R. v. Scotchman

2016 BCSC 652 R. v. Scotchman IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Scotchman, 2016 BCSC 652 Date: 20160311 Docket: 97266-6 Registry: Kamloops Regina v. Anthony James Scotchman Before: The Honourable Mr. Justice Dley Oral Reasons for Sentence Counsel for the Crown: P. Favell B. Caffaro Counsel for the Accused: R. Claus Place and Date of Trial/Hearing: Kamloops, B.C. March 11, 2016 Place and Date of Judgment: Kamloops, B.C. March 11, 2016 Overview [1] THE COURT: Mr. Scotchman has pled guilty to manslaughter. [2] The Crown seeks a sentence of eight to ten years in prison. The Crown says that this was "near murder" and the aggravating circumstances require a sentence at the upper end of the range. [3] Mr. Scotchman submits that the range is four to eight years. He says that he had no idea there would be death when he and his associates intended to inflict a beating on the victims. Mr. Scotchman says that his Aboriginal heritage and the prospect for rehabilitation favour a sentence at the low end of the range. The Facts [4] Mr. Scotchman and Travis Johnny are members of the Redd Alert. [5] The Redd Alert is an Aboriginal gang initially based out of Edmonton. It has since spread to various communities throughout British Columbia, Alberta, Saskatchewan and Manitoba. The Redd Alert has allies with other known criminal groups. The Redd Alert is a loosely organized cell-based group composed of street-level drug dealers. They have been involved in a wide variety of crimes including home invasions, armed robberies, carjacking, drug rips, shootings, and violent assaults of rival gang members. [6] Mr. Tremblay was a member of the Game Tight Soldiers ("the GTS"). The GTS is a low-level drug-trafficking group. It appeared in the Downtown Eastside of Vancouver in late 2007. The members have been involved in a wide variety of crimes including threats, stabbings, intimidations, assaults, shootings, and murders. The GTS is a loosely organized cell of members and associates operating throughout British Columbia. The GTS has connections to the Prince George Renegades, the puppet club of the Vancouver East Side Hells Angels. [7] Archie Lepretre was not a member of either gang. He was 22 years of age. He had finished college and had been working as a cook in the Lower Mainland. [8] Mr. Lepretre came to Kamloops to visit his grandmother. He was at his grandmother's house on March 22, 2011, when Mr. Tremblay invited him to go and shoot some hoops. They went to the Stuart Wood Elementary School basketball court. [9] Stuart Wood School is located in the heart of Kamloops. It is readily accessible to the public. The basketball court is enclosed with wire fencing. The only entrance is through a fence gate. [10] Since March 18, 2011, members of the Redd Alert had been looking for Mr. Lepretre and Mr. Tremblay. Mr. Scotchman received information that they had been spotted at Stuart Wood. He was instructed by a superior in his gang to have a beating administered to the pair. [11] Mr. Scotchman picked up Travis Johnny and Christopher David. The three went to the area of the school. It was about 4:30 p.m. They parked away from the school. All three had their faces covered with scarves. [12] Mr. Scotchman had a knife - so did Mr. Johnny. Mr. David was armed with an aluminum bat. [13] Mr. Johnny accosted Mr. Lepretre. Mr. Scotchman and Mr. David went to Mr. Tremblay. Mr. Scotchman encouraged Mr. David to hit Mr. Tremblay in the head. Mr. David took a couple of swings at Mr. Tremblay who managed to take the bat away. Mr. Scotchman had his knife out, but did not do anything. [14] Mr. Lepretre was calling out for help, but Mr. Tremblay was engaged in his own defence and unable to assist. Mr. Tremblay ended up outside the basketball court and he was not able to re-enter to assist his friend because Messrs. Scotchman and David held the gate shut. [15] The three assailants left the basketball court and told Mr. Tremblay that he needed to take care of Mr. Lepretre. Mr. Lepretre was left lying in the corner of the enclosure covered in blood. Mr. Lepretre had suffered multiple wounds. The cause of his death was blood loss as a result of being stabbed in the neck. [16] Neither Mr. Lepretre nor Mr. Tremblay had any weapons. [17] Mr. Scotchman admitted that the intention of going to the Stuart Wood School was to beat up their victims and "knock someone out." Circumstances of Mr. Scotchman [18] Mr. Scotchman is 27 years old. He is a status member of his band near Lillooet. His father worked as a commercial painter and served as a school district trustee. His mother was a homemaker. There were no issues of substance use or violence within the family home. Mr. Scotchman's formative years were spent playing hockey and engaged with his extended family in social, recreational, and cultural activities. [19] Although Mr. Scotchman's parents had suffered through the horrors of residential schools, he and his siblings were raised in a home without any of the difficulties that his parents had experienced. [20] Mr. Scotchman struggled in school. He quit school at the age of 15 and moved to Vancouver. There, he worked sporadically as a labourer. [21] He returned to Lillooet for a period of time. In 2010, Mr. Scotchman decided to pursue a carpentry apprenticeship. He secured work as a construction worker at the Winter Olympic Games. However, he was terminated from his employment