Her Majesty the Queen - v. -, 2019 SKPC 22

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 22 Date: April 4, 2019 Information: 24410163 Location: Fort Qu’Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sherman Luke Bellegarde Appearing: Greg Chovin For the Crown David Andrews, Q.C. For the Accused SENTENCING DECISION K.A. LANG , J Factual Background Introduction [ 1 ] Mr. Bellegarde was charged that on or about December 15, 2016, he did unlawfully cause the death of Lauren Darnell Quewezance, “Lauren”, and did thereby commit manslaughter, contrary to

section 236 of the Criminal Code .

He pled guilty to that charge early on in the proceedings and prior to a preliminary inquiry. [ 2 ] Sentencing submissions were heard on February 27, 2019. An Agreed Statement of Facts was entered into evidence as Exhibit P-1. Circumstances of the Offender [ 3 ] The facts are set out in the Agreed Statement of Facts. Those facts are summarized as set out below. [ 4 ] On the date of the offence Mr. Bellegarde was 37 years of age and his domestic partner, Lauren, was 33 years of age.

They were living together with their son Benicio (then age 3) at Bellegarde’s parents’ residence on Little Black Bear First Nation. [ 5 ] On the evening of December 14, 2016, at around 9:30 p.m., Mr. Bellegarde and Lauren left their residence to cash a cheque at a convenience store. They had both been drinking that evening and were intoxicated. A family member was to babysit Benicio during their absence. [ 6 ] Mr. Bellegarde and Lauren attended at the convenience store and cashed a cheque at 9:48 p.m. At 10:06 p.m., Lauren was captured on surveillance video at Trapper’s Bar in Fort Qu’Appelle, purchasing alcohol.

She purchased one 2 litre container of Tropikiwi cooler, a second 2 litre container of Okanagan cooler, a 40 oz bottle of Smirnoff vodka, and two 2 litre containers of Pepsi. [ 7 ] At least one further stop was made by the couple prior to ending up parked on a rural gravel road. [ 8 ] Mr. Bellegarde admitted in a warned cautioned statement that Lauren drove off in the Tahoe and he followed her on foot. He caught up to her when the Tahoe got stuck off the road. He said he and Lauren were fighting and “calling each other down”.

He said his next memory was that Lauren was on the ground and he was kicking her in the face while she asked him to stop. He admitted her face was badly bruised up but stated, “I didn’t know how badly I hurt her”. He told police he stayed with Lauren for a time, and that she was conscious, but unable to get to her feet. [ 9 ] Mr. Bellegarde admitted that he then left Lauren behind and returned to his parents’ residence. He then returned to check on her but was not able to find any signs of life. He tried CPR. [ 10 ] Diane Bellegarde, Mr. Bellegarde’s sister (“Diane”), told police that Mr.

Bellegarde did not return home until he stumbled into the house around 4:00 or 4:30 a.m. on December 15, 2016. Lauren was not with him. [ 11 ] Diane told police that Mr. Bellegarde told her he might have killed or hurt Lauren Quewezance. Diane asked if she should call an ambulance. Mr. Bellegarde asked her not to do so as he wanted to return to the scene to check on Lauren. [ 12 ] Mr. Bellegarde returned to his parents’ residence 45 minutes later and told Diane that

Lauren’s condition was the same and he thought she was dead. He told Diane he tried CPR and blood came from her nose and mouth. Diane then called 911. [ 13 ] At 7:20 a.m. on December 15, 2016, RCMP received a phone call from Diane Bellegarde stating that Lauren was stuck on a back road and was unconscious and not breathing. Emergency Medical Services was dispatched to the scene, and determined that Lauren was deceased. [ 14 ] The autopsy revealed that Lauren had died of blunt force trauma to the head. The forensic pathologist concluded that the number of blows suffered by Lauren could not be determined.

According to the forensic pathologist, Lauren died 10 minutes to 1 hour after the injuries were inflicted on her. [ 15 ] At the time of Lauren’s death, Mr. Bellegarde was on a probation order which included a condition that he not consume alcohol. According to Mr. Bellegarde, the night of December 14, 2016, was the first time he had consumed alcohol after a two year period of sobriety. Criminal Record [ 16 ] Mr. Bellegarde’s criminal record reveals two prior convictions for assault against Lauren, a conviction for assault causing bodily harm in 2011, and a conviction for common assault in 2014. Mr.

Bellegarde admitted in his Pre- Sentence Report (PSR) that Lauren had made a total of six complaints to the police about him assaulting her. He also admitted a history of domestic violence in his prior common-law relationship with a different woman (PSR pages 4-5). Position of the Parties Crown Position [ 17 ] The Crown’s position on sentencing, set out in their February 27, 2019 oral submissions, was that a sentence of 11 years was appropriate given that the injuries were horrific and indicative of a stomp to the face, Mr.

Bellegarde had been reported six times for assaults against Lauren and yet had failed to address his alcohol problem. The Crown argued that the case law supported a sentence of 11 years in this case in keeping with the ranges for manslaughters involving domestic violence. The fact that this manslaughter occurred in the context of a spousal relationship was identified as aggravating in nature by the Crown. The Crown also argues that R v Mullen , 2017 SKQB 237 [ Mullen ] suggests a 10 to 12 year range for spousal manslaughters. Defence Position [ 18 ] The defence sought a sentence of 8-9 years.

