R. v. Whitehead, 2014 NSSC 439

SUPREME COURT OF Nova Scotia Citation: R. v. Whitehead , 2014 NSSC 439 Date: 20141128 Docket: CRH 416886 Registry: Halifax Between: Her Majesty the Queen v. Jason William Whitehead Judge: The Honourable Justice Joshua M. Arnold Heard: November 28, 2014 in Halifax, Nova Scotia Written Release Of Decision: December 17, 2014 Counsel: Darrell Martin, for Her Majesty the Queen Kevin Burke, for Jason William Whitehead By the Court: (Orally) Facts [ 1 ] On November 19, 2014, Jason William Whitehead confirmed via signature the following agreed statement of facts.

On December 17, 2011, James Mattatall along with several friends and his brother Daniel Mattatall were in the downtown area of Halifax drinking at various establishments. They arrived at the Toothy Moose tavern about midnight and continued to drink there. Jason Whitehead, the accused, had been drinking at various establishments that evening as well. He and his friend Michael Parker ended up at the Toothy Moose at around 12:30 a.m. where he continued to drink. Mr. Whitehead estimates that during the course of the evening he consumed approximately 18 beers. At approximately 1:45 a.m. Mr.

Whitehead was walking toward the washrooms when a patron, whom he did not know, threw a beer glass at him, striking him in the chest. The glass fell to the floor and smashed. The person who threw the glass was standing with his friends in “the breezeway” so Mr. Whitehead had to walk through them in order to access the washrooms. Mr. Whitehead had no contact with this person but may have brushed against him as he proceeded to the washroom.

Mr. Whitehead then confronted this individual who turned out to be Daniel Mattatall and asked him why he threw the glass at him. Daniel Mattatall said “because I fucking wanted to”. A brief argument took place and Mr. Whitehead slapped Daniel Mattatall with an open hand. Mr. Mattatall lunged at Mr. Whitehead but the parties were kept apart by other patrons and both returned to their respective tables. Shortly after sitting down Mr. Whitehead was approached by a bouncer who requested that he leave the premises. Mr. Whitehead got up off the chair and started walking out. The bouncer had his hand on Mr.

Whitehead to escort him out. Halfway through the bar Michael Parker came up and proceeded to leave with Mr. Whitehead. Mr. Whitehead shook hands with the bouncer who escorted him out as well as the other bouncers and apologized for causing a disturbance. Mr. Whitehead and Mr. Parker came down the stairs of the Toothy Moose tavern and proceeded to go outside. Mr. Whitehead turned left as it was his intention to get something to eat at the Pizza Corner. Daniel Mattatall had also been asked to leave the premises as a result of the incident. He was noted rolling up his sleeves and adopting an aggressive posture.

He was later observed in the tavern as having no shirt on and was subsequently escorted from the premises. Also leaving with Daniel Mattatall was his brother James Mattatall. James Mattatall was observed by several witnesses trying to calm his brother Daniel down and to escort him away from the entrance of the Toothy Moose and the bar staff. Witnesses also noted the James Mattatall was indicating to the bar staff that he didn’t want to fight. As Mr. Whitehead exited the Toothy Moose, the Mattatall brothers were to the right of the entrance of the tavern, at approximately 30 foot distance. Mr.

Whitehead, upon exiting, heard Daniel Mattatall shouting at him and wanting to fight. Mr. Whitehead turned and, together with his friend Mr. Parker, walked quickly towards the brothers and as James Mattatall raised his arms, Mr. Whitehead struck him with his fist, knocking James Mattatall to the ground. James Mattatall fell backwards and Mr. Parker and Daniel Mattatall engaged in a brief struggle. Very shortly afterwards Mr. Whitehead and Mr. Parker left the scene and proceeded to the Pizza Corner where they were subsequently picked up and driven home by a girlfriend of Mr. Parker. Mr.

Whitehead was unaware of the injuries to James Mattatall until the following day. He then consulted counsel and subsequently turned himself in at the police station in Halifax. James Mattatall received a laceration to the back of his head, a bruise to the left area of his face, a comminuted skull fracture and fractures of the orbital roofs.

