IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Penner, |
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2017 BCSC 1688 |
Date: 20170920
Docket: 45525-2
Registry: Prince George
Regina
v.
Kayne Sabbe Penner
Before: The Honourable Mr. Justice Pearlman
Oral Reasons for Judgment - Section 12 Charter Application
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Counsel for Accused/Applicant |
D.E. Jenkins, Q.C. |
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Counsel for Crown/Respondent |
L. Vizsolyi |
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Place and Date of Trial/Hearing: |
Prince George, B.C. July 20, 2017 |
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Place and Date of Judgment: |
Prince George, B.C. September 20, 2017 |
Table of Contents
The test for infringement of s. 12 of the Charter
CONSTITUTIONALITY OF S. 236(a) OF THE CRIMINAL CODE
Personal characteristics of the offender
Particular circumstances of the offence
Actual effect of the punishment on the offender
Penological goals and sentencing principles
Comparison of punishments imposed for other crimes in the same jurisdiction.
THE APPLICATION
[1] On March 6, 2017, a jury convicted the applicant, Kayne Sabbe Penner, of one count of unlawful act manslaughter contrary to s. 236(a) of the Criminal Code, RSC 1985, c. C-46, and one count of careless use of a firearm contrary to s. 86(1) of the Criminal Code.
[2] The events giving rise to the offences occurred on December 20, 2012. While Mr. Penner was handling a 22 caliber semi-automatic rifle, it discharged, fatally wounding his fiancée, April Johnson.
[3] Section 236(a) of the Criminal Code provides:
Manslaughter
236 Every person who commits manslaughter is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; . . .
Position of Applicant
[4] Mr. Penner submits that the four year mandatory minimum sentence under s 236(a), when applied to his particular circumstances, and the circumstances of the offence, is grossly disproportionate, and constitutes cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.) 1982, c. 11 [the Charter].
[5] The applicant submits that an appropriate sentence would be significantly less than four years imprisonment. Mr. Penner focuses his application on the particular circumstances of his case, which he says involves “the absolute minimum level of negligence” required to establish the offence of unlawful act manslaughter with a firearm.
Position of Crown
[6] The Crown submits that the mandatory minimum sentence in s. 236(a) does not constitute cruel and unusual punishment in the circumstances of this case. The Crown says that as a result of Mr. Penner’s reckless handling of the firearm, Miss Johnson was shot and died from her injuries. Further, the Crown says that while Mr. Penner's personal circumstances may be sympathetic, compassionate grounds are not a valid basis for declaring a sentence to be cruel and unusual punishment. The Crown argues that the gravity of manslaughter is amplified by the use of a firearm, and that in the circumstances of this case, which warrant a sentence emphasizing denunciation and deterrence, the four year mandatory minimum sentence is not grossly disproportionate, and is consistent with valid penological goals and sentencing principles.
[7] In the event the Court finds that s. 236(a) violates s. 12 of the Charter, the Crown requests that it be permitted the opportunity to make submissions on whether the infringement can be justified under s. 1 of the Charter.
[8] Section 12 of the Charter provides:
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
[9] Mr. Penner bears the onus of establishing the alleged breach of s. 12 on a balance of probabilities.
The test for infringement of s. 12 of the Charter
[10] The test for infringement of s. 12 of the Charter, as stated by the Supreme Court of Canada in R v. Nur, 2015 SCC 15, R. v. Lloyd, 2016 SCC 13, and earlier authorities, is conveniently summarized by the Court of Appeal in R. v. Al-Isawi, 2017 BCCA 163 at paras. 15 to 21:
15 Section 12 of the Charter provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
16 “Cruel and unusual” punishment is a “high bar” (Nur at para. 39), requiring the punishment to be “so excessive as to outrage standards of decency” and considered by Canadians as “abhorrent and intolerable”: R. v. Ferguson, 2008 SCC 6 at para. 14. A minimum sentence provision attacked on this ground must be “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of the offence and circumstances of the offender: R. v. Smith, [1987] 1 S.C.R. 1045 at 1073. It is a “very properly stringent and demanding” test, and it will “only be on rare and unique occasions that a court will find a sentence so grossly disproportionate...A lesser test would tend to trivialize the Charter”: Steele v. Mountain Institution, [1990] 2 S.C.R. 1385 at 1417. To be “grossly disproportionate,” it must be “more than merely excessive”: Smith at 1072. Gross disproportionality is a higher standard than the “demonstrably unfit” standard applicable for reviewing sentences generally: R. v. McDonald, 40 O.R. (3d) 641 (C.A.). In R. v. Lloyd, 2016 SCC 13 at para. 33, the majority described a grossly disproportionate sentence as one that would “shock the conscience of Canadians.”
17 In Nur, the Supreme Court of Canada clarified and reaffirmed the two-step s. 12 analysis described in R. v. Goltz, [1991] 3 S.C.R. 485, which must be followed when a mandatory minimum sentencing provision is challenged:
o [77] In summary, when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision results in a grossly disproportionate sentence on the individual before the court. If the answer is no, the second question is whether the provision's reasonably foreseeable applications will impose grossly disproportionate sentences on others.
18 If the answer to either of these questions is “yes”, the minimum sentence provision is prima facie in violation of s. 12, and the court must consider whether it is saved under s. 1 of the Charter.
19 In addressing the first question, the court must consider whether the mandatory minimum sentence would be grossly disproportionate for the actual offender. In doing so, the court must balance the gravity of the offence, the particular circumstances of the offence, and the personal characteristics of the offender: Goltz at 499. The court must also consider the actual effect of the sentence imposed on the offender, and may consider general deterrence or other penological goals and principles of sentencing including the existence of valid alternatives to the punishment imposed and a comparison of punishments imposed for other crimes: Goltz at 499-500; R. v. Morrisey, 2000 SCC 39 at paras. 27-28; R. v. Stewart, 2010 BCCA 153 at paras. 20-21. In addition, the court must also consider and defer to the valid legislative objectives underlying the criminal law responsibilities of Parliament: R. v. Latimer, 2001 SCC 1 at paras. 76-77.
