R. v. Landry, 2016 NSCA 53

Nova Scotia Court of Appeal Citation: R. v. Landry , 2016 NSCA 53 Date: 20160622 Docket: CAC 436235 Registry: Halifax Between: Joseph James Landry Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Duncan R. Beveridge Appeal Heard: January 22, 2016, in Halifax, Nova Scotia Subject: Criminal law: sentence appeal for manslaughter; powers of a trial judge to determine facts in aggravation of sentence following a jury trial.

Summary: Crew members of a lobster boat killed a man poaching lobsters out of their traps. All faced murder charges. One of the crew eventually gave a statement to the police and became the Crown’s chief witness. His evidence was that the appellant was the chief architect and actor in a series of attacks against the deceased. He said the appellant shot the deceased, then tried to tow the deceased’s boat from the area. When that failed, the lobster boat rammed the deceased’s boat three times, destroying the much smaller craft. The appellant then used a gaff to hook the deceased as he was towed out to sea.

An anchor was tied to the deceased’s body. It was never recovered. The appellant gave numerous statements to the police. He admitted shooting at the deceased with the intent to cause death, and to ramming the deceased’s boat. After the last collision, he claimed he never saw the deceased again. The appellant was charged with murder. A jury convicted of manslaughter. The trial judge found that the manslaughter was a case of almost murder, and sentenced the appellant to 14 years’ imprisonment.

The appellant claimed that the trial judge erred in finding facts inconsistence with the jury’s verdict and in imposing an excessive sentence. Issues:

(1) Did the trial judge err in imposing sentence based on facts inconsistent with the jury’s verdict?

(2) Was the sentence otherwise excessive? Result: It is not the trial judge’s role to try to discern the reasoning path that led the jury to acquit on the appellant of murder and convict on the included offence of manslaughter. The trial judge was required to accept as proven all facts essential for the jury verdict, and then make factual findings based on the evidence at trial, so long as the facts are not inconsistent with the verdict. The trial judge’s findings of fact are not inconsistent with the jury’s verdict. Nor is the sentence imposed excessive. Leave to appeal is granted, but the appeal is dismissed.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 18 pages. Nova Scotia Court of Appeal Citation: R. v. Landry , 2016 NSCA 53 Date: 20160622 Docket: CAC 436235 Registry: Halifax Between: Joseph James Landry Appellant v.

Her Majesty the Queen Respondent Judges: Beveridge, Oland and Farrar, JJ.A. Appeal Heard: January 22, 2016, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Beveridge, J.A.; Oland and Farrar, JJ.A. concurring Counsel: Roger A. Burrill, for the appellant Timothy O’Leary, for the respondent Reasons for judgment: INTRODUCTION [ 1 ] The media dubbed this case “murder for lobster”. [ 2 ] Crew members of the Twin Maggies killed Philip Boudreau off the shores of Petit-de-Grat in Cape Breton. They suspected Mr.

Boudreau was poaching lobsters from their traps and then cutting the traps loose. [ 3 ] The Twin Maggies had three crew members—a captain and two deckhands. All were charged, at one time, with second degree murder. Craig Landry, one of the deckhands, became the Crown’s key witness. Instead of murder, he faced a charge of being accessory after the fact to murder. [ 4 ] The captain was Dwayne Samson, the son-in-law of the appellant. James Landry was the other deckhand. Mr.

Samson eventually pled guilty to manslaughter and was sentenced to 10 years’ incarceration. [ 5 ] James Landry was the only one who went to trial. The jury convicted him of manslaughter. The trial judge was the Honourable Chief Justice Joseph P. Kennedy of the Nova Scotia Supreme Court. The trial judge sentenced the appellant to 14 years’ incarceration.

His oral reasons are now reported ( 2015 NSSC 78 ). [ 6 ] The appellant seeks leave to appeal sentence on the basis that the trial judge erred in imposing sentence based on aggravating facts inconsistent with the jury’s verdict, and the sentence was otherwise excessive. [ 7 ] For the reasons set out below, I would grant leave to appeal, but dismiss the appeal. [ 8 ] To understand the appellant’s complaints, I will refer to some of the trial evidence and the trial judge’s reasons for sentence.

TRIAL EVIDENCE [ 9 ] There were two sources of direct evidence illuminating the homicide of Philip Boudreau: the testimony of Craig Landry and the appellant’s statements to the RCMP. Surprisingly, there was little disagreement between these sources about significant aspects of the initial attack on Philip Boudreau. The evidence about how the attack ended was markedly different. [ 10 ] The owners and crew of the Twin Maggies believed Philip Boudreau was stealing lobsters from their traps, and then cutting the traps from their buoys.