The medical examiner determined that he died as a result of blunt force trauma to the back of his head. [ 2 ] At sentencing today, counsel agreed that when James Mattatall put his hands up it was not in an aggressive or threatening manner. [ 3 ] A short video clip from the Toothy Moose, depicting all of the parties involved on the night in question just prior to James Mattatall being struck and killed, was also played for the Court and marked as an exhibit. The video does not depict the actual incident. [ 4 ] Character reference letters were also provided by the defence.

Victim Impact Statements [ 5 ] Victim Impact Statements were read into the record as prepared by Elaine Mattatall (James’ mother), Jaycie Mattatall (James’ sister-in -law), Gary Osbourne (James’ co-worker), Morgan Brookfield (James’ girlfriend), Justin Dobson (James’ best friend) and Deborah Hall (James’aunt). [ 6 ] The Victim Impact Statements paint a vivid and moving picture of James Mattatall which tells us that he was a kind, thoughtful and energetic young man, who was an extremely valuable member of society.

It sounds as though everyone who came to know James Mattatall was impressed by his love for life and generosity of spirit. His death has had catastrophic effects on many who knew him. Criminal Code [ 7 ] We are here today, however, to sentence Jason Whitehead and there is a significant amount of law to provide guidance in this regard. The statutorily available sentence for manslaughter is set out by Parliament in the Criminal Code of Canada . [ 8 ] According to the Criminal Code : 234. Manslaughter - Culpable homicide that is not murder or infanticide is manslaughter. … 236.

Manslaughter - Every person who commits manslaughter is guilty of an indictable offence and liable … (

b) in any other case, to imprisonment for life. [ 9 ] The Criminal Code provides a broad range of available sentences for the crime of manslaughter. This is because a culpable homicide can arise in a broad range of circumstances and because those who perpetrate the crime of manslaughter can be deserving of a broad range of sentences. Principles [ 10 ]

Section 718 of the Criminal Code provides guidelines to judges as to what principles must be kept in mind when imposing a sentence.

Section 718 states:

718. Purpose - The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the lawand 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 acknowledgment of the harm done to victims and to the community. [11]

Section 718.1 of the Criminal Code states: 718.1 Fundamental principle - A sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender. [12] And

Section 718.2 of the Criminal Code provides further direction: 718.2 Other sentencing principles - A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation, or any other similar factor, or (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [13] Those are the statutory guidelines that Parliament provides in relation to this sentencing hearing. Cases [14] As mentioned by counsel during their submissions, our Court of Appeal reviewed the law relating to sentencing formanslaughter in R .v Henry, [2002] NSCA 33. Within that decision, the Court of Appeal stated: [17] A more contemporary expression of that view is found in R. v.

Creighton (1993), (SCC), 83 C.C.C. (3d) 346(S.C.C.) where McLachlin J., as she then was, stated at p. 375: ... Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence. This is appropriate. Becausemanslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing aminor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate anawareness of risk of death just short of what would be required to infer the intent required for murder.

The point is, the sentence can beand is tailored to suit the degree of moral fault of the offender.

This court acknowledged this in Martineau, at p.362: “The more flexiblesentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to thelevel of moral blameworthiness of the offender.” It follows that the sentence attached to manslaughter does not require elevation of thedegree of mens rea for the offence. [15] The Court in Henry, supra went on to say: [18] Despite the broad variety of fit sentences for manslaughter, the majority do fall within a four to ten year length, as Cromwell, J.A.

noted in R. v. Lawrence (N.A.), (1999), 1999 NSCA 41 , 172 N.S.R. (2d) 375 at para. 14: [14] In my opinion, there is not a four to 10 year “range” for manslaughter if the word “range” is used to suggest that manslaughtersentences ought generally to fall within those limits. Cases from this and other courts of appeal emphasize that manslaughter is an offencethat may be committed in an exceptionally wide variety of circumstances and for which the legal limits of possible sentences are verygreat: see, e.g. R. v. MacPhee (1977 ), 20 N.S.R. (2d) 520; 27 A.P.R. 520 (C.A.); R. v.

