R. v. Bidesi

2016 BCSC 171 R. v. Bidesi IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bidesi, 2016 BCSC 171 Date: 20160114 Docket: X076633 Registry: New Westminster Regina v. Russell Atma Bidesi In the Matter of the Contempt Proceedings against Joshua Bruno Martinez and Fabian Lyde RESTRICTION ON PUBLICATION: An order has been made in this proceeding pursuant to s. 486.5(1) of the Criminal Code that prohibits the publication, broadcast or transmission of any information that could identify the witness referred to in this judgment by the initials M.B. This publication ban applies indefinitely unless otherwise ordered. These reasons for judgment comply with the publication ban. Before: The Honourable Mr. Justice Butler Oral Reasons for Sentence Counsel for the Crown: Jay L. Fogel Marko Vojvodic Counsel for Joshua Martinez: Pamela Smith-Gander Counsel for Fabian Lyde: David H. Albert Place and Date of Trial/Hearing: New Westminster, B.C. December 2, 2015 Place and Date of Judgment: Vancouver, B.C. January 14, 2016 [1] THE COURT: Fabian Lyde and Joshua Martinez and Russell Bidesi were charged with the murder of Kacey Rogers which occurred during a home invasion on February 26, 2012. Messrs. Lyde and Martinez each entered guilty pleas to manslaughter prior to the trial of Mr. Bidesi and were then subpoenaed to testify at that trial. Both men refused to take an oath or testify. I provided each with an opportunity to speak with counsel, but both men maintained their refusal to testify. I cited them for contempt. In a subsequent show cause hearing, Mr. Martinez led evidence to raise a defence of duress to the contempt charge. I rejected that defence and found him guilty of contempt. As Mr. Lyde did not present any evidence, I also found him guilty of contempt. [2] Given the circumstances of this case, I heard submissions on sentence from the Crown and counsel for Messrs. Lyde and Martinez at the same hearing. The circumstances of the offence are the same for both contemnors and their personal circumstances are not significantly different. All three parties take the position that the same sentence should be imposed on each. As I will explain, I agree with that submission. [3] Accordingly, I will commence these reasons by describing the circumstances of the offences and the personal circumstances of the two contemnors. I will then provide a brief summary of the parties' positions. Finally, I will review the relevant law and conclude with my decision as to a fit sentence for Mr. Lyde and for Mr. Martinez. Circumstances of the Offence [4] The circumstances of the underlying second degree murder charge against Mr. Bidesi are set out in two decisions indexed as: R. v. Bidesi, 2015 BCSC 126, the ruling on admissibility of statements of Messrs. Lyde and Martinez, and R. v. Bidesi, 2015 BCSC 863, the decision on the murder charge. [5] In the admissibility ruling, I concluded that the statements of Messrs. Lyde and Martinez to the police were not admissible evidence against Mr. Bidesi. In the decision on the murder charge, I found Mr. Bidesi not guilty of second degree murder, but convicted him of the included offence of manslaughter. [6] In the murder decision, I made findings of fact regarding the circumstances relevant to the murder charge. Messrs. Lyde and Martinez were recruited by Mr. Bidesi to participate in the home invasion. The object was to rob Mr. Rogers of drugs and money that might be found at his home. The three men were armed with two shotguns. In the course of the invasion and robbery, one of the three men fired a shot at the head of Mr. Rogers from close range. He died instantly. [7] The case against Mr. Bidesi was almost entirely circumstantial. As a result of the failure of Messrs. Lyde and Martinez to testify, there was no evidence before the Court about the circumstances of the shooting. In particular, there was no evidence as to which of the three men fired the fatal shot. [8] I concluded that there were three possible ways in which the murder took place: Mr. Bidesi fired the fatal shot; he ordered Mr. Lyde or Mr. Martinez to shoot Mr. Rogers; or, in the course of the robbery, Mr. Lyde or Mr. Martinez decided to shoot Mr. Rogers. [9] If the shooting occurred by way of either of the first two scenarios, Mr. Bidesi would be guilty of murder. However, if the shooting took place in circumstances consistent with the third scenario, Mr. Bidesi could not be found guilty of murder without sufficient evidence from which to infer the necessary intent. Given the paucity of evidence about the circumstances leading up to the shooting of Mr. Rogers, I determined there was insufficient evidence to conclude that the Crown had proved the necessary intent beyond a reasonable doubt. [10] There is no doubt that Mr. Lyde and Mr. Martinez were both present at the home when Mr. Rogers was killed and that they entered the home immediately after the shooting. In other words, both men were in a position to provide critical evidence about the circumstances under which the fatal shot was fired. It is very likely both men could have stated who it was that fired