Defence counsel disputed the Crown’s initial position that the beating was prolonged, noting that the evidence does not necessarily support a factual finding that there was a “prolonged beating”. The Crown later conceded that the evidence did not support a finding that the beating was prolonged. Defence submitted that Mr. Bellegarde had been sober for two years prior to the incident, and that he was going through some difficult issues at the time of the offence (see PSR page 7). Defence took the position that a sentence of 8-9 years would be appropriate given Mr.

Bellegarde’s Gladue factors, and the mitigating factor of his high level of remorse. Defence counsel noted that Mr. Bellegarde returned to the scene to try to revive Lauren and did not invent a story to try to conceal his actions. Defence submitted that this was an unplanned, impulsive act, and that Mr. Bellegarde was in a drunken state when he committed this act. Defence also argued that Mr. Bellegarde’s conduct did not rise to the highest level of seriousness on the LaBerge continuum, meaning that his conduct fell short of

an act that risked life-threatening injuries. As well, the defence made the point that no weapon was used in the commission of the offence. Thus, defence took the position that Mr. Bellegarde’s moral culpability was not as high based on the LaBerge analysis ( R v Laberge , 1995 ABCA 196 , 165 AR 375 [ Laberge ]). Analysis Principles of Sentencing Introduction

[19] In determining the appropriate sentence for this offence, I am guided by the provisions of sections 718 to 718.2 of the Criminal Code. A sentence must be one that fits the particular offence and the individual offender before theCourt. [20] In order to achieve the fundamental purpose of sentencing outlined in

section 718 of the Criminal Code, namely contributing to respect for the law and the maintenance of a just, peaceful and safe society, the sentence Iimpose must be a just sanction. It must pursue one or more of the following objectives: denunciation of unlawful conduct; deterring theoffender and others from committing offences; separation of the offender from society if necessary; rehabilitation; providing reparationto the victim and community; and promoting a sense of responsibility and acknowledging the harm done.

The relative emphasis to beplaced on each of these objectives must be appropriate for the circumstances of this offence and this offender. [21] Even though the emphasis given to the sentencing objectives listed in

section 718 may vary according to the circumstances of the case, the resulting sentence must respect the principle of proportionality.

Section 718.1 ofthe Criminal Code states that the fundamental principle of sentencing is that the sentence must be proportionate to the gravity of theoffence and the degree of responsibility of the offender: R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 [Nasogaluak]. [22] I must also have regard for the secondary sentencing principles listed in

section 718.2 of the Criminal Code, including consideration of aggravating and mitigating circumstances, totality, parity, the need to consider allavailable reasonable sanctions other than imprisonment, and the need to consider the circumstances of Aboriginal offenders. [23] Denunciation and deterrence are paramount principles in this case, and it is clear from the jurisprudence that denunciation and deterrence are of primary importance in sentencing for manslaughter (R v Kurek, 2018 SKQB 168 atpara 33 [Kurek], see also R v MacLeod, 2018 ABQB 520 at para 65 [MacLeod]).

Proportionality [24] Proportionality is central to the sentencing process: Nasogaluak; R v Solowan, 2008 SCC 62, [2008] 3 SCR 309. It is the most important of the factors codified in sections 718 to 718.2: R v Arcand, 2010 ABCA 363,264 CCC (3d) 134 [Arcand].

In R v Ipeelee, 2012 SCC 13 at para 37, [2012] 1 SCR 433 [Ipeelee], Justice LeBel describedproportionality as the "sine qua non" of a just sanction, saying that a sentence which properly respects the principle of proportionalityinevitably ensures that secondary goals such as denunciation, restraint, promoting justice for victims, and maintaining public confidencein the administration of justice, are met. [25] In R v Yuzicapi, 2011 SKCA 134, 377 Sask R 133 Chief Justice Klebuc emphasized the importance of proportionality in sentencing, and provided guidance as to its application.

At paragraph 28, he wrote: The gravity of an offence and the moral culpability of the offender in committing the offence are the principal factors to be considered insentencing. In Keshane this Court stated the gravity of an offence lies in three considerations: (

i) the nature and comparative seriousnessof the offence, (ii) the circumstances of its commission, and (iii) the harm caused by it. Parity [26] Consideration needs to be given to similar cases, and especially to those decided in Saskatchewan. The Supreme Court has noted at R v M.(C.A.), (SCC), [1996] 1 SCR 500 at para 92: Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similarcrime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected tovary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencinggoals will depend on the needs and current conditions of and in the particular community where the crime occurred.

Established Ranges [27] R v Keepness, 2010 SKCA 69, 255 CCC (3d) 457 [Keepness] identifies a 4 to 12 year sentencing range for manslaughters involving brutality and alcohol (Keepness at para 29). [28] The Crown advanced an argument that the jurisprudence supports a 10 to 12 year sentencing range for spousal manslaughters. In support of this, the Crown references Mullen. Justice McMurtry in Mullen refers to 14cases in her reasons, 13 of which involve the killing of a spouse or domestic partner. Most of these 13 cases are within the 10-12 yearrange.

However, a number of the cases relied upon by Justice McMurtry do not involve Indigenous offenders and thus this rough 10 to12 year sentencing range is not informed by Gladue considerations. Further, several of the cases reviewed in Mullen fall below ten years,including R v Brooks, [1993] OJ No 1396 (QL) (Ont Ct J (Gen Div)), where the Court imposed a nine year sentence, taking into accountthe accused’s level of remorse and the fact that he reported the offence to police.