20 If the mandatory minimum sentencing provision is not grossly disproportionate for the offender, then the court must address the second question; that is, whether the provision's reasonably foreseeable application will result in a grossly disproportionate sentence for a reasonably foreseeable hypothetical offender. This second stage of the analysis requires the court to conduct an inquiry into the “range or scope of the law”: Nur at para. 60. The matter is essentially one of statutory interpretation as the court must consider the “reach” of the law and what kind of conduct the law may reasonably be expected to catch: Nur at para. 61.
21 Chief Justice McLachlin emphasized the importance of keeping in mind the “reasonable” aspect of a “reasonable hypothetical”: Nur at para. 57. The reasonable hypothetical must be one that may reasonably be expected to arise, and not one that is “far-fetched” or “marginally imaginable”: Goltz at 506. While the reasonable hypothetical may take into account personal characteristics relevant to persons who may be caught by the mandatory minimum sentence, the inquiry must be grounded in common sense and experience: Nur at paras. 62, 75. The construction of the reasonable hypothetical must exclude “using personal features to build the most innocent and sympathetic case imaginable -- on the basis that almost any mandatory minimum sentence could be argued to violate s. 12 and lawyerly ingenuity would be the only limit to findings of unconstitutionality”: Nur at para. 75.
[11] Here, Mr. Penner argues the circumstances of his offence fall at the lowest end of the spectrum for unlawful act manslaughter with a firearm. He does not put forward reasonable hypotheticals to endeavor to show that s.236(a), as applied to others, would constitute cruel and unusual punishment. In these circumstances, it will be unnecessary for the court to proceed to the second stage and consider whether a breach of s .12 arises from reasonable hypotheticals advanced by the offender.
[12] As the Court explained in Nur at para. 46, the s. 12 analysis must be conducted in two steps:
46 . . . First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.
[13] While at the first step, the sentencing need not be specific; “the court should consider, even implicitly, the rough scale of the appropriate sentence”: R. v. Lloyd, at para. 23.
[14] The existence of a mandatory minimum sentence is not, of itself, cruel and unusual: R. v. Smith, [1987] 1 S.C.R. 1045 at 1077.
PRINCIPLES OF SENTENCING
[15] It is useful to begin by setting out the fundamental principles and objects of sentencing.
[16] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1.
[17] Other relevant sentencing principles, set out in s. 718.2 are:
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, . . .
(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, . . .
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;
. . .
(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 to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[18] Under s. 718, the objectives of sentencing are: denunciation; deterrence, both specific and general; the separation of offenders from society, where necessary; rehabilitation; reparations for harm done to the victims or to the community; and the promotion of a sense of responsibility in offenders and the acknowledgement of the harm done.
FACTS OF THE OFFENCE
[19] Because Mr. Penner was convicted by a jury, the court must do its best to determine the facts necessary for sentencing from the issues before the jury and the jury’s verdict. As the sentencing judge, I am required to make only those factual determinations necessary for deciding the appropriate sentence in this case: R. v. Ferguson, 2008 SCC 6 at para. 16.
[20] As the Court explained in Ferguson at paras. 17 and 18:
17 Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury's verdict”: R. v. Brown, [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 not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 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 the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: (ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.)). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.
[21] Here, I must find facts, consistent with the jury’s unlawful act manslaughter verdict, that are relevant to sentencing Mr. Penner and, in particular, to determining whether, in the circumstances of this case, the four year mandatory minimum sentence would be grossly disproportionate.
[22] In order to convict, the jury had to be satisfied, beyond a reasonable doubt, that Mr. Penner committed an unlawful act - the careless handling of a firearm - that was objectively dangerous, in the sense that a reasonable person in the same circumstances as Mr. Penner would have realized that he or she was exposing someone to a risk of non-trivial, non-transitory bodily harm, and that the unlawful act caused the death of April Johnson.
[23] The applicable provisions of the predicate offence, s. 86(1) of the Criminal Code read as follows:
86 (1) Every
person commits an offence who, without lawful excuse, uses, . . . ,
handles, . . . a firearm, . . . in a
careless manner or without reasonable precautions for the safety of other
persons.
[24] To convict for this offence, the jury had to be satisfied beyond a reasonable doubt that Mr. Penner handled or used the firearm in a careless manner, that is, in a manner that was a marked departure from the standard of care of a reasonable person in the circumstances of this case, and that Mr. Penner had no lawful excuse for his use of the firearm.
[25] In convicting the applicant on both counts, the jury rejected the defence of pure accident.
[26] On the evidence at trial, I make the following findings of fact:
(a) Mr. Penner had no intention to cause harm to April Johnson, or anyone else. The applicant and Ms. Johnson went to the residence of his cousin, Mr. Borne and Ms. Heichert to celebrate their recent engagement. After they arrived at Mr. Borne’s home, Ms. Johnson and Mr. Penner decided to go out target shooting.
(b) The firearm, a 22 calibre semiautomatic rifle, belonged to Mr. Borne. However, the applicant had previously used the firearm on at least one occasion.
(c) Mr. Penner was not impaired by alcohol while handling the firearm. Mr. Borne testified that the applicant had one or two drinks at the residence but was not impaired. Corporal Harley, who spoke with the applicant at the hospital on December 20, 2012, shortly after the shooting, did not believe that Mr. Penner was impaired during his dealings with him.
(d) Mr. Borne retrieved the rifle from his bedroom, loaded it by inserting the clip or magazine, and then went out on the porch where he test fired one round. As Mr. Borne testified, and the Crown’s firearms expert, Mr. Prendergast confirmed, after the weapon was fired, its semiautomatic mechanism ejected the spent shell and loaded another round from the magazine into the chamber. Mr. Borne agreed in cross-examination that when he brought the weapon in from the porch and leaned it against the stovetop counter, the safety was off.
(e) Mr. Penner was unaware the firearm was loaded when he took possession of it. Mr. Penner, Ms. Johnson and Ms. Heichert all remained in the residence while Mr. Borne test fired the rifle from the porch. In his direct examination, Mr. Borne testified that he did not tell anyone that the gun was loaded and just said that it was “good to go”. In cross-examination, Mr. Borne agreed that he probably told Mr. Penner that he had unloaded the gun. In his statement to the police admitted in evidence at trial, Mr. Penner said that Mr. Borne had told him the gun was unloaded.
