HER MAJESTY THE QUEEN - v. –, 2003 NBQB 149

2003 NBQB 149 N/CR/12/02 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MIRAMICHI BETWEEN: HER MAJESTY THE QUEEN - AND – BRANDON DONOVAN BEFORE: MR. JUSTICE RIORDON SENTENCE HEARING: MARCH 31, 2003 COUNSEL AT HEARING: JACK WALSH, Q.C. FOR HER MAJESTY THE QUEEN GARY MILLER, FOR BRANDON DONOVAN

THE COURT: I will address this matter at this time. On February 4 th , past Brandon Donovan entered a plea of guilty to manslaughter as a consequence of the shooting death of Cody Gillespie which occurred on March 24 th , 2002. The appropriate sentence for this crime must now be determined. Tragedy struck in the early morning hours of March 24 th , 2002 at the Community of Renous. 20 year old Cody Matthew Gillespie, a friend of the accused was the victim of a shotgun blast to the head at close range while he slept on a couch in the bedroom at the home of Brandon Donovan’s parents.

This weapon, a 12 gauge shotgun was fired at close range. The fatality took place either after or during a night of partying at the Donovan residence, a party that was attended by a number of people while Mr. and Mrs. Donovan were away on vacation, a party at which substantial quantities of liquor and some drugs were consumed by some of those in attendance including the accused. It appears to me from what I have heard that Mr. Gillespie died instantly and I think that is without any question correct.

Several young people had been in attendance at this party which began in the evening of March 23 rd and ended in tragedy in the early morning hours of March 24 th . I am told that during the course of the party at sometime around midnight Mr. Donovan came into the pool room area of the home which is located in the basement, carrying a 30-30 rifle with an attached scope and after some discussion he put the rifle away.

I am told that sometime later in the night, maybe around 2 o’clock in the morning, his brother O’Neil Donovan who was also under the influence of liquor, got into an argument with the victim, Cody Gillespie and words were spoken. There was a confrontation and the dispute between Cody Gillespie and O’Neil Donovan was broken up by Brandon Donovan. I am told that his older brother, O’Neil indicated that he would speak to his brother and shortly after O’Neil went into the bedroom, off of the pool room, Brandon Donovan’s bedroom and fell asleep on the bed.

Around 3:45 a.m. three women, friends arrived at the Donovan home. They played pool and took

part in the social activities. One of the women, Kimberly Duthie played pool with Cody as her partner in the game and she reported that Cody was intoxicated and that he went into the bedroom where O’Neil Donovan was sleeping to lie down on the couch in the room. She entered the room and talked to him briefly and inquired as to why he wasn’t continuing to play pool. It is reported that while she was there Brandon Donovan did come into the bedroom and shortly after left the room and closed the door.

At around 4:30 a.m. the three young women who had arrived at the party and April Jardine, the girlfriend of the accused left the residence to get supplies of mix to mix with alcoholic beverages. According to Ms. Duthie Cody was dozing off at this point in time. Shortly after and I would say somewhere around 4:30 a.m. Brandon Donovan again came to the pool room area of the home brandishing a weapon, this time a shotgun. One Graham Dawson who was at the party proceeded to do a rather foolish act. He held the shotgun at his mouth and told Brandon Donovan to shoot. The gun was loaded. Mr.

Donovan did not shoot but he ejected the shells from the weapon and commented that Mr. Dawson had balls. A very dangerous practice, without question and a foolish practice. Immediately after this incident Mr. Donovan left the pool room and I understand that prior to this some shells were ejected from the weapon and placed in a garbage can in the pool room at that time by Mr. Dawson. Mr. Brandon Donovan left the pool room and entered the bedroom where his brother was sleeping or passed out and where Mr. Gillespie was on the couch. Within a minute a shot was heard.

It later became known that Cody Gillespie was shot in the face while he was on the couch. Brandon Donovan immediately exited the bedroom without the gun, made comments to the effect, “Why has this happened to me?” It was reported that he was hysterical, in a very emotional state and stated words to the effect, “What did I do? God help me.” He is reported to have run out of the house and one of the boys, Porter Manderville ran after him. Sometime after Mr. Porter Manderville and Mr. Dawson went into the bedroom. The older brother of the accused, O’Neil Donovan was

still asleep in the bed. Cody Gillespie, the victim was on the couch. Sometime after Brandon Donovan is reported to have come into the bedroom and tried to get Cody to get up and his body rolled onto the floor. At this time the shotgun was on the floor of the bedroom. When Brandon Donovan asked where the bullets were, Porter Manderville and Graham Dawson ran out of the home. Shortly after they met the young women who were returning to the party and informed them what had happened. Mr. Manderville and some of the girls went elsewhere and called 911.