Crown Cases [29] The cases relied upon by the Crown follow. [30] In R v Zimmer, (SK CA), 89 Sask R 281 [Zimmer], the sentencing judge imposed a sentence of 15 years, which was reduced to ten years on appeal. This case involved a manslaughter that occurred in the context of a severe domesticassault that was described as a 2-3 hour beating of the victim. Mr. Zimmer pled guilty before trial. The Court in Zimmer discusses someof the history of sentencing ranges for manslaughter in concluding that the 15 year sentence imposed was unfit.

Justice Cameron for theCourt of Appeal noted that from 1965-1980 sentences for manslaughter in the range of three to five years were common, but thatfollowing R v Knife (1982), (SK KB), 16 Sask R 40, the range began to shift upwards. The Court referred to the caseof R v Severight (9 June 1988) (Sask CA), where Mr. Severight, whose record disclosed previous convictions for manslaughter andattempted murder, stabbed his cousin through the heart after a squabble at a birthday part, as an example of one of the most serious casesof manslaughter seen in Saskatchewan (Zimmer at paras 24 and 31).

On the bases of parity and equity in sentencing, the Court of Appealallowed the appeal and lowered Mr. Zimmer’s sentence to ten years (Zimmer at para 35). [31] In LaBerge, the sentencing judge imposed a sentence of three years after the accused pled guilty. The Court of Appeal allowed the Crown appeal and substituted a sentence of 4.5 years’ imprisonment. This case involved familyviolence and a child victim. The accused killed his baby by forcibly striking her head on the floor (LaBerge at para 3).

LaBerge is a keycase that established a framework for assessing the “comparative degrees of seriousness for manslaughter based on the foreseeability ofconsequences of the unlawful act” (Arcand at para. 97, see also LaBerge at paras 12-17). [32] Relating to manslaughter, in LaBerge, the Court explained and set out these three broad categories at paragraphs 8 and 9: However, for sentencing purposes, a court is not limited to evaluating moral blameworthiness in terms of an offender's mental state.Indeed, it would be quite wrong to engage in that kind of acontextual analysis.

That is because the offender's level of moral culpabilitywill be influenced by other factors. In the case of unlawful act manslaughter, the most important of these will be what the unlawful actitself involved. The nature and quality of the unlawful act itself, the method by which it was committed and the manner in which it wascommitted in terms of the degree of planning and deliberation are all relevant to this inquiry.

Unlawful acts may be divided into three broad groups: those which are likely to put the victim at risk of, or cause, bodily injury; thosewhich are likely to put the victim at risk of, or cause, serious bodily injury and those which are likely to put the victim at risk of, orcause, life-threatening injuries. [emphasis added] [33] The LaBerge analysis of comparative degrees of seriousness for manslaughter provides a helpful way of categorizing offences.

It is however, not determinative of the question of moral blame, but rather assists in evaluating theseriousness of the offence and in this manner, analyzing the mens rea component of moral culpability.

[ 34 ] In Keepness , the sentencing judge imposed a term of 11.5 years for manslaughter that was increased to 15 years by the Court of Appeal on the basis that the sentencing judge erred in treating the range for manslaughter as a ceiling or cap. The sentencing judge erred in failing to give effect to the circumstances since she believed that she was strictly limited by the common law sentencing range. The accused in Keepness pled guilty before trial to a home invasion manslaughter involving a group of men involved with a gang who acted in concert to break into a drug house and stab the occupants.

While Gladue factors were present in this case, it is otherwise distinguishable in that it involved a pre-meditated home invasion and the aggravating factor of individuals acting in concert under the name of a gang.

However, the principle emerging from Keepness , that the 4-12 year sentencing range for manslaughter involving brutality and alcohol are not a strict limit or ceiling, is relevant to the case at bar in that the Court must always craft a proportionate sentence that gives effect to the purposes and principles of sentencing. [ 35 ] In R v Rodgers , 2012 SKQB 80 , 394 Sask R 152 [ Rodgers ] Justice Albright sentenced the accused to 7.5 years’ imprisonment in relation to a manslaughter involving impulsive violence. In Rodgers , the accused was convicted at trial. Ms. Rodgers had an exchange with Ms.

Ermine, the victim, asking Ms. Ermine to leave. Ms. Ermine left, but returned and at that time the altercation continued, culminating in Ms. Rodgers stabling Ms. Ermine (para 14). The mitigating factors at play in this case included Ms.

Rodgers’ serious mental health problems and the fact that she was responsible for the immediate 911 call to bring medical assistance to the victim ( Rodgers at para 33 and 34 ). [ 36 ] Rodgers recognized a starting point for this type of unlawful act manslaughter where there is a higher degree of moral blame ( Rodgers at para 23 , see also R v F.(R.R.) , 2008 SKCA 52 at paras 8-9 , 310 Sask R 124 [ F. (R.R.) ] ) . In Rodgers , Ms. Rodger’s conduct was likely at the higher end of the LaBerge continuum, closer to conduct likely to put the victim at risk of, or cause, life-threatening injuries.

In F.(R.R.) , where the Court of Appeal accepted a 7 year starting point for manslaughter, the accused also stabbed the victim. Thus, the context in which this 7 year starting point has emerged from in the case law is relevant – the common law backdrop of the 7 year starting point appears to be cases involving the use of weapons and conduct at the higher end of the LaBerge continuum. While I am guided by the 7 year starting point, starting points are a guideline tool for sentencing and do not fetter judicial discretion ( Arcand at para. 104 ).