(f) Mr. Penner was checking the weapon to ensure that it was not loaded immediately before it discharged. Corporal Baldinger confirmed that in his statement to the police, Mr. Penner demonstrated how he pulled back the bolt or slide to determine whether the chamber of the semiautomatic rifle was empty. Mr. Cam Hill, a firearms safety instructor, explained that the standard way to determine if a firearm is unloaded is to work the action and then look inside the chamber. He also testified that for semiautomatic weapons, one should first remove the clip or magazine.
(g) Mr. Penner chose to pick up and check the weapon in a confined space and in close proximity to three other persons. Ms. Heichert was at or near the entrance from the living room to the kitchen. Mr. Penner was in the kitchen near the stovetop and Mr. Borne was standing to the applicant’s right, near the kitchen sink. Both Ms. Heichert and Mr. Borne placed April Johnson just outside the kitchen area, near the front door.
(h) Mr. Penner failed to check whether the safety was engaged or to engage the safety. He also failed to remove the magazine. Mr. Penner suggests that because he did not attend the firearms safety class concerning semiautomatic weapons, he would not have known to remove the magazine before checking the chamber. However, Mr. Penner had previously used this firearm.
(i) Mr. Penner also failed to safely control the direction of the firearm’s muzzle.
[27] In order to convict, the jury must have concluded that Mr. Penner’s failure to engage the safety and to remove the magazine, together with his decision to check the firearm in the kitchen area with three people nearby gave rise to an inherently dangerous situation and constituted a marked departure from the standard of care to be expected of a reasonable person in the circumstances of this case.
[28] The applicant invites the Court to find that his finger was not on the trigger when the firearm discharged. Mr. Penner’s position at trial was that as he was checking the weapon, it slipped from his hands, struck the counter and then discharged. The countertop was cluttered with number of objects, including a cast-iron eagle with its talons extended. The applicant’s theory is that when the weapon fell, the trigger was engaged when it caught on the metal talons, or some other object. The police did not test the trigger area for fingerprints and the DNA swab taken from the trigger area produced nothing.
[29] Mr. Prendergast testified, and I find, that the firearm was not prone to shock discharge. In cross-examination, Mr. Prendergast acknowledged that it was possible that the trigger could have caught on the metal eagle. However the Crown’s firearms expert also gave evidence that the rifle had a normal trigger pressure of 5 ½ pounds.
[30] Dr. Stephen, the Crown pathologist, gave uncontested evidence that the bullet struck Ms. Johnson in the upper left quadrant of her abdomen on a slightly downward trajectory. Both Mr. Borne and Ms. Heichert testified that after they heard the shot, they saw Ms. Johnson standing at the doorway. The height of the entry wound and the bullet’s trajectory are inconsistent with the weapon discharging after falling to the countertop. On the whole of the evidence, I infer that Mr. Penner’s finger was on the trigger when the weapon discharged.
[31] I also find the applicant immediately sought medical assistance for Ms. Johnson by driving her to the Vanderhoof hospital.
[32] Mr. Penner cooperated fully with the police after the offence. Corporal Baldinger testified that Mr. Penner approached the police voluntarily and cooperated throughout the investigation.
CONSTITUTIONALITY OF S. 236(a) OF THE CRIMINAL CODE
[33] Before embarking upon the particularized inquiry concerning Mr. Penner’s offence, I will refer to the authorities cited by counsel which have previously considered the constitutionality of the four year mandatory minimum sentence in s. 236(a).
[34] In R. v. Hainnu, [1998] N.W.T.J. No. 101 (S.C.), a 28 year old aboriginal accused, while under the influence of alcohol, shot through the open window of a house knowing there were people in the room. The accused had a short but related criminal record and was the father of three children. The Court held the four year mandatory minimum for manslaughter with a firearm did not violate s. 12 of the Charter for the accused personally, or on the basis of reasonable hypotheticals.
[35] In R v. Walcot, 2001 BCCA 342, the 22 year old accused, a first offender, pleaded guilty to two counts of manslaughter involving the use of a firearm in the commission of an offence. The accused aided in the offence. While intoxicated, Walcot drove his co-accused to the victim’s house, knowing he wanted to settle a score over a drug debt. He gave his co-accused the key to the trunk of the vehicle where his rifle was stored, and stood by when his co-accused shot the two deceased in their bedroom. Allowing the Crown’s sentence appeal, the majority of Court of Appeal held, at para. 14, that the four year mandatory minimum sentence did not constitute cruel and unusual punishment for Walcot’s involvement in “the cold-blooded execution” of two people in their own home.
[36] In R. v. Birchall, 2001 BCCA 356, the aboriginal accused became separated from his friends while hunting moose. He fired into some bushes after hearing a noise that he thought was a moose, and killed a friend. The majority of the Court of Appeal concluded that in the circumstances of the case, the mandatory sentence of four years was not so grossly excessive that it shocked the conscience of right-thinking persons. Nor was it so wholly disproportionate that it constituted cruel and unusual punishment (at para. 26). The Court allowed the Crown’s sentence appeal, imposed a four year sentence and held the trial judge had erred in granting a constitutional exemption.
[37] In R. v. Ferguson, the accused RCMP officer was involved in a struggle with a detainee at a detachment, and shot him twice. The Supreme Court of Canada held that the four year mandatory minimum did not violate s. 12 of the Charter and that the trial judge erred in granting the constitutional exemption. In Ferguson, the accused argued that s. 236(a) violated s. 12 of the Charter when applied to the particular circumstances of his case. Mr. Ferguson did not advance any reasonable hypotheticals.
[38] In concluding, on the particular facts that the four year mandatory minimum sentence did not constitute cruel and unusual punishment, the Court stated, at para. 28:
28 . . . The mitigating factors are insufficient to make a four-year sentence grossly disproportionate. The absence of planning, the apparent fact that Mr. Varley initiated the altercation in the cell, and the fact that Constable Ferguson did not have much time to consider his response, are more than offset by the position of trust Constable Ferguson held and by the fact that he had been trained to respond appropriately to the common situation of resistance by a detained person. I agree with the Court of Appeal that the mitigating factors do not reduce Constable Ferguson's moral culpability to the extent that the mandatory minimum sentence is grossly disproportionate in his case.
[39] In R. v. Morrisey, [2000] 2 S.C.R. 90, the Court held that the four year mandatory minimum sentence for criminal negligence causing death with a firearm contrary to s. 220(a) of the Criminal Code did not violate s. 12 of the Charter. There the accused, after consuming alcohol and prescription drugs, jumped on a bunk bed while holding a rifle he knew to be loaded. When the accused lost his footing and fell, the gun discharged, killing his friend. The weapon was not susceptible to shock discharge and there was no evidence the accused intended to aim the gun at the victim.