April Jardine, Melanie Caron and Graham Dawson I understand went back to the home and proceeded to the bedroom where they saw the body of Cody Gillespie and Melanie Caron immediately called 911. Some of these young girls who arrived at the party I am told were not drinking. I don’t have all of their names but at least one of them was not drinking. April Jardine then went outside where Brandon Donovan was sitting in his truck with the shotgun. It is reported that he told her that he had tried to kill himself but could not. Police obviously arrived shortly thereafter and their investigation commenced.

Brandon Donovan was arrested. He was Chartered. He did not tell the police what happened. Police indicate that he was in a very emotional state. He was shaking uncontrollably, he was crying and was very emotional and the shaking was uncontrollable. When he was searched police found a 12 gauge shotgun shell in one of his pockets along with four joints of marihuana. The weapon in question which was recovered in the truck, which was the weapon that was used was tested by forensic experts.

It was determined by tests that this gun would not shock discharge, that 1.5 kilograms of force was required to squeeze the trigger, that the safety mechanism was inoperable and that it had a capacity for five cartridges in the magazine and one cartridge in the chamber. There is no evidence of any disagreement or dispute between Brandon Donovan and Cody Gillespie that night or before.

I have been told at an earlier voir dire that on previous occasions, on several times during the course of parties or gatherings that Brandon Donovan would suddenly appear without any advance notice brandishing or displaying a weapon and on occasion would shoot it into the air. Obviously he was not a stranger to weapons. He had knowledge of weapons and an apparent fascination with them. I had addressed this in an earlier decision dated February 24 th , 2003 subsequent to the hearing of the voir dire held on February 12 th , 2003 and the specific incidents are described in that decision. Mr.

Brandon Donovan is 24 years of age at the present time. He quit school in grade 11. He is one of three children of Brian Donovan and Clara McEvoy. Brandon Donovan is engaged to April Jardine. It is reported in the Pre-Sentence Report that he had a positive upbringing and grew up in a comfortable environment and that his family own three businesses. Brandon Donovan has lived all of his life with his parents except for a period of approximately one year when he lived and worked in the Province of Alberta where he worked for different employers doing labour work and other work including seismic survey work.

It is reported that after doing seismic survey work for about three weeks his job was terminated. He says that he could not explain why. It is my understanding that since leaving school he has worked in the family business regularly except for the time that he was in Alberta. Mr. Donovan never completed his high school education after being suspended from Blackville High School for a number of behaviour problems. I am told he then attended Miramichi Valley High School for a short period of time and then quit attending school.

The Probation Officer interviewed both the principal and vice-principal of Blackville High School. She has reported in the Pre-Sentence Report on her interviews with Mr. Hal Muck and Eddie Pinder. Both say that Mr. Donovan is an intelligent person and in fact very bright and a student who could very well have been at the top of his class but he did not apply himself academically. This is unfortunate. He was described by school officials as a problem, the toughest youth they had dealt with during his years in high school. He is described as defiant, having a bad temper and intimidating towards others.

It is indicated that his parents never accepted that he did anything wrong and the school was always to blame. He was suspended on a number of occasions for a number of incidents. Mr. Pinder commented that Brandon Donovan was disinterested in school, defiant, questioned authority, was disrespectful, unpredictable and that he periodically made “off the wall and scary remarks” which were destructive and intimidating. It is noted that teachers had to handle him with kid gloves. When he was addressed for inappropriate behaviour he would “fly off the handle” and always wanted to have the last word.

He was perceived by school staff as having the potential to cause significant harm to others and teachers were afraid of what he might do if confronted. He was involved in a series of incidents before being suspended from school. The Pre-Sentence Report which is very thorough says that Mr. Donovan first experienced alcohol consumption at the age of 12, by age 15 he was drinking alcohol every weekend and consuming alcohol became a social routine. Before this incident he was consuming alcohol on a daily basis and sometimes in significant quantities.

At age 15 it is reported that he began an involvement with drugs, marihuana and hashish and after the age of sixteen it is reported that he began smoking marihuana and hashish on a daily basis which continued until this offence occurred. He has experienced and experimented with other drugs which are listed in the Pre-Sentence Report including cocaine. The crown has filed a prior criminal history. Much of it took place when Mr. Donovan would be classified as a Young Offender. I counted quickly. I think there are sixteen different infractions.

Nine of them involve Liquor Act violations, four are Motor Vehicle Act violations, one is under the Controlled Drugs and Substances Act and two are Criminal Code violations. As I read it one of these is impaired driving or refusing a breathalyzer or failing a breathalyzer and the other appears to be resisting arrest or obstructing a police officer. A number of Victim Impact Statements were filed. The mother, sister, grandmother and aunt of the victim read their statements aloud with emotion and feeling. The Victim Impact Statements reflect the unquestionable impact of this tragedy on the Gillespie family.

