders' lives, I do not feel that these factors are such that they played an important

part in bringing the two accused before me today. These accused present like any other mature adult commercial gang-affiliated members who usually appear before me in relation to such crimes and their motivation and involvement was driven solely by financial benefit and profit. They were simply protecting their little cash cow, the crack house, from falling into the hands of a rival gang. I will now deal with the impact of provocation.

Both defence counsel submitted that the deceased victim's actions in throwing rocks and other objects at the accused's residence amounted to provocation such that their clients should receive a diminished sentence. In R. v. Pearce , a 2012 Queen's Bench decision, Justice Greenberg commented, after receiving several case precedents, that it was her

conclusion that manslaughter sentences where provocation was involved typically suggest a range of four to nine years if "the accused is of previously good character" (That can be found at paragraph 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 a trial.

The Crown had agreed that he should be tried for manslaughter not murder as originally charged because they were satisfied that Mr. Pearce had committed the act as a result of provocation. Justice Greenberg stated that specific deterrence was not a concern in Pearce and described denunciation and retribution as being the paramount sentencing consideration. She observed that the Supreme Court in R. v. Stone , a decision in 1999, had emphasized that provocation must be considered in assessing the degree of moral blameworthiness of a given offender.

She also observed that the Crown in her case, as in the case at bar today, had argued that the nature of the prolonged and vicious beating made the offence quite close to the murder end of the manslaughter spectrum and consequently an offence that required "significant condemnation". Conceding that the circumstances of manslaughter offences and offenders tended to vary a great deal from case to case, Justice Greenberg set out to determine whether a review of the pertinent case law could help her to establish a range of appropriate sentence in relation to manslaughter committed in provoked circumstances.

After reviewing five cases, one from the Supreme Court and two from provincial appellate courts, she concluded that a range of four to nine years was discernible for such cases where the accused was of previously good character. In the end result, after reviewing four other Manitoba superior court sentencing precedents, as well as concluding the offender posed little threat to the community at large, Pearce was sentenced to seven years' incarceration less a two-for-one credit for the time that he had spent in custody prior to being released on bail.

A similar range of sentence was noted by Justice Suche in another Manitoba Court of Queen's Bench decision delivered in 2012, known as R. v. Peterson . In that decision Suche observes that R. v. K.B.R. , a New Brunswick Court of Queen's Bench decision given in 2007, alludes to a similar range as was found by Justice Greenberg in Pearce . In K.B.R. the 21-year-old offender had fallen asleep and awakened to find himself being sexually assaulted by the deceased. K.B.R. had grabbed a nearby loaded shotgun and fired it at the victim. He was sentenced to eight years.

The facts in Peterson were nearly identical to those in K.B.R. except that Peterson had jumped up from the bed, grabbed a hammer and struck the victim at least nine times using what were described as very powerful blows that had crushed the victim's skull and brain. The pathologist stated that any one of the blows were likely fatal. The 33-year-old Peterson had a number of prior criminal convictions, all but one of which were described as being related to drug abuse. These included three counts of robbery, all gas bar hold-ups.

Peterson was sentenced to nine years in prison less credit for 52 months of pre-trial custody. Another provocation case, which certainly seems to suggest that the Crown's view of an appropriate sentence is inconsistent with local jurisprudence is R. v. Abraham , a 2011 decision of the Manitoba Court of Queen's Bench. In this case the court sentenced the offender to five years for beating the victim to death. The victim had run towards the accused in a threatening manner in response to which the accused had "slammed" him to the road then punched and kicked him, leaving him to die.

The accused in Abraham had expressed remorse and entered a guilty plea. I will now deal with my conclusions respecting what constitutes an appropriate sentence in this case. The court concurs with the Crown that there are a number of aggravating factors present in this case which must weigh against an unduly lenient sentence. However, that being said, the court has some difficulty with the notion that both accused should be subject to exactly the same punishment notwithstanding their actual involvement in relation to the deceased's death.

It is the courts view that such an approach would offend the proportionality principle. My opinion is based on the bifurcated nature of the assault. While it is impossible to know whether the deceased would have died from the injuries he sustained as a result of the beatings he initially sustained in the back lane and then the back yard of 321 Aberdeen Avenue, it is nevertheless apparent that one of the accused was, by his own admission, even more involved than the other in the brutal beating of the deceased. This accused, Mr.

