HER MAJESTY THE QUEEN - v. -, 2011 SKQB 273

QUEEN ’ S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 273 Date: 2011 07 13 Docket: CRIM 1968 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN - and - KIM JOSEPH WALKER Counsel: Robin Ritter for the Crown Balfour Der, Q.C. for the accused JUDGMENT GUNN, J. July 13, 2011 [ 1 ] Mr. Walker was convicted by a jury of manslaughter in relation to the shooting death of James Hayward. I do not propose to review the facts in any detail except as they relate to the principles of sentencing to be considered by the court. THE LEGISLATION [ 2 ] The following provisions of the Criminal Code , R.S.C. 1985, c. C-46 have relevance:

236. Every person who commits manslaughter is guilty of an indictable offence and liable (

a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; ... 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

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

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. ... 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 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 offence or the offender ... (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... THE ACCUSED [ 3 ] Kim Walker is now 54 years old and he was 47 at the time of the commission of this offence. He is a married man with three children. He trained with the military as a young man and he has been employed over the majority of his life, providing for his wife and his children. He was described by a co-worker as a family man.

He has no previous criminal record and has overall been a productive member of society. [ 4 ] The Walker family, like the Hayward family have suffered emotionally waiting for this process to come to an end. The legal process has consumed the Walker family ’ s resources. THE VICTIM [ 5 ] James Hayward was 24 years old at the time of his death. Evidence was presented during the trial about Mr. Hayward ’ s unfortunate life style choices at or around the time of his death. This included his use and sale of drugs in Yorkton. [ 6 ] Mr.

Hayward ’ s lifestyle choices had a direct effect on the Walker family as Jadah Walker, as an impressionable teenager, became embroiled in this lifestyle and became romantically involved with James. Evidence filed with the court in the form of a letter written by James Hayward to Jadah while she was confined under the Mental Health Warrant reflects that he appeared to have genuine feelings for Jadah at the time. However, given the drugs and the age disparity, this was clearly a very bad situation for Jadah Walker. With the help of her family, Ms.

Walker has turned her life around and is now a productive member of society and a support to her family.

[ 7 ] That opportunity has been lost for James Hayward and for his family. [ 8 ] The victim impact statements filed by Mr. Hayward ’ s brother and mother reflect their grief at the loss of a brother and a son. Dan Hayward, James ’ brother, said James ’ death left him with constant feelings of pain, sadness, anger and hate. Dan has had to deal with his own issues with alcohol and depression. He has been left with an empty space in his heart where James ’ love used to fit. Dan says that a part of his life will always be missing. James ’ mother describes her grief over the loss of her son as endless.

Each day she faces a world in which she must remember that her beloved son has been killed. [ 9 ] Dan said the following about his brother: “ James was not a monster, he wasn ’ t a saint either; he was a 24 year old man with problems. Someone that made mistakes, just as many other people do in life. He never got the chance to straighten his life out... ” . James ’ mother said, “ I always thought that being James ’ mom was a hard job, sometimes he made it really tough, but I had no idea what not being James ’ mom would feel like. No heart deserves this pain. ” [ 10 ]

Section 722 of the Criminal Code provides that “ [f]or the purpose of determining the sentence to be imposed on an offender...the court shall consider any statement that may have been prepared ...of a victim of an offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. ” In the circumstances of this case, the evidence of James ’ involvement in the drug trade and of his propensity for violence was relevant to the issues to be determined by the jury.

As I indicated to the jury, those facts, if accepted by the jury, could not be used to find that James Hayward was any less entitled to the protection of the law. The victim impact statements presented by James ’ family provide another perspective on the loss of this young man, and are helpful to the court. ISSUES 1. What credit should be applied for time already spent in custody? 2. Appropriate sentence. ANALYSIS 1. What credit should be applied for time already spent in custody? [ 11 ] Mr. Walker has spent time in custody as a result of this charge.

He was arrested March 17, 2003, and released on bail April 3, 2003 (18 days). As a result of his conviction at the conclusion of the first trial, Mr. Walker was incarcerated from January 19, 2007 until July 15, 2010 (3.5 years, less 4 days). Following his conviction on May 26, 2011, he was remanded in custody and has spent 49 days on remand pending his sentencing today. [ 12 ] The current version of s. 719(3) of the Criminal Code governs the calculation of credit to be awarded for time spent in pre- sentence custody for persons charged after February 22, 2010.