In R v Proulx, 2000 SCC 5 [ Proulx ], Lamer C.J.C. stated that “starting points are most useful in circumstances where there is the potential for a large disparity between sentences imposed for a particular crime because the range of sentence set out in the Code is particularly broad” ( Proulx at para 87 ). This is certainly the case with respect to manslaughter, where the conduct can range from “near accident” to “near murder”, and where the Criminal Code maximum is set at imprisonment for life. [ 37 ] In R v Peter , 2014 NUCJ 28 [ Peter ], the accused was convicted after trial.

This case involved spousal abuse and the additional aggravating factor of prior convictions of domestic assault against the same victim. The accused killed his partner 12 days after being released from bail on conditions not to contact the victim. There was evidence that the killing of the victim involved a prolonged beating. This case is mostly being relied upon by the Crown in favour of emphasizing general deterrence relating to spousal violence. The Court imposed a 15 year sentence. [ 38 ] Peter is distinguishable from the case at bar.

While the spousal nature of the relationship and the prior convictions against the same victim are similar to the circumstances in the case at bar, in Peter , there was evidence that the beating was prolonged. There was also the aggravating factor that Mr. Peter killed his victim only 12 days after being released on bail where conditions of non-contact with the victim were imposed. In addition, Peter was convicted after trial . In Mr. Bellegarde’s case, he pled guilty at a very early stage and there was no evidence of a prolonged beating. Mr.

Bellegarde also demonstrated genuine remorse following the incident. [ 39 ] In R v George , 2016 BCSC 2291 [ George ], the accused pled guilty before trial, and the Court imposed an 11 year sentence. Mr. George was in a spousal relationship with the victim and killed her in a severe roadside beating after leaving a party. He made no efforts to seek help for the victim until after she had been dead for a considerable time. Although I do not want to minimize the injuries sustained by the victim in Mr. Bellegarde’s case, the facts in George suggest a much more severe beating than in Mr.

Bellegarde’s case given the internal injuries suffered by the victim in George . The autopsy report indicated the victim in George was punched or kicked a minimum of 8-10 times. [ 40 ] In R v McCormick , 2017 BCSC 145 , the accused pled guilty before trial, and the Court imposed a 12 year sentence. The facts involved an attack on the accused’s vulnerable 64 year old mother. The victim was beaten to death, and Mr. McCormick had prior convictions for uttering threats against the same victim and prior convictions for domestic violence

against an ex-girlfriend. This case is somewhat distinguishable in that Mr. McCormick was assessed as a moderate to high risk of re- offence and he had antisocial personality traits and the beating was prolonged. [ 41 ] In Mullen , the accused pled guilty to manslaughter and was sentenced by Justice McMurtry to 8 years’ imprisonment. Mr. Mullen had a minimal record that did not include violence. Mr. Mullen choked his victim, his domestic partner, to death. This occurred within 30-60 seconds. There was no prolonged assault. Mr. Mullen pled guilty to manslaughter, avoiding the necessity of a trial.

Justice McMurtry acknowledged a sentencing range of 4-12 years for manslaughter involving brutality and alcohol. In finding that a 10 year sentence proposed by the Crown was excessive, Justice McMurtry noted that the level of violence in this case was less than that in Zimmer , where a sentence of 10 years was ultimately imposed. Ten years’ imprisonment in this case was still determined to be too high for the court despite the general increase observed in manslaughter sentences over time (para 67).

Justice McMurtry cites Keepness in observing that the increase in manslaughter sentences over time corresponds to an increased emphasis on general deterrence (para 70). [ 42 ] In MacLeod , the Court imposed an 11 year sentence after the accused, having originally been charged with second degree murder, pled guilty to a spousal manslaughter. In this case, a central aggravating factor was that the accused initially concocted a fake suicide story to avoid responsibility. This likely served to reduce the mitigating effect of his ultimate guilty plea.

The ultimate cause of death was strangulation after punching the victim in the face and head. In MacLeod , the accused had no previous criminal record. [ 43 ] In R v Langevin , 2018 ONSC 6020 [ Langevin ], the Court imposed an 8 year sentence after accepting Mr. Langevin’s guilty plea to manslaughter. This case involved the stabbing of the victim while she was running away from the accused on the street outside their residence. This is another spousal manslaughter case. However, to his credit, Mr.

Langevin had had no prior contact with the criminal justice system and was noted to “not be a violent person before the tragedy” ( Langevin at para. 33 ). He was genuinely remorseful for his actions and pled guilty without the necessity of a trial. Defence Cases [ 44 ] The cases relied upon by defence follows. [ 45 ] In R v Fiddler, 2018 SKQB 197 [ Fiddler ], the accused was found not guilty of second degree murder, but guilty of manslaughter at trial. Mr. Fiddler shot the victim, unprovoked, while in a severely drunken state.

There had been no fight, argument or violence prior to the shooting ( Fiddler at para. 21 ). Justice Duvall imposed a ten year sentence. Fiddler involved

an act that was very high on the LaBerge scale of foreseeability of consequences and the mitigating factor of a guilty plea present in Mr. Bellegarde’s case was absent in Fiddler . While each case turns on its own facts, the Court’s imposition of a 10 year sentence in Fiddler absent a guilty plea and with the heightened degree of fault that comes with

an act such as a shooting, which is inherently life-threatening, is relevant to the case at bar. Admittedly, Mr. Bellegarde has many aggravating factors that were not present in Fiddler , centered around the domestic relationship and previous violence by Mr. Bellegarde against his domestic partner victim. [ 46 ] In Kurek , the accused pled guilty to manslaughter before trial. Ms. Kurek suffered from an alcohol addiction. While drinking at a gathering at a house, Ms. Kurek stabbed the victim once in his back, without provocation.