that shot. At the very least, each could have given evidence about his own involvement in the home invasion and shooting. Their evidence would have been of critical assistance to the Court in considering the second degree murder charge against Mr. Bidesi. [11] When Messrs. Martinez and Lyde were called to the witness stand, I stressed to each that it was obvious to the Court that they had significant relevant evidence. I impressed upon them that they were required to testify having been subpoenaed, and that if they failed to do so, they would be cited for contempt and could receive lengthy custodial sentences. Both men were polite and respectful to the Court, but refused to testify, even after receiving legal advice. Circumstances of the Offenders Mr. Lyde [12] Mr. Lyde is currently 21 years old. He is one of the youngest men in a federal corrections facility as a result of his conviction for manslaughter. Prior to that offence, he had no criminal record. He grew up in a family that had financial challenges and his childhood was disruptive and somewhat difficult. He began using marihuana in Grade 8 and was expelled from school. He was removed from his social group and got involved with a negative peer group. He dropped out of school in Grade 11. [13] The pre-sentence report prepared for the manslaughter sentencing is very positive. He has maintained a close relationship with his father and three siblings. He is described as a young man who is motivated to improve himself. He completed Grade 12 while in pre‑trial custody. He plans on taking a trade or attending business school when he is released from custody. He does not want to get involved with criminal associates again. He has been a model prisoner. [14] Mr. Lyde pled guilty to manslaughter and was cooperative with authorities until he was subpoenaed. The author of the pre-sentence report stated that Mr. Lyde expressed genuine remorse for the death of Mr. Rogers. He was sentenced to six years for manslaughter. Mr. Martinez [15] Mr. Martinez is 23 years old. His mother is a member of the Nooaitch Indian Band and his father is a Salvadoran refugee. The Gladue report prepared for the underlying offence describes his mother's family history. His maternal grandparents and great‑grandparents attended residential schools and the family struggled with alcoholism, neglect, and physical and sexual abuse. His mother had a difficult childhood, but she eventually pursued an education in Bible studies and obtained a bachelor's degree in education before marrying Mr. Martinez's father. [16] Mr. Martinez grew up in Vancouver. He was an only child and describes his upbringing as family focused. He did not suffer any abuse. He was a good student, but had a difficult time in school as a result of his diminutive size; he is only five foot two inches. [17] He experienced racism as a native and was often involved in fights. He self‑identified as Spanish in an attempt to avoid bullying and racism. Because of Mr. Martinez's increasing involvement with a negative peer group, the family moved back to his mother's reserve in Merritt when he was 15. This proved unfortunate for the family, as his father could not find work and his parents eventually separated. Mr. Martinez left home at 16 to take a mechanic's trade course, but failed when he neglected his studies and spent his time partying. He returned to Merritt, finished Grade 12, and then moved to Vancouver where he took up with some of his former friends and began to traffic in marihuana. [18] After Mr. Martinez was arrested for the Rogers shooting, the Nooaitch Band declined to offer assistance to him. His family was never well accepted in the band because his mother followed Pentecostalism rather than traditional Aboriginal culture and teachings. Accordingly, while he now identifies as Aboriginal, he does not have a strong connection with or understanding of his Nation or cultural background. [19] Mr. Martinez did not have a criminal record prior to his involvement in the Rogers shooting. He was charged with murder on the same indictment as Mr. Bidesi and pled guilty to manslaughter shortly before the trial. He also pled guilty to four firearms offences, as the weapons used in the home invasion were found in his possession. He received a global seven‑year sentence for the offences: R. v. Martinez, 2015 BCSC 653. [20] Most of his time in custody prior to sentencing was spent in segregation because of his concern that he would be a target for other prisoners. Like Mr. Lyde, he has been a model prisoner and has taken advantage of all programs available to him in custody. Position of the Crown [21] The Crown acknowledges that the maximum sentence available for contempt is five years. The Crown says the circumstances of the contempt in this case should attract sentences at the highest end of the range. The Crown notes that the charge against Mr. Bidesi was murder and says that the failure of the contemnors to testify had a significant impact on the result of the trial. The Court was unable to conclude that Mr. Bidesi had the necessary intent for the second degree murder