HIS MAJESTY THE KING - v. -, 2023 SKKB 24

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 24 Date: 2023 02 03 Docket: CRM-RG-00316-2021 & CRM-RG-00317-2021 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and - JOSHUA LAROSE PUBLICATION RESTRICTION: By court order, information that may identify the persons described in this decision as the witnesses may not be published, broadcasted or transmitted in any manner. Counsel: Andrew J. Campbell for the Crown Bruce K. Campbell for Mr. Larose ___________________________________________________________________________ SENTENCING POPESCUL C.J.K.B.

February 3, 2023 ___________________________________________________________________________ I. INTRODUCTION [ 1 ] Joshua Larose was released from jail at 4:54 p.m. on August 24, 2020. Earlier that day he had been sentenced and placed on probation for nine months. One of the conditions of his probation was that he was to “keep the peace and be of good behaviour”. He went home, armed himself with bear spray and a knife and then promptly went to a residence at 1211 Cameron Street with vengeance on his mind. [ 2 ] A little over two hours after Mr. Larose’s release from jail, Matthew Bossenberry was dead, having been

stabbed in the torso by Mr. Larose after an altercation. [ 3 ] Mr. Larose was charged with second degree murder. After a trial composed of a judge and jury, he was found not guilty of second degree murder, but guilty of the lesser included offence of manslaughter. [ 4 ] Subsequent to his conviction for manslaughter, Mr. Larose chose to plead guilty to three other offences under the Criminal Code , RSC 1985, c C-46 , with which he was charged, arising out of the same incident [the related charges]. Those charges, as listed on the indictment, are: 1.

THAT HE, the said Joshua Larose on or about the 24th day of August, A.D. 2020 at or near Regina, Saskatchewan, did in committing an assault on A.R. use a weapon, to wit: bear spray, contrary to

section 267 (

a) of the Criminal Code . 2. THAT HE, the said Joshua Larose on or about the 24th day of August, A.D. 2020 at or near Regina, Saskatchewan, did in committing an assault on E.A. use a weapon to wit: bear spray, contrary to

section 267 (

a) of the Criminal Code . 3. THAT HE, the said Joshua Larose on or about the 24th day of August, A.D. 2020 at or near Regina, Saskatchewan, did being bound by a probation order made by a judge of the Provincial Court of Saskatchewan on the 24th day of August, 2020, without reasonable excuse fail to comply with a condition thereof, to wit, that the offender shall keep the peace and be of good behavior, contrary to

section 733.1(1) of the Criminal Code . [ 5 ] The Crown submits that Mr. Larose should be sentenced to 16 years in prison. The defence argues that 8 years is the proper sentence. Both Crown and defence agree that Mr. Larose should be sentenced to one year concurrent on each of the related charges. [ 6 ] Sentencing is one of the most delicate stages of the criminal justice process. The credibility of our system in the eyes of the public depends on the fitness of the sentence. A sentence that is too harsh or too lenient calls into question the character of our system.

See the comments of Justice Wagner (as he then was) in R v Lacasse , 2015 SCC 64 at paras 1-3 , [2015] 3 SCR 1089 . [ 7 ] It is now incumbent upon the Court to impose a fit and proper sentence for Mr. Larose. II. CIRCUMSTANCES OF THE OFFENCE [ 8 ] About a month or so prior to the incident, Mr. Larose, in the company of his wife, Wanita Larose, was selling drugs in the backyard of drug dealer E.A.’s residence. This is a practice that Mr.

Larose referred to as “ghosting”, which is essentially a system where one intercepts a drug using customer on their way to the drug house. [ 9 ] E.A. found out about this and went into his backyard and chased away Mr. and Ms. Larose. What was precisely said and done likely does not much matter. In the end result, however, Mr. Larose was upset about the way he and his wife were treated. This is so, even though it was Mr. Larose who was the one who was tampering with E.A.’s illicit, albeit apparently busy, business. [ 10 ] Shortly after this incident, Mr. Larose went to jail for an unrelated matter.

While in jail he, by his own admission, began to stew about what had happened. He became particularly angry when he recalled how his wife had been insulted and threatened. [ 11 ] On August 24, 2020, Mr. Larose pled guilty to several Criminal Code offences and received a sentence of one day deemed served by his presence in court and nine months probation. As mentioned, one of the terms of that probation order was that he was to “keep the peace and be of good behaviour”. [ 12 ] After being sentenced, Mr.

Larose was picked up by his mother and his wife, went to the Dairy Queen and then went to the residence where Ms. Larose had been staying. Shortly thereafter they left. Before leaving the residence, Mr. Larose put on camouflage pants, a fisherman hat, and a white shirt. He also took a backpack in which he put a large can of bear spray. His intention, according to his own admission while on the stand, was to go to the residence of E.A. and harm him. [ 13 ] There was also evidence at the trial that Mr. Larose armed himself with a knife. Mr. Larose denies that he took a knife from the house.

Rather, he claims that the knife he used to stab the deceased was fortuitously found during the fight with Mr. Bossenberry. The Crown alleges that Mr. Larose took the knife with him. Both Crown and defence agree that it is necessary for the Court to make a finding on the issue of whether the knife was found or brought in order to properly determine the appropriate sentence.

While I do not place the same degree of significance on this factor as does counsel, the question of whether the knife used in the killing was brought or found does have some impact on sentence and, thus, I will make a determination on this disputed fact pursuant to s. 724 of the Criminal Code . [ 14 ] This provision directs, among other things, that a judge, in determining a sentence: • must accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; • may find any other relevant fact that was disclosed by the evidence at the trial to be proven; and, • where there is a dispute on an aggravating fact that is relevant to the determination of sentence, the Crown is obligated to prove it beyond a reasonable doubt. [ 15 ] There was considerable evidence called at trial respecting the knife used in the killing.

Mr. Larose testified at his trial. He admitted to taking the bear spay to the residence, but denied taking the knife. He said he came upon the knife, by chance, during the fight with Mr. Bossenberry. Ms. Larose testified at the trial. She said, on the stand and while under oath, that the knife was

not hers. However, her testimony on this point directly contradicted what she told the police in a video recorded statement she providedshortly after the incident. The Crown applied to have her statement admitted as a principled exception to the hearsay rule and thatapplication was granted. [16] Although, Ms. Larose testified that the knife ultimately proven to be the weapon that caused the death of thedeceased was not hers, during her video recorded statement she admitted that the distinctive green handled army knife she saw herhusband exit the house with after the stabbing was in fact hers.

It had been on her dresser. She told the police that she did not know thatMr. Larose had taken it until after he came out of the Cameron Street residence carrying the bloody knife. [17] She also told the interviewing police officer that she recognized the knife and eventually admitted to him thatshe sold it to “Gord” for fentanyl. At the time she made this statement, she allowed that she decided to tell the officer where the knifewas, “Just so that guy [Mr. Bossenberry] has closure to his family”. It seems unlikely, in the extreme, that Ms. Larose would volunteersuch information unless it was true.

After carefully watching Ms. Larose testify on the stand and observing the video recorded statement,it is evident that what Ms. Larose told the officer was true, while what she testified to in court, was not. I draw that conclusion afterconsidering all of the circumstances, including, but not limited to the failure of Ms. Larose to offer a credible reason as to why she wouldtell the officer one thing and the Court something different. [18] Ms. Larose’s video recorded statement was internally consistent, fit with the other objective facts and wasprovided in a straightforward and reasonably spontaneous fashion.

Her testimony on the stand was disjointed, evasive and lacked thedegree of specificity one might expect of a truthful recollection. Further, D.G., who shared a cell with Mr. Larose prior to his releasefrom jail, testified that he was told by Mr. Larose that he had taken bear spray and a knife to the residence. This tends to corroboratewhat Ms. Larose said during her video recorded statement. [19] Based upon the statement of Ms.

Larose, the police followed up on where she said the knife had been taken andthey did indeed locate the very distinctive knife that was conclusively determined to be the weapon used in the stabbing. [20] The fact that E.A. agreed during his testimony that he had several knives laying around his residence, some ofwhich were similar to the knife used to kill Mr. Bossenberry, did not establish, or raise reasonable doubt, that the weapon used to kill Mr.Bossenberry was his knife. [21] Further, although Mr.