As this offence occurred in 2003, the previous s.719(3) applies to Mr. Walker. That provision is the following: 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence. [ 13 ] The Crown submits that Mr. Walker be credited with the time actually spent in custody. The accused submits that this time be credited on a two for one basis. Neither counsel referred specifically to any authorities in support of their position.

[14] It is within the discretion of the trial judge to determine whether or not to allow any credit for time served in custody and howmuch credit to allow. However, generally credit should be allowed absent good reasons for doing otherwise. (See R.v. Mills 1999 BCCA 159, 23 C.R. (5th) 384 (B.C.C.A.) at para. 47). [15] In R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.), the Ontario Court of Appeal discussed thereasons why pre-trial custody is more onerous than post sentencing custody where Laskin J.A. said the following at p. 721: Although this

section is discretionary, not mandatory, in my view a sentencing judge should ordinarily give credit for pre-trial custody.At least a judge should not deny credit without good reason. To do so offends one's sense of fairness. Incarceration at any stage of thecriminal process is a denial of an accused's liberty.... First, other than for a sentence of life imprisonment, legislative provisions forparole ineligibility and statutory release do not take into account time spent in custody before trial (or before sentencing).

Second, localdetention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody awaiting trial.

Forthese reasons, pre-trial custody is commonly referred to as "dead time", and trial judges, in deciding on an appropriate sentence,frequently give credit for double the time an accused has served. [16] The rationale behind the credit given, vis-a vis parole ineligibility, was further explained in Mills, supra by Donald J.A. atpara 46: Time in custody after sentence counts towards parole eligibility after one- third of the sentence is served and towards statutory releaseafter two-thirds.

Giving credit for double the time in pre-disposition custody hits the mid-point in a range between earning the equivalentof three days for every day served for parole purposes and one and a half days in the case of statutory release. [17] In R. v.

Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 41, Justice Arbour quoted Gary Trottier in his text, The Law of Bail in Canada, 2nd ed., (Toronto: Carswell, 1999), at p. 37 where he described the conditions prisoners often face on remand: Remand prisoners, as they are sometimes called, often spend their time awaiting trial in detentions centres or local jails that are ill-suitedto lengthy stays. As the Ouiment Report stressed, such institutions may restrict liberty more than many institutions which house theconvicted.

Due to overcrowding, inmate turnover and the problems of effectively implementing programs and recreation activities,serving time in such institutions can be quite onerous. [18] Justice Arbour went on to say the following at para. 45: In the past, many judges have given more or less two months credit for each month spent in pre sentencing detention. This is entirelyappropriate even though a different ratio could also be applied, for example if the accused has been detained prior to trial in an institutionwhere he or she has had full access to educational, vocational and rehabilitation programs.

The often applied ratio of 2:1 reflects not onlythe harshness of the detention due to the absence of programs, which may be more severe in some cases than in others, but reflects alsothe fact that none of the remission mechanisms contained in the Corrections and Conditional Release Act apply to that period ofdetention. "Dead time" is "real" time.

The credit cannot and need not be determined by a rigid formula and is thus best left to thesentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of theappropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody. [19] In R. v. Young, 2004 MBCA 69, 186 C.C.C. (3d) 219, Philp J.A. held that when the harshness of the pre-sentence custody isnot a factor, credit of one and one-half for one is an appropriate, although not rigid, guide. [20] In Mr.

Walker’s case, the majority of his pre-sentencing custody was spent in a federal penitentiary as a result of hisconviction at the first trial, as opposed to being in a remand centre awaiting trial or sentencing. Whereas the time spent in custody priorto the first trial, and while awaiting sentencing here, has been in a remand facility. He would not, during any of that time, be gainingcredit towards parole eligibility or statutory release.

In my view, it would be appropriate to give credit of 1.75 for each day spent incustody after the conviction at his first trial and two for one credit for the 67 days he has spent in a remand centre, either prior to the firsttrial or after his conviction for manslaughter and prior to his sentencing. This would be the equivalent of a sentence of six and one-half

years. 2. Appropriate sentence CROWN ’ S POSITION: [ 21 ] The Crown did not file any precedents but submitted that a review of the Sentencing Digest in Saskatchewan reflects that the range of sentencing for manslaughter in Saskatchewan is from very low to very high. It submits that Mr.