In my view, Kurek is distinguishable from the case at bar because in Kurek , the Court had the benefit of a psychiatric assessment detailing a significant and extensive medical and psychiatric history. Kurek was also trying to become sober while experiencing a very serious withdrawal episode at the time of the offence, and she had no prior criminal record. Justice Dawson imposed a sentence of 6 years. [ 47 ] In R v Whitehead , 2016 SKCA 165 , 344 CCC (3d) 1 [ Whitehead ], the accused pled guilty to manslaughter and was sentenced to 9 years’ imprisonment, which was ultimately reduced to 8 years on appeal.

This case involved a drunken revenge beating of the victim. Mr. Whitehead’s lack of any criminal record, and significant Gladue factors and prospects for rehabilitation, coupled with the trial judge’s error in principle by overemphasizing parity led to the reduction of the sentence on appeal. [ 48 ] In R v Kimpe , 2010 ONCA 812 [ Kimpe ], a case referenced in Mullen , the accused pled guilty to the arson charge, but pled not guilty to second degree murder, advancing a defence of provocation to the murder charge.

A jury found him not guilty of second degree murder, but guilty of the included offence of manslaughter. Mr. Kimpe strangled the victim, who was his common-law spouse. The aggravating factors in this case included the fact that the victim and the accused were in a spousal relationship, the act was one of extreme violence (strangulation), the victim was particularly vulnerable, and the accused disregarded the

victim’s body as he set fire to the house ( Kimpe at para 12 ). The sentencing judge imposed a sentence of 10 years, which was upheld on appeal, aside from the court correcting the trial judge’s calculation of remand credit. [ 49 ] In addition to these cases, defence counsel also referenced Keepness , Zimmer , and Mullen in argument. Additional Cases [ 50 ] In addition to the cases referenced by Crown and defence, I have also reviewed the decisions that follow. [ 51 ] In R v Swampy , 2017 ABCA 134 , 347 CCC (3d) 105 [ Swampy ] the accused was convicted of manslaughter by judge and jury.

The trial judge imposed a sentence of 8 years. On appeal, this sentence was upheld. Mr. Swampy killed the victim by stabbing her after a drunken altercation. The victim was unarmed and found to be no threat to Mr. Swampy. This was not a domestic violence manslaughter as the victim was not Mr. Swampy’s domestic partner. In addition, Mr. Swampy was remorseful and he was identified as having good prospects for rehabilitation. He also had minimal prior involvement with the criminal justice system. The Court of Appeal determined that the trial judge erred in failing to consider the impact of Mr.

Swampy’s Gladue factors on his moral culpability (para 43). However, the 8 year sentence was found not to be demonstrably unreasonable nor unfit and thus it was upheld. [ 52 ] In R v Bridle , 2007 BCSC 1302 , the offender assaulted his very ill spouse, causing her to die hours later. In imposing a 9 year sentence, the Court found that he was profoundly remorseful, but had a high level of moral blameworthiness. [ 53 ] In R v Neudorf , 2004 BCCA 374 , Mr. Neudorf strangled the victim, his domestic partner, to the point of unconsciousness. She died from aspirating her stomach contents.

He then disposed of her body after finding her dead in an attempt to conceal his crime. The Court imposed a sentence of 8.5 years. The offender tried to divert suspicion away from his role in the offence for three weeks, but ultimately took responsibility by pleading guilty. Notably Mr. Neudorf had no criminal record and at age 20, was a youthful adult offender. There was also no evidence of violence or abuse in any of Mr. Neudorf’s past relationships, including that with the victim.

The Laberge Analysis and Moral Culpability [ 54 ] Given that manslaughter can include a wide range of conduct from near accident to near murder ( Zimmer at para 10 ), the LaBerge analysis provides a helpful framework for assessing fault and the seriousness of manslaughter according to the foreseeability of the consequences. The LaBerge analysis has seen prolific application in Saskatchewan, in R v Shorting , 2009 SKCA 102 , 337 Sask R 134, R v Hathway , 2008 SKQB 480 , 327 Sask R 129 and Rodgers to name a few.

Laberge Analysis [ 55 ] While fault in the context of mens rea is not the only consideration bearing on the question of moral blame, it is a significant one. Fault for mens rea purposes must still be assessed in the context of all other factors influencing moral culpability.

The LaBerge continuum ranges from the minimum degree of objective fault – “ objective foresight by the accused of the risk of bodily harm which is neither trivial nor transitory” ( LaBerge at para 12) to the offender having actual knowledge short of the requisite intention for murder - that the unlawful act would likely subject the victim to the risk of life-threatening injuries, or, knowing the probable life-threatening consequences of the act, did the offender proceed recklessly in the face of the risk at the higher end of the spectrum. [ 56 ] Following the LaBerge framework, I find Mr.