Flett, admitted that he had later come back to the scene after the rest of the group had disbanded and he had resumed beating the disabled victim who was now lying at the side of the residence. Court was told that Mr. Flett continued such beating even notwithstanding that Mr. Guimond tried to persuade him to stop. Accordingly, it is my opinion that this is an additional aggravating factor which must be considered in respect of Mr. Flett's share of responsibility for the victim's death. Both offenders have prior criminal records which include convictions for serious assaults.

They are both high risk to reoffend for this reason. The group assault on the deceased by its very nature certainly suggests that the facts of the manslaughter offence are at the very high end of culpability and responsibility described in Stone , namely conduct that the two accused must have known carried a risk of death even if they individually lacked such personal intent.

Lack of intent to murder in circumstances where there is a high level of vicious intent apparent from the prolonged nature and outright hostility of a beating has certainly led to sentences at the higher end of the appropriate comparative range, a range which appears from the prior cases I have reviewed herein to be roughly from seven to 15 years. I view the extreme upper end of the range as being 15 years as both of the accused have lengthy records for violence and as such they are disentitled to leniency.

In this respect, it is particularly important to remember that there was no need for either of the accused to respond to the provocation presenting from the behavior of the victim and his cohorts in the manner that they did. Even if they needed to chase the accused away to protect their property from damage, their retaliatory beating of the victim was by any account completely excessive and unrelated to such purposes or self-defence.

The court recognizes that there are almost always some distinctions that can be found between one case and another and that consequentially a range of comparative cases will almost certainly be based on some degree of adjudicative subjectivity. However, it is also clear that it is both convenient and possible to construct sentencing categories within the Stone paradigm; categories which will reflect factors such as group involvement, protracted brutality, the use of weapons, vulnerable victims and provocation.

Since two of the three Crown sentencing precedents were well outside the court's perceived range of appropriate sentence, I wish to

explain my reasons for rejecting them as appropriate comparators. To do this, I make reference to an Alberta Court of Appeal decision, R. v. Laberge , a 1995 decision.

In Laberge the Alberta Court of Appeal held that the role of a sentencing judge in unlawful act manslaughter cases is "(to) determine for sentencing purposes what rung on the moral culpability ladder the offender reached when he committed the prohibited act." (That can be found at paragraph 6 of Laberge ) According to Laberge , the moral blameworthiness of an offender is determined by considering the following: Firstly, what the unlawful act itself involved, including the nature and quality of the unlawful act, the method by which it was committed, and the manner in which it was committed; Secondly, the mental state of the offender at the time the act was committed; and Thirdly, personal characteristics of the offender which would mitigate or aggravate culpability.

A combination of the first two factors leads to eight potential categories of blameworthiness as same were described by Justice Watson in R. v. Holloway , a 2014 Alberta Court of Appeal decision. Category A is described as follows -- these three categories are broken each into three subcategories.

Category A: (1) conduct objectively likely to cause bodily harm simpliciter that is neither trivial nor transitory; (2) conduct subjectively known to put the victim at an objective risk of bodily harm simpliciter, or conduct recklessly pursued despite the objective risk of bodily harm simpliciter; (3) conduct subjectively known to cause bodily harm simpliciter, or conduct recklessly pursued despite its causing bodily harm simpliciter. I now turn to category B, three more subcategories. The first -- we are now in the middle category: Conduct objectively likely to cause serious bodily harm.

The next category of B, the second B category, fifth overall on the scale going up the ladder: Conduct subjectively known to put the victim at an objective risk of serious bodily harm; or conduct recklessly pursued despite the objective risk of serious bodily harm. The third subcategory within B: Conduct subjectively known to cause serious bodily harm; or conduct recklessly pursued despite its causing serious bodily harm.

Turning now to the final category, the highest category, there are two categories in this respect, number 7 and 8, the final rungs on the ladder: Conduct objectively likely to cause life-threatening bodily harm.

At number 8, the final category, the highest now: Conduct subjectively known to put the victim at an objective risk of life-threatening bodily harm; or conduct recklessly pursued despite the objective risk of life-threatening bodily harm. (This is all found at paragraph 95 of that decision.) For convenience sake I am going to make reference to these eight categories as well as the three factors in order to articulate my reasoning.

In the Mason and Flett , cases cited by the Crown, both accuseds' conduct in committing the arson related manslaughters demonstrated complete disregard for the likely or probable consequences of their actions. Mason actually told the police that he had been full of anger and wanted to hurt people, that it did not matter who he had hurt. His actions were clearly deliberate. Police were told that he had hoped that death would be the end result of the rooming house fire. Nine people were in the home at the time of the arson.