[40] As Arbour J. noted in her concurring opinion in Morrisey at para. 61, and as McLachlin C.J. observed in Ferguson at para. 11, “there is a considerable overlap between unlawful act manslaughter . . . and criminal negligence causing death”. Accordingly, I will return to Morrisey later in these reasons.
[41] In R. v. Bill (1997), 13 C.R. (5th) 103 (B.C.S.C.), Mr. Bill, a member of a First Nation, living on reserve, became involved in a confrontation between members of his family and members of a group known as the Warriors. Mr. Bill approached the Warriors with a loaded rifle intending to scare the group. The gun discharged, killing a member of the group. The jury convicted Mr. Bill of manslaughter. Mr. Justice Taylor concluded the jury found there was no intention to kill anyone. He also found the mandatory minimum violated s. 12 of the Charter and could not be saved under s. 1. In reaching that conclusion, Taylor J. relied in part on the trial decision in R. v. Morrisey (1997), 161 N.S.R. (2d) 91 (S.C.). There, the sentencing judge had held the four year mandatory minimum for criminal negligence causing death with a firearm contravened s. 12. However, the Nova Scotia Court of Appeal overturned that decision (R. v. Morrisey (1998), 124 C.C.C. (3d) 38 (N.S.C.A)). As we have seen, in Morrisey the Supreme Court of Canada upheld the constitutionality of s. 220(a) of the Criminal Code.
[42] Recently, R. v. McMath, 2015 BCSC 440, Ross J. held that the four year mandatory minimum sentence for manslaughter with a firearm did not violate s. 12. In McMath, as in the case at bar, the unlawful act was careless use of a firearm. Mr. McMath, a 75 year old farmer, had acquired the rifle several years before the offence. However, he had only fired it once, the week before the offence. Concerned that coyotes were preying upon his chickens, Mr. McMath took out his rifle, loaded it, and left it near his barn. That evening, his wife came to the farm for a visit. Although the two were separated, their relations remained cordial. Mr. and Mrs. McMath consumed a bottle of wine. As they were about to head in for the evening, Mr. McMath picked up the rifle and started to unload it. The safety was not engaged, and a round was in the chamber. As he walked over uneven ground in the dark, Mr. McMath stumbled. The firearm discharged twice; both bullets struck Mrs. McMath. Although the accused called 911 and provided care to Mrs. McMath at the scene, she died of her wounds. Mr. McMath had no criminal record, cared for an adult disabled son and was the primary caregiver for his granddaughter. He had the support of family and friends and was remorseful.
[43] At para. 78, Ross J., following the analysis of Justice Gonthier in Morrisey as adopted by the Court of Appeal in Birchall, observed that “there is no more serious consequence than causing a death, and that anyone who causes a death using a firearm in culpable circumstances is guilty of a very serious crime”. In the Court’s view, the many mitigating circumstances did not displace the gravity of the offence. At paras. 83 and 84, Ross J. accepted that Mr. McMath’s behaviour could not be characterized as momentary inadvertence, but involved a chain of inherently dangerous actions and a high degree of moral blameworthiness.
[44] In R. v. Dockrill, 2016 NSSC 56, the accused shot his son, whom he mistook for an intruder. Mr. Dockrill was sentenced for criminal negligence causing death and careless use of a firearm. Mr. Dockrill’s son trafficked in drugs which he stored in his father’s home. Mr. Dockrill’s son told his father that someone was coming to invade the home and gave Mr. Dockrill a loaded 30/30 rifle. When Mr. Dockrill awoke and found someone coming into his room, he fired the rifle, killing his son. The Court found that Mr. Dockrill was wantonly reckless. In the particular circumstances, the four year mandatory minimum sentence did not breach s. 12. In reaching that conclusion, the Court took into account Mr. Dockrill’s personal circumstances, which included a serious heart condition, depression and remorse that induced severe mental distress years after the incident.
[45] Notwithstanding previous rulings that s. 236(a) does not violate s. 12, and specifically, the decisions in Ferguson, Birchall, Walcot and McMath, Mr. Penner can argue that the four year mandatory minimum violates s. 12 by imposing cruel and unusual punishment in his particular circumstances. As the Court stated in Nur, at para. 71:
[71]. . . if the offender can establish new circumstances or evidence, including mitigating factors specific to the offender, it is open to a court to reconsider the constitutionality of the law. . . .
THE PARTICULARIZED INQUIRY
Would the imposition of a four year mandatory minimum sentence on Mr. Penner constitute cruel and unusual punishment?
[46] As a first step, the court must establish the “rough scale” of a fit sentence, absent the mandatory minimum: Lloyd at para. 23.
[47] The four year mandatory minimum sentence in s. 236(a) first came into force on January 1, 1996: Walcot at para. 11. Subsequent sentencing decisions reflect the inflationary effect of the statutory mandatory minimum. As Arbour J. stated in Morrisey at para. 76:
[76] . . . The search for the appropriate punishment is not an abstract exercise. It is very much guided by the types of sentences that have been imposed in the past on similarly situated offenders, and because of that, it changes over time, and may come to reflect the inflationary consequences of the proper application of mandatory minimum sentences for particular types of offences. . .
[48] Here, the applicant relies on the following sentencing decisions for offenders guilty of manslaughter with a firearm, decided before the enactment of the mandatory minimum sentence.
[49] In R. v. Owens, [1985] B.C.J. No. 431 (S.C.), aff’d [1986] B.C.J. No. 41 (C.A.), the Court sentenced the offender to a suspended sentence with three years of probation including 1,000 hours of community service. The trial judge observed that the sentencing range ran the entire gamut from a suspended sentence to life imprisonment. During a violent altercation, Mr. Owens intended to fire a shot into the air to scare away his assailants. The offender slipped on ice while running with a firearm, causing it to discharge through the window of a vehicle, killing one of the occupants. Although the trial judge noted that in most cases of manslaughter, a jail term would be required to satisfy the principle of deterrence, he characterized Mr. Owens’ offence as a “near accident” (at para. 10).