James Landry received information the evening of May 31, 2013 that Boudreau was bragging to others of his pilfering, and intent to do so the next day. [ 11 ] Early on June 1, 2013, the Twin Maggies was fishing off the waters of Petit-de-Grat Harbour. The crew noticed movement in the area of their traps in Mackerel Cove. They stopped fishing and steamed toward that area. [ 12 ] On the way, Dwayne Samson directed Craig Landry to load a 30-30 rifle.

As the Twin Maggies approached, the crew recognized that it was Philip Boudreau in his small 14 foot boat in the area of their traps. [ 13 ] James Landry fired a total of four shots at Philip Boudreau. All hit Boudreau’s boat. One appeared to hit Philip Boudreau in

the leg or hip. No more shots were fired. The gun was empty. James Landry said his shots were intended to “get rid of him, kill him or whatever”. When Philip Boudreau tried to flee, his motor stopped when lines from the severed lobster traps became entangled in his propeller. [ 14 ] The version of events, as between Craig and James Landry, then diverged. Craig Landry testified that after the gun was empty, James Landry directed Dwayne Samson to come around so he could use a gaff to pick up the bowline of Boudreau’s boat. The line was passed to Craig, who let it go.

The appellant told Dwayne Samson to come around again. James picked up the bowline once more. This time, he tied it to the Twin Maggie’s spar, and they started steaming out to sea. Philip Boudreau crawled forward and cut the line. [ 15 ] Craig Landry described that Dwayne Samson then, with the encouragement and urging of James Landry, rammed Boudreau’s boat. After the third impact, Philip Boudreau was in the water clinging to a red gas can, his boat swamped and heavily damaged. Craig Landry testified that James Landry used the gaff to snag Philip Boudreau.

After a short attempt to steam further out to sea, Philip freed himself from the gaff as the boat picked up speed. Craig said that James Landry again gaffed Philip Boudreau. Again he got off. Once more, James hooked him with the gaff. [ 16 ] After a short period of time, the Twin Maggies slowed to a stop. Philip Boudreau appeared lifeless, with white foam coming from his mouth.

Craig Landry testified that Dwayne Samson and James Landry then tied an anchor to Philip Boudreau and let it take his body to the seabed. [ 17 ] James Landry did not testify at trial, but in his statements introduced at trial, he said that after the gun was empty, he piloted the Twin Maggies to ram and even run over Boudreau’s much smaller boat. In a later statement, he told the police that Dwayne Samson was at the wheel, but he had told him what to do.

In any event, after the third impact with Boudreau’s boat, they never saw Philip Boudreau again. [ 18 ] The police did not review with James Landry any of the gaffing and anchor details described by Craig Landry. The police were unaware of them when they questioned the appellant. The police did believe Philip Boudreau had been moved by the Twin Maggies from the Mackerel Cove area. The police apparently had information, through an unnamed source, that the Twin Maggies was seen leaving Mackerel Cove area dragging something behind the vessel.

In addition, efforts to find the body in that area were unsuccessful. [ 19 ] The appellant adamantly denied to the police that they had towed Philip Boudreau anywhere. He insisted that after they had run over his boat for the third and last time, he did not see the deceased again. As to the location of Mr.

Boudreau’s body, the appellant told the police that he hoped they did not find his body saying: “let the crabs eat him”; and he prayed that the police would not find him as “he don’t deserve a mass”. [ 20 ] Circumstantial evidence tended to confirm the testimony of Craig Landry that there had been an attempt to tow Philip Boudreau’s boat away from Mackerel Cove and that Philip Boudreau was removed from that area. [ 21 ] Most boats have bowlines. Philip Boudreau’s boat had one. It was orange.

When the swamped boat was recovered from Mackerel Cove, there was uncontradicted evidence that the orange bowline had been cut. [ 22 ] The boat, its motor, anchor and red gas can were all recovered in the area of Mackerel Cove, along with Philip Boudreau’s hat and rubber boots. An experienced dive team, searching in ideal conditions with phenomenal visibility, could not find Philip Boudreau’s body in or around Mackerel Cove. According to a Crown expert, if Mr. Boudreau drowned in that area, he would be there. Logic dictated that he had been moved.

However, despite further extensive searches in water depths and possible sites identified by Craig Landry’s reenactment, Philip Boudreau’s body was never recovered. POSITIONS OF THE PARTIES AT TRIAL [ 23 ] The Crown’s position was straightforward—the appellant did acts that, both directly and as an aider and abetter, unlawfully caused the death of Philip Boudreau. Not only could the jury easily infer a murderous intent required by s. 229(1) (

a) of the Criminal Code , the appellant admitted numerous times in his police statements that he wanted to, and was trying to, kill Philip Boudreau. [ 24 ] The defence urged the jury to find that Craig Landry had downplayed his actual role in the events. They should not believe his evidence (or at least find that it did not meet the standard of proof beyond a reasonable doubt), as he was motivated by a desire to avoid being prosecuted for murder.

