R v Parisian, 2018 MBCA 16

Citation: R v Parisian, 2018 MBCA 16 Date: 20180207 Docket: AR17-30-08827 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : HER MAJESTY THE qUEEN ) ) J. M. E. Unruh ) for the Appellant Respondent ) ) N. M. Cutler - and - ) for the Respondent ) joshua zedidiah parisian ) Appeal heard and ) Decision pronounced: ) February 7 , 2018 (Accused) Appellant ) BEARD JA (for the Court): I. THE ISSUES [ 1 ] The accused applied for leave to appeal and has appealed his sentence of 14 years’ incarceration for manslaughter under

section 236 (

b) of the Criminal Code and five years concurrent for aggravated assault under section 268(2) of the Criminal Code . At the conclusion of the hearing, we granted leave to appeal, granted the appeal and substituted a sentence of 11 years’ incarceration for the manslaughter and three years concurrent for the aggravated assault, less time in pre-sentence custody, with reasons to follow.

These are those reasons. [ 2 ] The accused raised only one ground of appeal, being that the trial judge erred by imposing a sentence that was harsh and excessive having regard to the circumstances of the offence and the circumstances and background of the offender. II. THE FACTS [ 3 ] The accused was charged with second degree murder and aggravated assault as a result of having stabbed two individuals, SC and AC, one of whom died as a result of his injuries. Following a trial by judge and jury, he was found not guilty of murder but guilty of manslaughter and aggravated assault.

The jury acquitted the accused of a further charge of assault with a weapon related to another individual. [ 4 ] The accused, AC and SC, together with several other people, had been out earlier and spent the end of the evening at the home of the accused’s partner’s mother, where they were sitting around a campfire in the backyard drinking beer. There had been a significant amount of alcohol consumed during the evening. AC made some insulting remarks to the accused, and the accused responded by hitting him. SC then challenged the accused by saying, “if you want to fight someone fight me”.

The accused grabbed a stick and followed SC to the street in front of the house. In the altercation, the accused struck SC with the stick, breaking his arm. [ 5 ] The accused then ran into the house, where he grabbed a knife. He went back outside and over to the driveway, where AC was about to get into his truck. The accused stabbed him twice in the back. According to the pathologist, the knife entered between AC’s ribs and, because of the significant force, one of the stabs punctured his left lung and heart, causing his death almost immediately. SC was returning to the house.

The accused came up after him and cut him under the arm and on his leg. [ 6 ] The accused left the scene, but he turned himself in to the police the next day.

[7] The accused testified at the trial to explain what, from his perspective, had happened, raising issues of accident, self-defence, provocation and intoxication. Given the jury conviction for manslaughter, the jury obviously did not accept the accused’sexplanation and his argument that the killing was either accidental or done in self-defence.

The rejection of the charge of second degreemurder meant that it rejected the Crown’s argument that the accused had the required intention for murder, but that could have been dueto finding provocation, intoxication or a combination of the two. [8] At the time of the offence, the accused was 25 years old. He was living with his partner and their two youngchildren, and he already had three children from an earlier relationship. He was working at a number of jobs to support the family.

Hewas, by all accounts, a hard worker, although he was hampered by the fact that he only had a Grade 8 or 9 education. [9] At the time of this offence, the accused had a record that included four prior assault convictions: one for assault andone for assault with a weapon as a youth; one for aggravated assault and another for assault with a weapon as an adult; and severalconvictions for failing to comply with various court orders. [10] According to the pre-sentence report, the accused’s mother is Aboriginal and his father is Caucasian. His mothersuffered from serious alcohol addiction.

As a result, the accused and his four older siblings were apprehended when the accused wasfour or five years old and placed in separate foster homes. His contact with his mother was sporadic, and she would often miss scheduledvisits. There was no indication of any contact with his father or his father’s family. [11] The accused was moved around several times between foster homes and group homes, suffering physical, emotional,mental and sexual abuse, before being placed in a supportive foster home where he spent several years.