Walker should be sentenced to 11 years, a sentence towards the top of that range, with credit being applied to his pre-sentence custody (which the Crown submitted should be three and one-half years) leading to a sentence of seven and one-half years additional time. [ 22 ] The Crown submits that the aggravating factors to be considered include that Mr. Hayward was shot five times at close range, including one shot in the back, in his own home. The Crown further submits that Mr.

Walker was reckless as to the danger of his actions, vis a vis the other young people in the home, and to the potential psychological damage to his daughter. It submits that a primary factor in sentencing is general deterrence. It submits that a message needs to be sent to ensure that citizens appreciate that no one is entitled to take the law into their own hands. [ 23 ] The Crown submits that the mitigating factors to be considered by the court would include the accused ’ s age and the fact that he does not have a criminal record. The Crown urges me to disregard remorse as a mitigating factor as Mr.

Walker had not apologized to the Hayward family in the eight years preceding this trial. ACCUSED ’ S POSITION: [ 24 ] The accused submits that there are a number of mitigating factors to be considered including the following: Mr. Walker has no previous criminal record and he has, prior to and after the commission of this offence, been a good, productive and contributing member of society. He further relies on the protracted nature of these proceedings as a mitigating factor. The accused submits that his actions in this case were not planned, but were spontaneous.

His liberty has been restricted for eight years, even though he was not in actual custody for all of that time. The accused further submits that he offered to plead guilty to manslaughter on two occasions prior to this trial and that this acknowledgment of culpability should be a mitigating factor.

He submits he is truly remorseful for his actions and he apologized in court to the Hayward family. [ 25 ] The accused submits that he should be sentenced to one day in custody as a result of these mitigating factors and because of the time he has already spent in custody. [ 26 ] In support of this position, the accused has filed the following authorities: [ 27 ] In R. v. Colville 2005 ABCA 319 , 201 C.C.C. (3d) 353 , the Alberta Court of Appeal reduced a sentence of six years to four years. A car had driven onto the accused ’ s lawn and the accused gave chase in his truck after the car drove away.

The accused left his truck after pulling in front of the car at an intersection. He grabbed the rifle on the seat and ran after the car. He smashed the window with his rifle and he pointed the rifle at the driver with the intention of making a citizen ’ s arrest. The rifle accidentally discharged and killed the driver of the car. The accused had no previous criminal record and there was evidence he was of good character and had a lot of community support. [ 28 ] In R v.

Ferguson 2006 ABCA 261 , 212 C.C.C. (3d) 161 , the Alberta Court of Appeal overturned the decision of a trial judge and held that a sentence of four years was a fit sentence for a police officer who killed a prisoner using a firearm. The deceased had grabbed the accused ’ s gun and when the accused got it back he discharged the gun and killed the prisoner. The accused did not aim at the deceased ’ s head but the shot hit him there. The Supreme Court of Canada dismissed an appeal from this decision ( 2008 SCC 6 ,

[2008] 1 S.C.R. 96 ). The Supreme Court decision generally focused on whether there was any basis for concluding that the statutory mandatory minimum sentence of four years constituted cruel or unusual treatment. The Supreme Court noted that the jury ’ s verdict of not guilty of murder but guilty of manslaughter showed that the jury did not find the intent to kill or recklessly to cause bodily harm likely to kill required to found a murder conviction and also that they must have rejected the accused ’ s self-defence claim.

Beyond these two necessary findings, the trial judge ought not to have speculated as to the jury ’ s thought process. [ 29 ] In R v. Whitford , 2008 BCSC 1378 , [2008] B.C.J. No. 1954 (QL) , Parrett J. held that a sentence of six years was appropriate for an accused who entered a guilty plea to manslaughter after killing her common law husband. The deceased suffered a single gunshot wound to his forehead, which shattered his skull. The accused telephoned the police the next day to report the shooting.

The accused had a number of drugs in her system at the time of her arrest, but these could not be connected to the time of the offence due to the delay in reporting. The accused was 35 years old and had a significant criminal record spanning 22 years. The accused was given two years credit for pre-trial custody and sentenced to an additional four years. [ 30 ] In R v. Tremblay , 2008 QCCS 5923 , [2008] J.Q. no. 13065 (QL) , Cornoyer J. found that a sentence of six years was appropriate for an accused who pleaded guilty to manslaughter.