Mason was described in a psychological report as a person who presented as having an anti-social personality disorder and as such likely to act out his personal distress for the rest of his life. He was described as high-risk in a community setting. Mason's behaviour was clearly reflective of category eight behaviour, the highest level of blameworthiness. He knew that his arson might kill someone or other and just did not give a damn.

At paragraph 9, the appeal court stated that his life sentence "respects both the fundamental sentencing principle of proportionality and the 'fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of sanctions'". The court actually described his level of blameworthiness as being "very high" (at paragraph 8). The Flett case, another case that the Crown referred to, also involved an offender who deliberately set a rooming house fire in what was described as an alcohol fueled uncontrollable fit of anger.

Ironically, the two targets of her rage, who she had hoped to avenge herself against, escaped the inferno which killed four other occupants and seriously injured a fifth. The arson was described as a "selfish, deliberate and reckless act" (at paragraph 10). Ms. Flett's level of blameworthiness or moral culpability was described by Justice McCawley to be "at the very high end of the spectrum" (at paragraph 10). The fire was found to have deliberately been set without regard to the risk it posed to human life because Ms. Flett knew the house was occupied. Ms.

Flett was determined to have been drinking heavily at the time and had little recollection of what happened. Despite intellectual challenges she had been gainfully employed on a sporadic basis and able to support her children. The sentencing judge indicated that there was no evidence suggestive of Ms. Flett being incapable of appreciating that "some risk could flow from her conduct" (That is at paragraph 10.) Nor was the nature of the illegal act,

the setting of the fire, being impulsive in nature, perceived as a factor that automatically put it on the lower end of the blameworthiness continuum. In this regard, Justice McCawley actually references that Ms. Flett's conduct was objectively likely to cause life-threatening or serious injury. In my view, Flett's manslaughter can be reasonably categorized as a level 7 on the Laberge moral culpability scale. As such, her maximum sentence of life imprisonment is consistent with her degree of moral culpability. As I have already related, it is my view that the co-accused's mutual involvement in the death of Mr.

Bruce, because it involved a prolonged and vicious beating, is deserving of sentences at the higher end of the comparative range, roughly from seven to 15 years based on my consideration of the cases that I have hereinbefore referenced and discussed. In my opinion, such a range generally relates to cases which manifest conduct falling into Category B (levels 4, 5 and 6) of the Laberge scale. I am of the opinion that Mr.

Flett's conduct was reflective of the highest level (6) in the Category B range, conduct that was subjectively known to cause serious bodily harm or conduct recklessly pursued despite its causing serious bodily harm. Mr. Flett, even though he knew that the deceased had been seriously beaten by himself and other gang members, returned to the incapacitated and helpless victim and administered yet another horrific beating which was evidenced by the blood splattering immediately in the vicinity of this third and last beating location. Provocation played no role whatsoever in Mr. Flett's secondary beating of Mr.

Bruce. Indeed, even his gang colleague and co-accused Mr. Guimond, the person who was actually provoked leading to the incident, thought Mr. Flett's actions so egregious as to warrant intervention in order to try to induce Flett to discontinue, unfortunately, to no avail. Mr. Flett, like Mr. Guimond, is firmly ensconced in a criminal lifestyle. They can reasonably be described as hardened criminals. The circumstances of this incident were aggravated by their gang related involvement and the fact that the victim was in his mid-teens.

It is a further aggravating factor that various weapons were employed in the beating and that the attack was perpetuated by multiple assailants over a fairly protracted period of time. The pre-sentence report found that Flett was at very high risk for re-involvement in criminal behaviour because of all the factors in his background, including his criminal attitude and outlook towards life, his associations with negative peers and lack of pro-social activities. He was also evaluated by psychologist, Dr. Kent Somers, in a report filed by defence counsel. Dr.

Somers' report corroborates the findings related in the pre-sentence report. The comprehensive report concludes with a determination that Mr. Flett is at high risk of returning to a criminal lifestyle "in which the risk of future incarceration is simply the price of doing business." Dr. Somers states that for Flett "to avoid alcohol use, or to avoid a return to drug trafficking begs radical changes to his prior lifestyle." Before pronouncing final sentence, I wish to add one more case to those I have already referenced, R. v. Starr , a Manitoba Court of Appeal decision from 2002.