McNeil (J.B.) (1998), (NS CA),168 N.S.R. (2d) 59; 505 A.P.R. 59 (C.A.). These factors combine to make it unusually difficult to establish any benchmark or range of fitsentences for such offences: see R. v. Selig (T.A.), [1994] N.S.J. 436; 1994 NSCA 197 , (NS CA), 134 N.S.R.(2d) 385; 383 A.P.R. 385 (C.A.), at para 13. As Kelly, J., said in R. v. Smith (B.W.), [1986] N.S.J.

No. 424; (NS SC),77 N.S.R. (2d) 142; 191 A.P.R. 142 (T.D.), this court has observed that the great majority of cases in fact receive sentences between fourand ten years, but the court has not held that manslaughter sentences should be restricted to or ought to fall within that range. The courthas, for example, upheld sentences of 20 years and 15 years respectively in R. v. Julian (1973), (NS CA), 6 N.S.R.(2d) 504 (C.A.) and R. v. Gregor (1953), (NS CA), 31 M.P.R. 99 (C.A.).

I do not accept the appellant’s argument that10 years sets the upper limit, or that the period of between four to 10 years defines the acceptable range for manslaughter sentences. [19] A significant distinguishing factor between cases where a low or non-penitentiary term is appropriate and those where a lengthysentence is imposed for manslaughter is the moral blameworthiness or fault of the offender (Creighton, supra).

The court, while ofcourse giving due weight to all the principles of sentencing must assess the extent of moral blameworthiness in a particular case, andshould consider where on the spectrum, from almost accident to almost murder, the particular offence falls. Obviously, the nearlyequivalent to murder offences will, in general, attract a sentence higher than the majority, for example Julian, supra, and those closer toan accidental killing will generally fall below the average, for example, R. v. Owens, [1986] B.C.J. No. 401 (B.C.C.A.).

As noted in R. v.Myette (1985), (NS CA), 67 N.S.R. (2d) 154 at para. 47: The offence of manslaughter carries a maximum sentence of life imprisonment. The range of sentences imposed in Nova Scotia has beenfrom suspended sentence (e.g., R. v. Cormier (1974), (NS CA), 9 N.S.R. (2d) 687 (N.S.C.A.)), to twenty years'imprisonment (R. v. Julian (1973), (NS CA), 6 N.S.R. (2d) 504 (N.S.C.A.)). Lenient sentences have been imposedonly where very strong mitigating factors exist or where the act, though culpable, was close to being an accident.

In the greatmajority of manslaughter cases sentences range from four to ten years. (emphasis added) [16] Mr. Whitehead embarked on a dangerous course of action that carried a risk of harm. A risk which was foreseeable. Mr.Whitehead is required in law to take responsibility for all the consequences of his actions including the death James Mattatall: see R. v.Creighton (1993), (SCC), 83 C.C.C. (3d) 346 (S.C.C.) at p. 378. [17] The maximum sentence for manslaughter is life imprisonment.

Manslaughter is a residual category that covers an almostinfinite array of circumstances ranging from near accidental killing to near murder. It is for this reason that sentences imposed formanslaughter must be flexible. The sentence which is to be imposed on Mr. Whitehead must be tailored to suit the degree of his moralfault. (See R. v. Creighton, supra.) [18] There are a number of sentencing decisions with facts similar to those heard today. In R. v. Braune, [2006] ONCJ 50, theaccused held a grudge against the victim apparently over remarks the victim had made about the accused and his girlfriend.

By chance,the accused happened to encounter the victim in a parking lot. The accused confronted the victim. The victim attempted to diffuse thesituation at which point the accused struck him with a single punch. The force of the blow caused the victim’s head to hit an adjacentwall. The single punch thrown caused the death of the victim. The accused pled guilty to manslaughter. The accused in that case was18 years old at the time of the offence, had no prior record, showed remorse and was a good prospect for rehabilitation. Those wereviewed as mitigating factors.

The court considered the force of the punch and its unprovoked nature as aggravating factors. In Braune,supra, the accused was sentenced to 16 months imprisonment followed by two years’ probation. He had already served seven months ofpretrial custody. [19] R. v. McGoran, [2004] B.C.S.C. 1737, the drunken victim approached the accused and his friend and told them that he waslooking for a young female prostitute. The accused and his friend were offended and decided to rob the victim to teach him a lesson. The robbery went wrong.