Bellegarde’s fault for mens rea purposes to be somewhere along the middle to higher end of the range in the Laberge continuum. Considering all relevant circumstances and in particular the fact that Mr. Bellegarde’s conduct included a drunken beating that was indicative of a stomp to the face, as reported in the

autopsy report, the unlawful act, viewed objectively, was likely to subject the victim to the risk of serious bodily injury. I find that Mr. Bellegarde either knew of the risk of injury, or, knowing the probable consequences of his conduct, proceeded recklessly despite the risk of serious bodily injury to Lauren. The act itself, particularly the beating of the victim while she was on the ground, viewed objectively, was likely to subject Lauren to serious bodily injury. However, it is more difficult to determine whether the act, viewed objectively, was likely to cause life-threatening injuries.

The degree of fault in this case falls short of that highest level of moral culpability identified in LaBerge of subjective knowledge short of the requisite intention for murder or knowledge of probable consequences ( LaBerge at para 17). [ 57 ] It bears consideration that Mr. Bellegarde’s actions were impulsive, he returned to the scene in an attempt to check on, or offer assistance to, Lauren, he did not fabricate a story to conceal his actions, and he attempted to administer CPR, but not until 45 minutes after the beating that led to Lauren’s death. Taking into consideration all of the circumstances, Mr.

Bellegarde’s conduct does not approach a “near murder” manslaughter. [ 58 ] Thus, Mr. Bellegarde’s conduct resides somewhere between the high end of the second category of the LaBerge framework (subjective knowledge of the risk of serious bodily injury) and approaching the third category (viewed objectively, the conduct was likely to put the victim at risk of life-threatening injury). [ 59 ] Any evaluation of fault for mens rea purposes must be contextualized within the other factors that bear on moral culpability. Thus, my assessment of Mr.

Bellegarde’s degree of fault as residing at the middle to higher end of the range does not end my inquiry into the issue of moral blame. [ 60 ] I must go on to consider Mr. Bellegarde’s personal circumstances and how they bear on his culpability. Mr. Bellegarde is an Indigenous offender, and thus I must apply the principles of Gladue and Ipeelee and address how Mr. Bellegarde’s personal background factors shed light on the question of moral blame ( Chanalquay , 2015 SKCA 141 at para 52 , 472 Sask R 110). Gladue [ 61 ] The Gladue analysis necessarily interacts with the LaBerge analysis.

The proper application of Gladue factors achieves a proportionate sentence. The interaction between the LaBerge analysis and the Gladue analysis is that the Gladue factors must be considered to determine their mitigating effect on moral culpability. The varying degrees of fault within the LaBerge framework are only one piece of the picture of moral culpability. The Court must also consider the personal factors and any other considerations bearing on culpability to complete the analysis of moral blame.

This interaction between the LaBerge framework and Gladue was considered in Swampy at para. 21 : Here, the Laberge analysis intersects with the Gladue analysis, also challenged by the appellant. In sentencing, if the assessment of moral culpability at the core of the proportionality analysis is flawed by failure to consider the mitigating effect of Gladue factors on moral culpability, this amounts to error in principle, amenable to review under the Lacasse principles.

As the Supreme Court stated in Ipeelee at para 87 , “application of the Gladue principles is required in every case involving an Aboriginal offender . . . and a failure to do so constitutes an error justifying appellate intervention.” [ 62 ]

Section 718.2(

e) and Gladue requires sentencing judges to consider Gladue factors in all cases involving an Indigenous offender, except for cases where the Indigenous offender has waived that right. The Gladue analysis is comprised of two factors, both of which the Court must consider at para. 66: (

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the courts; and (

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

[ 63 ] The first factor, dealing with the way unique systemic or background factors shed light on the issue of moral blameworthiness, is more relevant to the aforementioned intersection between the LaBerge framework and the Gladue analysis in that both frameworks deal with the evaluation of moral culpability. The second factor of Gladue relates more to the broader question of appropriate sanctions and the overall sentencing outcome. This second factor is tied to restorative justice goals ( R v Chanalquay at paras. 36-38 ). [ 64 ] Gladue and

section 718.2(

e) do not mandate an automatic race-based discount at sentencing ( Ipeelee at para 75 ). The Gladue analysis is inextricably linked to the foundational principles of sentencing and indeed is aimed at achieving a proportionate sentence that averts to the overrepresentation of Indigenous people in the criminal justice system. [ 65 ] It has been raised in some of the case law upon which the Crown relies, including in Peter , that the fact of the victim also being Indigenous bears relevance.

I would depart from Peter on the basis that Peter places too much emphasis on the indigeneity of the female victim. [ 66 ] A better framing of how to deal with the issue of an Indigenous offender and an Indigenous victim is found in the Alberta Court of Appeal case of Swampy : [32] We hasten to emphasize that the appellant’s moral culpability is affected no less and no more by the fact that the victim, too, was from a First Nations community.

The analysis allows not only for assessment of moral culpability but for full appreciation of the gravity of this offence: a young woman lost her life in tragic circumstances; her family and community are the victims of this same convergence of systemic factors, whatever her community of origin. [emphasis added] [ 67 ] While Lauren was also Indigenous, there is little information before the Court about her background.

Further, the Gladue analysis is focused on the circumstances of the offender, the offender’s systemic and background factors, and the types of sanctions which may be appropriate in light of these circumstances. The fact of the victim coming from a First Nations community bears more on the gravity of the offence and its impact on the community, which is alluded to in Lauren’s father’s victim impact statement that speaks of his feelings of loss since the death of his daughter. [ 68 ] For the purposes of sentencing, I will focus my Gladue analysis in this case on Mr.