because he did not appear for work as a result of drinking. He tried to support himself by working as a day labourer, landscaper, and warehouse worker. [22] While struggling to meet his basic needs, he became involved with those involved in street-level illicit activities. He became a member of the Redd Alert gang. [23] Mr. Scotchman has two children, both under the ages of five. He has not had contact with either child since his arrest. [24] Mr. Scotchman intends to relocate from Lillooet to Vancouver. His plan is to disassociate from his previous contacts and start afresh. His parents and extended family are supportive of him. [25] In the event, Mr. Scotchman wishes to return to his band in Lillooet, his return will be subject to written approval from the chief and council. [26] Mr. Scotchman has expressed his willingness to address the underlying factors of this crime by disassociating from his gang life and addressing his educational/vocational deficits. [27] Mr. Scotchman had no criminal record at the time of this offence. After the killing and before his arrest in December of 2013, Mr. Scotchman was convicted of breaking and entering for which he received a conditional sentence. [28] Mr. Claus describes Mr. Scotchman as a man of few words. On behalf of his client, Mr. Claus has expressed the sorrow for his actions and his remorse. Mr. Scotchman has indicated that the consequences of what occurred went far beyond what had been intended or expected. Impact on the Victim's Family [29] The impact of Mr. Lepretre's death has been profound and everlasting. Mr. Lepretre had conquered his own demons. He had accomplished much. The victim impact statements are consistent in describing Mr. Lepretre as a happy, generous, and popular member of the family. The loss of his smile, laughter, and generosity will continue to haunt his family. [30] Mr. Lepretre had done nothing wrong. He was an innocent victim caught in the tension between rival gangs. Legal Parameters of Sentencing [31] Sentencing is an individualized process. Every circumstance is different. Every offender is different. [32] The court must always exercise restraint in setting the sentence. [33] The purpose of crafting a fit and just sentence is to protect society. The Criminal Code requires that such a sentence must factor in one or more of the following objectives: i) to denounce unlawful conduct; ii) to deter the offender and other persons from committing offences; iii) to separate offenders from society, where necessary; iv) to assist in rehabilitating offenders; v) to provide reparations for harm done to victims or to the community; and vi) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [34] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [35] In passing sentence, a court must also take into consideration the fact that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [36] The court must also take into account evidence that the offence was committed for the benefit of, at the direction of, or in association with a criminal organization. If there is such evidence, that is deemed to be an aggravating circumstance. [37] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [38] An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of Aboriginal offenders. Discussion [39] The Court of Appeal has said the following with respect to a general range of sentence: A number of cases were cited to the sentencing judge and to this Court to establish a range of sentence for a young Aboriginal offender with no prior record who committed manslaughter in aggravating circumstances. While each case will depend on its unique circumstances, the range appears to be generally between three and eight years' imprisonment with sentences of one and ten years at the outer ends. As noted, sentences in manslaughter cases are very fact specific. R. v. Pop, 2013 BCCA 160, at para. 25. [40] A Gladue report has been provided. It is helpful in describing Mr. Scotchman's upbringing. The importance of Gladue factors are highlighted in R. v. Ipeelee, 2012 SCC 13, at para. 73: First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the unique systemic or background factors that are mitigating in nature in that they may have played a part in the aboriginal offender's conduct" ... Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely -- if ever -- attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. As Greckol J. of the Alberta Court of Queen's Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50, after describing the background factors that lead to Mr. Skani coming before the court, "[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into account would violate the fundamental principle of sentencing -- that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. As Cory and Iacobucci JJ. state in Gladue, at para. 69: In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. [41] An offender's Aboriginal status does not automatically result in a reduction from what would otherwise be a fit and proper sentence; R. v. Worm, 2014 SKCA 94, at para. 141. [42] The Gladue factors must be considered before a court imposes a sentence. That does not mean that the Gladue factors override all other factors. The Gladue factors are only one of the factors that must be considered. Systemic and background information provide the necessary context to enable the court to set a fit and proper sentence; Ipeelee at para. 83. [43] Counsel