Larose testified that he found the knife by chance and even after applying the well knownand well developed principles of R v W.(D.), (SCC), [1991] 1 SCR 742, I conclude that the totality of the evidencebefore the Court, presented during the trial, establishes, beyond a reasonable doubt, that the knife used in the stabbing death of thedeceased belonged to Ms. Larose and that Mr. Larose retrieved that knife from their home and took it with him to the Cameron Streetresidence. To be clear, I do not accept Mr.

Larose’s testimony on this point because it conflicts with the evidence I do accept. [22] I should add that the issue of whether Mr. Larose brought the knife or came across the knife was not somethingthat the jury was required to decide and what they did decide on this point is not implicit in the jury’s verdict. It was but one of thefactors that the jury was to consider when assessing the reasonableness of Mr. Larose’s actions within the context of whether he acted inself-defence. [23] Mr. Larose, with his backpack, bear spray and the knife belonging to Ms. Larose, proceeded toward theresidence of E.A.

While on his way, accompanied by his wife, he encountered his friend, R.C. R.C. drove Mr. Larose and Ms. Larose,on the instructions of Mr. Larose, to the backyard of the 1211 Cameron Street residence. R.C. and Ms. Larose waited in the car asMr. Larose went up to the house. [24] Mr. Larose approached the house. He took the bear spray out of his backpack and went to the window at theback of the house where drugs were routinely exchanged. He knocked on the window and W.C. answered. Mr. Larose was very muchaware of the bunker-style security of this drug house.

He knew he could not get in there by force and therefore lied to W.C. in order togain entry. He told W.C. that he wanted to see E.A. so that he could offer him an apology for what had happened previously. W.C.checked with E.A., who then gave permission to W.C. to allow Mr. Larose to enter. Mr. Larose entered the house. [25] The evidence was that there were five people in the house. E.A., W.C., A.R. (A.B.), Mr. Bossenberry and aperson described as “Ali”, an acquaintance of E.A. The 1211 Cameron Street residence was the temporary home of Mr. Bossenberry andA.R. E.A., A.R., Mr.

Bossenberry and Ali were in the living room visiting with each other. E.A. was “playing video-hockey on histelevision”. W.C. was in his bedroom. Although it was a “drug house”, it is uncontroverted that immediately before the surprise attack byMr. Larose, these five individuals were minding their own business doing nothing out of the ordinary and that no one had done anythingto provoke the attack on that date. [26] Notwithstanding that there were more people in the house than Mr.

Larose had anticipated, he nonethelessdecided to execute his plan to cause harm to E.A. and, incidentally, to the others in the residence. He did not apologize (or even pretendto apologize as he might have if he became reluctant to proceed with his plan). Using the element of surprise, Mr. Larose began to spraythe living room occupants with bear spray. [27] The evidence before the Court, including the evidence of Mr.

Larose himself, was that bear spray, an aerosolspray intended to deter an aggressive or charging bear, although not a lethal weapon, is a very potent chemical that causes severeirritation and burning of the eyes, skin and throat and causes trouble breathing. [28] Mr. Larose admits to spraying E.A. Mr. Bossenberry understandably got up, at which time he was sprayed withbear spray by Mr. Larose. Mr. Bossenberry, given the circumstance that he found himself in, justifiably confronted Mr. Larose and afight ensued. [29] It is easy to understand why Mr.

Bossenberry reacted the way he did since he was in the residence where he hadbeen living and was minding his own business when he was confronted by a bear spraying Mr. Larose. It is apparent that

Mr. Bossenberry was put at a disadvantage because of the effects of being bear sprayed, while Mr. Larose would have been affected to alesser extent by secondary exposure to the bear spray. [30] Neither Mr. Bossenberry nor Mr. Larose are strangers to fisticuffs. Mr. Bossenberry was touted by E.A. as atough guy. There was some suggestion that he was acting in some type of bodyguard role. After having said that, Mr. Bossenberry wasonly 5’6” tall and weighed 160 pounds. Mr. Larose admitted to being in more than 100 fights and that he had never lost a “fair fight”,which may be taken to be a one-on-one fight.

No one asked Mr. Larose what his height was. According to Mr. Larose he weighed about160 to 165 pounds at the time. Mr. Larose was 40 years old at the time of the incident. Mr. Bossenberry was 32. [31] The two men fought. At one point, Mr. Bossenberry used a 2x4 to hit Mr. Larose several times. Mr. Larosetestified that he was getting the worst of the altercation and that he started to fear for his safety. At some point Mr. Larose stabbed Mr.Bossenberry with the knife. [32] Once the fatal stab wound was administered, Mr. Larose left the house and got back into the car where R.C. andMs. Larose were waiting.

R.C. and Ms. Larose saw Mr. Larose with the bloody knife. R.C. then dropped Mr. Larose and Ms. Larose offat Sloane Ford’s house at Mr. Larose’s request, a few blocks away. The knife was then sold for fentanyl and later recovered by police. [33] Mr. Bossenberry, who suffered a deep stab wound to his chest between the 6th and 7th ribs, died quickly on thefront steps of the 1211 Cameron Street residence. The cause of death was excessive bleeding due to the stab wound. [34] It was not contested that Mr. Larose caused the death of Mr. Bossenberry.

The jury was asked to consider theapplicability of the defence of self-defence. Based upon the jury’s verdict, it is evident that the jury rejected self-defence, in that theymust have concluded that the Crown had proven beyond a reasonable doubt that the defence of self-defence was not available. Since thejury decided that Mr. Larose was not guilty of murder, but guilty of manslaughter, they would have had to have concluded that theCrown had failed to prove beyond a reasonable doubt that he had the requisite mental element for the unlawful act to constitute murderand, hence, the manslaughter verdict. III.

THE CIRCUMSTANCES OF THE OFFENDER [35] Mr. Larose is currently 42 years of age and identifies as being a status member of the Muscowpetung FirstNation. A pre-sentence report that addresses, among other things, Gladue factors [R v Gladue, (SCC), [1999] 1 SCR688 [Gladue]], was ordered and received. The comprehensive 16-page report describes and summarizes, in detail, the background andpersonal circumstances of Mr. Larose. It also specifically highlights a number of Gladue considerations in play, including his time spentin a residential school and his traumatic childhood.

The pre-sentence report outlines the relevant Gladue factors relating to Mr. Laroseand sets out some of the unfortunate historical events that have impacted Mr. Larose and his ancestors. [36] Mr. Larose was raised, primarily in Regina, by his single mother. He moved frequently during his childhood,living in Lemberg, Fort Qu’Appelle, Abernathy and Edmonton. He has never lived on a reserve. He attended a residential school atLebret, on two separate occasions, during the course of his childhood. According to the pre-sentence report, Mr.

Larose, reported thatfollowing his father leaving the family unit, “they did not have a home life after that”. The years that followed included moves to fosterhomes, residential schools and new cities. His mother experienced alcohol and substance abuse issues and the family often lived inpoverty. Mr. Larose has been subjected to bullying and physical and sexual abuse. [37] Mr. Larose completed Grade 12 and the General Education Development [GED] program. He has his driver’slicence and has enrolled in and finalized some programs, including one entitled the “Road to Employment Program”.

He wassporadically employed as a young adult. His most significant work history involves his work for an insulation company where he workedfor seven years, starting in 2006. The company was sold, after which he worked as an insulation sub-contractor. Unfortunately, hebecame ill, left the business and did not return. [38] Prior to Mr. Larose being incarcerated, he was unemployed and was receiving social assistance. His dailyroutine consisted of using illicit drugs “all through the day and night”. [39] Mr. Larose has experienced sustained and serious alcohol and substance abuse.

He started drinking alcohol atage 8 or 10. As a young adult, he would consume alcohol whenever he got the opportunity and would drink as much as he could. Hewould also smoke marijuana and would ingest cocaine. He would drink alcohol almost every other day and would drink to the point ofintoxication and/or blackout. The alcohol abuse became more acute with age.