The accused believed that the victim was moving toward his friend and then he spontaneously hit the victim asingle blow with a stick on the back of the head. The blow was not of great force but landed on a particularly vulnerable area of the headwhich led to the death of the victim. The accused pled guilty to manslaughter. The sentencing judge took into account the accused’stroubled youth, his attention deficit disorder and his lack of a prior criminal record. The judge also took into consideration the offender’sremorse.

The court considered the offender’s confession, guilty plea, youthful age and lack of prior criminal record as mitigating factorsthat shifted the appropriate sentence to the lower end of the range. The court in McGoran, supra, rejected a conditional sentence(although at the time of sentencing Mr. McGoran a conditional sentence was still available for this crime, unlike in the instant case), asnot being “consistent with the fundamental purpose and principles of sentencing” particularly given the accused’s “aggressive reaction toauthority, lack of obedience to rules and restriction and lack of a support network”.

Mr. McGoran had spent seven months in pretrialcustody and was sentenced to a period of two years less one day, plus three years’ probation. [20] Counsel also mentioned the decision of R. v. Henry, supra. In that case Mr. Henry witnessed a man assault a woman outsidea popular bar. Mr. Henry intervened and shoved the intoxicated man. The man then left the scene but was followed by Mr. Henry, who,in front of a small crowd, punched the man once in the face. The punch caused the man to fall backwards, hitting his head in a mannerthat ultimately caused his death. Mr.

Henry went to trial and was convicted of manslaughter. He was 30 years old and had no priorcriminal record. The trial judge imposed a conditional sentence; however, the Court of Appeal increased that sentence to four years inprison. The Court of Appeal noted at para. 19 of Henry, supra, that: 19 A significant distinguishing factor between cases where a low or non-penitentiary term is appropriate and those where a lengthysentence is imposed for manslaughter is the moral blameworthiness or fault of the offender ...

[21] In Henry, supra, the Court of Appeal said that an absence of intent to cause death is not be considered a mitigating factor inthis type of case since this is an element of the offence of manslaughter. The Court of Appeal also noted that a lack of a prior criminalrecord is not an exceptional factor favouring leniency in this type of case. The Court of Appeal then went on to find that the moralblameworthiness in Henry was aggravated by: ... the respondent's continued notion that his action was justified, and the predatory callousness of his intentional assault on a smaller,intoxicated man ... [22] In R. v.

Isenor, [2007] NSPC 70, the offender was sentenced by Judge Derrick to a period of three years’ incarcerationfollowing his conviction at trial. Mr. Isenor had been drinking with the victim at a bar and delivered a single punch to the much largervictim either: ... because he had been pushed past his limits of tolerance by [the victim’s] verbal abuse ... or because he decided to stop [the victim’s]brief advance ... or some combination of both ... [23] Judge Derrick determined that Mr. Isenor’s actions were not spontaneous but were preplanned. She also found that Mr.

Isenorbelieved that he would merely end up fighting the victim, not that he would kill him. Mr. Isenor was convicted of manslaughter aftertrial and Judge Derrick considered his preplanning and his statement that the victim “deserved a punch in the mouth” as aggravatingfactors. The accused had an unrelated criminal record and a strong record of employment. His remorse was considered as a mitigatingfactor. Judge Derrick found that a sentence of two years less a day inadequately addressed the need for general deterrence for this typeof offence. Mr. Isenor was sentenced to three years imprisonment. [24] In R. v.

Hickey, 2011 NSSC 186, Cacchione, J. sentenced the accused to 3.5 years in custody after having been convicted by ajury of manslaughter. In discussing the facts, Justice Cacchione stated in Hickey, supra: … The accused took offence to comments that were not about him. He argued about those comments with a man whom he knew hadbeen drinking. The accused was, in his own words, “pissed off” when the comments were made. He was upset when he told WayneMisener about the victim’s comments. His temper continued to simmer in the bar. When Mr. Misener and Mr. Carter went out to discussMr.