Bellegarde’s moral culpability and how his systemic and background factors are relevant to his culpability. Lauren’s background, while tangentially relevant to the gravity of the offence and the broader principles of sentencing, is not a feature that adds to nor detracts from the Gladue analysis itself in this case. [ 69 ] In Whitehead , the sentencing judge imposed a sentence of 9 years after the accused pled guilty to manslaughter. On appeal, the sentence was reduced to 8 years.

Justice Caldwell for the Court ruled that the trial judge had erred in overemphasizing the principle of parity, and had failed to give proper consideration to proportionality. The Court of Appeal found that although the sentencing judge determined that Mr.

Whitehead’s Indigenous background reduced his moral culpability, this reduction in moral culpability was not taken into account in assessing the overall sentence and imposing a sentence of 9 years. [ 70 ] A proper Gladue analysis must consider both the bearing of the offender’s systemic and background factors on their moral culpability, and give effect to these considerations at sentencing, taking into account all the circumstances and relevant principles and objectives of sentencing.

This second piece, giving effect to Gladue considerations and their impact on moral blame at sentencing, is what the trial judge failed to do in Whitehead . [ 71 ] Mr. Bellegarde was raised primarily on the Little Black Bear First Nation and identifies as Treaty Status from the Piapot First Nation. The PSR described his upbringing as dysfunctional. His parents abused both alcohol and

drugs. He witnessed family violence and recalled witnessing violent beatings of his mother. His first memory of abuse was at the age of10. While he remembered only bits and pieces now, he recognized that violence in the home was ongoing while he was growing up. Inthe PSR, Mr. Bellegarde described standing up to his father at the age of 14, and that his father became different towards him after thatand his father “eventually didn’t do it again” (PSR at page 3). His father spent time in jail for selling drugs. Mr. Bellegarde described hisfather as a hard-worker and a good provider.

While he had knowledge of his paternal grandparents, and spoke positively of his paternalgrandmother, describing his “Kokum” as a happy go lucky woman, he has no knowledge of his maternal grandparents. Mr. Bellegarde’smother was adopted at birth and raised on a variety of First Nations. [72] Mr. Bellegarde’s father was a survivor of residential schools. His father described the abuse he survived to Mr. Bellegarde, including physical abuse by the nuns. His mother reported attending a Catholic Day School onPasqua First Nation, and that she survived abuse at this school. [73] Mr.

Bellegarde described a close relationship with his siblings, and identified his sister Diane as a good support. Both of Mr. Bellegarde’s parents are supportive of him. [74] Mr. Bellegarde’s Gladue factors show a significant history of him being affected by the systemic barriers and the “intergenerational effects of the collective experiences” of Indigenous peoples (Ipeelee at para 82). His motherwas a survivor of abuse at a Catholic Day School, and his father survived the residential school system. His mother was displaced fromher birth family when she was adopted. Mr.

Bellegarde witnessed violence in the home growing up. He also has a noted history ofsubstance abuse. He started abusing alcohol at the age of 14. [75] While Mr. Bellegarde stated in his PSR that he “has never been affected by racism all of his life” (PSR at page 9), the Court can take judicial notice of the systemic barriers and the realities of colonialism, displacement andresidential schools faced by Indigenous persons in Canada (Ipeelee at para 59). [76] In terms of positive community supports, Mr. Bellegarde has a number of supportive family members, including his parents and his sister, Diane.

Aggravating Factors [77] There are multiple aggravating factors to be considered, including Mr. Bellegarde’s previous criminal record. Most notably, he has two prior convictions involving the same victim – a 2011 conviction of assault causingbodily harm against Lauren, and a 2014 conviction for common assault against Lauren. Mr. Bellegarde’s prior related offences againstthe same victim is an aggravating factor that must be reflected by an elevated sentence with an emphasis on deterrence. Mr.

Bellegardealso acknowledged in his PSR that Lauren had made 6 prior complaints against him to the police about physical abuse. [78] Pursuant to

section 718.2(a)(ii) of the Criminal Code, the spousal nature of the crime is statutorily aggravating. The jurisprudence also recognizes that spousal killings are seriously aggravating at sentencing (R v Stone, (SCC), [1999] 2 SCR 290). [79] The vulnerability of the victim also bears consideration. The Agreed Statement of Facts and the Autopsy Report both indicate that Lauren was intoxicated on the night of the offence. The evidence also reveals that she wasstruck by Mr. Bellegarde while she was on the ground. [80] At the time of the offence, Mr.

Bellegarde was on a probation order not to consume alcohol stemming from his 2014 conviction for assault against Lauren. He breached this probation order in consuming alcohol on thenight of the offence.

[ 81 ] Mr. Bellegarde’s moral culpability is heightened by the fact that he had a previous history of violence known to be linked to alcohol abuse. In this regard, a relapse into heavy drinking on the night of the offence resulting in more violence is not surprising. Mr. Bellegarde has an unaddressed problem with alcohol. Mr. Bellegarde revealed at sentencing that he had previous opportunities to access programming and treatment to address this problem prior to the offence.

He completed three weeks of programming in Yorkton and three weeks in Fort Qu’Appelle, both in relation to his previous assaults against Lauren. His moral culpability is heightened by his failure to address the link between alcohol and violence in his life. However, on that same issue, his relationship between alcohol and violence has roots in his individual circumstances, being raised in a household where he was exposed to alcohol and domestic violence from a young age. His substance abuse problems are inextricably linked to his background and his Gladue factors. Justice Caldwell in Whitehead found that Mr.