charge. In other words, the Crown says the circumstances of the offence are at the worst end of the continuum: the underlying charge is one of the most serious offences in the Criminal Code, and it could not be proved because of the intentional, calculated decisions of Mr. Lyde and Mr. Martinez not to testify. [22] The Crown says that in recent years, the range of sentence for serious instances of contempt has risen. Authorities in other jurisdictions establish that the high end of the range of sentences for witnesses who refuse to testify in murder cases where that refusal has an impact on the trial decision is, the Crown says, four to five years. [23] While there are no British Columbia decisions with sentences in that range, the Crown notes that contempt is a common law offence, and so there is no reason for the range in this province to be different from other provinces. The range has increased because courts have found it necessary to send a message to individuals involved in criminal activity that refusing to testify will have a serious consequence in prison time. [24] The Crown says the most important sentencing principles in cases of serious contempt are deterrence and denunciation. The prevalence of criminal gangs and circumstances such as those in the present case, where the only available evidence is from those who were involved in the criminal activity, calls out for sentences which express society's condemnation of contemptuous behaviour. Positions of Messrs. Lyde and Martinez [25] Messrs. Lyde and Martinez take issue with the Crown's suggestion that the range of sentence for contempt extends to a high of four or five years. They note that there have been no sentences for contempt in British Columbia in that range and very few sentences longer than three years in other provinces. Further, the contemnors say that the circumstances of the offence and the offenders here are distinguishable from those in the few instances where sentences of three years or longer were imposed. The contemnors say that the range for a first contempt offence is 15 months to three years and that the high end of that range is not appropriate for Messrs. Lyde and Martinez, who are younger offenders with little or no criminal history. [26] The contemnors agree that denunciation and deterrence are important sentencing principles in cases of contempt; however, they say rehabilitation is also an important consideration in this case, given their personal circumstances. [27] In all of the circumstances, they submit that a fit sentence is in the range of 15 to 24 months. They concede that the sentence must be consecutive to the sentences they are currently serving for manslaughter. The Law [28] The maximum sentence for contempt of court is five years: R. v. Cohn (1984), 13 D.L.R. (4th) 680 (Ont. C.A.). The court in Cohn found that where a person is cited for contempt and prosecuted by way of summary procedure, he or she is not entitled to a trial by jury, in part because the maximum sentence must be less than five years. In arriving at that decision, the court stated as follows at 702: In Canada, in modern times, penalties imposed have never come close to five years' imprisonment. With the adoption of the Charter as part of the Constitution of this country, the court, in exercising its inherent common law jurisdiction and power to impose punishment for contempt of court, preserved as it is by s. 8 of the Code, must recognize that where the offence is prosecuted summarily and where a sentence of imprisonment is appropriate, it must be for a period of less than five years. [29] In R. v. Neuburger, [1995] B.C.J. No. 2793 (C.A.), the court did not refer to Cohn, but did review decisions which examined the range of sentences for contempt in the face of the court. The court noted that the sentence of two years in R. v. Johnston, [1976] O.J. No. 1144 (Ont. C.A.), was the maximum sentence imposed by a court in Canada for contempt. The court also referred to R. v. Lamer (1973), 17 C.C.C. (2d) 411 (Que. C.A.), in which the Quebec Court of Appeal reviewed decisions in Canada, England and the United States between 1946 and 1972. That review disclosed sentences ranging up to a maximum of two years' imprisonment for a refusal to testify. Lamer involved a relatively young man who was a witness to a murder. His sentence for refusing to testify was reduced on appeal from five years to one year. [30] After reviewing the decisions that suggested that the high end of the range for contempt was two years, the court in Neuburger, reduced the three‑year sentence imposed by the trial judge to time served, which was equivalent to a sentence of 15 months. Madam Justice Prowse, writing for the court, stated as follows at paras. 9 and 10: 9 In my view, the sentencing judge was justified in viewing general deterrence as the most important single factor in sentencing for contempt in the face of the court. I also concur with his view that the refusal of a witness to testify in a criminal proceeding undermines the ability of the courts to deal effectively with the administration of criminal justice. It is not the prerogative of witnesses to criminal events to decide whether or not they will testify. They are bound to testify if called upon to do so, for it is only in this way that those guilty of crimes can be brought to justice and the public be protected. 