Carter’s comments the accused was close behind. His temper reached the boiling point when he perceived Mr. Carter as calling hima liar. The accused struck the victim in anger with a significant degree of force. It was not a “slap” as he told Detective Carlisle, butrather a punch thrown in anger by a man whose trade has caused him to have considerable upper body strength. The blow was struck ona person who was unprepared and under the influence of alcohol by someone who has spent more than twenty years of his life swinginga hammer. From personal experience, Mr.

Hickey, I know and I am aware that hammers used in framing houses usually weigh anywherefrom twenty-two to twenty-eight ounces. Swinging those for twenty years, you have a lot of upper body strength. [25] In reviewing the law, Justice Cacchione stated: [29] In R. v M(CA), (SCC), [1996] 1 S.C.R. 500 at 529, the Supreme Court of Canada noted that: ... It is a well established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with thegravity of the offence committed and the moral blameworthiness of the offender ... [30] By its very nature, manslaughter is a grave offence.

The taking of another person’s life is one of society’s most serious crimes. Atthe same time, the nature of manslaughter means that the moral blameworthiness of the offender can vary significantly. Accordingly, thisCourt must determine where an offence falls on the spectrum between “near accident” and “near murder”. [31] In determining a fit and proper sentence for this offence, the court must not only consider the circumstances of the offender andthose of the offence, but also the concerns of the victim. As Justice McLachlin stated in R. v. Creighton (supra) at page 381: ...

The criminal law must reflect not only the concerns of the accused, but the concerns of the victim and, where the victim is killed, theconcerns of society for the victim's fate. Both go into the equation of justice. [26] Justice Cacchione went on in that case to say: [32] It is difficult not to be moved by the statements and emotion expressed by Ms. Carter in her victim impact statement. I must,however, keep in mind that the criminal process and in particular the sentencing aspect of that process is not an instrument of vengeancenor one of appeasement. [27] In R. v. Costa, [1996] O.J. No. 299 (Ont. Gen.

Div.) Justice Watt commented on the focus of sentencing in a homicide case: It is also worthy of observation that the sentence to be imposed is governed by fixed principles applied to the circumstances as I havefound them to be. Too often and erroneously, it is thought to afford some measure or indication of the value which a court places uponthe life of a deceased. Nothing could be further from the reality that is sentencing in criminal cases. There is no measuring of the inherentor intrinsic value of the principals, and the application of some measurement of equivalence in the sentencing process.

The sentenceimposed ought not to be thought reflective of the intrinsic value or worth of the deceased. It is not. That is not the function of a sentencein this or in any criminal case. No sentence will ever breathe life into the deceased person, nor restore him or her to his or her familyand/or friends. Would that it were that simple. [28] Similarly, the sentence I will impose today is not in any way a reflection of the value of James Mattatall’s life.

The sentencetoday is a reflection of the moral blameworthiness of Jason Whitehead with guidance from the Criminal Code of Canada along withcases from this Court and other courts. General deterrence and denunciation are of paramount importance in this case. Therehabilitation and reformation of Mr. Whitehead are also important. Crown and Defence Recommendations

[ 29 ] The Crown is asking that Mr. Whitehead serve a sentence in a federal penitentiary for a period of between three and four years. Crown Attorney Martin advises that if this was a joint recommendation between the Crown and the defence, considering the mitigating factors, in particular the fact that Mr. Whitehead turned himself into the police and entered a guilty plea, the appropriate sentence would be three years in prison. [ 30 ] The defence is asking the court to consider a sentence in a federal penitentiary of two years plus one day.

Jason Whitehead [ 31 ] On December 17, 2011, Jason Whitehead was drinking heavily. He had a glass thrown at him in the bar and then was sworn at by someone he did not know, Daniel Mattatall. I do not have any specific information about Daniel or James Mattatall’s use of alcohol that evening, but from the brief video clip shown and the behaviour described in the agreed statement of facts, it appears that Daniel Mattatall was also under the influence of alcohol. In any event, after a confrontation between Jason Whitehead and Daniel Mattatall in the breezeway of the Toothy Moose, Mr.

