R. v. Upshaw, 2013 NSSC 55

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Upshaw, 2013 NSSC 55 Date: 20130208 Docket: CRH 356468 Registry: Halifax Between: Her Majesty the Queen v. Brandon Upshaw and Jason Boudreau Judge: The Honourable Justice Felix A. Cacchione Heard: February 8, 2013, in Halifax, Nova Scotia Written Decision: February 12, 2013 Counsel: John L. Scott, for the Crown Christopher Manning, for Mr. Upshaw Stanley MacDonald, Q.C., for Mr. Boudreau By the Court : (Orally)

[ 1 ] Counsel are correct in referring to both presentence reports as positive documents. [ 2 ] Mr. Upshaw ’ s report notes that he is presently 35 years of age. He was 32 years old at the time of the offences and had no prior criminal record. He was very fortunate in that he was raised in a home where there was no violence, alcohol or substance abuse. [ 3 ] He married at an early age. That relationship lasted 10 years and produced two children. It would appear from the report that the relationship disintegrated due to what has been termed “ Mr. Upshaw ’ s workaholic nature ” .

Despite the break up of the family Mr. Upshaw has continued contact with his children, and it would appear that the contact has been very positive. [ 4 ] Mr. Upshaw is presently engaged. His fianc ​ e describes him as a kind gentle man, a hard worker and a good father to his children whom he sees every weekend. She has not seen him drink alcohol. [ 5 ] His brother refers to him as an over worker. This lead to problems in his marriage. His brother noted that at the time of the offences, Mr. Upshaw had, at least in his mind, lost everything that he believed in - his wife, his home and his children.

His brother described him again as being in a dark place and counsel referred to the brother ’ s comment that he believed Mr. Upshaw suffered a melt down at the time of these offences. [ 6 ] It is clear from the presentence report that these offences and Mr. Upshaw`s behaviour that evening were out of character for him. He has, according to the presentence report, repeatedly expressed remorse for his actions. Clearly this is a man who has many positive things going for him. He completed Grade 12. He took courses in transportation, courses in the operation of cranes.

He is a licensed septic installer and cleaner. [ 7 ] What really struck me in both presentence reports was the support offered by employers for both Mr. Boudreau and Mr. Upshaw. It is not unusual to hear or read in presentence reports that upon being charged the accused lost his employment, or that employers do not have anything positive to say, but that`s not the case before me. [ 8 ] Mr. Keddy, for whom Mr. Upshaw has worked for three years, describes him as a reliable and trustworthy employee, and I quote “ one of the best workers he has ever had ” .

He indicates that there will always be a job available for Mr. Upshaw with Mr. Keddy ’ s company. [ 9 ] Mr. Keddy also knows Mr. Upshaw through the church that they attend and he indicates in the report that at the time of the separation and the break up of Mr. Upshaw ’ s marriage, what support existed in the church community essentially evaporated. However, Mr. Upshaw has worked hard to re-establish the relationship with his church community and has certainly taken steps to put his life back on track. I infer from the report that at least some support from the church community is now there for him. [ 10 ] Mr.

Upshaw ’ s report indicates that he has never used drugs, that alcohol was not a problem until the breakdown of his marriage. Obviously it became a huge issue for him. I am satisfied from what Crown counsel and defence counsel have said that alcohol abuse played a significant role in Mr. Upshaw`s involvement in this matter. [ 11 ] The report also indicates that Mr. Upshaw recalls very little of the evening in question. He recalls assaulting someone or some persons, but little other than that.

Hence the questioning once again this morning with regards to the voluntariness of his plea and the understanding of his plea. I am satisfied that he understands what he pled to, that he did so voluntarily, that he is aware he has forgone his right to a trial and the presumption of innocence and he also understands that I am not bound by any recommendation made by counsel. [ 12 ] As I have indicated, both presentence reports do indicate that the offences in question were out of character.