10 It follows that there must be an effective sanction imposed on those who refuse to testify, particularly where, as here, the charge is one of murder. The question remains, however, as to whether a three year sentence was required in order to bring home to Mr. Neuburger, and to others of like mind, that the courts will not tolerate those who place their own interests or concerns above the law. I note that neither counsel is aware of a recurring incidence of witnesses refusing to testify in this jurisdiction, although the court must be ever vigilant to protect its processes. [31] Before leaving Neuburger, I should note that the circumstances in that case have some similarity to the present situation. The contemnor, a young offender, refused to testify for the Crown at the trial of Mr. Deas for a murder which he witnessed. In reducing the sentence, the court stated as follows at para. 17: 17 With respect to specific deterrence, the most time Mr. Neuburger had served in the past was thirty days and, while he was aware that he was facing imprisonment for his refusal to testify, he had no reason to expect that he would be sentenced to a greater punishment than the highest sentence that had ever been imposed. Further, it is significant that his failure to testify did not result in the acquittal of Mr. Deas, a factor which would have called for a very severe penalty. [32] As of 1995, it is thus accurate to state that the highest sentence imposed in Canada for contempt for refusing to testify at a murder trial was two years in prison. General deterrence was acknowledged to be the most important sentencing principle to be considered in contempt cases. However, up to that time, appeal courts were of the view that in serious cases of contemptuous behaviour, a sentence of two years for refusal to testify was adequate in murder cases to denounce the behaviour and to provide for general deterrence. [33] In the present case, the Crown directly raises the issue as to the appropriate range of sentence for contempt. It says that the range has changed in the last 20 years. The Crown says that where a witness with relevant evidence in a murder trial refuses to testify and that refusal has an impact on the verdict, the high end of the range is now four to five years. In making that submission, the Crown relies on the following authorities: a) R. v. Amyotte and Abdullah, 2008 MBCA 48, where the court reduced the sentences imposed by the trial judge from 48 months (Amyotte) and 42 months (Abdullah) to three years. At para. 37, the court commented that: "[i]t is hard to imagine a worse case or worse offenders." b) R. v. Jacob, 2008 MBCA 7, in which the court reduced the sentence of another witness to the same murder witnessed by Amyotte and Abdullah to two years from the three‑year sentence imposed by the trial judge. While Mr. Jacob had relevant evidence, he was not directly involved in the shooting. c) R. v. Esrabian, [2010] O.J. No. 2896 (S.C.J.), in which the court sentenced the contemnor to four years for refusing to testify. This was his second contempt conviction arising out of the murder of an individual in the Ottawa drug trade. d) R. v. Yegin, 2010 ONCA 238, in which the court upheld a three‑year sentence for contempt arising out of the same murder trial as the Esrabian case. [34] I do not accept the Crown's submission that the high end of the range for contempt for refusal to testify is now four to five years. Rather, the high end of the range for a first offence is three years. My task in considering this issue is made easier by the review of the authorities carried out by Schultes J. in R. v. McMillan, 2011 BCSC 1537. In McMillan, the court considered most of the cases I was referred to, although there is no reference to the two Ontario decisions: Esrabian and Yegin. Justice Schultes also considered R. v. Abu-Sharife, 2006 BCSC 1981, in which the contemnor, a minor, refused to testify against an accused who was his associate in the drug trade. The minor was given two years for contempt, in part because the case against Mr. Abu‑Sharife collapsed as a result of the refusal to testify. [35] The Crown in McMillan took the position that the range for contempt was from a lower range provincial sentence to a high of about 30 months. At para. 34, Schultes J. agreed. He stated as follows: [34] I think that the range of sentence that has been set out by Crown counsel is accurate. Obviously ranges of sentences are not straitjackets and one must always look at the particular circumstances of the offence and the offender. However, they do assist me in ensuring that like offenders are sentenced alike. [36] Mr. McMillan was sentenced to 18 months. However, that case was unusual and is distinguishable on its facts. The contemnor was the victim of an egregious kidnapping and assault, but refused to testify against the