He attributes much of his criminal activity to his drinking.Once, while in custody in a provincial facility, he secretly made “home brew” and became so intoxicated that he was taken to thehospital where it was discovered that he had a blood alcohol level of three times the legal driving limit. He considers himself to be analcoholic. [40] Several years prior to the incident for which he is being sentenced, Mr. Larose quit drinking alcohol, butswitched to illicit drugs. The illegal drugs included crystal methamphetamine, fentanyl and heroin. Mr.

Larose admitted to being drivento criminal activity due to financial difficulties and substance abuse. He reported to the author of the pre-sentence report that he has, “committed numerous breaks and enters, thefts and robberies to provide for himself and his wife ... [and] ... he would often venture out atnights [sic] and ‘break into whatever I could, vehicles, garages, homes, and steal whatever had value. I had buyers who had use foranything’”. [41] Mr. Larose says that he was diagnosed with dyslexia and that he has difficulty in learning. He has also beendiagnosed with Hepatic Encephalopathy.

This condition prevents the liver from eliminating ammonia from the blood stream. Mr. Larosebelieves that he contracted this affliction from intravenous cocaine use in his 30s that, left untreated, led to him contracting Hepatitis C.This condition has seriously impacted his physical well-being and he has been hospitalized on several occasions. [42] Mr. Larose has a strong positive relationship with his wife. They have been together for approximately 22 years.Unfortunately, Ms. Larose continues to struggle with substance abuse issues. He also has a positive relationship with his step-daughter

and describes her as “one of my rocks right now”. His step-daughter notes that “it was good growing up with him and he was a good father to me”. She describes Mr. Larose to be a “good-hearted kind soul” and gives him credit for her upbringing, saying, “I would not be the person I am today if it was not for him and I would not be as strong”. [ 43 ] The pre-sentence report describes Mr. Larose’s strengths as: Joshua reports having a connection to his traditional belief system, noting the importance of continuing with sweats, smudging, and Powwows.

He expresses a desire to continue his connection to his traditional culture. Joshua also has a significant bond to his children and mother while in custody and describes them as his “rock” during this time in his life. Joshua hopes to one day care for his mother, children, and grandchildren when in the community, as they have expressed their desire to maintain a relationship with him following incarceration. [ 44 ] Mr. Larose has a lengthy and significant criminal record. His record is as follows: 1995-10-19

(1) THEFT OVER $1000 (1-2) PROBATION 18 MOS & REGINA SASK SEC 334 (

A) CC RESTITUTION $250 ON EACH (YOUTH COURT)

(2) BE & COMMIT CHG SEC 384(1)(

B) CC (REGINA PS 43527) 1996-06-27

(1) POSS OF PROPERTY OBTAINED

(1) TIME SERVED (5 DAYS) & REGINA SASK BY CRIME UNDER $5000 30 HRS COMM SERV WORK (YOUTH COURT) SEC 355 (

B) CC

(2) THEFT UNDER $5000 (2-3) TIME SERVED (5 DAYS) & SEC 334(

B) CC 15 HRS COMM SERV WORK ON

(3) POSS OF PROPERTY OBTAINED EACH CHG BY CRIME UNDER $5000 SEC 355(

B) CC

(4) FAIL TO ATTEND COURT (4-5) TIME SERVED (5 DAYS) & SEC 145(2)(

A) CC 5 HRS COMM SERV WORK ON

(5) FAIL TO COMPLY WITH EACH CHG DISPOSITION SEC 26 YO ACT (REGINA PS 43 527) 1997-03-13

(1) THEFT UNDER $5000 (1) 4 MOS OPEN CUSTODY REGINA SASK SEC 334(

B) CC & PROBATION 6 MOS (YOUTH COURT)

(2) FAIL TO COMPLY WITH (2) 1 MO OPEN CUSTODY CONC DISPOSITION & PROBATION 6 MOS SEC 26 YO ACT (REGINA PS 43527)

1997-03-13 THEFT OVER $5000 4 MOS JAIL, 6 MOS PROBATION REGINA SASK SEC 334(A) (YOUTH COURT) 1997-03-24 ESCAPE LAWFUL CUSTODY 14 DAYS OPEN CUSTODY REGINA SASK SEC 145(1)(

A) CC CONSEC TO SENT SERVING (YOUTH COURT) (REGINA PS 43527) 1997-05-06 UNLAWFULLY AT LARGE 2 MOS OPEN CUSTODY REGINA SASK SEC 145(1)(

B) CC CONSEC TO SENT SERVING (YOUTH COURT) (REGINA PS 43527) 1997-09-11 ESCAPE LAWFUL CUSTODY 4 MOS & 23 DAYS SECURE CUSTODY REGINA SASK SEC 145(1)(

A) CC TO 1998-02-04 YOUTH COURT (REGINA PS 43527) 1999-05-07

(1) THEFT UDNER $5000 (1) $300 I-D 6 DAYS REGINA SASK SEC 334(

B) CC

(2) MISCHIEF UNDER $5000 (2) $200 I-D 4 DAYS SEC 430(4) CC

(3) UTTERING THREATS (3) 9 MOS CONDITIONAL SENTENCE SEC 264.1(1)(

A) CC ORDER & PROBATION 9 MOS (REGINA PS 43527) 1999-12-22

(1) BREACH OF CONDITIONAL

(1) ORDER TERMINATED REGINA SASK SENTENCE ORDER SEC 742.6(9) (

D) CC (ENTRY DATED 1999-05-07)

(2) B & E WITH INTENT (2) 6 MOS CONSEC SEC 348(1)(

A) CC (REGINA PS 43527) 2001-10-25

(1) THEFT UNDER $5000 (1-3) SUSP SENT &

REGINA SASK SEC 334(

B) CC PROBATION 1 YR

(2) ASSAULT SEC 266 CC ON EACH CHG (2 CHGS)

(3) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1(1) CC (REGINA PS 43527) 2005-05-31

(1) FAIL TO STOP AT SCENE OF (1) 6 MOS CONDITIONAL REGINA SASK ACCIDENT SEC 252(1) CC SENTENCE ORDER & PROH DRI 1 YR

(2) MISCHIEF (2) 3 MOS CONDITIONAL SEC 430(1)(

C) CC SENTNECE ORDER COSEC & PROBATION 9 MOS (REGINA PS 43527) 2012-07-05

(1) POSS OF A

SCHEDULE II (1) $250 I-D 3 DAYS reGINA SK SUBSTANCE sec 4(5) cDS ACT

(2) POSS OF A SCHEDULED (2) $250 I-D 3 DAYS SUBSTANCE SEC 4(1) CDS ACT (DCN11313500144901001406) (reGINA ps 43527) 2013-10-21 POINTING A FIREARM $200 I-D 2 DAYS & REGINA SK SEC 86(1) CC MANDATORY WEAPONS PROHIBITION SEC 109 CC (DCN11417000184801001403) (REGINA PD 43527) 2018-07-23

(1) FAIL TO APPEAR (1-3) PROBATION 9 MOS (8 DAYS REGINA SK SEC 145(5) CC PRE-SENTENCE CUSTODY)

(2) FAIL TO COMPLY WITH

CONDITIONS OF UNDERTAKING GIVEN BY OFFICER IN CHARGE SEC 145(5.1) CC

(3) POSS OF A WEAPON SEC 88 CC [DCN11820108300257006109) (REGINA PD 43527) 2018-07-23 FAIL TO APPEAR PROBATION 9 MOS (8 DAYS REGINA SK SEC 145(5) CC PRE-SENTENCE CUSTODY) (DCN11802208300257023101) (REGINA PD 43527) 2018-07-23 POSSESSION OF PROPERTY 8 DAYS TIME SERVED, REGINA SK OBTAINED BY CRIME UNDER $5000 9 MOS PROBATION SEC 355(B) 2018-07-23 FRAUD UNDER $5000 8 DAYS TIME SERVED, REGINA SK SEC 380(1)(B)(i) 9 MOS PROBATION, $110 RESTITUTION 2020-08-24

(1) FAIL TO APPEAR (1-2) (1 DAY PRE-SENTENC REGINA SK SEC 145(5) CC CUSTODY)

(2) FAIL TO ATTEND COURT SEC 145(2)(

A) CC (DCN12005808300257012103) (REGINA PD 43527) 2020-08-24 FAIL TO COMPLY WITH PROBATION 9 MOS (1 DAY REGINA SK PROBATION ORDER PRE-SENTENCE CUSTODY) SEC 733.1(1) CC (DCN11918408300257000108) (REGINA PD 43527)

2021-10-12 FAIL TO COMPLY WITH ORDER 90 DAYS (CREDIT FOR THE REGINA SK SEC 145(5)(

A) CC EQUIVALENT OF 93 DAYS PRE-SENTENCE CUSTODY) (DCN12122308300257015103) (REGINA PD 43527) [ 45 ] His first recorded conviction for a criminal offence was on October 19, 1995, when he was 15 years old. His first conviction as an adult occurred in May of 1999 shortly after his 19 th birthday.

