R. v. Caines

R. v. Caines Court Supreme Court Date 2026-05-01 Citation 2026 NSSC 146 Docket CRS No. 534551 Judge/Registrar/Adjudicator Duncan, Patrick J. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: R. v. Caines, 2026 NSSC 146 Date: 20260501 Docket: CRS No. 534551 Registry: Sydney Between: His Majesty the King v. Jason Owen Caines SENTENCING DECISION Judge: The Honourable Justice Patrick J. Duncan Heard: April 20, 2026, in Sydney, Nova Scotia Written Decision: May 1, 2026 Counsel: John MacDonald for His Majesty the King Danielle Arseneau for Jason Caines By the Court (Orally): Introduction [1] Jason Caines has entered a plea of guilty to the charge that he did, on or about May 10, 2024, at or near Sydney, Nova Scotia unlawfully kill Keith McMullen and thereby commit manslaughter, contrary to section 236(b) of the Criminal Code. The Facts [2] There is an Agreed Statement of Facts: 1. On May 10th, 2024, Cape Breton Regional Police (the “Police”) were dispatched to the Royal Canadian Legion at 35 State Street in Sydney, Nova Scotia, due to a report of an unconscious male bleeding from the head. 2. Upon arrival, at 11:33 p.m., police observed an unconscious male on the ground, a female holding his head, and a paramedic attending to him. Blood was coming from the male’s head and pooling below. He was eventually, transported him to the Cape Breton Regional Hospital (the “Hospital”). 3. The male on the ground was Keith McMullen, who was a best friend of the Accused, and was engaged to, and in a long-term relationship with, the accused’s sister, Shirley Caines. 4. Jason Caines, Shirley Caines and Keith McMullen attended the venue together that evening, consumed alcohol, and Mr. McMullen became intoxicated. Mr. McMullen showed signs of anger inside the bar, including pushing chairs, which witnesses attributed to jealousy over Shirley Caines talking to Billy Darrington. 5. Police spoke with Melanie Hayden who stated she did not witness what took place outside but arrived outside to Keith McMullen on the ground and a male saying, “I didn’t hit him” and “I just pushed him, and he fell.” She indicates the male then left the scene. 6. Police viewed surveillance video which showed Keith McMullan walking outside to have a cigarette. Jason Caines was then observed approaching Keith McMullen and pushed him with both hands. Mr. McMullen fell backwards, struck the pavement with his head, and his body went limp. Jason Caines proceeded to approach Mr. McMullen, stood over him, and pointed his finger at Mr. McMullen’s face. Mr. Caines then left the scene as bystanders approached. 7. Dr. Fullen advised police that Keith McMullen had a front brain bleed and rear skull fracture, confirmed by CT scan. 8. Police attend the Hospital on May 11, 2024, I [sic] the early morning hours, as they had been advised that Jason Caines was at Keith McMullen’s room wanting to see the victim. Cst. Blanchard observed Jason Caines seated at the front of Mr. McMullen’s bed. He was asked to step outside, where he was arrested for aggravated assault on Keith McMullen at 2:27 a.m. on May 11, 2024. 9. At 1:33 pm on May 11, 2024, Police were advised that Keith McMullen had passed away. At 2:54 p.m. Jason Caines was escorted from his cell to an interview room, advised that Keith McMullen had passed away, and that he was being charged with manslaughter. 10. In addition, it is a fact that Jason Caines was arrested and held on May 11, 2024, and was released on a release order on May 14, 2024, for which he should receive credit for six (6) days pre-trial custody. Circumstances of the Offence [3] The death of Keith McMullen was a tragedy. Mr. Caines pushed his best friend too hard, sending Mr. McMullen to the ground where he hit his head and died from a brain injury. Besides losing his life, the lives of Mr. McMullen's loved ones were changed forever. [4] It has been referred to as a "near accident" and that is accurate when comparing this incident with manslaughter cases that involve assaults that are callous and brutal, cases that are "near murder" but still manslaughter. [5] Was this a crime? Of course, it was. There is a tendency sometimes to think of these types of incidents as an accident, but when someone is unlawfully assaulted and dies as a result, it is no longer an accident, it is an unlawful death. Mr. McMullen was intoxicated and smoking a cigarette when Mr. Caines approached him. Whatever objectionable things Mr. McMullen did or said indoors, he had done nothing that would give Mr. Caines a lawful reason to push him when they were outdoors, let alone with the degree of force that was used. Such force would obviously put the victim at risk of bodily harm. Sadly, it resulted in death. [6] It is apparent that this was not pre-meditated, but a spontaneous reaction to what had taken place inside. To the extent that alcohol may have been a factor in Mr. Caines' behavior, it is not an excuse. However, when the prior good character of Mr. Caines and his friendship with the victim is accounted for, it offers some explanation of why this took place. Circumstances of the Offender [7] I have had the benefit of reviewing a Pre-Sentence Report. It has provided helpful insights into Mr. Caines' character and is uniformly positive. I also have letters from friends and family in support of Mr. Caines, again speaking highly of him. He similarly impressed the Pre-Sentence Report writer as being "genuine in the information provided" and "polite, honest and respectful". She observed that this has taken "a significant emotional toll" on him and that he expressed his remorse and deep regret. [8] Mr. Caines is 51 years old and resides in Sydney with his partner. He was raised well by parents who are devout members of their faith. He lived at home until he was 17 and has a close relationship with them and his brother. Mr. Caines has their continuing support which will help him as he moves forward from today. [9] He left school at an early age but has maintained employment. In earlier years he worked as a kitchen helper in a restaurant and is now a well-thought-of 20-year employee of Protocase - a position he hopes to retain. He has never been dismissed or fired from a job. [10] Mr. Caines has a modest salary and typical monthly expenses including