The deceased was shot by the accused in an altercation which occurred during a drug transaction. The accused had a minor criminal record and had made some effort to change his lifestyle. With credit for some pre-trial custody, the accused was sentenced to an additional five years, four months imprisonment. [ 31 ] In R v. Boudrias

(2006) CarswellQue 5751(WL Can) , Richer J. held that 70 months was an appropriate sentence for a 49 year old accused who pleaded guilty to involuntary manslaughter after shooting the victim, someone with whom the accused had shared a tumultuous relationship. The deceased had convictions for threatening, sexually assaulting and assaulting the accused. At the time of the offence, the deceased had been drinking and when he showed up, the victim shot him fatally through a door. The court found this was a premeditated act of domestic violence.

After giving credit for pre-trial custody the court imposed an 18 month sentence. ANALYSIS [ 32 ] In sentencing offenders, the court considers mitigating and aggravating factors. I find the following to be mitigating factors: [ 33 ] The accused has no previous criminal record. He is a contributing member of society. He has expressed his remorse to the Hayward family. I find that to be a sincere expression of his position and I will not penalize him for the timing of this apology as he relied on his legal counsel for advice. Mr.

Walker has not only served time in custody as a result of this crime but he has, for a lengthy period due to the protracted nature of the court process, been subject to restrictions on his liberty for eight years. I find that his offer of a guilty plea to manslaughter on earlier occasions to be some evidence of an acceptance of responsibility for his actions. I find that he and his family have suffered financially as a result of the protracted proceedings. [ 34 ] The verdict reached by the jury clearly indicates that they did not find that Mr.

Walker intended to kill James Hayward nor that he intended to cause him bodily harm and was reckless whether death ensued or not. The jury also found that the defence of self- defence failed. [ 35 ] I find the following to be aggravating factors: [ 36 ] Mr. Walker was an experienced marksman, whose accuracy rate would be 100% at the range in which he discharged his firearm towards Mr. Hayward. Mr. Hayward was shot five times in his home. Mr.

Walker discharged five additional shots in the house. [ 37 ] In reviewing the principles of sentencing, all are relevant but some of the stated objectives appear to be more or less important than others in this case. Given the particular circumstances in which this crime was committed, it is unlikely that Mr. Walker requires any further deterrence from committing offences, or that it is necessary to separate him from society by virtue of his personal characteristics. Nor is it likely that he requires additional rehabilitation.

[ 38 ] However, the sanction imposed here should denounce his unlawful conduct. It should deter other persons from committing like offences. It should provide reparation for harm done to the victims or to the community. It should promote a sense of responsibility in offenders and an acknowledgment of the harm done to the victim and to the community. [ 39 ] The next important principle for me to consider is that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 40 ] I have considered the cases on which Mr. Walker relies.

I have also considered cases from this jurisdiction. In R v. Keepness 2010 SKCA 69 , 359 Sask. R. 34 , Jackson J.A. discussed at some length the concept of range of sentences, in particular for manslaughter. She said the following at para. 28: [28] In Saskatchewan, a review of the case law bears out the statement that there is a usual range for manslaughter, involving brutality and alcohol or drugs, from four to 12 years.

In Hathway , the sentencing judge, after a helpful review of the authorities, reached this same conclusion. ... [ 41 ] Justice Jackson then quoted at length from the decision of Allbright J. in R. v. Hathway 2008 SKQB 480 , 327 Sask.

R. 129 , including para, 36 from that decision which provides as follows: [36] In considering the relevant decisions of the Saskatchewan Court of Appeal and various decisions of the Saskatchewan Court of Queen ’ s Bench which have not been subject to appeal, I have concluded that the appropriate range of sentencing for the offence of manslaughter in the Province of Saskatchewan is between four years and 12 years.

There are isolated instances of sentences, less than four years, and sentences greater than 12 years, however they are indeed exceptional, and in my view, a sentence falling outside the range of four years to 12 years ought to occur only in the most unusual, exceptional or extenuating of circumstances.

A distillation of the sentencing principles articulated in ss. 718 , 718.1 and 718.2 of the Criminal Code , along with the circumstances of the offence and the circumstances of the offender, will result in the vast majority of instances, in a sentence falling within this range. [ 42 ] Justice Jackson indicated that she agreed with this general review of the law except for one thing.