As of the date of the offence, his youth and adult criminal record reveals 36 prior Criminal Code convictions, consisting of a variety of different offences including breaking and entering, possession of property obtained by crime, failing to appear in court, failing to comply with court orders, escaping lawful custody, being unlawfully at large, mischief, uttering threats, driving offences, drug offences, unlawfully pointing a firearm and possession of a weapon. He has received a variety of sentences including fines, probation, conditional sentences and jail.

The longest custodial sentence imposed was six months, although he did receive a nine-month conditional sentence that was ultimately terminated due to failing to comply with conditions. [ 46 ] The pre-sentence report makes the obvious point that, “While in the community, Joshua has had difficult [ sic ] following court-imposed conditions which resulted in systematic [ sic ] charges being laid through formal breaches ...”. This inability to follow court orders extends to the charges before this Court. After Mr. Larose was charged with criminal offences relating to the death of Mr.

Bossenberry, he was held in custody. However on August 10, 2021, he convinced a judge of this Court to release him on conditions pending his trial. His medical condition factored into the decision. However Mr. Larose’s release was short-lived. Less than 24 hours after he was released, he was arrested and placed back in custody for breaking the terms of his release. He did not attend Community Corrections, as required by the release order, to enroll in the Electronic Monitoring Program. He has been in custody since. [ 47 ] The pre-sentence report contained an “Assessment

Summary Report -- Saskatchewan Primary Risk Assessment” [SPRA], which is a risk assessment that examines the risk factors that contribute to criminal recidivism. [ 48 ] According to the report, the overall assessment score for an adult falls within one of three progressively increasing levels of risk to re-offend. Low risk reflects the lowest likelihood to re-offend while high risk reflects the highest. The levels of risk, according to the SPRA are as follows: Low Risk 20% Medium Risk 50% High Risk 80% [ 49 ] Mr. Larose’s overall risk for general re-offending was assessed as being in the High-Risk category.

The SPRA states that when Mr. Larose is compared to the remainder of the Saskatchewan offender population, he is assessed to be at the 98 th percentile, which means that only 2 of 100 Saskatchewan inmates were assessed as having more risk factors. [ 50 ] Mr.

Larose’s risk factors include residence stability, employment, financial situation, family/marital relationships, peers and companions, drug and alcohol use, attitude and self management. [ 51 ] The author of the pre-sentence report opines that the likelihood for reoffending can be reduced by providing targeted interventions to address the identified risk factors. The pre-sentence report also indicates that persons sentenced to federal terms of incarceration are placed in penitentiaries where they receive appropriate treatment. A federal term of incarceration would provide Mr.

Larose with an opportunity to address his violent offending behaviour and issues relating to his accountability for his offending behaviour. IV. VICTIM IMPACT STATEMENTS [ 52 ] A number of heartfelt and genuine victim impact statements were presented to the Court. Some were read out by the authors, others were filed. It was evident from these statements that Mr. Bossenberry, although not without some problems, was a kind, loved and cherished son, brother, uncle, friend and boyfriend. Mr.

Bossenberry’s family and friends courageously shared their most intimate inner feelings of the grief that persist and will never fully leave them. Mr. Bossenberry was described as having a great sense of humour and as a dependable, compassionate and generous person who would “give you the shirt off his back”. The senseless killing of a loved one has left a long-lasting pall of sadness over the friends and family of the deceased. V. POSTION OF THE CROWN AND DEFENCE (

a) Position of the Crown [ 53 ] The Crown seeks a period of incarceration of 16 years in a federal penitentiary, together with one year concurrent for the three related charges to which Mr. Larose pled guilty, less time spent in pre-trial custody. The Crown also seeks the imposition of a number of ancillary orders. The Crown, which had sought a conviction for second degree murder, characterizes the circumstances as a “near murder”. (

b) Position of the Defence

[ 54 ] The defence acknowledges the seriousness of the crime and concedes that a period of incarceration in a federal penitentiary is necessary. However, the defence contends that the principles of sentencing would best be satisfied with the imposition of a sentence of eight years incarceration because the range for this type of wrongdoing should fall “somewhere between the lowest end of three years and the highest which is 10 years”.

Further, the defence urges the Court to lessen the sentence that it would otherwise impose by taking into account the Gladue principles that were expressed in Gladue and R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ]. [ 55 ] The defence agrees that Mr. Larose should be sentenced to a term of one year concurrent on each of the other three related offences for which Mr. Larose took responsibility by pleading guilty. The defence does not take issue with the imposition of the ancillary orders requested by the Crown and joins in the request that Mr.

Larose’s sentence take into consideration the time he spent in custody awaiting trial by application of the pre-sentence custody credit. VI. ANALYSIS (

a) General Sentencing Principles [ 56 ] The fundamental purpose of sentencing, the objectives behind sentencing and the principles that are intended to guide sentencing judges in the crafting of a just and fit sentence are specified in ss. 718 to 718.2 of the Criminal Code . These provisions are as follows: Purpose 718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 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, 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 gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (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, including their health and financial situation, (iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act , and (vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services, 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 and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [57] It is also important to have particular regard to the relevant punishment sections respecting manslaughter, whichinclude the following: Manslaughter 236 Every person who commits manslaughter is guilty of an indictable offence and liable (a) ... (

b) in any other case, to imprisonment for life. [58] It is one thing to recite the above principles, it is quite another to apply them. A sentencing judge must haveregard to how the jurisprudence has interpreted these concepts and principles and then apply them to the individual circumstances of thecase and the individual circumstances of the offender. [59] In R v Sand, 2019 SKQB 123, Danyliuk J. summarized these concepts nicely when he said this: 15 The Canadian sentencing process is now highly individualized. It is as much art as it is science.

Cases are assessed using applicablegeneral principles but as same are applicable to the existing circumstances. It is incumbent upon a sentencing judge to consider allrelevant factors under the Criminal Code and as enunciated in the case law, and ascribe to each the weight that the circumstances require.Of necessity, this will vary from case to case. No one sentencing objective trumps the others. Sentencing is a flexible procedure, withrelatively few predetermined results (such as minimum sentences).

As Lamer C.J.C. said in R v M.(C.A.), (SCC),[1996] 1 SCR 500: The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencingagainst the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needsand current conditions of and in the community. (

b) Gladue Principles [60] Since the offender is of Indigenous ancestry, s. 718.2(

e) of the Criminal Code, as interpreted through the lens ofthe Supreme Court of Canada decisions of Gladue and Ipeelee, comes into play. Sentencing judges are required to take a differentapproach to sentencing Indigenous offenders. This involves a consideration of the unique systemic and background factors that may havecontributed to the behaviour that led to the offender coming before the court. As well, all other sanctions that may be appropriate giventhe circumstances of the offender because of their Indigenous heritage must be considered.