As a teen, he had difficulty inschool, got involved with drugs and alcohol and flirted briefly with a gang. He met members of his biological family and decided that hewanted to reconnect. He was moved out of the foster home, after which he had a succession of other foster homes, group homes andperiods of time in custody. All of his brothers have had criminal involvement, as well. [12] Considering the accused’s record of violence, the pre-sentence report is relatively positive and cautiously optimistic.

Itsets out, in some detail, the many courses that the accused has taken while in custody, including getting his high school equivalencycertificate. He has obtained a food handler certificate that enables him to work in the institution to earn money, which he sends tosupport his children. He has connected with both his Aboriginal roots and a Bible study group, as well as attending the AlcoholicsAnonymous meetings. He has participated in a variety of courses and programs in an active and attentive way.

The pre-sentence reportwriter concluded that the accused was a medium risk to re-offend, the risk factor being his criminal history. She recommended that hewas a suitable candidate for community supervision, with conditions to complete counselling as recommended, abstain from alcohol andnon-prescription drugs and either maintain employment, attend school or take job training. [13] The accused filed several letters of support from both family and those with whom he has been involved at theinstitution. [14] What is not to be lost is the very devastating effect that the death of AC has had on his family.

His wife filed aheartbreaking letter describing how the loss of AC resulted in the breakdown of their immediate family. She could not handle this loss,which left her depressed and unable to function. She turned to alcohol and attempted suicide, which led to her three children beingapprehended. She sold her possessions and lost her vehicle and her house. Her daughter moved in with a boyfriend and had a baby at 14years old. The effects on AC’s family could not have been worse. III.

THE TRIAL JUDGE’S REASONS FOR SENTENCE [15] At the sentence hearing, the Crown was asking for a sentence of 15 years’ incarceration on the manslaughter and fiveyears concurrent on the aggravated assault, while the accused argued for five years or less on the manslaughter and two years or lessconcurrent on the aggravated assault. [16] The trial judge found that the words and taunts directed to the accused before the fight and stabbing, in thecircumstances, did not support a finding of provocation in the legal sense.

Rather, he found that the accused did not have the requisiteintention for murder as a result of his level of intoxication. [17] The trial judge noted that the charge of aggravated assault regarding SC was the result of two assaults, one with thestick and the other with the knife. [18] The trial judge reviewed the pre-sentence report, including the details of the accused’s family background (the Gladuefactors; see R v Gladue, (SCC), [1999] 1 SCR 688), the steps taken by the accused to improve himself, as well as theletters and reports filed on behalf of the accused and AC’s wife.

He next referred to the applicable sentencing principles andjurisprudence related to manslaughter sentences. He set out the aggravating and mitigating circumstances that led him to come to thesentence that he imposed.

Finally, he acknowledged that the accused had shown “some remorse.” [19] The trial judge stated that, in this case, the circumstances required that the paramount principles of sentencing werethose of denunciation and general and specific deterrence, with less weight being given to rehabilitation. [20] In reviewing the jurisprudence, the trial judge noted, in particular, the recommendation from the Alberta Court ofAppeal in R v LaBerge, 1995 ABCA 196, that, while there is a wide range of sentences for manslaughter, it is useful to determinewhether the offence at issue is closer to an accident or murder, which will be determined by the degree of moral culpability related to theoffence.

He found that the killing in this case was much closer to a murder, involving a high level of moral blameworthiness.

IV. STANDARD OF REVIEW [ 21 ] In R v Lacasse , 2015 SCC 64 , the Supreme Court of Canada reinforced the very high standard applicable on appellate review of a sentence, being that, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, which must have had a material effect on the sentence, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit (see para 41).

Demonstrably unfit was said to be equivalent to “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or a “substantial and marked departure” (at para 52). [ 22 ] Questions of law are reviewed on the standard of correctness, while questions of fact are reviewed on the standard of palpable and overriding error. (See, for example, R v DNS , 2016 MBCA 27 at para 32 .) [ 23 ] Wagner J (as he then was), for the majority in Lacasse , explained that a sentence review must be focussed on the fundamental principle of proportionality, which he explained as follows (at para 53): This inquiry [as to whether to intervene after reviewing the fitness of a sentence] must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code , which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.