In particular, they should not accept Craig’s claim that the appellant had used a gaff to drag the deceased out to sea, and, in the process, drowned him, and then participated in weighting the deceased’s body with an anchor to ensure the body would never be recovered. [ 25 ] The defence also argued that the appellant had exaggerated his role. In other words, he said incriminating things to the police that were not true in an effort to accept blame for Philip Boudreau’s death in order to protect the other, much younger, crew members.

REASONS FOR SENTENCE [ 26 ] Both parties filed written and made oral submissions as to sentence. The Crown acknowledged the very favourable Pre- Sentence Report. The appellant was then 67 years old and had never been in trouble with the law. He had a good reputation in the community. The only negative aspect was the appellant’s lack of remorse for what had happened to the deceased. [ 27 ] The Crown urged the trial judge to sentence the appellant based on Craig Landry’s version of events. This put the gravity of the offence, and the appellant’s moral blameworthiness, at a very high level.

The Crown recommended a sentence of between 12–16 years’ incarceration, less pre-sentence custody, and an order delaying parole. [ 28 ] The defence argued that the jury heard evidence of three unlawful acts, any one or subset could have caused or substantially contributed to Philip Boudreau’s death: the shots by the appellant, one of which struck the deceased in the leg or hip; the virtual destruction of the deceased’s boat and leaving the deceased in the water, wounded and without aid; the gaffing and towing of the

deceased out to sea. [29] Counsel urged that the jury could not have believed Craig Landry’s evidence about the gaffing and subsequent use of ananchor. Had they done so, they would have convicted him of murder, not manslaughter. The range for manslaughter, absent unusualcircumstances, is 4–10 years’ incarceration, and the appropriate sentence was seven years less remand credit. [30] The trial judge acknowledged that it was impossible to know: how the jury reached the verdict of manslaughter; how theyassessed credibility; or what facts they found proven beyond a reasonable doubt.

The judge therefore directed himself that he mustconsider the evidence and make his own findings of fact consistent with the evidence, but that his findings must not be inconsistent withthe jury's verdict. [31] The trial judge then made numerous findings of fact. Many are not controversial. In essence, he found that the appellantcaused Philip Boudreau’s death on the waters off Petit-de-Grat, Nova Scotia. The appellant believed Boudreau was interfering with theirtraps. He fired four shots at the deceased, one of which struck him in the leg. Boudreau tried to get away, but his boat became disabled.

The appellant grabbed the deceased’s bowline. When it was tied to the Twin Maggie’s spar, the deceased cut it. The Twin Maggiesthen rammed the deceased’s boat three times, resulting in Philip Boudreau clinging to his red gas can. Now for the controversialfindings. [32] The trial judge found that the appellant repeatedly gaffed the deceased to drag him out to sea, but the judge declined to take intoaccount the evidence of the use of an anchor by Dwayne Samson and the appellant. He said the following: [11] I do find for sentencing purposes, and I want to make clear, I find that Mr.

Joseph James Landry then gaffed Philip Boudreauhooking him with a gaff as he lay in the water and the Twin Maggies again headed out to sea this time dragging the person, dragging thebody of Philip Boudreau in the water along side. I am satisfied that the jury could and did accept the gaffing for purposes of determiningmanslaughter in this matter. [12] Philip Boudreau is gaffed by Joseph James Landry, he is being pulled out to sea along side the Twin Maggies, he slips off of thatgaff but the Twin Maggies comes around and Mr.

Joseph James Landry gaffs him again, a second time, and they continue to proceed outto sea, continue to drag Mr. Boudreau along side. At this point Mr. Boudreau comes out of his sweater that he had been wearing andagain escapes the gaff. Evidence from Craig Landry that he is still able to tread water at this point. Joseph James Landry gaffs him athird time and the outward journey continues.

The Twin Maggies finally comes to a stop and Craig Landry testified that when he lookedover the starboard side he sees Philip Boudreau, at this point he is naked from the waist down, he is not struggling, a white foam iscoming from his mouth and he rolls over face down in the water. [13] I do not consider the evidence of the tying to the anchor for purposes of determining sentencing in this matter because I do notknow how the jury treated that evidence. It is possible, as Mr.

Craggs says, that they disregarded it or I suppose it is possible that thejury believed that Philip Boudreau was dead at that point and that the tying of the anchor to the body was not what caused his death. Iwant to make it clear that I stop at the point that he is gaffed for the third time and he is lying face down in the water for purposes ofsentencing. [33] The trial judge took into account the impact of the offence on the family of the deceased and on the community. He stressedthat the actions of the appellant were an affront to the rule of law.