They reflect the continuing impact and they show their great loss and their great sorrow, loss and sorrow caused by a senseless unexplainable act. The Victim Impact Statements express very powerfully and eloquently the grief, sorrow and loss suffered by the family and by their friends and community in the death of Cody Gillespie. Mrs. Margaret Hallihan, his grandmother stated it so very well and she said among other things, “that words cannot express what is

really in our hearts.” All of the persons who filed Victim Impact Statements have expressed very clearly and very sincerely and every emotionally the way that this tragedy has impacted on them and the grief and loss they have suffered . They tell of the impact this has had on their lives and as Margaret Hallihan said the hurt never ends. I don’t for a moment in any way question that. It was a very great impact on the family and community, a young 20 year old man just starting life who had probably a very good life ahead of him, a life that has been snuffed out by this act.

I have heard the representations of counsel today. The crown has reviewed many of the decisions of courts in New Brunswick, other Provinces and the Supreme Court of Canada on sentencing for the offence of manslaughter. Mr. Walsh had done a very thorough job of researching these cases from both our Province and other Provinces in Canada and the Supreme Court of Canada. He has referred to many, many cases including the Supreme Court of Canada decision of The Queen v. Morrisey which he commented on and reviewed at some length. That is reported in (2001) 148 C.C.C.(3d) at page one.

He also reviewed the recent decision of The Queen v. Durette in New Brunswick which has been addressed by the Court of Appeal, I believe as recent as last week and the decision of R. v. Pearson (2002)N.B.J. No. 227. Mr. Walsh has asked that consideration be given to the degree of responsibility of Mr. Brandon Donovan and that I consider his knowledge of firearms, his fascination with firearms and that it is important to remember that he broke every safety rule in the book in the use of the shotgun on the night in question.

He said that he should have known that the weapon had a defective safety and his conduct that night was inexcusable. Mr. Walsh points out that using firearms was not out of character for Mr. Donovan and that he was experienced with the use of weapons. Mr. Walsh questions the remorse of Mr. Donovan from his assessment of the Pre-Sentence Report and commented that it appears that he is cold and self-centered. He questions that he is a good prospect for rehabilitation. It is submitted that in all of the unique circumstances of this particular case Mr.

Donovan is not a person deserving of the minimum sentence when one considers his culpability and all of the circumstances even though one must acknowledge the guilty plea. Crown counsel argues and suggests that this is a case in which the appropriate sentence would be one of six years of imprisonment. Defence counsel has outlined Mr. Donovan’s willingness to accept responsibility and that he has pleaded guilty to manslaughter at the first possible opportunity. It is said that he wished to plead earlier and that he is aware of the feelings of the people in the community. It is stated that Mr.

Donovan does not remember what occurred that night at the critical period of time and I am told that Mr. Donovan did keep this particular shotgun in his bedroom and that he was returning it to where it was normally kept as I believe commented or suggested by his friends when this terrible accident happened. It is stated by defence counsel that no one can doubt that this was an accident and that the minimum sentence of four years is appropriate. I am reminded that Mr. Donovan wishes to start a new life after release from prison and that he intends to move from the area.

Defence counsel argues that a larger, longer sentence then minimum will not drive home the consequences of Mr. Donovan’s actions to him any more than the tragic death of his friend has. It was argued that this was a tragic reckless killing but we must remember that it was not intentional and that it will affect Brandon Donovan and his family for the rest of their lives and not only the family of the victim. I am reminded that he is a young man and that I should treat him as a youthful first offender. In the decision of R. v.

Doyle reported in 127 N.B.R.(2 nd ) at page 251 I quoted from Justice Haynes of the Ontario Court in the case of R. v. Turner (1971) 1970 CanLII 522 (ON CA) , 1 C.C.C.(2d) 293, at page 296. I will quote again at this time and I think that quote is applicable in the present case. Judge Haynes stated: “However, the law places on its judges an almost impossible task. It requires them by their sentences to protect the public by deterring those tempted to commit a similar offence. At the same time it looks to its judges to impose a sentence that will rehabilitate the accused.

Thus, for the same offence society and its victims are treated to an exhibition of sentences that vary all the way from suspended sentence to a term of years for the same offence. This confuses the public who lose confidence in the object of the criminal law because it feels that instead of consistently protecting their persons and property, the law discharges that function only occasionally. The public fail to understand that what is happening often is that protection is sacrificed to the personal interests of the offender.