A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (

a) and (

b) of the Criminal Code . V. ANALYSIS [ 24 ] While the accused raised a number of arguments alleging errors in the factual findings of the trial judge, we are not convinced that any meet the test of palpable and overriding error. In his testimony, the accused offered an alternative explanation of the events of that evening, but that was rejected by the jury when it found the accused guilty of manslaughter. Further, the trial judge did not accept the accused’s version of events.

The accused has not pointed to any palpable and overriding error on the part of the trial judge’s findings of fact. [ 25 ] There were some aspects of the facts that were not determined by the jury. To the extent that there must be further factual findings for sentencing purposes, the trial judge is mandated by section 724(2) (

b) of the Criminal Code to make those findings, provided that those findings respect the jury verdict. (See R v McLeod , 2016 MBCA 7 at para 15 .) The trial judge did not misapprehend the facts and his findings that the acquittal for murder was based on intoxication and not provocation and that the offence was closer to murder than an accident are reasonable and supported by the evidence. Further, they are not inconsistent with the jury’s findings. [ 26 ] We agree that the primary sentencing objectives are those of denunciation and both general and specific deterrence.

Those are met, in this case, by imposing a sentence of a significant period of incarceration. However, the analysis does not end there. The outstanding issue is whether the sentences that the trial judge imposed were demonstrably unfit. The trial judge did not explain the jurisprudence on which he relied to impose a sentence of 14 years’ incarceration, although he had earlier referred to the McLeod decision in another context. [ 27 ] As is frequently stated, the offence of manslaughter covers a wide range of criminal conduct that can attract sentences ranging from a suspended sentence to life in prison.

While the elements of the offence are the same, the degree of moral blameworthiness attached to the conduct can vary greatly, as can the other circumstances of the offence and those of the offender.

All of these variations make it difficult to compare offences and offenders when applying the principles of proportionality. [ 28 ] A useful starting point is to determine where, on a scale from low moral blameworthiness close to accidental death to high moral blameworthiness close to murder, the conduct under consideration falls. (See, for example, LaBerge at paras 6-9 ; and McLeod at paras 16-17 .) In this case, the trial judge found that the circumstances of the death were close to murder, and, as already stated, we are of the view that he did not err in making that finding. [ 29 ] In McLeod , the trial judge sentenced the accused to 15 years’ incarceration, based on moral culpability that was “not minimal” (at para 21) and extremely aggravating post-offence conduct.

The trial judge accepted, consistent with the jury verdict, that the accused killed the deceased by placing him in a choke hold while they were wrestling. Following the wrestling, the accused did nothing to assist the deceased but, rather, left him lying on the floor for approximately three hours. He then decided to dispose of the body, which he dismembered and discarded in various locations around the city. When contacted by the police, he denied any involvement in the killing, which position he maintained right up until giving his testimony at the trial.

By convicting him of manslaughter, the jury rejected his argument that the death was an accident. [ 30 ] The trial judge found that, on the facts of that case, a sentence of 11-13 years was appropriate for the killing and a further two to four years was appropriate for the aggravating post-offence conduct.

The sentence of 15 years’ incarceration was upheld on appeal. [ 31 ] While the accused’s conduct in causing AC’s death by stabbing him from behind in an area of the body where there is a risk of likely causing a life-threatening injury is high in terms of moral blameworthiness, there are other circumstances, besides the absence of gratuitous violence after the fatal stab wound, that differentiate this case from McLeod . [ 32 ] The trial judge found that McLeod showed no remorse for his role in either the offence or the post-offence conduct.

In the present case, the accused turned himself in to the police the next day and acknowledged his role in the killing. He has consistently expressed his remorse throughout the proceedings. While the trial judge stated that “[the accused] has shown some remorse”, that is, in our view, a significant understatement that does not adequately describe the high level of remorse that the accused expressed

immediately and maintained thereafter. [ 33 ] The accused has been in custody since these events and has dedicated himself to understanding and dealing with the root causes of his behaviour. The pre-sentence report explains in detail the accused’s very disadvantaged background, which led to his offending behaviour. He has taken all available steps to further his rehabilitation, both in terms of dealing with his underlying problems and furthering his education.