The appellant had caught the deceased in the act of stealing theirlobsters and damaging their traps. There were numerous ways of responding. It was not, as the appellant claimed in his PSR, merely adesire to scare Philip Boudreau. The sustained attack, that ended with death, was at the almost murder end of the scale in the sentencingrange for manslaughter: [24] He says in his pre-sentence report that he wanted to scare Boudreau, scare is the word that he used. When Philip Boudreau was inthat water begging for his life as I find that he was, "please James don't shoot me, I didn't steal your lobsters".

When he was begging forhis life, when he was in that water hanging onto that gas can for floatation, as I find that he was, I suggest that most objective peoplewould conclude that Joseph James Landry had succeeded in scaring Philip Boudreau. There was much more than scaring going on thatmorning. This wasn't about scaring, scaring was long past.

I consider the sustained attack that resulted in the death of Philip Boudreau tobe at the "almost murder" extreme of the sentencing range in manslaughter. [34] After considering the relevant principles of sentencing, the circumstances of the offence, and those of the appellant, hesentenced the appellant to 14 years’ incarceration less 901 days remand credit. STANDARD OF REVIEW [35] Before turning to the appellant’s complaints of error, it is appropriate to recognize than an appellate court is not at liberty toreassess the issues that faced a trial judge and substitute its own view as to the appropriate outcome.

Sometimes an appellate court maywell conclude that it would not have arrived at a particular result, but must defer to the trial court. The level of deference is convenientlyreferred to as the standard of review. [36] The standard of review is different for the two putative errors advanced by the appellant. A judge must correctly identify andapply the relevant legal principles in arriving at sentence. An appellate court is free to substitute its view of the correct legal principles.

Furthermore, if a trial judge errs in law or principle, deference dissipates in relation to the discretionary decision as to sentence. Theappellate court is free to arrive at the appropriate sentence (see R. v. Hawkins, 2011 NSCA 7 at para. 43; R. v. Bernard, 2011 NSCA 53;R. v. Brunet, 2010 ONCA 781; R. v. MacDonald, 2009 MBCA 36; R. v. Provost, 2006 NLCA 30; R. v. Rezaie (1996), (ON CA), 112 C.C.C. (3d) 97 (Ont. C.A.); and R. v. Willis, 2013 NSCA 78). [37] But, as the Supreme Court of Canada recently emphasized in R. v. Lacasse, 2015 SCC 64, the legal error must have been onethat impacted sentence.

[38] Absent legal error that had an impact on the quantum or type of sentence imposed, an appellate court must defer to the sentenceimposed at trial. It can only intervene if it concludes that the sentence is unfit as being manifestly excessive or inadequate (see R. v.Eisan, 2015 NSCA 65 at paras. 25-26). FINDING FACTS INCONSISTENT WITH THE VERDICT [39] The parties agree on the applicable principles. It is the outcome of the application of those principles that divide them. Firstthe principles. [40] The leading cases from the Supreme Court of Canada are R. v.

Brown, (SCC), [1991] 2 S.C.R. 518 and R. v.Ferguson, 2008 SCC 6. [41] In Brown, a jury acquitted the appellant of dangerous driving causing death and bodily harm, but convicted him of dangerousdriving, simpliciter. The trial judge felt that it was indisputable that the consequences of the dangerous driving were death and bodilyharm. He sentenced the appellant to 12 months’ imprisonment.

The Saskatchewan Court of Appeal divided. [42] On further appeal to the Supreme Court of Canada, Stevenson J., for the unanimous Court, adopted the English and Australianauthorities that held where the factual implications of a jury’s verdict are ambiguous, the trial judge should not attempt to follow thelogic the jury might have applied.

Instead, the trial judge must come to his or her own independent determination of the relevant facts,but, in doing so, is bound by the express and implied factual implications of the jury’s verdict (para. 15), keeping in mind that disputedfacts relied on by the Crown in aggravation of sentence must be established beyond a reasonable doubt (para. 12). [43] In Brown, there was no ambiguity. The jury negated causation. The trial judge and all subsequent courts were bound by thatfinding.

Sentence was accordingly reduced to six months’ imprisonment, the disposition selected by Tallis J.A., in dissent, in theSaskatchewan Court of Appeal. [44] R. v. Ferguson was decided after Parliament repealed

Part XXIII of the Criminal Code, R.S.C. 1985, c. C-34“PUNISHMENTS, FINES, FORFEITURES, COSTS AND RESTITUTION OF PROPERTY”, and replaced it with a new

Part XXIIIentitled “SENTENCING” (S.C. 1995, c. 22). The new

Part XXIII provided clarity and structure while codifying much of the commonlaw sentencing principles. [45] The new

Part XXIII also codified the process and the powers of a trial judge to resolve disputes over facts relevant to impositionof an appropriate sentence (see: ss. 723 and 724).

