Citation: R. v. Solomon – 2023 NBKB 104 Date: June 14, 2023 Docket: FCR-7-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: HIS MAJESTY THE KING – and – FRANCIS GABRIEL SOLOMON JR. Date of Hearing: June 14, 2023 Date of Decision: June 14, 2023 Subject Matter: Sentence – Manslaughter – Joint Recommendation Before: Justice Terrence J. Morrison At: Burton, New Brunswick Appearances: Rebecca Butler for His Majesty the King Mathieu Boutet for Mr. Solomon D E C I S I O N

D E C I S I O N Morrison, J. I. INTRODUCTION [ 1 ] The Accused, Francis Solomon Jr., was charged with one (1) count of second-degree murder on the person of James Paul on September 13, 2021, contrary to section 235(1) of the Criminal Code of Canada . Pursuant to section 606(4) of the Criminal Code , with the consent of the Crown, the Accused pleaded guilty on February 24, 2023 to the offence of manslaughter under s. 236 (

a) of the Criminal Code . [ 2 ] Following the Accused’s guilty plea to the charge of manslaughter, a plea inquiry was held. As part of the plea inquiry, an agreed statement of facts was prepared by Crown Counsel and Defence Counsel. This was signed by the Accused and reviewed with him in Court prior to the Court accepting the guilty plea. The accused’s guilty plea was confirmed in accordance with s. 606 CCC .

That statement of facts need not be repeated here. [ 3 ] Following the plea inquiry, the Court was satisfied of the requirements to accept the Accused’s plea of guilty and a conviction of manslaughter was entered. II. FACTS A. Circumstances of the offender [ 4 ] I have received and reviewed a Pre-Sentence Report regarding Mr. Solomon dated June 12, 2023. Mr. Solomon is 38 years old and is a registered member of the Kingsclear First Nation. He was raised primarily in the Kingsclear First Nation Community. He reports growing up in a volatile environment with his parents both addicted to alcohol and drugs.

He was physically, emotionally, and sexually abused. He was removed from his parents care and placed with his grandparents who then assumed primary responsibility for his upbringing. [ 5 ] According to the report, Mr. Solomon has two children. Until his incarceration he was self-employed in the construction trade. Mr. Solomon acquired his grade 12 equivalency and is a red seal carpenter. He reports that prior to these events he was financially stable and able to provide for his family. [ 6 ] Mr. Solomon reports several mental health difficulties for which he is prescribed medication.

He is currently taking prescribed medication for anxiety and depression. He has a history of alcohol and drug abuse. Both alcohol and drugs factored in this offence. [ 7 ] As mentioned, Mr. Solomon is a member of the Kingsclear First Nation. The Pre-Sentence Report outlines several factors that are often referred to as the “Gladue” factors to be taken into consideration when sentencing an aboriginal offender. In particular, the Report outlines the intergenerational and systemic effects of colonialism and their effect on aboriginal communities and individuals.

There is a direct correlation between these factors and the significantly higher number of aboriginal interactions with the criminal justice system. These systemic effects are widely accepted as contributing to considerably higher instances of crime and incarceration from members of the aboriginal community. In particular, the Report outlines that these factors have resulted in poor educational and financial opportunities at Kingsclear First Nation, Mr. Solomon’s home community. The Report outlines higher unemployment rates and lower median income and ranks Kingsclear as one of six

(6) First Nations communities in New Brunswick that are considered to be in the poorest regions of Canada. Mr. Solomon reports that although no members of his immediate family attended residential schools, his grandparents re-located to a First Nations Community in the United States during the sixties scoop to protect their children, including Mr. Solomon’s father. [ 8 ] I have taken these factors into account in evaluating the joint recommendation of counsel regarding a fit sentence in this case. [ 9 ] The Accused has a limited criminal record and does not reflect a history of violence or serious crimes. He has five (5) previous convictions dating back to a

summary conviction threat charge (s. 264.1(2)(b)) in 2009 and most recently a

summary

conviction assault charge (s. 266(b)) in 2016. In addition, he has a charges under s. 145(5.l)(b), s. 355(b)(ii), and s. 253(l)(b). Other than the s. 145(5.l)(

b) charge, where he was sentenced to 30 days jail and probation in 2008, the Accused has only received sentences of fines or fines plus probation. I have also considered as mitigating the fact that the accused cooperated with police, entered a timely guilty plea and his expression of remorse this morning which I consider genuine. B. Impact on the victims [ 10 ] I have been provided with and reviewed the Victim Impact Statements of the following persons: 1. Tamara Lynn Rose Barrett - partner of Mr. Paul.

She reports having lost everything including her home, family breadwinner, and the prospect of marriage as a result of this offence. She has been diagnosed with PTSD. She has trouble sleeping and is exhausted physically and emotionally. 2. Pricilla Marie Yavusoglu - mother of Mr. Paul. As a result of his death, she has developed additional health issues. His death also resulted in financial hardship as Mr. Paul helped to provide for her. She compares her grief to the pain of a physical sickness and one that she cannot put into words 3. Rachel Paul - Mr. Paul’s sister.