Whitehead slapped Daniel Mattatall; there was a brief scuffle and then the parties moved on. Both Mr. Whitehead and Daniel Mattatall were subsequently escorted out of the bar by staff. Mr. Whitehead apologized to bar staff for his behaviour. James Mattatall, who was not involved with Mr. Whitehead whatsoever, left the bar when his brother was escorted out and indicated that he had no interest in fighting. Once outside, instead of leaving the area Mr. Whitehead decided to approach Daniel Mattatall, who by then had thrown something at him, had sworn at him and then yelled at him.

James Mattatall had done absolutely nothing that evening except try to peacefully calm his brother. James Mattatall was merely trying to prevent a fight between his brother and Mr. Whitehead. [ 32 ] Mr. Whitehead is 32 years old. He has a stable background. He has a 27 year old wife and two children, ages seven and three. He is the sole breadwinner for his family.

In addition to causing the death of James Mattatall, causing unquantifiable heartbreak and grief for the family and friends of James Mattatall and society in general, Jason Whitehead’s family will now be without their sole breadwinner as he will be in a federal penitentiary. The tentacles of this tragedy are far reaching. [ 33 ] Mr. Whitehead has a Grade 12 education, never had any notable discipline problems in school and also played basketball and baseball while in high school.

He went to the Community College and earned a plumbing trade and has been working as a plumber for seven years. [ 34 ] According to the presentence report, Mr. Whitehead advised has been working with Local 56 as a plumber on a full-time basis since the age of 21. He explained he may work with a company for a period of time and when the job is completed he goes back on the Local 56 list where he is then offered another plumbing job. Mr.

Whitehead says that he has always been employed and has never been fired from a job. [ 35 ] Mike Doyle, a co-worker at the Plumbers’ Union, was contacted by Probation Services in preparing the presentence report. Mr. Doyle stated he was very surprised to hear of Mr. Whitehead’s legal issues because getting into trouble was out of character for Mr. Whitehead. Mr. Doyle advised that he has known Mr. Whitehead since Mr. Whitehead was a child and described him as a very quiet individual who is introverted and a good worker. Mr. Doyle is the business agent at the Plumbers’ Union, however, he and Mr.

Whitehead used to work together as plumbers. According to Mr. Doyle, Mr. Whitehead does not have any issues with substance abuse as far as he is aware due to the fact that he is considered a “return hire”. Mr. Doyle explained that Mr. Whitehead would always be requested by building owners to return to job sites, which is considered to be a reflection of his work ethic. Mr. Doyle also commented that Mr. Whitehead is not a cranky, violent, angry or rough individual who tends to keep to himself. In Mr. Doyle’s opinion, the whole situation is a tragedy for both families. [ 36 ] Mr.

John Kelly, a business manager at Local 56 of the Plumbers’ Union, was also contacted for the purposes of the presentence report. Mr. Kelly provided a letter of reference which was included as an exhibit. Mr. Kelly advised Probation Services that he was aware of Mr. Whitehead’s charge of manslaughter stating that he had heard about it through other members of the Union. Mr. Kelly said he has known Mr. Whitehead for ten years and was very surprised to hear of this incident. He said Mr.

Whitehead is a gentle giant, not confrontational or angry, a good worker and the type of tradesman contractors specifically request. Mr. Kelly said he would be very surprised to hear of any substance abuse issues in relation to Mr. Whitehead, explaining that he has never received any complaints from contractors in reference to him. [ 37 ] Mr. Kelly also said that Mr. Whitehead does not appear to have any anger issues and gets along very well with his co-workers and supervisors. Mr. Kelly concluded his conversation with Probation Services by stating that Mr. Whitehead shows a lot of remorse. He has talked to Mr.

Whitehead directly about the incident and it appears to Mr. Kelly that Mr. Whitehead has been deeply affected. [ 38 ] From a review of the character reference letters and the presentence report, those who know Mr.