Section 724 has both general provisions and ones that are specific to a trial by judgeand jury. The common law requirement to accept the express and implied facts found by the jury and the power to find other relevantfacts disclosed by the trial evidence were codified. The

section reads as follows: 724

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedingsand any facts agreed on by the prosecutor and the offender.

(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by eitherparty with respect to that fact.

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (

a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence wasadduced at the trial; (

b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (

c) either party may cross-examine any witness called by the other party; (

d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying onit in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous convictionby the offender. [Emphasis added] [46] In Ferguson, an RCMP officer shot and killed a detainee. The officer claimed his acts were justified by self-defence and, in anyevent, he did not intend to murder the victim. Tried for murder, the jury convicted him of manslaughter. The accused asked the judge todeclare that the four year mandatory minimum for manslaughter committed with a firearm would be grossly disproportionate, and henceresult in cruel and unusual punishment.

The trial judge took a view of the facts that not only did the appellant not intend to murder thevictim, but that the appellant’s first shot was in self-defence; and the second shot that caused death was done instinctively as a result ofhis training, as opposed to a shot fired in anger. [47] The Supreme Court of Canada confirmed that the trial judge erred. As to the principles, McLachlin C.J., writing for the Court,explained: [17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and impliedfactual implications of the jury's verdict": R. v.

Brown, (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge "shall

accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must notaccept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), (MB CA),95 C.C.C. (3d) 443 (Man. C.A.). [18] Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow thelogical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994),1994 ABCA 402 , 162 A.R. 117 (C.A.).

In so doing, the sentencing judge "may find any other relevant fact that was disclosedby evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge mustbe convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencingjudge must be persuaded on a balance of probabilities: (ss. 724(3)(

d) and 724(3)(e); see also R. v. Gardiner, (SCC),[1982] 2 S.C.R. 368; R. v. Lawrence (1987), (ON SC), 58 C.R. (3d) 71 (Ont. H.C.)). It follows from the purpose ofthe exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case athand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. [48] Both before and after the 1996 Criminal Code amendments and the decision of the Supreme Court of Canada in R. v.

Ferguson,the law was fairly clear: following a jury verdict, an accused is not entitled to be sentenced according to the most lenient view of thecircumstances of the offence consistent with the jury verdict. A trial judge must determine the facts for the purpose of imposingsentence guided by two fundamental principles: a trial judge must be satisfied that the evidence establishes aggravating facts beyond areasonable doubt, and the facts must not be inconsistent with the jury’s verdict (in addition to Brown and Ferguson, see: R. v. Gauthier(1996), 78 B.C.A.C. 85 at paras. 23-24; R. v. Englehart, [1998] N.B.J.

No. 150 (C.A.); R. v. Roncaioli, 2011 ONCA 378 at paras. 58-61). [49] I would distill the rules for a court to follow as: 1. The sentencing judge shall accept as proven all facts, express or implied, that are essential for the jury’s guilty verdict. 2. When the jury finding is ambiguous, the sentencing judge should not attempt to follow the logic of the jury. Instead, he orshe must make their own independent determination as to the relevant facts. 3. The sentencing judge should only find those facts necessary to permit the proper sentence to be imposed. 4.

The sentencing judge may not find as fact things that were rejected by the jury’s verdict. 5. For any aggravating fact, the sentencing judge must be satisfied that the evidence is sufficiently cogent to enable her to findit proved beyond a reasonable doubt. [50] The judge here was aware of these principles. He referred to R. v. Brown and R. v. Ferguson. Did he err in applying them? The appellant says he did. His factum puts it this way: 40. At the very least, the sentencing judge erred by accepting facts that included a gaffing of the deceased and dragging him out to sea.

These aggravating facts are simply inconsistent with the verdict of manslaughter. They are only consistent with a 2nd degree murderverdict – rejected by the jury. 41. The defence theory was consistent throughout: that is, Craig Landry’s testimony about the gaffing and dragging was fabricated. The jury had to reject this testimony, or had to be left in reasonable doubt about it, in order for the manslaughter verdict to be reached. [51] In other words, the judge violated what I have enumerated as the fourth rule set out above—the gaffing and dragging are onlyconsistent with murder.

I am unable to accept this proposition. [52] If the task of the sentencing judge were to try to divine the reasoning that led the jury to acquit the appellant of murder andconvict on the lesser and included offence of manslaughter, the appellant’s proposition is logically attractive. It would fit.