She held that it overstated “ ...the matter to conclude that departures from a range occur in the most unusual or exceptional circumstances only. ” (Para 29) [ 43 ] A review of other cases from this jurisdiction involving convictions for manslaughter follow. [ 44 ] In R. v. Lafontaine 1997 SKCA (SentDig) 22, the Court of Appeal upheld a seven year sentence imposed on a 24 year old accused who fatally wounded his uncle with a shotgun while they struggled. The accused had no previous record, was intoxicated and was confronting the victim about sexual abuse issues in the family. [ 45 ] In R. v.

Key , 2000 SKCA 127 , 199 Sask. R. 239 , the Court of Appeal increased a sentence for manslaughter to seven years from four years. This was in addition to credit for time in custody of about four years. The accused had a significant criminal record, containing over 40 previous offences. The court found that the stabbing death resulted from a common criminal enterprise planned well in advance and expected to be violent. One person was beaten, one was stabbed to death, and another had his door kicked down and his life threatened. This would have been equivalent to an 11 year sentence. [ 46 ] In R. v.

Thorne , 2000 SKCA 131 , 199 Sask. R. 278 , the Court of Appeal increased Ms. Thorne ’ s sentence to five years. She was involved in the same incident as Mr. Key, supra . She had no previous criminal record, she didn ’ t participate in the actual stabbing and she had done well in custody. She was 18 years of age at the time and there was no pre-trial custody. [ 47 ] In R. v. Blind , 2000 SKQB 536 , 200 Sask. R. 14 , I sentenced Mr. Blind to seven years imprisonment after he entered a guilty plea to manslaughter.

The accused had been involved in an argument in his home with others, ordered everyone to leave his house and as they were leaving, he fired a shot into their car which hit the victim, a teenage girl. The offence was out of character for the accused, he had been drinking and he had a dated unrelated record.

[48] In R. v. Littlewolfe (C.B.) et al. 2002 SKCA 143, 227 Sask. R. 245, two brothers beat the victim using a four foot longwooden board as a weapon. Justice Tallis indicated in his judgment that “[t]he circumstances of this offence could hardly be morechilling.” (Para 3). Mr. Littlewolf had no previous record and the Court of Appeal reduced his sentence from 10 years to eight years. Thecourt noted that the accused was responsive to programs made available to him while on bail. Mr.

Harper’s 10 year sentence was upheldas he was the older brother, was the leader and had a previous record which included 23 previous convictions including an assault with aweapon. [49] In R v. White 2002 SKQB 104, 216 Sask. R. 218, Barclay J. sentenced a 71 year old accused with no previous criminal recordto nine years imprisonment for shooting his wife. The accused was intoxicated at the time of the offence. [50] In R. v. Campbell 2005 SKCA (SentDig) 13, the Court of Appeal upheld a nine year sentence imposed on a 28 year oldaccused who stabbed his roommate twice, causing his death while both were intoxicated.

The accused called 9-1-1 immediatelyafterwards. Mr. Campbell had a previous record consisting of 35 previous convictions, including two threats and one assault. [51] A selection of sentencing decisions reviewed from other jurisdictions include the following: [52] In R. v. McDougall 2009 MBQB 299, 247 Man. R. (2d) 147, Justice Joyal imposed a sentence of three years on an aboriginalwoman with no previous criminal record who killed her husband while under the influence of alcohol. The Crown sought a five yearsentence and the accused sought a conditional sentence. [53] In R. v. M.(K.) 2010 MBQB 56, 249 Man.

R. (2d) 287, McKelvey J. imposed a sentence of seven years. The accused wasgiven two for one credit for his pre-trial custody resulting in a further term of two and one-half years in custody. The Crown had soughta sentence of 10 years and the accused sought a sentence of six years. The victim died as a result of a single stab wound to the heartadministered by the accused who was his cousin. Excessive consumption of alcohol was a factor. [54] In R. v. Woodcock, 2010 ONSC 3752, [2010] O.J. No. 3623 (QL), the accused, W and B, were convicted of one count ofmanslaughter and four counts of aggravated assault.