have been of immense assistance in providing a number of cases that illustrate the manner in which sentences have been crafted in matters involving manslaughter or aggravated assaults. There are distinguishing features of every case - that is to be expected. [44] One of the more obvious distinguishing features of the cases is the fact that alcohol or intoxication played no part in this offence. It was not an offence committed in the heat of the moment or in circumstances where provocation or self-defence can be relevant or mitigating circumstances. [45] This was a planned and deliberate attack done to advance the interests of organized crime. [46] Mr. Scotchman did not kill Mr. Lepretre. I must determine in the context of the others involved where Mr. Scotchman lay on the spectrum of individual moral culpability; R. v. Plowman, 2015 (B.C.C.A.), at para. 44. [47] Mr. Scotchman was the catalyst for the attack. Although he was acting on orders from higher authority, he used his vehicle to pick up the others and took them to the school. It was Mr. Scotchman who initiated the attack. [48] This was tantamount to a swarming attack. Even though Mr. Scotchman did not actively engage in the attack on Mr. Lepretre, he was nonetheless part of the overall enterprise which was to inflict harm on the victims. Going to the school, knowing that everyone was armed, Mr. Scotchman knew or ought to have known that the risk of serious injury or death was a realistic consequence. [49] The attack fell within the category of cases that require a strong denunciatory message to be sent as expressed in Plowman at para. 55: Those who choose to participate in gang-like violence cannot expect to have their culpability determined without regard to the totality of the harm inflicted. Each is accountable for the collective action. [50] Although Mr. Scotchman is accountable for what occurred, I am satisfied that under the circumstances, his moral culpability is less than Mr. Johnny's. Mr. Johnny was solely involved and engaged with Mr. Lepretre. [51] I must consider aggravating and mitigating factors. [52] The aggravating factors are as follows: i) This was a deliberate and planned attack. Mr. Scotchman was armed with a knife. His associates were also armed. Mr. Scotchman took the precaution of parking his vehicle some distance away from the site of the attack. He and his associates had concealed their identities by wearing scarves over their faces. ii) The attack was carried out in a schoolyard at a time when it would be expected that members of the public or children from the school might be present. iii) There was no prior relationship between Mr. Scotchman and the victims. The attack was simply because of instructions given. 4. Mr. Lepretre was not part of the gang rivalry. He was no more than an innocent bystander caught in a conflict that did not involve him. 5. The attack was committed for the benefit of, at the direction of, or in association with a criminal organization. [53] The mitigating factors are as follows: i) Mr. Scotchman is a young man and, at the time of this offence, did not have a criminal history. ii) Mr. Scotchman has pled guilty. iii) Mr. Scotchman has acknowledged his wrongdoing and has shown remorse. iv) Mr. Scotchman has indicated that he wishes to disassociate himself from criminal activity and successfully reintegrate back into society. v) Mr. Scotchman has family support. [54] The principles of deterrence and denunciation are the primary objectives of sentencing in these circumstances. Rehabilitation must always be considered and I consider it to be a mitigating factor in favour of Mr. Scotchman. [55] However, the circumstances fall within the directions for sentencing as expressed by the Court of Appeal in R. v. Aburto, 2009 BCCA 446, at para. 20: Criminals who attack, and as regrettably occurred here, kill innocent persons to enforce what they claim as their "turf", deserve strong judicial disapprobation. [56] The attack on Mr. Lepretre was planned and unprovoked. It was intended that significant harm be done to the victims. Mr. Scotchman and his associates had armed themselves with knives and a bat to carry out their objectives. The result is that these facts require a sentence at the higher end of the range more in keeping with a near murder. In arriving at a fit and proper sentence, I have considered all of the objectives and principles of sentencing including the Gladue factors. [57] Mr. Scotchman, would you stand, please. [58] Mr. Scotchman, I sentence you to a period of imprisonment for seven years. You have been in custody for 34 months which is based on one-and-a-half days' credit for each day served. The result is that the actual sentence you will still be required to serve is 50 months in jail. [59] Pursuant to s. 109 of the Criminal Code, you will be prohibited for a period of 10 years after your release from prison from possessing any firearms, weapons, ammunition, or explosive substance. [60] Manslaughter is a primary designated DNA offence. As a result, within 30 days, you must provide a sample of your DNA in order that it be registered in the national DNA databank. [61] This offence occurred prior to the amendments with respect to the imposition of the victim fine surcharge. Although I have a discretion to waive the surcharge, there is no justifiable reason for doing so and, accordingly, I decline to do so. "S.D. Dley J." DLEY J.