She reports that she stopped doing her usual activities and has trouble sleeping. Her brother’s death has affected her employment and she has suffered financial consequences as a result. She reports being fearful. 4. Rose Carr-Paul - sister-in-law. Ms. Carr-Paul has had to go into counselling to cope with her loss as a result of this offence. Because her family’s activities were closely intertwined with those of Mr. Paul, there is now a vacuum in she and her family’s life activities. III. LEGAL PARAMETERS [ 11 ] Pursuant to

section 236 (

a) of the Criminal Code of Canada the maximum sentence for manslaughter is life imprisonment. When a firearm is used in commission of the offence, the minimum punishment is a term of imprisonment of four (4) years. However, sentencing for manslaughter is very case-specific. The circumstances that give rise to the offence can vary from the “near accident” to the “near murder’ depending upon the nature of the unlawful act and the degree of culpability of the offender ( R. v. Sock , 2023 NBKB 42 at pars. 29-32). I believe that the Accused’s level of moral fault is near the higher end of the spectrum.

In this case, the Accused had a rifle in a moving vehicle, and it was pointing toward the victim. It was fired in close proximity to the victim. It was reasonably foreseeable that such actions could cause life-threatening injuries. IV. POSITION OF THE CROWN AND DEFENCE [ 12 ] The Crown and Defence made a joint submission on sentence. It is their joint recommendation that the Court impose a sentence of a period of ten (10) years imprisonment less credit for time spent on remand. [ 13 ] Counsel have referred the Court to several cases which they submit are generally similar to the circumstances in the present case.

The cases reveal a range of sentences from eight to fifteen years imprisonment where the death is caused by a weapon: most often a gun but some involved knives. However, the cases where a sentence more than ten years was imposed involved cases where the accused had a significant and violent criminal record or where there was an element of intentional harm. V. PRINCIPLES OF SENTENCING [ 14 ] The principles and purposes of sentencing are set out in

section 718, 718.1, and 718.2 CCC . These sections set out such purposes and principles as denunciation of unlawful conduct, deterring the offender and others from committing offences, separating offenders from society where necessary, assisting in rehabilitating offenders and to promote a sense of responsibility in offenders for the harm they have done to victims or to the community. A sentencing judge must also ensure that a sentence is proportionate to the gravity of the offence and to the degree of responsibility of the offender.

The sentence must be similar to sentences imposed on similar offenders who have committed similar offences in similar circumstances. I have considered each of these principles, objectives, and circumstances. The primary factors for consideration in this case are denunciation and deterrence. As mentioned, I have also considered the “Gladue” factors outlined earlier.

[15] Joint recommendations on sentence, although not binding, are to be accorded significant weightand deference. Our Court of Appeal directed sentencing judges not to disregard joint recommendations unless they are clearlyunreasonable (R v Guignard 2005 NBCA 35 , [2005] NBJ No. 132; R v Steeves, 2010 NBCA 57). In R v Anthony-Cook, 2016SCC 43, the Supreme Court of Canada provided guidance to sentencing judges with respect to joint submissions. At paragraph 34Justice Moldaver stated: In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee.

Theyemphasize that a joint submission should not be rejected lightly, a conclusion with which I agree. Rejection denotes a submission sounhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informedpersons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, tobelieve that the proper functioning of the justice system had broken down.

This is an undeniably high threshold — and for goodreason, as I shall explain. [Emphasis added] [16] Having considered the above cases, the joint recommendation is not unreasonable, nor can it beviewed as bringing the administration of justice into disrepute. It is well within the reasonable range of sentences for this offence insimilar circumstances. Furthermore, I believe that the objectives of deterrence and denunciation can be adequately addressed in this caseby the joint recommendation. VI. SENTENCE [17] I accept the joint recommendation. [18] This is a tragedy for all concerned. Mr.

Paul has had his life taken away. As evidenced by theVictim Impact Statements, Mr. Paul’s family has been shattered. Mr. Solomon’s family too has been impacted by his actions. Further,given the close familial and other ties, the Kingsclear First Nation community has been fractured. It is my fervent hope that Mr. Solomonwill take this opportunity to turn his life around – get straight and stay straight so that one day he can return to his community as apositive force and thereby help to make amends for the harm that he has caused. [19] Mr.

Solomon is hereby sentenced as follows: a. to a period of imprisonment of ten (10) years less credit for time served on remand at a ratio of 1.5:1 b. A mandatory order authorizing the taking of the number of samples of bodily substances that is reasonably required for thepurpose of forensic DNA analysis, pursuant to s. 487.051(1) of the Criminal Code of Canada, supra. c. A mandatory firearms prohibition order for a period of ten (10) years, pursuant to sections 109(l)(

a) and 109(2) of the CriminalCode of Canada, supra. d. A mandatory forfeiture order of any weapon that was used in the commission of the offence, pursuant to s. 491 of the CriminalCode of Canada, supra. e. The victim fine surcharge is waived Terrence J. Morrison, J.C.Q.B.