As judges endeavour to recognize the conflicting public interest in protection and the needs of the offender for rehabilitation, the results are frequently paradoxical and are explicable only on the theory that in different cases different judges give different weights to public interests and those of the accused. If the trial judge favours the public interests consistently he is considered harsh; if the accused, then he is said to be soft. Actually, the real problem is created by the judiciary being placed in the position of serving these conflicting interests.

Being required to be all things to all men, sentences vary widely and really serve no one interest adequately. Sentences bear the character of compromise and often hurt those they are intended to serve.” I said before and I say again and other judges have said this, that sentencing is not an exact science nor is it an easy task. As Justice Glennie stated in R. v. Pearson and with which I agree. “Sentencing is a very difficult task. It is certainly not an exact science because it involves human beings, both victims and an accused, and society ultimately must be protected.

On the other hand, society can sometimes be protected by a sentence as tailored to invite rehabilitation or at least give the hope of some rehabilitation.” He went on to review the statutory framework of sentencing and the purpose of sentencing which is codified in the Criminal Code .

Section 718 states: “The fundamental purpose of sentence is to contribute, along with crime prevention initiatives, to respect for the law and the

maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community; and

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.”

Section 718.1 sets out the Fundamental Principle and that is: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. “ Other sentencing principles are also set out in the Code. The Fundamental Principle as per

Section 718.1 of the Code is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Justice Glennie in the Pearson decision refers to a number of decisions. At paragraph 21 he quotes from The Law of Sentencing and he quotes the following: “For sentencing purposes the offence of manslaughter can encompass an infinite number of situations, but they all share one characteristic: a death has been caused by culpable homicide.

Because the taking of a life is a central feature of manslaughter sentencing, courts will emphasize the roles of denunciation and deterrence. However, rehabilitation and re-integration are relevant especially in the examples of situational killings where the offender presents little or no risk of future danger. Manslaughter sentencing is completely variable and dependent on the circumstances leading to the death, which permits the court to distinguish between degrees of culpability.

The offender’s background and the existence of mitigating or aggravating factors round out the sentencing matrix, and produce a variety of sentences that run from the non-custodial to life imprisonment.” Justice Glennie went on to say at paragraph 22:: “The offence of manslaughter remains a most serious crime for it is premised upon the death of another person in unlawful circumstances. When manslaughter involves the use of a firearm, Parliament has deemed it to be particularly serious as evidenced by the minimum sentence now contained in

Section 236 (

a) of the Criminal Code and a maximum of life imprisonment. The use of firearms is a highly regulated and hazardous activity, and the minimum sentence in s.236 (

a) was enacted by Parliament as part of its larger gun control strategy. “ Justice Glennie goes on to refer to a number of other decisions, many decisions, some of which were referred to by counsel here today. In the present case I am satisfied that Mr. Brandon Donovan had a wealth of knowledge about firearms. I am satisfied that he should have known that this gun had a defective safety. Forensic testing shows and establishes that it took a 1.5 kilogram force to pull the trigger. Brandon Donovan earlier that evening for no reason appeared at this social event with a rifle. He was told to put the rifle away.

In the past on a number of occasions he brought a weapon out for no reason. I have great difficulty in accepting his inability to remember what happened as reported to me by defence counsel. It is possible but I have some difficulty in that. With his earlier defiant attitude towards teachers and persons in authority I have difficulty with prospects of rehabilitation and I have some questions as to the sincerity of his remorse. Mr. Pinder’s assessment that he always wanted the last word is in my view an accurate assessment of his character. I have considered all of the circumstances of this matter.

I have reviewed the many authorities that have been brought to my attention. I have considered other decisions that I am aware of and I have given consideration to the submissions of counsel. I have given much thought to the recommendations of Mr. Walsh. I do respect those recommendations but I am unable to agree with his recommendations as to the appropriate sentence in this case from my understanding of the circumstances, the law and what occurred. I do not agree with the recommendation of Mr. Miller that the minimum sentence is appropriate.

From my assessment of the circumstances in this matter and the authorities, the recommendations of counsel, do not in my humble opinion reflect the gravity of this offence and the degree of responsibility of this offender. The sentence of this court is as follows:

1. There will be an order that will issue prohibiting Brandon Donovan from having in his possession any firearm or any ammunition or explosive for the rest of his life, pursuant to

Section 109 of the Criminal Code of Canada . 2. An order will issue pursuant to

Section 487.06(1) of the Criminal Code authorizing the taking from Brandon Donovan of any number of samples reasonably required for the purposes of Forensics DNA analysis. 3. That the weapon used in the commission of this crime will be forfeited to the Crown and destroyed. 4. That Brandon Donovan, the accused serve a period of 8 years in the penitentiary. That is the end of this matter and we will now adjourn. ___________________________ THOMAS W. RIORDON, J.C.Q.B.