This approach applies even where, as here,the offender has committed a serious violent offence. [61] However, as outlined in R v Bear, 2022 SKCA 69 [Bear], a different approach does not necessarily mean adifferent result. At para. 108, the Court said this: 108 ... Proper application of s. 718.2(

e) requires sentencing judges to carefully consider (

i) the extent to which an Indigenous offender’sunique circumstances may have had a bearing on their moral culpability; and (ii) whether and how the relevant sentencing objectives canbe actualized through sanctions other than imprisonment or through the term of imprisonment imposed ... But this does not mean that s.718.2(

e) requires, or permits, an automatic reduction of sentence simply because the offender is Indigenous ... . [Citation in quote omitted] [62] As Richards C.J.S. explained in R v Chanalquay, 2015 SKCA 141 at paras 36-38, 26 CR (7th) 276[Chanalquay], the s. 718.2(

e) analysis is more nuanced than “reflexively giving less jail time”: 36 It is important to recognize that Gladue and Ipeelee are not unvarnished calls to impose shorter jail terms on Aboriginal offenders.The Supreme Court’s reasoning is far more nuanced than that. Its approach is very much tied to the concept of restorative justice and thedecision in Gladue, in particular, returns repeatedly to that concept in explaining how it is that sanctions other than incarceration mightsatisfy the sentencing objectives referenced in

Part XXIII of the Criminal Code. It is essential that this basic theme be remembered. Invery simplified terms, the fundamental dynamic underlying s. 718.2(

e) when a trial judge sentences an Aboriginal offender is not merelyone of reflexively giving less jail time. Rather, it involves the subtler idea of attempting to limit or minimize jail time by using restorativejustice approaches when and if such approaches are appropriate. In the end, s. 718.2(

e) means what it says: “all available sanctions otherthan imprisonment that are reasonable in the circumstance should be considered...” 37 I observe as well that the analysis mandated by s. 718.2(e), as explained in Gladue and Ipeelee, is not a free-standing inquiry that isbrought into play to adjust an otherwise fit sentence after it has been determined. Instead, the analysis is an integral part of the reasoningwhich leads to a fit sentence (Gladue at para 88).

It does not stand outside of that reasoning and judges should not approach thesentencing exercise with a view to giving (or not giving) a specific or express reduction in a sentence because of Gladue factors. This isnot what Gladue and Ipeelee provide.

38 Further, and relatedly, s. 718.2(

e) and the Gladue analysis mandated by it do not automatically trump or displace other sentencingconsiderations and objectives. More particularly, s. 718.2(

e) does not require that Aboriginal offenders always be sentenced in a mannerwhich gives greatest weight to the principles of restorative justice, as opposed to goals such as deterrence, denunciation and separation(Gladue at para 78). As the Supreme Court has said, “The analysis for sentencing aboriginal offenders, as for all offenders, must beholistic and designed to achieve a fit sentence in the circumstances” (Gladue at para 81). In other words, Gladue considerations shouldnot drive a judge to ignore other sentencing principles and objectives.

The question in sentencing an Aboriginal offender, as for otheroffenders, will always be “For this offence, committed by this offender, harming this victim, in this community, what is the appropriatesanction under the Criminal Code?” (Emphasis in original) (Gladue at para 80) [63] The jurisprudence clarifies that it is not necessary for the offender to establish a direct causal link between thebackground factors and the offences for which the offender will be sentenced.

However, as underscored by Richards C.J.S. inChanalquay, systemic and unfortunate background circumstances do not operate to excuse or justify the impugned conduct but serve tocontextualize it. These points are set forth in paras. 51 and 52 of Chanalquay, where the Court makes the following statement: 51 However, at the same time, I understand the Court in Ipeelee to have also warned against an approach to assessing the impactof Gladue factors on moral culpability which is entirely abstract and not rooted in the factual realities of the case before the sentencingjudge.

In this regard, LeBel J. wrote as follows: [83] ... Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide thenecessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in someway to the particular offender and offence.

Unless the unique circumstances of the particular offender bear on his or her culpability forthe offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. 52 A sentencing judge should not simply stack up all of the Gladue-type considerations at play in a case and, if the list is long or severe,automatically proceed on the assumption such factors have had a substantial limiting effect on the offender’s culpability. The requiredanalysis is more demanding than that.

To determine the extent to which Gladue factors impact on an offender’s moral culpability, asentencing judge must examine both the nature of the relevant factors and the particulars of the crime in issue. He or she should thenconsider the extent to which the unique circumstances of the offender “bear on his or her culpability” (Ipeelee at para 83) in the specificcontext of the case at hand. As mandated by the Supreme Court, the search here is not for a cause-and-effect relationship but forcircumstances that cast light on the degree of the offender’s blameworthiness for the specific offence in issue.

It might be thatthe Gladue considerations impact the offender’s culpability a great deal, not at all, or only to some intermediate extent. [Emphasis in original] [64] Although it is often difficult to quantify the effect that Gladue considerations have on the determination of anappropriate sentence, sentencing judges are nonetheless expected to explain why those considerations affected the offender’s moralculpability or why they had no effect. See Bear at para 52.

When adequate reasons are given respecting why, or why not, Gladue factorsaffected moral culpability, “... whether or how that finding affected the sentence imposed are matters of judicial discretion that warrantappellate deference” [emphasis in original]. See R v Dillon, 2022 SKCA 17. (

c) Manslaughter and Other Sentencing Principles [65] The Criminal Code directs that the maximum penalty for committing manslaughter is imprisonment for life.There is no prescribed minimum. This range recognizes that the offence of manslaughter covers a broad spectrum of circumstances. Thisaccounts for the variable range of sentences that are imposed by courts across the country.

In R v LaBerge, 1995 ABCA 196, 165 AR375, the Alberta Court of Appeal commented that while there are common elements to all manslaughter cases - conduct which causedthe unlawful death of another but falls short of intention to kill - there are different degrees of moral culpability ranging from nearaccident at the one extreme to near murder at the other. At para. 6, the Court said this: 6 All unlawful act manslaughter cases have two common requirements conduct which has caused the death of another; and fault short ofintention to kill.

However, despite these common elements, the offence of unlawful act manslaughter covers a wide range of casesextending from those which may be classified as near accident at the one extreme and near murder at the other: ... . Different degrees ofmoral culpability attach to each along a continuum within that spectrum. It is precisely because a sentence for manslaughter can range:from a suspended sentence up to life imprisonment that the court must determine for sentencing purposes what rung on the moralculpability ladder the offender reached when he committed the prohibited act.

The purpose of this exercise is to ensure that the sentenceimposed fits the degree of moral fault of the offender for the harm done. [66] Similar comments were expressed by the Supreme Court of Canada in R v Creighton, (SCC),[1993] 3 SCR 3 at 48-49, respecting the need to tailor the sentence to suit the degree of moral fault of the offender: ... 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 [ (SCC),[1990] 2 SCR 633], at p. 647: The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted outwith regard to the level of moral blameworthiness of the offender. [67] The above comments highlight that the sentence is be proportionate to the gravity of the offence and the degreeof responsibility of the offender, that the sentence should be increased or reduced to account for aggravating and mitigatingcircumstances, that the sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed insimilar circumstances and that, as already discussed, all available sanctions, other than imprisonment, should be considered, with

particular attention to the circumstances of Indigenous offenders. Of course, all sentencing principles need to be considered. Those highlighted above are mentioned as particularly relevant in the context of this case. [ 68 ] While the Court has the duty to design a sentence for this offender for the offences he has been found to have committed, regard must be had to the jurisprudence that guides the analysis. In Saskatchewan the range of sentence for the offence of manslaughter has been expressed to be between 4 and 12 years.

See R v Morrison , 2022 SKQB 194 at para 77 [ Morrison ]; R v Moostoos , 2017 SKQB 12 at para 33 [ Moostoos ]; R v Jimmy , 2009 SKQB 124 at para 25 , 330 Sask R 306; and R v Hathway , 2008 SKQB 480 at para 36 , 327 Sask R 129. [ 69 ] However, the established general range should not be interpreted as an inflexible restraint.

In R v Keepness , 2010 SKCA 69 , 255 CCC (3d) 457 [ Keepness ], the Saskatchewan Court of Appeal rejected the notion that the 4 to 12 year range in manslaughter cases involving brutality and alcohol or drugs could only be deviated from in “the most unusual, exceptional or extenuating circumstances”, when it said, 29 ... This language may lead a judge to conclude incorrectly that the lower and upper limits of the range are more fixed than they are, or that they are to be departed from in only the rarest of cases.

No matter how one tries to delimit the type of case for which the range for manslaughter is being set, the description will remain nebulous and the circumstances variable.

Correct application of the principles of sentencing should mean there are fewer sentences falling outside the range for manslaughter than within it, but in the exercise of their discretion, judges may depart, without introducing disparity, where the circumstances of the case are beyond those customarily found at the lower or upper ends of the range. [ 70 ] In Keepness , the Court of Appeal applied the concept that fit sentences can occur outside the general range when it overturned a sentencing judge’s decision of 11-1/2 years for manslaughter and replaced it with a term of imprisonment of 15 years.