[50] In R. v. Pettigrew (1990), 56 C.C.C. (3d) 390 (B.C.C.A.), a majority of the Court of Appeal substituted six months’ incarceration and twelve months’ probation for the twelve month sentence imposed by the trial judge. Ms. Pettigrew and her partner kept a loaded rifle on a gun rack in their bedroom. After a day and night of drinking, Ms. Pettigrew became concerned about the loaded weapon. While she attempted to empty it, the gun discharged, killing her husband. The Court reasoned that the denunciatory aspect of punishment should not be the predominant consideration where there was no element of deliberation and where the accused, a Metis woman who had suffered both childhood and spousal abuse, was a disadvantaged person and a first offender. The Court concluded imprisonment was not required for rehabilitation or specific deterrence, and that the objective of general deterrence was satisfied by a term of six months’ imprisonment.
[51] In R. v. Ball, [1993] O.J. No. 3207 (Ont. C.J.), the Court imposed a suspended sentence with two years’ probation for manslaughter resulting from the careless handling of a loaded rifle.
[52] The Crown refers to R. v. Canning, [1996], 148 Nfld. and PEIR 1 (Nfld. S.C. (T.D.)), where the newly enacted mandatory minimum did not apply. The Court imposed a four year sentence for unlawful act manslaughter involving the careless handling and storage of a shotgun. The offender, while intoxicated, attempted to move the shotgun, which accidentally discharged, killing his companion. The Court found the offender failed to ensure that the gun was unloaded; that the safety was on; that the barrel was not pointed at his friend; and that his hand was not on the trigger.
[53] The law of sentencing has continued to evolve since these authorities were decided. In R. v. M.(C.A.), [1996] 1 S.C.R. 500, the Supreme Court explained that denunciation was concerned with showing society’s condemnation for particular conduct, rather than denouncing the individual offender. When applied to firearms offences, denunciation permits the court to impose a sentence reflecting society’s condemnation of the irresponsible use of firearms.
[54] In R. v. Ispanovic, 2008 BCCA 270, Saunders J.A., for the Court, after acknowledging that manslaughter can range from near accident to near murder, and may attract sentences ranging from the non-custodial to the statutory maximum of a life sentence, emphasized that a sentence of some severity is required to address death caused by a firearm (at paras. 16, 19). There, the offender, a 70 year old chronic alcoholic with a limited criminal record had pointed his rifle at the victim, and pulled the trigger during the course of a struggle. The accused pleaded guilty to manslaughter with a firearm. In circumstances more aggravating than this case, the Court of Appeal determined the fit sentence was six years imprisonment.
[55] The Crown also referred to Morrisey, R. v. Brooks, 2012 ONCA 703, and R. v. Colville, 2005 ABCA 319 as cases where courts have imposed sentences of four years or more for near accidental shootings. In Brooks, the accused, after an evening of consuming alcohol, and while sitting in the passenger seat of a vehicle, accidentally pulled the trigger of his loaded handgun, killing another passenger. The Ontario Court of Appeal substituted a sentence of five years, less credit for time served, for the seven year sentence imposed by the trial judge.
[56] In Colville, the offender chased the occupants of a vehicle that had damaged his property. When he caught up with the vehicle, Colville broke the window with the barrel of his rifle, which then discharged, killing one victim and injuring the other. Again, in circumstances more aggravating than the case at bar, the Alberta Court of Appeal substituted the four year mandatory minimum sentence for the global sentence of six years’ imprisonment imposed by the trial judge for manslaughter and criminal negligence causing bodily harm.
[57] Establishing what would constitute the “rough scale” of a fit sentence absent the mandatory minimum is by no means an easy task. While in my view, a suspended sentence with probation is not appropriate, taking into account the gravity of firearms offences and the loss of a human life, absent the mandatory minimum imposed by s. 236(a), it would be open to the Court to impose a term of imprisonment of less than four years.
[58] I also note that even absent the mandatory minimum sentence, a conditional sentence order would not be available to Mr. Penner. Section 742.1(c) of the Criminal Code, which came into force before Mr. Penner’s offence, bars a conditional sentence for offences for which the maximum term of imprisonment is life.
[59] I turn now to consider whether the mandatory minimum sentence is grossly disproportionate to the applicant’s offence and circumstances.
[60] In Morrisey, at paras. 27 and 28, the majority held that in determining whether a sentence is grossly disproportionate, the court must consider all relevant contextual factors, and that no single factor is paramount. The relevant factors include the gravity of the offence; the personal characteristics of the offender and the particular circumstances of the offence; the actual effect of punishment on the offender; the penological goals and sentencing principles; and a comparison of punishments imposed for other crimes.
Gravity of the offence
[61] The applicant acknowledges there is no more serious consequence than causing the death of a person but says that his conduct can be characterized as approaching a mere accident.
[62] The assessment of the gravity of the offence requires a consideration of the character of the offender’s actions and the consequences of those actions: Morrisey at para. 35.
[63] When considering the character of the offender’s actions, the court assesses the criminal fault requirement or mens rea of the offence, rather than the offender’s motive or general state of mind: R. v. Latimer, 2001 SCC 1 at para. 82.
[64] The mens rea of unlawful act manslaughter is objective foreseeability of the risk of non-trivial, non-transitory bodily harm in the context of an inherently dangerous act. The predicate offence of careless use of a firearm is also an objective fault crime requiring conduct constituting a marked departure from the standard of care of a reasonable person in the offender’s circumstances.
[65] As the Court stated in Nur at paras. 1 and 6, firearms pose grave danger to Canadians and firearm-related crimes are very serious crimes.
[66] In Birchall, at para. 9, the Court of Appeal, citing Morrisey, characterized manslaughter with a firearm as a “very serious crime” and emphasized that anyone who causes a death using a firearm in culpable circumstances is guilty of a very serious crime.
[67] April Johnson died as a consequence of Mr. Penner’s actions. There is no more serious consequence: Morrisey at para. 35.
[68] In her victim impact statement, April Johnson’s mother, Nadine Sims, expresses the grief and emotional loss that she and her family have suffered as a consequence of this offence.
[69] Although manslaughter with a firearm is not an intentional offence, and can embrace conduct ranging from near murder to near accident, the gravity of the offence as measured by both the character of the offender’s actions and the very serious consequences of those actions, weigh significantly in the balancing of factors under s. 12.