Whitehead variously describe him as “a lovely man”, “a gentle giant”, “a wonderful father”, “a hard worker”, “never aggressive”, “never violent”, “very quiet”, “not angry”, “not cranky”, “not confrontational”, “not an instigator”, “helpful” and “a normal nice guy”. [ 39 ] He does however have a brief criminal history: In March 2004, he was convicted of theft and resisting arrest for which he received a conditional discharge and; in October 2013, he was convicted of breach of court orders for which he received 26 days in custody. [ 40 ] Mr.

Whitehead describes himself as a social drinker without an alcohol problem. He says that he has not had any form of alcohol for three years, since he was charged with this offence. I disagree in part with Mr. Whitehead when he says that he does not have an alcohol problem. He says he consumed 18 beer on the night of the incident. He is described as “a gentle giant” when he is not drinking. Yet, on December 17, 2011, he punched and killed James Mattatall. No one would sensibly suggest that the term “gentle giant” would accurately describe Mr. Whitehead that evening. [ 41 ] In the presentence report, Mr.

Whitehead, told the Probation Officer that he had consumed 18 beer on the night that this

happened. We know that for a brief period Mr. Whitehead lost control. I cannot order him to never use alcohol again. If I was permitted to, I would. So I would make the strong suggestion to Mr. Whitehead that he should not ever again consume alcohol. Aggravating Factors [ 42 ] On the aggravating side James Mattatall was 5’10” and weighed about 160 pounds. Mr. Whitehead is 6’ 5” and weighs about 250 pounds. Mr. Whitehead is a plumber and has a trade that requires him to be physical. As noted, Mr. Whitehead was considerably larger than James Mattatall, possibly outweighing him by approximately 100 pounds.

James Mattatall was merely trying to diffuse the entire situation when Mr. Whitehead, fueled by alcohol, punched him once in the face. As I understand the facts, that one punch broke the orbital bones in James Mattatall’s face. Mr. Mattatall was knocked to the ground with such force that he suffered significant trauma to his brain and died. It is for this action that Mr. Whitehead is to be sentenced. Mitigating Factors [ 43 ] On the mitigating side, Jason Whitehead turned himself into the police, entered a guilty plea before trial and saved witnesses from having to testify.

For that, our superior courts direct, and I agree in this case, that he is deserving of a credit on sentence. Mr. Whitehead agrees he deserves to go to prison. He has taken responsibility in this Court for his actions and will no doubt be burdened by his guilt forever. Range in this case [ 44 ] I believe that the sentencing range suggested by the Crown of three to four years in a federal prison is appropriate. With regard to the degree of moral blameworthiness, James Mattatall was innocently trying to prevent violence when Jason Whitehead punched him once in the face and killed him.

Jason Whitehead did not intend to kill Mr. Mattatall. However, a very large, physically strong man punching a much smaller man in the head, who was in no way, shape or form interested in or expecting a fight or to be punched, is responsible for the consequences of his actions. [ 45 ] In R. v . Henry, supra, our Court of Appeal determined that a four year sentence was appropriate. However, Mr. Henry was convicted after trial, denied responsibility and showed no remorse. In this case, Mr. Whitehead, turned himself in, entered a guilty plea, acknowledges responsibility for his actions and has expressed remorse. Mr.

Whitehead is entitled to a mitigation of his sentence for these actions. Sentence [ 46 ] Mr. Whitehead please stand. [ 47 ] Mr. Whitehead, your counsel has advised that you consent to both the DNA Order and the Firearms Prohibition Order as put forward by the Crown. I am advised that you have reviewed those documents with your lawyer and I do not intend to read them into the record. Very generally, a sample of your DNA will be taken at some time in the near future for the National DNA Databank.

Also, very generally, a lifetime Firearms Prohibition Order will be imposed in this case in relation to certain firearms and a 10 year Firearms Prohibition from the date of your release from prison preventing you from owning or possessing certain weapons/firearms will also be imposed.

Those orders will be read to you again by court staff for your signature after you have been sentenced. [ 48 ] It is the order of this Court, considering the range of sentencing suggested by the Nova Scotia Court of Appeal in Henry, supra , the range of sentence suggested by other courts of this Province and courts in other provinces, considering the fact that you turned yourself in to the police, entered a guilty plea and appear to have expressed genuine remorse, that you serve 36 months, or three years, in a federal prison for this crime. Arnold, J.