Seven-year concurrent sentences for aggravated assault convictions relating to other victims injured during the same event were left undisturbed. [ 71 ] Counsel for the Crown and defence have filed a number of decisions which they say are relevant to the parity principle, which directs that the sentence imposed should be similar to sentences imposed on similar offenders in similar circumstances. [ 72 ] The cases upon which the Crown relies to support its request for 16 years include the following: • Morrison involved two persons charged with first degree murder.

After a trial by judge and jury, Tristan Morrison was found guilty of first degree murder and Steven Veilleux was found guilty of manslaughter. Mr. Veilleux received a sentence of 18 years for manslaughter in connection with his role in the death of the victim. It was clear from the verdicts that the jury concluded that Mr. Morrison had fired the gun that killed the deceased while being assisted by Mr. Veilleux. Distinguishing factors from the present case included the involvement of multiple assailants, the use of a firearm, and the blind folding and kidnapping of the victim prior to him being killed.

Similarities include that it involved the settling of a score and a plot to cause

an act of violence in the victim’s home. Mr. Veilleux was similar in age to Mr. Larose, had a lengthy criminal record (but had not served time in a penitentiary) and Gladue factors were present. In particular, Mr. Veilleux experienced isolation from his family, spent time in a residential school, and had a traumatic childhood. Mr. Veilleux, as is the case with Mr. Larose, was negatively affected by substance abuse. Mr.

Veilleux was assessed as a High Risk to reoffend (in the 72 nd percentile). • In R v Yates, 2021 SKQB 247 , the offender was found guilty of manslaughter and was sentenced to 12 years less time served. Similarities to the present case include the fact that an armed robbery was planned (in this case, it was a de facto home invasion), though the killing of the victim was not. Distinguishing factors include the fact that Mr. Yates had a very insignificant criminal record. The offence did not take place in the victim’s residence and Mr.

Yates himself did not pull the trigger of the gun which ultimately caused the victim’s death (a co-accused did). However, a firearm was used in the commission of the offence and a vulnerable victim was targeted. There were multiple assailants. These latter factors are distinguishable aggravating factors. • In R v Hudnut-Pelletier, 2018 NBQB 110 [ Hudnut-Pelletier ] , two accused pled guilty to manslaughter after beating the victim to death in his own home. The motive was to rob the victim of money and a suspected stash of illegal drugs.

Similarities to the present case include the fact that the accused did not attend the victim’s home with a plan to kill him. However, the commission of the offence in the innocent victim’s home was found to be an aggravating factor. Like Mr. Larose, the offenders in Hudnut-Pelletier were negatively affected by substance abuse. Factors that distinguish the Hudnut-Pelletier case from the present case include the fact that the offenders pled guilty to the offence. Mr. Hudnut-Pelletier took full responsibility and expressed remorse for what happened. He had a limited criminal record. Mr.

Melanson, on the other hand, had a lengthy criminal record for violent assaults. Further, no weapon was used in the commission of the offence in Hudnut-Pelletier , though both offenders in that case were trained mixed martial arts fighters. An aggravating factor in Hudnut-Pelletier that is not present in Mr. Larose’s case relates to the manner in which the victim’s body was disposed of. The victim’s body was put into a hole in the ice in a river in the dead of winter and had seriously degraded by the time it was found.

The 15-year sentence was imposed as a result of a joint submission. • In R v Yaali, 2018 ONSC 3045 [ Yaali ] , the offender was sentenced to 15 years of imprisonment after pleading guilty to manslaughter using a firearm. The sentence was reduced to 13 years as a result of Mr. Yaali’s guilty plea. The offender attended a residence and shot a number of rounds into the doorway where the victim was standing. The victim was not the target of the attack. Similarities to the present case include the fact that the offender attended the victim’s residence with a weapon in response to insults and threats.

This was a planned and organized violent confrontation, though there was no intent to kill the victim. The victim was caught in the middle of a fight between the offender and another person. A distinguishing aggravating factor includes the fact that a firearm, being a handgun, was used in the commission of the offence. Distinguishing mitigating factors include that the offender in Yaali did not have a Canadian criminal record, though he did have a Florida conviction for importing cocaine. He expressed sorrow and utmost remorse for his actions. He acknowledged his failure to society, to his family and to himself.

He was only 23 at the time of sentencing, and rehabilitation was found to be a primary consideration. He pled guilty. • In R v McKay, 2018 BCSC 1549 , the offender pled guilty to manslaughter and was sentenced to 14 years. The offender’s

girlfriend accused the victim of rape. Upon learning of this alleged incident after being released from jail, the offender attended the victim’s residence armed with a hammer tacker (i.e., a nail gun). Mr. McKay repeatedly hit the victim over the head with the hammer tacker. Similarities to the present case include that the victim was attacked in his own residence. Further, both Mr. McKay and Mr. Larose committed the impugned offences, both of which involved handheld weapons, shortly after being released from jail, while still on conditions, in a purported effort to stand up for a spouse/partner. Mr.

Larose and Mr. McKay have similarly lengthy criminal records with few violent offences, and both suffered from substance abuse issues. However, unlike Mr. Larose, Mr. McKay pled guilty and expressed remorse. Mr. McKay was suffering from a myriad of mental health and addictions issues at the time of the offence, whereas the pre-sentence report in the present case indicates that Mr.

Larose had never been under the care of a mental health professional or diagnosed with a mental illness while in the community. • In R v Stonechild , 2017 SKQB 138 [ Stonechild ] , a jury found the offender guilty of manslaughter for causing the death of a vulnerable 84-year-old man. A sentence of 15 years was imposed. Mr. Stonechild caused the death of the victim by repeatedly stabbing him with a knife. The incident occurred after a significant amount of alcohol had been consumed by both the victim and offender. Like in the present case, the victim in Stonechild was stabbed to death in his own residence. Mr.

Stonechild also had a lengthy criminal record, which, unlike Mr. Larose, included multiple violent offences for which penitentiary terms had previously been imposed. Mr. Stonechild also had significant Gladue considerations. Both Mr. Stonechild and Mr. Larose were found guilty of manslaughter by a jury. There are distinguishing features between the Stonechild matter and the present case. Notably, the victim in Stonechild was elderly and vulnerable and was unable to defend himself.

Further, unlike in the present circumstances , the offence was spur of the moment and did not involve an attempt to exact some sort of revenge. The knife used in the attack belonged to the victim and was not brought to the scene of the crime by Mr. Stonechild. • In R v Deer , 2014 ABCA 88 , 572 AR 149 [ Deer ] , the Alberta Court of Appeal upheld a 16-year sentence for manslaughter. The victim was shot to death in his office by Mohamed Karim. Mr. Deer had given Mr. Karim a loaded handgun, purchased items for a disguise, and subsequently drove him to the victim’s workplace.

After the victim was shot and killed, Mr. Deer drove Mr. Karim to his house so he could shave and change his clothes and paid Mr. Karim before dropping him off at a bus depot. Mr. Deer was convicted of manslaughter following a trial. Like in the present case, Mr. Deer and Mr. Karim confronted the victim in order to extort, intimidate and/or assault him over a disagreement (i.e., they sought revenge). The act was not impulsive, and the Court concluded that the circumstances leading to the offence established that Mr. Deer knew that the act was likely to cause life-threatening injuries to the victim.

Distinguishing features include the fact that Mr. Deer did not personally kill the victim, though he was present at the time and played a key role. Further, Mr. Deer had the support of family, had been a long-time contributing member of society, and had an unrelated and very dated criminal record. However, a firearm was used in the commission of the offence in Deer , which was found to be an aggravating factor. • In Keepness , the Saskatchewan Court of Appeal overturned a sentence of 11½ years each for three offenders convicted of manslaughter and substituted a sentence of 15 years for each offender.