But that is notthe sentencing judge’s role, nor ours. [53] The manslaughter verdict dictates that the jury were satisfied beyond a reasonable doubt that the appellant caused (or was aparty to Dwayne Samson causing) Philip Boudreau’s death, but they were not satisfied that he had the intent to commit murder defined ins. 229 (

a) of the Criminal Code, or knew that Dwayne Samson had that intent at the time he was a party to

an act or acts that causeddeath. [54] Rejection of Craig Landry’s evidence of the gaffing and dragging is not the only path to manslaughter. The jury could wellhave had a reasonable doubt that none of the shots fired amounted to a significant contribution to death.

Similarly, that the initialattempts to tow Philip Boudreau’s boat did not suffice, nor the ramming of it by the Twin Maggies. [55] The jury could have concluded that the appellant caused the victim’s death by drowning through the gaffing and towing by theTwin Maggies, but at the time of doing those acts, he did not intend to kill or cause bodily harm that he knew was likely to cause deathand was reckless whether death ensued. [56] The appellant would be on solid ground if the evidence was different.

For example, if Craig Landry had described that, afterthe last towing incident, Philip Boudreau was still alive and the appellant and Dwayne Samson tied an anchor to him, and sent him tocertain death at the bottom of the ocean, a verdict of manslaughter would mandate that the jury did not accept the use of an anchor on astill viable Philip Boudreau. [57] However, that was not the case. The only source evidence of the gaffing and towing of Philip Boudreau came from CraigLandry. There is no need to repeat all of it. What is key is that, after the Twin Maggies stopped, white foam was coming out thevictim’s mouth.

He was motionless. His body came off the gaff, and it simply rolled over, face down. There is not a scintilla of

evidence that Philip Boudreau was alive when the anchor was deployed. [58] The appellant does not suggest that the bare finding of the jury was not ambiguous. Nor does he complain that the trial judge’sfactual findings are not supported by the evidence or the judge otherwise erred in law in making the disputed factual findings.

It is clearthat there was ample evidence to permit the trial judge to find proven beyond a reasonable doubt the aggravating facts he relied upon inarriving at what he considered to be a fit sentence. [59] The trial judge, in imposing sentence, instructed himself that he would not consider the anchor evidence “because he did notknow how the jury treated that evidence” (quoted above at para. 32). Uncertainty about the jury’s reasoning is irrelevant. Trying todiscern the thought process of the jury is exactly what Brown and Ferguson forbid.

Perhaps the trial judge thought that making furtherfactual findings about what happened to the deceased’s body were unnecessary for a proper determination of the sentence to be imposed. If so, any error he committed did not prejudice the appellant. [60] I see no reversible error by the trial judge in making the necessary factual findings, including those in aggravation of sentence. Iwould not give effect to this ground of appeal. IS THE SENTENCE EXCESSIVE? [61] As described earlier, an appellate court is empowered to consider the fitness of sentences that have been imposed on offenders.

However, deference is owed to the trial court’s delicate balancing of factors that properly influence the determination of sentence. [62] To be unfit, the sentence under appeal must be one that is unreasonable in the sense that it is inappropriate as falling outside theacceptable range. There is not a "single appropriate sentence for a similar offender and a similar crime" (R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500 at para. 92). Furthermore, a sentence that falls outside the usual range can nevertheless be upheld if thatdeparture is in accord with the principles and objectives of sentencing (R. v.

Nasogaluak, 2010 SCC 6 at para. 44). [63] The appellant argues that 14 years’ incarceration is outside the acceptable range of sentence, and asks this Court to reduce it toone of 10 year’s incarceration. [64] The range of sentence for manslaughter is necessarily broad. The offence covers unlawful acts causing death that are nearaccident to ones that are “near murder”.

It also covers conduct that is murder, but is reduced to manslaughter by the statutory defence ofprovocation. [65] For most cases of manslaughter in Nova Scotia where the circumstances are not near accident, sentences usually range between4 and 10 years’ incarceration. But that does not mean a higher sentence is outside the acceptable range. [66] In R. v. Lawrence (1999), 172 N.S.R. (2d) 375, 1999 NSCA 41, the offender was charged with first degree murder, but the juryconvicted him of manslaughter. The offender’s pride had been hurt.

He persisted in confronting the victim with a firearm, and shot atthe deceased seven or eight times. The trial judge sentenced the offender to the equivalent of 15 years’ incarceration. [67] On appeal, the offender argued that the sentence was excessive as being outside the 4 to 10 year range. This proposition wasrejected. Cromwell J.A., as he then was, writing for the Court reasoned: [14] In my opinion, there is not a 4 to 10 year "range" for manslaughter if the word "range" is used to suggest that manslaughtersentences ought generally to fall within those limits.