Personal characteristics of the offender
[70] In analysing the characteristics of the offender, and the particular circumstances of the offence, the Court considers the existence of any aggravating or mitigating circumstances, and must weigh the aggravating circumstances against the mitigating circumstances: Morrisey at para. 38; R. v. Latimer, at para. 85.
[71] Mr. Penner is 29 years old, has been in a common-law relationship with Alicia Kauppinen for approximately four years. They have a 21 month old son and a daughter born in July 2017. The applicant left high school two courses short of completing his diploma, has taken some vocational training and, in May 2016, after obtaining his class one driver’s license, secured his present employment with Five Star Garbage Service. In his pre-sentence report, probation officer Gibson reports that the applicant’s employer describes Mr. Penner as “the hardest worker he has ever had” and a “good kid” who he hopes to involve in the management of the company. Mr. Penner is the primary provider for his family.
[72] Mr. Penner enjoys the support of his own family, and the family of his common-law wife.
[73] He has experienced extreme remorse as result of the offence. In August 2016, while depressed, he engaged in self harming behaviour. I am satisfied that the applicant is genuinely remorseful, and has expressed his sorrow for the loss of April Johnson and its impact upon her family.
[74] The applicant now appears to be managing his emotions well. Since April Johnson’s death in December 2012, Mr. Penner has also had to cope with his mother passing away in 2014, his father’s diagnosis of terminal brain cancer in 2015 and his sister’s recent diagnosis of lung cancer.
[75] Mr. Penner’s remorse, his hard work to support his new family and the support he enjoys from his employer and family are all mitigating factors.
[76] Mr. Penner was placed on a six month peace bond in 2008 and in August 2012 he was briefly supervised on a charge of assault against Ms. Johnson.
[77] In August 2016, the applicant breached the abstain condition of his bail order, for which he was sentenced, in February 2017, to a six month probation order. The Crown acknowledges that Mr. Penner is “effectively a first offender and that [he] has largely complied with the conditions of his bail since the date of his release” (Crown Submissions, para. 52).
[78] In Morrisey at para. 40, Gonthier J. held that the offender’s remorse and the absence of a criminal record did not displace the gravity of the offence. Given the nature of the offence, it was not surprising that the offender would demonstrate remorse and would not have a criminal record.
[79] In my view, the same logic is applicable to the applicant. One would expect him to feel remorse. Nonetheless, Mr. Penner’s remorse and his acknowledgement of the gravity of his offence is a factor to be taken into account, along with the other mitigating factors.
[80] In McMath, Ross J. held that the many mitigating factors there could not displace the gravity of the offence and that “compassionate grounds are not a valid basis for declaring a sentence to be cruel and unusual punishment” (at paras.79-81).
[81] Nonetheless, the gravity of the offence is only one of the relevant factors to be weighed under s. 12. The court’s task includes assessing the impact of the mandatory sentence on the particular offender and whether that sentence is disproportionate, taking into account the offender’s conduct and circumstances. While “compassionate grounds” do not justify a finding that a sentence is unconstitutional, the court must consider the personal circumstances of the offender and the actual effect of the sentence on the offender.
Particular circumstances of the offence
[82] Regarding the particular circumstances, the defence emphasizes that Mr. Penner had no intention to cause harm to anyone, the accidental nature of the shooting, and that the firearm did not belong to Mr. Penner.
[83] Defence also pointed out that the applicant was not intoxicated while handling the firearm and was unaware the weapon was loaded when he took possession of it.
[84] In addition to the mitigating circumstances I have previously discussed, Mr. Penner also immediately sought medical assistance for Ms. Johnson.
[85] Although there are significant mitigating factors in this case, those factors are offset by the aggravating factors, and do not displace the gravity of the offence.
[86] As Lamer C.J. stated in R. v. Finlay, [1993] 3 S.C.R. 103 at para. 30, those who fail to live up to the standard of care expected of people who use firearms “cannot be said to have done nothing wrong”:
By enacting s. 86(2), Parliament has seen fit to impose on all people owning or using firearms a specific and rigorous duty of care. It is a basic tenet of the principles of fundamental justice that the state not be permitted to punish and deprive of liberty the morally innocent. Those who have the capacity to live up to a standard of care and fail to do so, in circumstances involving inherently dangerous activities, however, cannot be said to have done nothing wrong. The Law Reform Commission of Canada emphasized this point in the following passage from Workplace Pollution, Working Paper 53 (1986), at pp. 72-73:
Certain kinds of activity involve the control of technology (cars, explosives, firearms) with the inherent potential to do such serious damage to life and limb that the law is justified in paying special attention to the individuals in control. Failing to act in a way which indicates respect for the inherent potential for harm of those technologies, after having voluntarily assumed control of them (no one has to drive, use explosives, or keep guns) is legitimately regarded as criminal. [Emphasis in original.]
[87] Here, Mr. Penner chose to take up the firearm. Although the weapon belonged to Mr. Borne, Mr. Penner had previously used it. Mr. Penner chose to check the firearm to ensure it was not loaded without first ensuring the safety was engaged or removing the magazine. He also handled the firearm while three persons were nearby and failed to control the direction of the muzzle. Although the rifle may have slipped from his hands, I have found that his finger was on the trigger when the weapon discharged.
[88] Although the applicant submits his conduct can be characterized as a momentary lapse of judgment, his conduct involved a series of inherently dangerous actions and a marked departure from the standard of care expected of a reasonable person in his circumstances.
[89] In short, the circumstances of the offence involved a course of conduct attracting a high degree of moral blameworthiness.
[90] The applicant submits that he is less morally culpable than Mr. McMath. In McMath, the offender knew the firearm was loaded. After consuming alcohol, in the dark and on uneven ground, he stumbled while attempting to unload the weapon. Mr. Penner made a sober decision to check whether the rifle was loaded in close proximity to three other persons. Both McMath and the applicant failed to ensure the safety was engaged and failed to control the direction of the weapon’s muzzle. Both engaged in a similar chain of inherently dangerous actions. Mr. McMath’s personal circumstances were as sympathetic as those of Mr. Penner. Mr. McMath was elderly, had no criminal record and was the caregiver for his schizophrenic son and his granddaughter. In my view, there is no material distinction between the moral culpability of Mr. Penner and Mr. McMath.