Two concurrent sentences of 7 years each for two aggravated assault convictions were left undisturbed. In that case, the victim was killed in the course of a planned home invasion perpetrated with an intent to steal drugs and money. Similarities to the present case include that the offences were committed in the victim’s residence, there was a plot to undertake

an act of violence, the offenders armed themselves with weapons in advance of entering the dwelling house, and there were multiple victims impacted by the offences (albeit to a more serious degree than in the present circumstances). Further, the offenders in Keepness similarly had significant Gladue factors and lengthy criminal records but had not previously been sentenced to a penitentiary term.

Distinguishing features include the fact that the offences in Keepness were gang-related, the offenders pled guilty to the offences in which they were charged, and there were multiple assailants, which was found to be an aggravating factor. [ 73 ] The cases relied upon by the defence to justify its position of 8 years include the following: • R v Watetch, 2019 SKQB 147 [ Watetch ] , involved a riot at the Saskatchewan Federal Penitentiary in Prince Albert. The offender pled guilty to manslaughter and was sentenced to 10 years of imprisonment.

The offender and others entered into the victim’s cell in the middle of a riot and attacked him. He was beaten and stabbed to death. The victim was not participating in the riot and there was no evidence of previous altercations between him and the offenders. Like Mr. Larose, the offender had Gladue factors. The offence in question involved stabbing the victim in a location that has been deemed to be callous and aggravating by the jurisprudence (penitentiary in Watetch versus a home in the present case).

Distinguishing features include the fact that the accused in Watetch had a significant criminal record including multiple violent offences, notably with one previous conviction for manslaughter. The manslaughter for which he was sentenced to 10 years was committed while serving a sentence for a previous manslaughter. Mr. Watetch pled guilty to the offence. • In R v Bellegarde, 2019 SKPC 22 [ Bellegarde ] , the offender pled guilty to manslaughter and was sentenced to 9 years. The circumstances in Bellegarde are likewise distinguishable. The case involved an altercation between domestic partners.

The offender followed the victim down a rural gravel road, where he repeatedly kicked the victim in the face. After leaving for a short time, Mr. Bellegarde went to check on the victim and could not find any signs of life. The victim died of blunt force trauma to the head. Similarities to the present case include the fact that the offender was on probation at the time of the offence. Further, the offender had a lengthy criminal record as does Mr. Larose. Gladue factors were present as they are here, and alcohol was involved in both cases.

That said, the offender in Bellegarde had two previous convictions for assaulting the victim, and other violent offences. Unlike Mr. Larose, the offender in Bellegarde pled guilty, expressed sincere remorse, and commenced rehabilitation effort while on remand. Specifically, he upgraded his education and sought psychiatric support. He had significant family support. He was assessed as a medium risk to reoffend. • In R v Kurek, 2018 SKQB 168 [ Kurek ] , the offender pled guilty to manslaughter and was sentenced to 6 years. Like Mr.

Larose, the offender in this case had significant Gladue factors as well as addictions issues. Both Ms. Kurek and Mr. Larose were subject to conditions at the time of the impugned offences (Ms. Kurek was the subject of a recognizance at the time of the offence for possession of cocaine but the charges were subsequently stayed). Further, the offences in both cases took place in the victim’s home and involved a knife. Distinguishing features include the fact that the manslaughter in Kurek was entirely spontaneous. The offender was drinking with the victim, in the victim’s home, with a number of other people.

Without provocation, she stood up and stabbed the victim in the back with a knife from the victim’s kitchen. The victim later succumbed to his injuries, though no one present believed that the injury was fatal and they did not seek help. Further, Ms. Kurek had significant mental health issues (with diagnosed mental disorders), was suffering

from withdrawal at the time of the offence and had no previous criminal record. She took full responsibility for the offence and expressed deep remorse to the family of the victim and her own family. She went to the police immediately and acknowledged what she had done. She was an active participant in programming and was eager to deal with her addictions. • In Moostoos , Ms. Moostoos was charged with second degree murder. A jury found her guilty of manslaughter. She was sentenced to 7 years.

Similarities between Moostoos and the present case include the fact that the victims were each killed in their respective homes. Stabbing was the cause of death in both cases. Alcohol and drugs were a factor in both cases, and Gladue factors were present. Both Ms. Moostoos and Mr. Larose were subject to conditions at the time of the offence. Distinguishing aggravating factors include the fact that the victim in Moostoos was found to be vulnerable. The offender watched the victim die, rather than calling for help.

However, the offender took responsibility for her actions, reported the crime, turned herself in to the police and was motivated to deal with her addictions. Another notable distinguishing feature that was found to be mitigating is that in Moostoos , the Court found that the offender had been provoked. Notably, the victim had previously sexually assaulted the offender on multiple occasions, along with other members of the offender’s family. Specifically, the Court noted that just prior to the stabbing, the victim “verbally abused, sexually assaulted and physically restrained Ms. Moostoos.

He told her – and she believed – that he gave her AIDs. She suggested those verbal and physical assaults when she was impaired, exhausted, in pain, and – as a result of what he had done to her, and what she had been told and believed about him – had reason to fear what might come next, and to believe that his claim that he gave her AIDS was true”. Further, the offender had a relatively minor criminal record with no significant propensity for violence. • In R v Walker, 2011 SKQB 273 , 380 Sask R 227 [ Walker ] , the offender was convicted by a jury of manslaughter and was sentenced to 8 years.

However, he had already served the equivalent of 6-1/2 years so the go-forward sentence was 18 months in custody. Again, the circumstances of the offence and the offender in Walker are distinguishable from the present circumstances. Walker involved a shooting death of the victim, who was the boyfriend of the offender’s daughter. The offender’s daughter (who was 16 at the time of the offence) had become embroiled in the 24-year-old victim’s “unfortunate life style choices”, which included the sale of drugs. The victim was shot five times at close range.

Other distinguishing features include the fact that the offender had no previous criminal record and had previously been a good, productive and contributing member of society. He had offered to plead guilty to manslaughter on two occasions prior to the trial and expressed remorse to the victim’s family. The Court concluded that given the particular circumstances of the crime, the offender did not require further deterrence, denunciation or rehabilitation.

Similar circumstances, however, include the fact that the offence took place in the victim’s home and resulted from a vendetta the offender held against the victim due to the manner in which the victim had treated or were treating family members of the offender. • In R v Whitehawk, 2010 SKCA 94 , 359 Sask R 105 [ Whitehawk ] , the Saskatchewan Court of Appeal overturned a sentence of 7 years for manslaughter and substituted a 10 year sentence, less credit for remand time served. The circumstances of Whitehawk are distinguishable from the present case.

In that case, the offender killed his two-and-a-half-month-old daughter by applying extreme force on different days. The victim’s injuries included fractures to her femur, left radius and ulna, and fractures to her ribs. Similar to Mr. Larose, the offender had an extensive criminal record with multiple previous convictions. However, some of the offender’s previous convictions were violent in nature. Mr. Whitehawk expressed remorse. • In R v F.(R.R.) , 2008 SKCA 52 , 310 Sask R 124 [ F.(R.R.) ], the offender entered a guilty plea to a charge of manslaughter.

He was sentenced by the trial judge to 2 years less a day, and probation of 2 years. The Saskatchewan Court of Appeal overturned the sentence and replaced it with a sentence of 6 years of imprisonment. The offender in F.(R.R.) had no criminal record at the time of the offence and was just shy of his 18 th birthday (though he consented to being sentenced as an adult and was sentenced as such). He pled guilty. A primary distinguishing feature in the present case relates to the circumstances of the offence. In F.(R.R.) , an altercation ensued between the victim and the accused.

A fistfight occurred, and the victim chased after the accused with a baseball bat. The accused ran inside his home, but shortly thereafter returned to the victim’s home with a knife. He ultimately stabbed the victim two to three times during a second altercation. There was no plan to exact revenge or to threaten the victim, as there was in the present case. Instead, the stabbing occurred during a physical altercation between the victim and offender.

Similarities to the present case include that both offences were perpetrated with a weapon, to wit, a knife, in the victim’s residence. • In R v Littlewolfe, 2002 SKCA 143 , 227 Sask R 245 , two offenders entered pleas of guilty to a charge of manslaughter and were sentenced to 10 years. The offenders appealed as to sentence. The Court of Appeal reduced the sentence for one offender to 8 years but upheld the 10 year sentence for the other offender. The two offenders beat the victim to death using a wooden board. Several civilians intervened but it was too late to save the victim.