[ 13 ] Mr. Boudreau is 29 years of age. Has a grade 7 to 9 education. He was on probation at the time of the offence. Again, this is someone who was raised in a home where there was no family violence, no substance abuse. He had a positive upbringing. He left home to seek employment in Halifax at age 22. His family has remained supportive. They are aware of his involvement in the offences. They are disappointed, obviously, by his behaviour but remain supportive. [ 14 ] Again, those contacted in preparation of Mr. Boudreau ’ s presentence report deem his involvement as out of character.

He had no issues as he was growing up. His problems began when he moved to the city and began associating with a negative peer group. He began drinking and got involved with the law, as so often happens. [ 15 ] What is very heartening in Mr. Boudreau ’ s situation is that he had the wherewithal and the support to actually do something about the problem that he was aware of, and that was his substance abuse problem. Shortly after the offences were committed and once released from custody he sought treatment. He has been described by his mother as having changed since seeking the treatment.

He has addressed his substance abuse issues and has led a pro-social life since these offences. [ 16 ] He has been in a common-law relationship for approximately one year. His common-law partner describes him as a great individual who made poor choices in the past. Her comment is “ she cannot imagine the person she knows today as being the person who was involved in these offences ” . [ 17 ] Mr. Boudreau has indicated a wish to upgrade his education. He is obviously a hard worker and reliable. He has been at the same employment for six years.

For the past two and a half years he has been in a managerial position in the maintenance department. He has been described by his employer as a great employee who goes beyond his work requirements to assist other employees. The employer is aware of his involvement, his situation before the Court and indicates that his employment will be there upon his release. There was never indication, according to his employer, of any substance abuse issues while Mr. Boudreau was at work, and it leads me to draw the analogy that he was probably a binge user, just like a binge drinker.

He worked fine all day sober and then just get himself plastered in the evening. [ 18 ] He began experimenting with alcohol at the age of 14. His use of that increased as he got older. He has apparently abstained completely from the use of alcohol in the past few months. At age 23 he was introduced to cocaine. That quickly became a problem. He acknowledged that his use of cocaine was a contributing factor in these offences, and has not used that substance since the evening in question, over three years ago. He did seek treatment and counselling once he was out of jail. He accepts responsibility for his actions.

He is remorseful. He does not understand why he got into this, and I think most telling and what really is gives me some hope is that this was, as he describes it, an eye opener for him. He has distanced himself from his past associates. He no longer uses drugs. He is better at managing his finances. He has involved himself in physical exercise as a regime and is staying away from alcohol. His life is presently stable. [ 19 ] I am not going to keep you in suspense any longer gentlemen.

I am going to accept Crown ’ s recommendation, the joint recommendation made by both Crown and defence counsel. [ 20 ] Both of you, although you may not think it at this point, are very lucky men because your actions that evening could have you here before me on a charge of murder or manslaughter. How often do you hear, somebody walks out of the Palace or some bar and is all liquored up and somebody says something or looks the wrong way, a punch is thrown, and the next thing you know the guy who got punched is dead and the other guy is charged. That could have been you that night. I hope you understand that.

I also hope that you understand that future involvement with the criminal justice system will not be lenient. You have a record now for offences of violence. That will be taken into consideration if you re-involve yourselves. Now I think you both have the ability within yourselves and the support within your communities to stay out of trouble. I really do hope that you do that. I do not want to see you guys here again. [ 21 ] If you would stand please. [ 22 ] Mr. Upshaw and Mr.

Boudreau with respect to the two counts of robbery that you both pled guilty to, there will be a sentence of two years on each count to run concurrently.

[ 23 ] Mr. Upshaw with respect to the common assault charge, there will be a 30 day sentence that is to run concurrent to the two years. [ 24 ] Mr. Boudreau, with respect to the charge of breaching terms of your recognizance, you are sentenced to one day in jail, deemed served by your appearance here today. [ 25 ] You may not think it at this point because you are going to go out that side door and you are going to be shackled, but you are very lucky gentlemen. You are very lucky that you are not going away for a lot longer. Good luck to you. [ 26 ] The DNA order and the Firearms prohibition orders are granted and I will sign them at this time. _____________________ Cacchione, J.