The probation officer’s assessment in the pre-sentence report that the accused is only a medium risk to re- offend, despite his record of four convictions for assault before the age of 25, is quite exceptional and speaks volumes about both his remorse and rehabilitation, given the efforts that he has undertaken since his arrest for these offences. [ 34 ] Before determining what would constitute a fit sentence, we must address the sentence for the aggravated assault conviction.

In arguing that the five-year sentence in this case was not demonstrably unfit, the Crown referred to this Court’s decision to uphold a five-year sentence for aggravated assault in R v Atkinson (RK et al) , 2014 MBCA 116 .

In fact, a review of the facts of that case, which are set out at R v Atkinson et al , 2014 MBQB 17 , supports a reduction of the sentence in this case. [ 35 ] Atkinson was one of four accused who were charged with assault causing bodily harm in the brutal beating of an innocent by-stander in a bar, who Atkinson described in his police statement as being “in the wrong place at the wrong time” ( 2014 MBQB 17 at para 57 ). There had been an earlier altercation involving some of the accused but not the by-stander.

Following that altercation, the four accused set upon the by-stander and beat him, using fists, boots and a baseball bat, in a beating that the trial judge described as “vicious and brutal” (at para 7). One of the accused also took action to discourage anyone from intervening to provide assistance to the by-stander. All of this, apparently, was caught on a video recording.

While badly beaten, the by-stander did not have any permanent injuries. [ 36 ] Atkinson received a sentence of five years’ incarceration, which was upheld on appeal, while the three co-accused received sentences of three years’, 30 months’ and nine months’ incarceration respectively. Atkinson, who was 54, had a very lengthy record including a conviction for manslaughter. While expressing remorse for his actions at his sentence hearing, he told the police, when making his statement, that he should have killed the victim and he should have crushed the victim’s skull.

Atkinson’s two sons were 32 and 31, while his son-in-law, Chartrand, was 41 at the time of the sentencing, and all, except Chartrand, had criminal records involving violence. [ 37 ] In this case, SC invited the accused out to the street to fight, so SC was not an innocent by-stander, particularly in relation to the incident involving the stick. Further, the accused is much younger than Atkinson, and also younger than the co-accused in Atkinson . Finally, the assaults in this case were of short duration and resulted in less serious injury than in Atkinson .

I recognize that the accused in this case was convicted of aggravated assault, which has a higher maximum penalty than assault causing bodily harm, but that does not change the comparison of the circumstances of the offences and offenders.

In our view, the circumstances of this case are closer to those of Atkinson’s co-accused than to those of Atkinson. [ 38 ] Given the accused’s significant Gladue factors and remorse, and his demonstrated steps towards rehabilitation, we are of the view that a sentence of five years’ incarceration for this aggravated assault is demonstrably unfit, and that a fit sentence would be one of three years’ incarceration. [ 39 ] As the two sentences are to be served concurrently, this additional offence must factor into the manslaughter sentence, so that this offence does not go unpunished. (See R v Harper (J) , 2016 MBCA 64 at paras 65-66 .) [ 40 ] Taking all of this into consideration, we are of the view that the appropriate sentence for the manslaughter conviction is one of 11 years’ incarceration.

While there may be a question as to whether a reduction of three years from a 14-year sentence is tinkering, we are not of that view. A period of three years is a significant period of time to spend in jail, and a three-year reduction in a jail sentence is a meaningful reduction. [ 41 ] For these reasons, leave is granted to appeal the sentence. The appeal is granted and the sentences are reduced from 14 to 11 years’ incarceration for the manslaughter conviction and from five to three years’ incarceration, concurrent, for the aggravated assault conviction.

From this will be deducted a credit for time spent in pre-sentence custody, which the trial judge had calculated, and the defence had agreed, as being 1,054 days. The ancillary orders will remain in effect. JA JA JA