In Starr , the accused was convicted of manslaughter because he had been involved in a plan to break the deceased's legs and in carrying out such plan, the victim had been killed by another. He was 38 years old at the time of sentencing and had a prior record for assault. The incident was part of a turf war between two gangs and was described as

an act of revenge. Starr was sentenced to an effective sentence of 15 years. While I commend both Mr. Guimond and Mr. Flett for making what appeared to be sincere and heartfelt apologies to the victim's family, both in their sentencing report interviews and sentencing hearing appearances, I feel compelled to also indicate that such pronouncements of remorse do not in the context of this crime or their violent histories suggest a real likelihood of insight into their violent criminal behaviour. Although, to his credit even Mr.

Flett made reference to coming to grips with the underlying causes of his violent behaviour patterns when he spoke at the sentencing hearing and Mr. Guimond expressed similar views when interviewed by Ms. Croxen for his Gladue report. In all of the circumstances, having regard for Mr. Flett's relative and aggravated role in this offence and his high degree of moral culpability and also taking into consideration the circumstances of this offence and offender, the principles of sentencing set out in the Criminal Code and the relevant case law, I impose a sentence of 13 years on Mr.

Flett in relation to his participation in the manslaughter offence. I now turn to Mr. Guimond. In my view, an appropriate sentence for his involvement in the manslaughter is a period of incarceration of 10 years. My rationale for such a conclusion is based on the provocation he was subjected to as well as his lesser degree of involvement in the beating of the deceased. Although I feel that this accused was truly remorseful for his actions, as he has always accepted full responsibility for same, I nevertheless feel that protection of the public must take top priority in this sentencing.

The commercial employment of violence by gangs is clearly something that our society should condemn in the strongest possible terms. In my view a sentence of 10 years, one at the higher end of the appropriate range, appropriately reflects such concern. There remains the sentences to be imposed for crimes committed for the benefit of a criminal organization under

Section 467.12. As previously mentioned, the Crown requests five years by way of statute mandatory consecutive sentence. Defence counsel for Mr. Guimond and Mr. Flett submitted that a one year consecutive sentence should be imposed. The maximum sentence available is 14 years. There is no doubt that a contravention of

section 467.12 can be a grave offence. However, the relative seriousness of any individual conviction under that provision must be assessed with reference to the particular facts. There are several factors which must be considered in order to properly assess the gravity of the two accused's actions in this context. The factors to be considered are described in R. v. Palfrey , a decision of the Saskatchewan Court of Appeal made in 2014, this year. The first of these factors is the size and sophistication of the relevant criminal organization being served. Very little information was related in this respect.

The court heard that the organization, called the Indian Posse, was essentially a drug trafficking enterprise which controlled the crack house that was the bone of contention between the two gangs involved in the incident. No expert evidence was received respecting the scope of the organization's criminal operations. It appears that the organization must be comprised of at least five to seven individuals as the court was told that such a number pursued the deceased from their crack house.

I have no idea how sophisticated the Indian Posse organization is as compared to other criminal organizations as no evidence or information was imparted in such respect. Another factor to be considered relates to what the Saskatchewan Court of Appeal called the "operational style or ethic of the criminal organization, particularly as it relates to the use of violence and intimidation." (This was paragraph 48.) The Crown in this regard made

reference to the 2009 Michelle incident which was heard in the Manitoba Court of Queen's Bench in 2012. The decision is R. v.Laporte. The shooting of Mr. Michelle was payback for an earlier incident where Indian Posse members had chased a group ofManitoba Warrior gang members armed with machetes. This certainly suggests that violence is part and parcel of the Indian Posse enterprise.

As well, this factor certainly sets the IndianPosse apart from some other criminal organizations and is suggestive of their being the sort of criminal organization which Parliamentwas especially concerned with when it introduced the relevant provisions of the Criminal Code several years ago. A third consideration relevant to the gravity of the offence is to quote from paragraph 49 of Palfrey, the nature of the raison d'être ofthe criminal organization.

This consideration, because the organization appears to be principally engaged in the sale of hard drugs also,tips the scales towards the more serious end of the spectrum. A fourth consideration relates to the position occupied by the offender in the criminal organization; the closer to the top of thepyramid, the more serious the connection. The information before the court, including the various pre-sentence reports, suggested thatboth accused had attained a certain degree of seniority in the gang, although the older of the two, Mr. Guimond, was probably higher upthe hierarchy than Mr. Flett.