Cases from this and other courts of appeal emphasize that manslaughter is an offencethat may be committed in an exceptionally wide variety of circumstances and for which the legal limits of possible sentences are verygreat: see, e.g. R. v. MacPhee (1977), 20 N.S.R. (2d) 520; R. v. McNeil (J.B.) (1998), (NS CA), 168 N.S.R. (2d) 59.These factors combine to make it unusually difficult to establish any benchmark or range of fit sentences for such offences: see R. v.Selig [1994] N.S.J. 436 (C.A.) at para 13. As Kelly, J. said in R. v. Smith, [1986] N.S.J.

No. 424, this Court has observed that the greatmajority of cases in fact receive sentences between four and ten years, but the Court has not held that manslaughter sentences should berestricted to or ought to fall within that range. The Court has, for example, upheld sentences of 20 years and 15 years respectively in R. v.Julian (1974), (NS CA), 6 N.S.R. (2d) 504 (C.A.) and R. v.

Gregor (1953), (NS CA), 31 M.P.R. 99.I do not accept the appellant's argument that 10 years sets the upper limit, or that the period of between 4 to 10 years defines theacceptable range for manslaughter sentences. [15] While previous sentencing decisions here and elsewhere are helpful in considering the question of fitness, the principal focus onappeal must be whether this sentence, for this offender and for this offence, is unreasonable. While sentences greater than 10 yearsconstitute a small component of the total of all sentences imposed for manslaughter, there are numerous examples of suchsentences: see, e.g.

R. v. Nowacki, [1998] B.C.J. No 481 (C.A.); R. v. Tates, [1992] M.J. No 507; R. v. Demontigny (1993), 59 Q.A.C.176 (C.A.); R. v. Lemay (1998), (QC CA), 127 C.C.C. (3d) 528 (Qc C.A.) and the cases reviewed therein at 537 andff; R. v. Gregor, supra; R. v. Julian, supra. [Emphasis added] [68] These principles were affirmed in R. v. Henry, 2002 NSCA 33. The Crown appealed from imprisonment of two years’ less aday to be served by way of a conditional sentence order. The offender had observed a man assaulting a young woman. He intervenedand stopped the assault. The victim left. The offender followed.

He tapped the victim on the shoulder. When he turned, the offenderpunched him once in the jaw. The blow caused the victim to fall. He died when his head struck the sidewalk. [69] The appeal was allowed and a sentence of four years’ incarceration imposed. With respect to the principles to be applied,Roscoe J.A., for the Court, wrote: [19] A significant distinguishing factor between cases where a low or non-penitentiary term is appropriate and those where a lengthysentence is imposed for manslaughter is the moral blameworthiness or fault of the offender (Creighton, supra). The court, while of

course giving due weight to all the principles of sentencing must assess the extent of moral blameworthiness in a particular case, and should consider where on the spectrum, from almost accident to almost murder, the particular offence falls. Obviously, the nearly equivalent to murder offences will, in general, attract a sentence higher than the majority , for example Julian , supra , and those closer to an accidental killing will generally fall below the average… [Emphasis added] [ 70 ] The appellant does not suggest that the trial judge committed any other error in law or principle.

Simply that a sentence of 14 years’ incarceration is manifestly excessive. [ 71 ] With respect, I am unable to agree. The trial judge found that this manslaughter offence was nearly the equivalent to murder. The jurisprudence in Nova Scotia has recognized that where the circumstances of the manslaughter are nearly equivalent to murder, a sentence higher than the majority may well be warranted. [ 72 ] This is in keeping with many of the authorities from across Canada. In R. v.

Wharry , 2008 ABCA 293 , a sentence of 12 years’ incarceration was upheld on appeal for a young, deeply remorseful man who had fired a gun blindly at a group. [ 73 ] In R. v. Karim , 2014 ABCA 88 , a 59-year-old businessman provided a handgun to an accomplice to intimidate or extort the victim over a contract dispute. The jury acquitted of first and second degree murder, but convicted him of manslaughter. He was sentenced to 16 years’ incarceration less remand credit. The majority dismissed the appeal. The dissenting justice would have reduced the sentence to one of 14 years. [ 74 ] In R. v.

Ahnert , 2014 BCCA 212 , the offender pled guilty to manslaughter. Along with a co-accused, he administered a vicious and prolonged beating on an older man that caused his death. The trial judge imposed an effective sentence of 18 years’ incarceration. Despite the offender’s long and serious criminal record, he had never been sentenced to more than any period of incarceration exceeding one year. Groberman J.A., for the Court, wrote: [39] The backgrounds of the various cases cited by Crown and defence are diverse.