Whitehead’s history of being raised in a family and a community where alcohol abuse and violence were widespread contextualized his decisions to drink and engage in violence and thus mitigates his moral culpability “to some degree” ( Whitehead at para 71 ). [ 82 ] Thus, while Mr. Bellegarde’s failure to address the link between substance abuse and violence in his life bears consideration, when considering all of the circumstances, including his unique systemic and background factors further to the first factor of Gladue , his moral culpability is mitigated to some degree. Mitigating Circumstances [ 83 ] Mr.

Bellegarde’s guilty plea is a significant mitigating factor. [ 84 ] His level of remorse is apparent in both his PSR and his statement to the Court. In the PSR, he described how Lauren was always his “rock” and how his memory of the offence “never goes away. Every day I still see it” (PSR at page 8). [ 85 ] I find Mr. Bellegarde’s post-offence conduct to be neither mitigating nor aggravating.

While his post-offence conduct in returning to the scene and trying to revive Lauren is further support of his level of remorse, he did abandon her while she was still alive and failed to seek assistance for her until later in the night when he advised Diane of what had happened and she called emergency services. The fact that he never tried to conceal his actions is itself not a mitigating factor, but speaks to the genuineness of his remorse. This is distinguishable from George , where Mr.

George made no efforts to seek help for the victim despite help being nearby until after she had been dead for a considerable period. Mr. George was also found to be walking away from the scene, claiming not to remember what had happened. Mr. Bellegarde’s case is also distinguishable from MacLeod , where the accused concocted a fake suicide story about the victim’s death to avoid responsibility but later pled guilty. While each case turns on its own facts, it should be noted that the aggravating factor of concocting a fake story to avoid responsibility is absent in this case.

In both George and MacLeod , the Court imposed a sentence of 11 years. [ 86 ] It is in Mr. Bellegarde’s favour that he has letters of support from his family members. The writers of these letters all appear to be aware of his crime aside from the letter from his younger sister Latoya, who expresses confusion as to why Mr. Bellegarde had come before the courts. The confusion and lack of insight in this letter was explained by defence and does not detract from the overall impact of these support letters. His mother’s letter of support described Mr.

Bellegarde as a kind and lovable man who has been a good provider to his children. [ 87 ] Mr. Bellegarde’s handwritten statement to the Court, submitted at sentencing, reflects some of the steps he has taken towards rehabilitation while on remand. He has upgraded his education by getting his GED. He also has sought psychiatric help and now has medication and clinical support from a physician. Both the PSR and the handwritten statement reflect how traumatized Mr. Bellegarde is by the offence. [ 88 ] The PSR assesses Mr. Bellegarde’s risk of re-offending as medium.

On an individual level, it identifies that his risk level can be reduced by targeting his major risk factor of substance abuse. Victim Impact Statement [ 89 ] I acknowledge Lauren’s father’s victim impact statement as a powerful statement of his

grief and sense of loss that he has felt since the death of his daughter. Conclusions & Sentence Conclusions [ 90 ] The sentencing range for manslaughter cases involving alcohol and brutality is 4 to 12 years ( Keepness ). The Court of Appeal has also identified a starting point of 7 years for unlawful act manslaughter cases, particularly applicable to cases at the higher end of the Laberge continuum and emerging from a line of cases involving stabbings ( Rodgers and F. (R.R.) ). [ 91 ] Mr. Bellegarde’s conduct approaches the middle to higher end of the LaBerge continuum.

However, I acknowledge that the LaBerge analysis categorizes comparative degrees of seriousness of the offence and that many other factors are relevant in determining the question of moral culpability. [ 92 ] Mr. Bellegarde has significant aggravating factors that include his record of prior convictions against the same victim, and the fact that this unlawful act manslaughter took place within the context of a spousal relationship. [ 93 ] Mr.

Bellegarde’s moral culpability is mitigated by his significant Gladue factors that include inter-generational violence and his exposure to violence and alcohol abuse growing up. [ 94 ] His high level of remorse and early guilty plea are mitigating factors. Sentence [ 95 ] Accordingly, I find that a sentence of 9 years would give effect to the principles of denunciation and deterrence and also takes into account the mitigating effect of Mr. Bellegarde’s Gladue factors on his moral culpability, his guilty plea, and level of remorse. A 9 year sentence also reflects the aggravated nature of the offence in that Mr.

Bellegarde and Lauren were in a spousal relationship and he had prior convictions for assault against her. [ 96 ] Mr. Bellegarde has been in custody since December 15, 2016, or 841 days as of the date of sentencing. He is entitled to 1.5 times credit for his time on remand. Assessing his remand credit at a 1.5:1 credit, his 9 year sentence shall be reduced by 1262 days of remand credit. Ancillary Orders DNA [ 97 ] I am making an order authorizing the taking from Mr. Bellegarde, for the purpose of forensic DNA analysis, any number of samples of bodily substances that are reasonably required for that purpose.

In making this order I have considered his criminal record, the nature of the offence, the circumstances surrounding its commission and the impact on his privacy and security of the person. [ 98 ] I further order that the samples be provided forthwith. Firearms Prohibitions

[ 99 ] I am making an order prohibiting Mr. Bellegarde from possessing any firearm, cross- bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, for life. _____________________ K.A. Lang, J.