No reported cases were provided to the court respecting the calculation of an appropriate sentence for this offence. Left to my owndevices, I found a number of cases where serious charges were involved. In R. v. Lindsay and Bonner (2005) (ONSC), O.J. No. 2870, the offenders were members of the Hells Angels Motorcycle Club. The accused were charged with extortionpursuant to

Section 346 of the Code and one count of extortion for the benefit of, or at the direction of, or in association with a criminalorganization (pursuant to

Section 467.12 of the Code). Mr. Lindsay was sentenced to four years and four months in jail after obtainingcredit for 20 months of pre-trial custody, a global sentence of six years' imprisonment. Mr. Bonner was sentenced to one year and fourmonths in jail and was given credit for 20 months of pre-trial custody. The court was unable to determine how the sentences werebroken down regarding the consecutive

Section 467.12 count. It simply is not described in the decision. Another case involved

Section 467.12 and is cited as R. v. Mastop, 2013 BCSC 738 , a decision of the Supreme Court ofBritish Columbia. The accused, a lawyer, had provided information to a criminal organization which would assist it to facilitate itsbusiness. The court observed that the assistance in question was of a limited scope and did not lead to a proper inference that muchuseful assistance was actually rendered. The court did however comment that Mr.

Mastop's slow drift into the abuse of his position as alawyer on behalf of a criminal organization was "inherently reprehensible" (at paragraph 93) and sentenced him to one year in jail. In R. v. Palfrey, the Saskatchewan Court of Appeal decision I have already cited, dealing with the sentencing of a first time offenderinvolved as a courier in a drug trafficking operation involving a small but somewhat sophisticated drug ring and 180 million dollars worthof drugs, concluded that a

Section 467.13 sentence, and associated subsection, of two years consecutive to a 16 year sentence for drugtrafficking was appropriate. In coming to such a conclusion, the court reviewed a number of other similar Section 467(12) and (13) casesfrom superior courts across Canada. Palfrey was described as less centrally involved than other members of the criminal organization. There was no violence or threats of violence incident to the offences. The court was unable to locate a sentencing precedent that was clearly similar from an offence and offender perspective.

Given therange of sentences proposed by counsel and the general dicta provided in the case law I have discussed, it is my conclusion that a fit andproper sentence in this respect, given the facts of our case and the offenders' backgrounds, would be three years consecutive to each ofthe offenders' substantive sentences for manslaughter.

Section 718.2(

e) of the Code says that when imposing a sentence, a court should take into account the principle that "whereconsecutive sentences are imposed, the combined sentence should not be unduly long or harsh." Former Chief Justice of the Supreme Court Lamer, in R. v. M.(C.A.), a 1996 decision of the Supreme Court of Canada, observed thatthe totality principle is an expression of the fundamental proportionality principle, the foundation of all sentencing principles.

He relatedthat it was necessary "to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender". (That wasat paragraph 42.) In the present case I have identified the appropriate individual sentences for each of the manslaughter offences committed by the twoaccused as well as the related Section 467(12) offences. I must therefore now ask myself if the totality principle requires that I reduceany of the sentences that I have rendered. In this respect, the court is also aware of the dicta of the Manitoba Court of Appeal in R. v. James, 2013 MBCA 14.

In this regard, Iquote from paragraph 73 of Justice MacInnes' decision as follows: "Consideration of the application of the principle of totality and the taking of the 'last look' necessitates an examination of the gravity ofthe offences, the offender’s degree of guilt or moral blameworthiness with respect to the crimes committed and the harm done to thevictim or victims. In this case, the offences are egregious. The accused's degree of guilt or moral blameworthiness is high and the harmdone to the victims substantial.

Ordinarily, in such circumstances, while some reduction might be made, the reduction would not be toany great extent." To that effect, I have decided to deduct only one year from each accused's manslaughter sentence. I have reduced the manslaughtersentence and not the criminal organization sentences because of

Section 743.6(1.2) of the Code. It speaks to a presumptive delay inparole eligibility in relation to sentences imposed for criminal organization offences. The

section provides for a delay of 10 years or one-half of the sentence, whichever is less, for the criminal organization offences. Since to reduce the sentence on a criminal organizationoffence to deal with the totality principle issue would frustrate the operation of

Section 743.6(1.2) by artificially reducing the delay in an

offender's eligibility for parole, I have reduced the manslaughter and not the criminal organization sentences. I will now deal with time in custody. Both accused have requested credit at 1.5 to one for the time they have spent in custody beforesentencing. The Crown made no submission in such respect. The 1.5 to one credit sought by both accused is consistent with the ratio expressed by Justice Green in R. v. Johnson, 2011 ONCJ 77, that is to say that 1.5 to one credit is justified based upon the calculus of lost remission which constitutes circumstancesjustifying the maximum enhanced ratio of 1.5 to one credit.