Distinguishing features in relation to Mr. Littlewolfe, who was sentenced to 8 years, include the fact that he was found to have perhaps been led into an aggressive role by his older brother. Further, he had no criminal record and had been responsive to programming while on bail. • In R v Thorne, 2000 SKCA 131 , 199 Sask R 278 [ Thorne ] , the Saskatchewan Court of Appeal increased a sentence for manslaughter from 2½ years to 5 years.

Similar to the circumstances in the present case, the offender attended the victim’s house with a sinister motive, which was, in that case, to rob the occupants of the house of either drugs or cash or both. The attendance at the victim’s home was planned in advance and expected to be violent, as was the case here. More than one occupant of the home was injured in the assault. Distinguishing features include the fact that the offender was only 18 years old at the time of the offence and pled guilty to the offence. She was a single mother and was pregnant at the time of the crime. She had no criminal record. Ms.

Thorne did not directly cause the death of the victim. Instead, she participated in a ruse which resulted in two accomplices entering the victim’s home, beating him with a tire iron and ultimately stabbing him to death. A distinguishing aggravating factor is that there were multiple assailants in the Thorne robbery, which was perpetrated from a common criminal enterprise. [ 74 ] While the parity cases mentioned are useful and provide a framework, none are of sufficient similarity to be of significant assistance, although the analysis contained within them is undoubtedly helpful. (

d) Application of the Principles [ 75 ] It is now necessary to apply the above mentioned principles and the jurisprudence to the facts of this case and

the offender before the Court. [ 76 ] By way of mitigating circumstances, there is not much to be said. Mr. Larose has achieved a Grade XII education and did work for several years in the insulation business. He has the support of his wife and children and was described as a “good father”, even though his image as a father figure would have been tarnished by his substance abuse and criminality. Although he has been incarcerated, he has not done penitentiary time. Also, the evidence fell short of establishing murder. Although Mr.

Larose went to the house to cause harm to E.A., the evidence does not establish that he planned to murder either E.A. or Mr. Bossenberry (who Mr. Larose did not know was in the house until he got there). [ 77 ] There are many aggravating circumstances. The nature and quality of the act and the fact that the decision to cause harm was developed while in jail and acted upon virtually immediately after being placed on probation and released from custody points to high moral culpability. The altercation that gave rise to Mr. Larose’s anger was objectively minimal and dated. The verbal insult that aggravated Mr.

Larose predated the incident by several weeks. The incident was not a spur of the moment fight, as is often the case where a death ensues during an altercation, but resulted from a deliberate decision to go almost directly from jail to the home of E.A. to cause harm to him. [ 78 ] The death ensued in the course of what can be fairly characterized as a home invasion. Although the residence was a “drug house”, it was still the permanent residence of E.A. and the temporary residence of Mr. Bossenberry and his girlfriend, A.R. [ 79 ] After Mr.

Larose deceitfully gained entry into the Cameron Street residence and saw that there were others there, he could have easily abandoned his plan, if he so desired. Instead, his inability to control himself led him to bear spray the occupants. That action sparked the fight that led directly to the death of Mr. Bossenberry. [ 80 ] Although Mr. Bossenberry and Mr. Larose were roughly the same age, 32 and 40, respectively, were approximately the same size, and were both familiar with fisticuffs, Mr. Bossenberry was placed at a huge disadvantage because he was surprised, unarmed and had been doused with bear spray. Mr.

Larose, on the other hand, was prepared and armed with the bear spray and a knife. When things started to go in a direction that Mr. Larose did not like, he used the knife to kill the deceased. Mr. Larose cannot legitimately claim that he was in some way justified in stabbing Mr. Bossenberry, as he seems to imply, because he was losing the fight as there would have been no fight if Mr.

Larose had been able to exercise even a modicum of self-control. [ 81 ] As mentioned, the fact that he was placed on probation that very day and agreed to “keep the peace and be of good behaviour” and was freshly released from jail constitute aggravating circumstances. [ 82 ] The accused’s lengthy and uninterrupted criminal record, although not rife with violent offences, is also an aggravating circumstance. [ 83 ] It must not be forgotten that there were other victims impacted by Mr. Larose’s wrongful acts. E.A. and A.R. were bear sprayed and traumatized. [ 84 ] Mr.

Larose’s moral culpability is undoubtedly affected by Gladue factors. His childhood was troubled, and he came from a broken home. He moved around the country frequently and was ultimately placed in a residential school on two occasions. He started to abuse alcohol at a very young age and turned to criminality to feed his addictions. He was bullied, physically abused, sexually abused, the subject of racist remarks and experienced acute poverty. The Court can, and does, consider the disadvantages suffered by Mr. Larose because of colonization, intergenerational trauma, and a history of discrimination.

There is no question, based upon the information and evidence before the Court, that Mr. Larose’s background impacts his moral culpability. This is a tragic case, like so many others, in that the life of Mr. Bossenberry was needlessly cut short, and the life of Mr. Larose has been irrevocably damaged. [ 85 ] Notwithstanding the prevalence of Gladue factors, the sentence imposed must be determined on a case-by-case basis after considering all relevant considerations, including the background and circumstances of Mr. Larose.

The determination of the sentence must be holistic and designed to achieve a fit sentence considering all of the circumstances. The application of Gladue principles does not mean that other sentencing principles and objectives should be ignored. [ 86 ] In this case, the paramount sentencing objectives are denunciation and individual and general deterrence. Denunciation because manslaughter is a serious offence and must be treated as such by the courts. The sanctity of human life must be respected.

General deterrence because, whether in the drug world or not, society and those who might be inclined to exact revenge or retribution must be dissuaded from violence. Individual deterrence because it is apparent that Mr. Larose could not exercise enough self- control to lead a crime-free life for even two hours after he was released from jail. The message that he must get his impulses under control must be clearly delivered.

At the 98 th percentile on the risk to offend scale, one can only hope that appropriate programming while serving his sentence will provide him with the insight necessary to control his impulses when he is eventually released. [ 87 ] Taking into account all of those considerations, I am driven to the conclusion that a sentence of incarceration above the general range for manslaughter is required. The gravity of the offence of manslaughter is unquestionably objectively serious. The circumstances surrounding the commission of that offence, for the reasons already recounted, are also serious. Mr.

Larose’s degree of responsibility is on the high side. At a time when he should have been on his best behaviour -- freshly released from jail, on probation and experiencing a taste of freedom -- he chose to permit his negative proclivities to overwhelm self-restraint. This points to a higher level of moral culpability. [ 88 ] After having said that, however, I must also consider the degree, if any, that Mr. Larose’s moral culpability is affected by his Indigenous background and heritage. In my view it is a fair observation that Mr.

Larose’s personal circumstances together with the other historic and systemic factors, already recounted, place him in a somewhat different position than a non-Indigenous offender. The consideration of these factors, reduces, to some degree the level of his moral culpability. Accordingly, it is appropriate that there ought to be a reduction, albeit minimal in the circumstances, to what would have otherwise been the appropriate sentence. This is

because the serious and egregious nature of the offence committed displaces to a large degree the ability of the Court to lessen the term of incarceration while still giving proper emphasis to other sentencing objectives such as deterrence, denunciation and separation. [ 89 ] When one factors in the high degree of moral blameworthiness in the context of reduced moral culpability due to the presence of significant Gladue factor, I find that a fit sentence is 15 years. A sentence of that length is, in my view, proportionate to the gravity of the offence and Mr.

Larose’s culpability, even when the Gladue considerations are factored in. Further, such a sentence is similar to sentences imposed on similar offenders in similar circumstances. The decisions that I found to be most similar, overall, were Keepness , Stonechild , Morrison , Deer and Hudnut-Pelletier .

Having said that, I hasten to add that each of those cases had features that were similar to those in this case, but of course had considerable differences, which defies direct comparison. [ 90 ] Insofar as the related charges, assault with a weapon on A.R., assault with a weapon on E.A. and breach of probation, I am prepared to accede to the joint request made by the Crown and defence and impose a period of incarceration of one year on each count, concurrent to each other and concurrent to the manslaughter sentence. This is an appropriate disposition because it is in the ran

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