a mortgage to pay. He generally manages his money well and has no debt. [11] In relation to his health, he is medicated for hyperthyroidism and since this incident has been prescribed medication to help him sleep. As I will speak to later, this incident has, according to all interviewed, been very distressing to Mr. Caines - his remorse is sincere and deep. It has been suggested that he could benefit from professional assistance for his mental health. [12] He feels his alcohol consumption is not problematic. I will have more to say about that. [13] Mr. Caines has an old and unrelated criminal record. The most recent was simple possession of a narcotic 32 years ago, for which he received a fine. He has not served a jail sentence previously. [14] The offence is an isolated crime, one inconsistent with how he has been described which includes: • Hardworking, responsible, trustworthy, dependable (employer). • Easy going, nice, a great person and friend, always willing to pitch in with whatever was needed (Charles Malinkowski). • Caring and compassionate (partner Shauna MacArthur) [15] No one would have predicted that this would have happened. Impact on the Victim / Community [16] I earlier spoke of how a tragedy of this nature has consequences beyond the victim's death. Mr. McMullen's sister, Lynda MacDonald, has provided a Victim Impact Statement which makes that so clear. [17] She describes how "her heart was shattered in a million pieces" as she was called upon to make the decision to take her brother off of life support. How hard that must have been. She reminds us that he was a father, son, brother and uncle - all of whom now suffer the loss. Ms. MacDonald also suffers from sadness, grief, anxiety and sleeplessness. [18] It is important to remember as well that when something like this happens, it impacts the community at large. People, hearing such news, feel less safe. This is so, even when it does not impact them personally. Positions of the Crown and Defence [19] The Crown and Defence have jointly recommended a sentence of 2 years' incarceration together with ancillary orders. Joint Recommendations [20] The parties have asked me to accept the joint recommendation as to penalty. It is a true joint recommendation. [21] Appellate courts, increasingly in recent years, have stated that trial judges should not reject jointly proposed sentences unless they are "unreasonable", "contrary to the public interest", "unfit", or "would bring the administration of justice into disrepute". [22] The court-prepared summary of the decision in R. v. Anthony-Cook, 2016 SCC 43, describes concisely the assessment required of a sentencing judge when considering joint recommendations: … The public interest test is the proper legal test that trial judges should apply. Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. For joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted. The public interest test, by being more stringent than the other tests proposed, best reflects the many benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them. Crown and defence counsel are well placed to arrive at a joint submission that addresses the interests of both the public and the accused. Trial judges should not reject a joint submission lightly. They should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system. A lower threshold than this would cast the efficacy of resolution agreements into too great a degree of uncertainty. Legal Parameters (Range of Sentence) [23] Meeting that threshold requires the court to consider a number of factors. The first question is whether the proposed sentence falls within the "range of sentences" imposed in comparable cases. [24] There is no minimum sentence for this offence; that is, there may be circumstances where a court would not impose a jail sentence. The maximum permissible sentence is life imprisonment. [25] So, how does a court decide the sentence of an individual when the possibilities are from no jail to incarceration for life? [26] Judges and counsel are guided by the Criminal Code and by the decisions that other courts have made in the past. [27] A fit and proper sentence must fall within an established range of sentences for persons who have committed the same crimes in similar circumstances and with similar backgrounds. [28] The Criminal Code sets out the purposes and principles of sentencing that a court is required to consider in determining a sentence. I will now describe how the provisions of ss. 718, 718.1 and 718.2 of the Criminal Code enter into my analysis. [29] The sentence that is passed is intended to deter other persons who would be of like mind and in similar circumstances. It must also speak to the public at large with the message that there are significant penalties to pay for crimes of this nature. [30] The sentence is also intended as an expression of society's denunciation for criminal conduct. [31] These principles, being general deterrence and denunciation, dominate the decision making in a case like this. A serious crime of this nature generally results in a period of imprisonment. The sentence that has been proposed by the prosecution and acknowledged by counsel for the accused is intended to act as a general deterrent, when taken in the context of the total range that is available in the circumstances of this case. [32] We look too, though, to the circumstances of the offender. The sentence is intended to provide opportunities for people to rehabilitate themselves so that they can live a peaceful and positive lifestyle upon their release, rather than as a threat to the safety of their community. [33] To assess this potential, we consider their past conduct to gauge how the sentence will support or undermine his return to society as a contributing member of society and not as a person to be feared. This is why we obtain Pre-Sentence Reports and consider criminal records and community supports available to the offender. [34] In some cases, it is necessary to impose jail time because the offender simply has not apprehended the wrongfulness of their conduct, and imprisonment is the only way to bring that message home to them; that is, to reinforce that they should not re-offend in the future. This is what we mean by specific deterrence. Case Law [35] It has been observed that most sentences for manslaughter result in 4 to 10 years of imprisonment. However, there are examples of sentences that are below 4 years and above 10 years. This wide variation in penalty has been explained in many cases. [36] In R. v. Creighton (1993), 83 C.C.C. (3d) 346 (S.C.C.) McLachlin J., as she then was, stated at p. 375: . . . Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence. This is appropriate. Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. This court acknowledged this in Martineau, at p.362: "The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender." It follows that the sentence attached to manslaughter does not require elevation of the degree of mens rea for the offence. [37] In R. v. Henry, 2002 NSCA 33, Justice Roscoe wrote: [19] A significant distinguishing factor between cases where a low or non-penitentiary term is appropriate and those where a lengthy sentence 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, for example, R. v. Owens, [1986] B.C.J. No. 401 (B.C.C.A.). …. Analysis [38] In summary, we impose sentences that try to balance all these various factors from the Criminal Code and from other cases, so that we can accomplish the overriding goal of protection of the public. [39] The question before this court then is: what is a fit and proper sentence, that falls within this very broad range of possible sentences, having regard then to the circumstances of the offence and of Mr. Caines? [40] In conducting my analysis, I am bound by the Agreed Statement of Facts. I must also rely on the submissions of counsel to the extent that any comment on the facts was agreed upon by them. I cannot consider facts that are not before me. [41] In looking at the circumstances of Mr. Caines, it is important to assess whether he is likely to re-offend which includes assessing insight to the crime committed, the sincerity of any stated remorse and the acceptance of responsibility. [42] In this case, there are mitigating factors that speak to the moral blameworthiness of Mr. Caines. While the offence itself is among the most serious crimes, the circumstances fall within that "near accident" description used by the courts to distinguish it from cases that entail a high degree of moral blameworthiness. [43] Mr. Caines' entering a plea of guilty is evidence of the acceptance of responsibility - it is a mitigating factor. In this case, his guilty plea ultimately resulted in certainty in the result, saving witnesses from having to testify in what would be a very difficult case. It also has allowed the trial time to be used for other matters pending in the court. [44] Other mitigating facts include: • Has no relevant criminal record. • Has demonstrated sincere remorse. • Is experiencing significant mental turmoil - living with what he did. • And has, at age 51, developed a long-standing record of demonstrating good character in his personal life, his work life and among his friends and community at large. [45] Counsel have provided me with several cases to show why the sentence proposed is consistent with the decisions handed out in other cases. I am familiar with them and agree that the proposed disposition falls within the range of sentences that have attracted a sentence below the 4-year starting point. A common feature of those cases is that there was an unintentional killing while committing an otherwise minor offence. [46] The chief factors in favour of a jail sentence are the importance of general deterrence and denunciation to public safety. Unfortunately, alcohol and bad temper, even among friends, has led to many serious crimes of violence - some leading to death as in this case. The public, and especially those who might find themselves in similar circumstances, must know that there is a price to pay even when it is the result of a near accident. In this way, Mr. Caines' sentence is a message that even when it is a near accident, jail is still a likely consequence. [47] The sentence proposed in my view responds appropriately to the need for protection of the public. Mr. Caines has not been a violent person and is unlikely to re-offend. His family and friends support him, and he is fortunate in that his employer has said that he will still have a job when he returns from his sentence. That is a strong statement as to the trust he has earned. Similarly, I am satisfied that the sentence imposed is not necessary to specifically deter him from future misconduct. He has, according to various sources, accepted responsibility for his actions and has been very self-critical. [48] As such, rehabilitation prospects are very good. However, there are a few issues that are pointed to in the Pre-Sentence Report as worthy of further consideration to assist Mr. Caines in the future: • He could benefit from mental health services to develop positive coping skills and address any grief/trauma he is experiencing. • Participation in an anger management program, since at some level this action reflected a loss of control over his emotions, and • To these I would add that an assessment for alcohol use would be appropriate. Again, his conduct, described as out of character, may be attributed to an impairment of his judgment. When a death is the result, it indicates that alcohol may also be a contributing factor to the loss of control, since it may have been a factor. [49] These are suggestions for Corrections Canada to consider implementing if Mr. Caines is inclined to participate. [50] In conclusion, the proposed sentence does satisfy the legal requirements to accept this joint recommendation. It is in the range of sentences to be a fit and proper disposition. It reflects due consideration to the applicable principles of sentencing, including the circumstances of the offence and of the offenders. It is not contrary to the public interest. Conclusion [51] I sentence Mr. Caines to serve a period of 2 years in jail. [52] In addition he will be bound by the following ancillary orders: • Mandatory Prohibition of Firearms for 10 years pursuant to s. 109 CC. • Mandatory DNA Order (primary designated offence) pursuant to s. 487.051 CC: • Victim Surcharge in the amount of $200.00 payable within 6 months of today's date pursuant to s.737 CC. Duncan J.