Following this reasoning, I am persuaded that it is consistent with thefundamental principles of justice and fairness to award both offenders with a 1.5 to one time in custody credit. The court will pronouncethe actual go forward sentence on the date of sentencing today at which time the offenders' time in custody will be fully calculable. Ipropose to allow counsel to confer prior to determining the exact time in custody. I will now deal with the subject of parole eligibility in reference to these matters.

Given my conclusion as to the appropriate length ofsentence for the criminal organization offence in this case, three years, it follows that the length of the delay for full-time paroleeligibility is only one and one-half years (one-half of three years). This is significantly shorter than the minimum period either offenderwill have to serve before he is eligible for full parole under the provisions of the Corrections and Conditional Release Act. As a result,my decision in this regard will not affect the date on which Mr. Flett or Mr. Guimond will become eligible for parole.

I was also asked to consider a DNA order, weapons prohibitions and surcharges. As this is a primary designated offence underSection 487.04 of the Code, the accused are each required to submit a bodily sample suitable for DNA analysis. There will also be alifetime weapons prohibition with respect to each accused pursuant to

Section 109 of the Criminal Code. The victim surcharge and costswill be waived in these circumstances because of the lengthy imprisonment. What I now propose is that subject to any questions, that we take a short recess in order that counsel can confer about the time incustody issue and do the necessary calculations and hopefully come to some consensus on the issue. I didn’t want to try making thenumbers on the basis of what I heard last time because I could have got it a little wrong, so I thought it would be better to leave thelawyers to consider what they know which is more than what I know in that regard.

So we will take a short recess. THE CLERK: Order, all rise. Court will take a brief recess. (BRIEF RECESS) THE CLERK: Court is re-convened. Please be seated. MR. DAVIDSON: Yes, Your Honour, I can advise that we've spoken to Madam Clerk so that she's aware of what we're going to bedoing here as well. THE COURT: She told me. MR. DAVIDSON: And we've spoken with the other ones. So just dealing firstly with Mr. Flett's matter, I can advise the court that Mr. Flett came into custody on October the 13th of 2012. Upto and including today's date that equates to 795 days which he has spent in pre-trial custody.

Giving him credit for one to one and a half,that equals credit for 1,193 days, we round it up by half a day. Now what we have done to make it easier for Madam Clerk is we'vetaken the effective sentence. You've indicated that the otherwise 13 year sentence you've reduced to 12 years because of totality. THE COURT: Correct. MR. DAVIDSON: That equates, that 12 year sentence equates to 4,380 days.

So Madam Clerk is going to be noting 1,193 days asthe credit he received for his pre-trial detention with a go forward basis on the manslaughter of 3,187 days and the three year sentenceremains the same, being consecutive for the criminal organization offence. THE COURT: Okay. MS. INNESS: That's correct, Your Honour. Ms. Inness for the record. We did the calculations together. THE COURT: Okay, thank you. MR. DAVIDSON: We did the same thing for Mr. Guimond. Mr. Guimond came into custody on September the 26th of 2012. Up toand including today's date, that's 812 days he has spent in pre-trial detention.

Using the one to one and a half credit, that equates to 1,218days. So with his sentence you initially suggested 10 years. You reduced his sentence because of totality to nine years which equates to3,285 days. So Madam Clerk has been advised that that is what the notation will indicate with 1218 days being credited for time spent incustody and a go forward basis of 2,067 days from today with the three year consecutive sentence for the criminal organization offencebeing consecutive to that 2,067 days. MR. SAWCHUK: That's correct. THE COURT: Okay. So for the record that was Mr.

Sawchuk saying correct, having had an opportunity to consider that. MR. SAWCHUK: Yes.

THE COURT: Okay. MR. DAVIDSON: And I believe that completes what you needed from counsel. THE COURT: I think it does. Is there anything else? MR. DAVIDSON: Costs and surcharge -- MS. INNESS: Were waived. MR. DAVIDSON: -- I expect are waived in the circumstances. THE COURT: I thought I did that. MR. DAVIDSON: I apologize, I didn't hear that. That's all. THE COURT: I am going to try and get you copies of the transcript as soon as possible. MR. SAWCHUK: Thank you. MR. DAVIDSON: Thank you. THE COURT: I will provide them through my office. MR. SAWCHUK: Thank you, Your Honour. MR. DAVIDSON: Thank you. B. Corrin, P.C.J.