In my view, they support the proposition that while most manslaughter convictions will result in sentences of less than 14 years, particularly egregious cases will call for sentences longer than that. I am not persuaded by Mr. Ahnert's argument that it is necessary to identify a particular class of aggravating circumstances before imposing a longer sentence.

That approach strikes me as mechanistic, and not in keeping with the sentencing principles set out in the Criminal Code . [ 75 ] The appellant points to the treatment of his accomplice, Dwayne Samson, in support of his request to have this Court reduce his sentence to one of 10 years’ incarceration. Mr. Samson pled guilty to manslaughter. On September 22, 2015, The Honourable Justice Simon J. MacDonald sentenced Mr. Samson to 10 years’ incarceration. This decision is unreported. [ 76 ] The appellant held up Samson’s ten year sentence as demonstrating the unwarranted harshness of his sentence. In R. v.

Samson , the parties filed an Agreed Statement of Facts for the purpose of sentencing. That document recited the facts of the shooting, the gaffing of the bowline, the ramming of Philip Boudreau’s boat, the repeated gaffing of the victim as he was being towed; when the Twin Maggies stopped, Mr. Boudreau’s body was lifeless. No mention was made of the use of the anchor.

In this respect, except for the use of an anchor, it reflected the testimony of Craig Landry. [ 77 ] The appellant’s argument is this: in his case, the jury rejected the aggravating facts described by Craig Landry of the initial attempts to tow and of the gaffing of the deceased. Hence, the appellant’s sentence is excessive when compared to that of Dwayne Samson. In his factum, he writes: 105. But most importantly, Mr. Samson admitted to facts that could easily be defined as “near-murder”. In fact, and in accordance with the position presented above, the appellant says that Mr.

Samson admitted to a version of facts that was necessarily rejected by the jury in the case at bar. 106. The appellant should not be subject to a sentence lengthier than Mr. Samson. If anything, in this context, it would be reasonable to suggest that the jury’s verdict rendered the appellant’s behaviour less culpable than Mr. Sampson such that a sentence of less than ten (10) years is entirely reasonable. 107. It is acknowledged, however, that shooting and swamping someone on the open water requires a significant denunciatory sentence by the courts.

This action, however, in all fairness, also demands a sentence commensurate with the proven facts and in accordance with the existent case law. A ten (10) year jail sentence meets these requirements. [ 78 ] I have found no error in the trial judge’s finding of facts that the manslaughter conviction for the appellant was “near murder”. The jury did not necessarily reject those facts. Still, one might wonder at the discrepancy between the sentence Mr.

Samson received of 10 years’ incarceration and the appellant’s of 14 years’. [ 79 ] After all, the law mandates that a court shall take into account that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(e)). The offence was the same for Messrs. Landry and Samson, as were the basic circumstances. Justice MacDonald was well aware of the 14 years’ incarceration imposed on the appellant. Yet he imposed a lesser, but still significant, sentence of imprisonment. [ 80 ] It is not hard to discern the reasons why.

A Pre-Sentence Report was filed for Mr. Samson’s sentencing hearing, as was a psychiatric report. The Crown urged a sentence of 13 years’ incarceration. Justice MacDonald found a number of mitigating factors. He found that Mr. Samson was following the orders of James Landry. The judge accepted that Mr. Samson felt he was in a “state of panic”, and showed genuine remorse. In addition, Mr. Samson pled guilty. [ 81 ] On the other hand, the appellant throughout expressed no remorse for his actions. I have earlier set out his comments to the

police that he intended to kill Philip Boudreau; he did not deserve a mass—instead the appellant hoped the crabs would eat his body. In the appellant’s Pre-Sentence Report he insisted that he did not deserve to be in jail because of the victim’s record and long-term conduct in cutting their traps. [ 82 ] Justice MacDonald took into account the sentence imposed on the appellant, but found that there were significant differences in moral blameworthiness, and factors that mitigated sentence.

The sentence imposed on Dwayne Samson later in 2015 does not make the one imposed by the trial judge on the appellant excessive. [ 83 ] The attack carried out directly by the appellant, and at his active encouragement, was horrific. It should never have started, let alone continued through its various stages.

While some judges may have decided that a sentence somewhat less than 14 years’ incarceration may have been sufficient to fulfill the principles and purposes of sentencing, the trial judge’s selection of that length of incarceration is not manifestly excessive. [ 84 ] I would not give effect to this ground of appeal. In the result, I would grant leave, but would dismiss the appeal. Beveridge, J.A. Concurred in: Oland, J.A. Farrar, J.A.