Actual effect of the punishment on the offender
[91] This factor requires the court to consider how the offender will be personally affected by the actual punishment imposed; it will be relevant to consider the nature and condition of the sentence and its duration: Morrisey at para. 41.
[92] The mandatory minimum sentence of four years will have a significant impact on Mr. Penner. He will be separated for a considerable time from his two young children and his spouse. The applicant, as the primary income earner will also experience anxiety concerning his family’s ability to provide for itself in his absence. Concerning Mr. Penner’s role as a father, I note that the birth of a child cannot in itself justify a departure from the mandatory minimum: Birchall at para. 27.
[93] As the Crown acknowledges, parole eligibility cannot be said to mitigate the effect of a mandatory minimum sentence for the purpose of assessing its constitutionality. As McLachlan C.J. explained in Nur at para. 98, the discretionary decision of the parole board is no substitute for a constitutional law.
[94] In McMath, where reasons for sentencing were delivered before the judgment of the Supreme Court of Canada in the Nur, Ross J. concluded at paras. 85 to 88 that the availability of full and day parole mitigated the effect of the sentence on the offender. That is no longer the law, and to the extent that the availability of parole was a factor the Court took into account in concluding s. 236(a) did not violate s. 12 of the Charter, McMath can be distinguished. However, Ross J.’s analysis focused on the inherent danger of firearms, the deterrence of careless handling of firearms, and the moral culpability of those whose conduct constitutes a marked departure from the standard of care of a reasonable person in the offender’s circumstances.
Penological goals and sentencing principles
[95] The sentencing court must analyse these factors “to determine whether Parliament was responding to a pressing problem, and whether its response is founded on the recognized sentencing principles”: Morrisey, at para. 43.
[96] The mandatory minimum sentence in s. 236(a) was introduced as part of the Firearms Act, S.C. 1995, c 39, which imposed mandatory minimum sentences of four years for a number of offences committed with a firearm including: criminal negligence causing death (s. 220(a)); attempted murder (s. 239(a)); discharging a firearm with intent (s. 244); sexual assault with a weapon (s. 272(2)(a)); aggravated sexual assault (s. 273(2)(a)); kidnapping (s. 279(1.1)(a)); robbery (s. 344(a)); and extortion (s. 356(1.1)(a)). As the Crown points out, in Morrisey, at para. 49, Gonthier J. observed that “it is at least arguable that [criminal negligence causing death] is more serious than others that receive the same sentence, such as robbery with a firearm. From a harm perspective, this crime is much more serious”. That observation is equally applicable to manslaughter with a firearm.
[97] Although the presence or absence of any one sentencing principle is never determinative at this stage of the s. 12 analysis, as the Court explained in Morrisey, the principle of proportionality is the “essence of a s. 12 analysis”:
45 With respect, the trial judge placed too much emphasis on the absence of any need for specific deterrence for this crime, while the Court of [page117] Appeal placed too much emphasis on the need for general deterrence. The presence or absence of any one sentencing principle should never be determinative at this stage of the analysis under s. 12. General deterrence cannot, on its own, prevent a punishment from being cruel and unusual. But it is still relevant when the court is considering a range of sentences that are all acceptable under s. 12. General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual. It could also possibly serve as a justification under s. 1 if it were ever necessary to justify a violation of s. 12, but that is not the case here.
46 While it may be ideal to craft a minimum sentencing regime for this crime that would simultaneously pursue all of the traditional sentencing principles, this is not necessary for s. 12 purposes. As La Forest J. said in Lyons, supra, at p. 329, “the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender”. I am convinced that this legislation survives constitutional scrutiny even if the sentence pursues sentencing principles of general deterrence, denunciation, and retributive justice more than the principles of rehabilitation and specific deterrence. In other words, the punishment is acceptable under s. 12 while having a strong and salutary effect of general deterrence. It cannot be disputed that there is a need for general deterrence. This legislation dictates that those who pick up a gun must exercise care when handling it. It is consistent with the jurisprudence on the use of firearms: R. v. Pettigrew (1990), 56 C.C.C. (3d) 390 (B.C.C.A.), at p. 398. Failure to exercise care will have tragic consequences not only for the victim, but also for the offender.
47 Further, this minimum sentence serves the principle of denunciation, which Lamer C.J. described in M. (C.A.), supra, at para. 81, as being “a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society's basic code of values”. One of the most fundamental of our basic code of values is respect for life. Although less morally blameworthy than murder, criminal negligence causing death is still morally culpable behaviour that warrants a response by Parliament dictating that wanton or reckless disregard for the life and safety of others is simply not acceptable.
48 Finally, the minimum sentence serves the principle of retributive justice. In M. (C.A.), at para. 79, this Court unanimously recognized the importance of retribution to sanction the moral culpability of an offender. Retribution represents “the fundamental requirement that a sentence imposed be ‘just and appropriate’ under the circumstances”. This idea is apposite in the context of upholding a minimum sentence for criminal negligence causing death with a firearm. The minimum sentence forces the offender to acknowledge the harm that he has caused, and metes out a punishment commensurate with that harm.
[98] Here, the particular circumstances do not indicate that Mr. Penner needs to be separated from society, or that incarceration will assist in his rehabilitation. However, a term of incarceration would promote a sense of responsibility and an acknowledgement of harm done. Further, it would serve the objectives of denunciation, retribution and general deterrence.
[99] In McMath, Ross J. concluded at para. 94:
94 In my view, in enacting the mandatory minimum, Parliament was responding to a pressing problem and its response was founded on recognized sentencing principles. As noted earlier, the provision was part of a unified approach to firearm-related crimes. I do not agree that Parliament’s focus was limited to concerns over violence. Rather, Parliament was clearly concerned also with safety and careless use of firearms.
[100] In considering McMath, I bear in mind that subsequently, in Lloyd, the majority of the Court warned that mandatory minimum sentences for offences that capture a broad range of conduct risk violating s. 12 of the Charter:
3 As this Court’s decision in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, illustrates, the reality is that mandatory minimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence. One solution is for such laws to narrow their reach, so that they catch only conduct that merits the mandatory minimum sentence. Another option to preserve the constitutionality of offences that cast a wide net is to provide for residual judicial discretion to impose a fit and constitutional sentence in exceptional cases. This approach, widely adopted in other countries, provides a way of resolving the tension between Parliament’s right to choose the appropriate range of sentences for an offence, and the constitutional right to be free from cruel and unusual punishment.