They had been in a shopping mall with a group of young men who were armed withloaded guns. They became involved in a gunfight with other men on the street which resulted in the death of a bystander and four otherserious injuries. However, neither accused fired the shot that killed the deceased. The four years and 11 weeks spent in pre-trial custodywas credited on a two for one basis (translating to a credit of eight years and five months), which left a remaining term of three years andseven months imprisonment. [55] In R v. Marini 2007 ONCA 858, [2007] O.J.

No. 4781 (QL), the case involved an attempted robbery of a high-end jewelrystore. The Court of Appeal affirmed the global sentence of 10 years. The accused had no criminal record and the Crown had failed toprove beyond a reasonable doubt that the accused was the shooter. However, the offence involved considerable planning and the accusedattempted to destroy evidence after the offences. [56] In R. v. Dhanda 2005 BCCA 533, 218 B.C.A.C. 170, the accused killed the victim by firing a pump action shot gun two timesat the victim’s face from close range.

The jury rejected that the accused acted in self-defence but concluded he had been provoked bythe victim. There had been various confrontations in the past between the two men and on the night the victim was killed, the victim andtwo other people had come to the accused’s house to vandalize it. On appeal, the Court affirmed the eight year sentence. The accusedhad a previous criminal record involving firearms. [57] As is evident from the cases referred to, there is a wide range of circumstances covered by a conviction for manslaughter.Justice Fraser, in R. v.

K.K.L. (1995), 1995 ABCA 196 , 165 A.R. 375 (C.A.) stated the following at para 6: 6 All unlawful act manslaughter cases have two common requirements; conduct which has caused the death of another; and faultshort of intention to kill. However, despite these common elements, the offence of unlawful act manslaughter covers a wide range ofcases extending from those which may be classified as near accident at the one extreme and near murder at the other [citations omitted].

Different degrees of moral culpability attach to each along a continuum within that spectrum. It is precisely because a sentence formanslaughter can range: from a suspended sentence up to life imprisonment that the court must determine for sentencing purposes whatrung on the moral culpability ladder the offender reached when he committed the prohibited act. The purpose of this exercise is to ensurethat the sentence imposed fits the degree of moral fault of the offender for the harm done. [58] A similar comment was made by McLachlin J., as she then was, in R. v.

Creighton, (SCC), [1993] 3 S.C.R. 3.Although referencing an older version of the manslaughter provision, her point remains relevant: “[b]ecause manslaughter can occur in awide variety of circumstances, the penalties must be flexible....[t]he point is, the sentence can be and is tailored to suit the degree ofmoral fault of the offender. (p. 48). CONCLUSION [59] Not surprisingly, there are no cases directly on point.

However, it would appear that the cases attracting the higher sentences,in the range of sentences imposed for manslaughter, involve individuals with significant criminal records, offences against children, orhome invasions. [60] None of those factors are present here. This incident did occur in Mr.

Hayward’s home, but there was evidence that Mr.Walker had attended to this residence in the past to visit his daughter Jadah, and that on this occasion, there is evidence that he knockedand was admitted to the house by Jadah. [61] In terms of the Saskatchewan cases cited, I find the following cases to be the most pertinent: Lafontaine, supra; Thorne,supra; Littlewolfe, supra, Blind, supra and White, supra.

In consideration of the principles of sentencing, the circumstances of this mostunfortunate case, the mitigating and aggravating factors I have found and the cases referred to, in my view an appropriate sentence in thiscase is eight years. Mr. Walker has already served the equivalent of six and one-half years. Accordingly, I sentence Mr. Walker to aperiod of 18 months in custody.

I make an order pursuant to s. 109 of the Criminal Code prohibiting the offender from possessing anyfirearm, other than a prohibited firearm or restricted firearm and any cross-bow, restricted weapon, ammunition, and explosive substanceduring the period that begins today and ends not earlier than ten years from the offender’s release from imprisonment; and any prohibitedfirearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [62] The offender is required to surrender to a peace officer, a firearms officer or a chief firearms officer any thing the possessionof which is prohibited by my order; and every authorization, licence and registration certificate relating to anything the possession ofwhich is prohibited by my order.

He shall have 30 days in which to comply with this order. [63] The offender has committed a primary designated offence within s. 487.04 of the Code. Pursuant to s. 487.051(1) of the Code,I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for thepurpose of forensic DNA analysis. [64] I decline to order a victim fine surcharge on the grounds that it would cause undue hardship to the offender or to hisdependents if I were to do so. J. E. J. GUNN