[101] The offence of unlawful act manslaughter with a firearm embraces a broad range of conduct. However, where s. 86(1) is the predicate offence, the net cast only captures those whose conduct constitutes a marked departure from the standard of care of a reasonable person, and causes death.
[102] In Nur the majority cautioned that mandatory minimum sentences have the potential to distort the sentencing process by emphasizing denunciation, deterrence and retribution at the expense of proportionality:
44 Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.
[103] At para. 45 the Court, citing Morrisey, stated that general deterrence is relevant, but cannot, without more, sanitize a sentence against gross disproportionality. At para. 114, the majority observed that empirical evidence suggests that mandatory minimum sentences do not in fact, deter crimes, but went on to state, at para. 115, that there is a rational connection between mandatory minimum sentences and the goals of denunciation and retribution.
[104] Nur is a reminder that proportionality remains central to the s. 12 analysis and that the Court must consider whether the particular mandatory minimum sentence “goes far beyond what is necessary in order to protect the public, far beyond what is necessary to express moral condemnation of the offender, and far beyond what is necessary to discourage others from engaging in such conduct” (Nur at para. 104).
[105] In Morrisey, at para. 54, the Court emphasized that offences involving the careless handling of firearms with fatal consequences warrant sentences which have as their objectives general deterrence, denunciation and retribution to the victim’s family and the community:
54 The four-year minimum sentence equally sends a message to people who are in a position to harm people to take care when handling their weapon. Hunting accidents occur all too easily. When individuals with weapons are hunting in such a degree of proximity, extra steps are necessary to ensure that other hunters are not harmed. Therefore, when hunting, before hunters pull the trigger on their guns, they must form a reasonable belief that the object they are shooting at is not another human. Extra vigilance is necessary with guns, and while [page121] society would expect people to take precautions on their own, unfortunately people do not always do so. Consequently, Parliament has sent an extra message to such people: failure to be careful will attract severe criminal penalties. The sentence represents society’s denunciation, having regard to the gravity of the crime; it provides retributive justice to the family of the victim and the community in general; and it serves a general deterrent function to prevent others from acting so recklessly in the future.
[106] Here, as in McMath, the applicant did not intend to fire the rifle. Nonetheless, his conduct was dangerous and constituted a marked departure from the standard of care of a reasonable person in all of the circumstances. The primary considerations for sentencing where Mr. Penner caused a death through carelessly handling a firearm must be denunciation, retribution and general deterrence.
Comparison of punishments imposed for other crimes in the same jurisdiction
[107] Earlier in these reasons, I discussed sentencing cases from this and other jurisdictions cited by the defence and the Crown. Again, in R. v. Ispanovic, the Court emphasized that a sentence of some severity is required to address a death caused by a firearm.
[108] In Ferguson, at para. 11, the Court acknowledged the considerable overlap between unlawful act manslaughter and criminal negligence causing death.
[109] The four year mandatory minimum sentence under s. 220(a) found not to violate s. 12 of the Charter in Morrisey was, as I have previously noted, recently upheld in Dockrill. There, as in the case at bar, the offender did not raise reasonable hypotheticals, but relied on the facts of his own case.
[110] In Dockrill where the offender accidentally killed his own son, the Court, after referring to Morrisey, Ferguson and McMath, held that although a four year sentence was somewhat disproportionate considering the offender’s personal circumstances, it was not grossly disproportionate, taking into account the objectives of deterrence, denunciation and retribution (at paras. 141 and 143).
[111] Dockrill is distinguishable from the case at bar. The offender had armed himself to resist a home invasion and intentionally fired a loaded weapon at a person he mistook for an intruder.
[112] Morrisey, Canning, Colville and Brooks are all cases where courts have imposed sentences of or in excess of four years in near accidental shootings. Canning is noteworthy because the Court imposed a four year sentence for unlawful act manslaughter involving the careless handling and storage of a firearm committed before the four year mandatory minimum sentence was enacted.
[113] As Ross J. observed in McMath at para. 102, apart from the imposition of mandatory minimum sentences, courts have steadily increased sentences for offences involving firearms. See R. v. Paterson, 2013 BCSC 880, where the Court concluded the sentencing range for a first time offender convicted of possession of a loaded and restricted or prohibited weapon, absent the current mandatory minimum, would be 18 to 36 months where there were no significant or unusual aggravating or mitigating factors. In R. v. Borecky, 2013 BCCA 163, the Court suggested a range of 18 months to 7 ½ years for firearms possession offences.
[114] In McMath at para. 105, the Court took into account the increase in sentences involving firearms independent of the mandatory minimum and the four year sentence imposed in Canning in concluding that the four year mandatory minimum prescribed by s. 236(a) did not fall outside the range of fit sentences absent the mandatory minimum. Because the appropriate range of sentence included a four year sentence, the mandatory minimum could not be described as grossly disproportionate.
conclusion and disposition
[115] The mandatory minimum sentence of four years exceeds by one year the sentence I would have imposed, absent the mandatory minimum.
[116] However, on weighing all of the contextual factors, I am not persuaded that a sentence of four years imprisonment is grossly disproportionate in the particular circumstances of this case. The offence is grave and its consequences fatal. The circumstances of the offence involved a series of inherently dangerous actions. Although the offence was not intentional, the applicant’s moral culpability is significant. I also take into account that sentences for firearms offences have increased independently of the mandatory minimum, and the four year sentence imposed in Canning before the enactment of the mandatory minimum. After also considering the mitigating circumstances in this case and the applicable principles and goals of sentencing I conclude that the imposition of a four year mandatory minimum sentence in the circumstances of this case would not “shock the conscience of Canadians” and does not constitute cruel and unusual punishment.
[117] Mr. Penner, will you please stand.
[118] I sentence you to a term of imprisonment of four years on count one.
[119] Count 2 is stayed on the Kineapple principle.
[120] In addition, there will be the following ancillary orders:
· a firearms prohibition pursuant to s. 109(2) of the Criminal Code prohibiting you from possessing any firearm other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for 10 years; and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life;
· an order pursuant to s. 487.051 of the Criminal Code authorizing the taking, from you, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose.
[121] In light of the term of incarceration, the victim surcharge is waived.”
PEARLMAN J.”