individuals who perpetrated the attack. The court found that rehabilitation was not as significant a sentencing factor as deterrence, but took rehabilitation into account by way of the principle of totality. The contemnor was serving a lengthy sentence for an unrelated offence. Schultes J. fashioned the sentence so that the offence was punished properly but "the resulting total sentence is not so significant that it undermines the possibility of rehabilitation and the effectiveness of correctional programs." (para. 33) [37] The cases decided since McMillan do not support the Crown's position that the high end of the range of sentence for contempt has increased. [38] In R. v. Carlick, 2013 YKSC 83, the contemnor was already serving a life sentence for second degree murder when she refused to testify against another woman charged with first degree murder. At para. 9, the court remarked that: [9] the range would be somewhere between 15 months to four years, depending on the nature of the offence being tried, the offender's age, and prior record. [39] While the evidence in that case was critical, the court felt constrained by the fact that the contemnor was already serving a life sentence. [40] In R. v. Thielen (1 February 2013), New Westminster X075093-10 (B.C.S.C.), the contemnor pled guilty to second degree murder for the same murders about which he was subpoenaed to testify. He was a key witness for the Crown and cooperated with the police prior to trial. He refused to testify at trial, but a re‑enactment of the events captured on video was admitted in evidence. The accused at the underlying trial was convicted of first degree murder. The contemnor was sentenced to 18 months in prison. [41] When I examine all of the cases, I conclude that the usual range of sentence for refusal to testify at a murder trial in Canada is 15 months to three years. Where a contemnor refuses to testify at a murder trial, a significant custodial sentence is warranted, hence the minimum range of 15 months. The upper end of that range has increased in recent years. This appears to be a result of the greater prevalence of criminal organizations, especially those involved in the drug trade. Almost all of the cases involve murders that arose in that milieu. [42] I put the high end of the usual range at three years because there is only one case in which a longer sentence was imposed: Esrabian. That case involved a very unusual circumstance; it was the contemnor's second conviction for contempt in similar circumstances. [43] While I conclude that the high end of the range across the country is three years, I note that there have been no sentences in British Columbia for contempt in the face of the court which are longer than two years. While I agree with the Crown's submission that there is little reason for provincial silos to exist for contempt sentences, I would be reluctant to impose a sentence of three years unless it is absolutely clear that the circumstances of the offence and the offender require a sentence at the highest end of the range. [44] In that regard, I would paraphrase the comments of Prowse J.A. in Neuburger. I would be reluctant to impose a three‑year sentence in circumstances where the contemnors have little reason to expect that they would be sentenced to a greater punishment than the highest sentence ever imposed in this province. [45] Further, I cannot conclude from the authorities or from any evidence before the Court that there is, to use the language in Neuburger, "a recurring incidence of witnesses refusing to testify in this jurisdiction". Analysis and Decision [46] There are significant aggravating factors in the circumstances of these offences. First, the underlying charge was second degree murder, one of the most serious offences known to law. Second, the refusal of both witnesses to testify had a significant impact on the trial process. It prolonged the trial by more than two weeks, as the Crown attempted to lead the evidence of Messrs. Lyde and Martinez by way of their statements to the police. Third, and most significantly, the refusal to testify left the Court without any evidence about the circumstances of the shooting of Mr. Rogers. [47] While I cannot know what the outcome would have been had Messrs. Lyde and Martinez testified, having seen and heard the police interviews, I can say that their evidence was extremely relevant and would likely have been highly probative of Mr. Bidesi's role in the death of Mr. Rogers. [48] Before turning to the circumstances of the offenders, I should also note that while the failure to testify had a significant impact at trial, it did not result in the collapse of the Crown's case. As explained in the murder decision, the Crown presented a compelling circumstantial case which resulted in the conviction of Mr. Bidesi for manslaughter. In other words, the impact of the contempt was lessened by the strength of the rest of the Crown's case and the fact Mr. Bidesi was convicted of manslaughter. [49] The personal circumstances of Messrs. Lyde and Martinez are highly relevant. They are young men without criminal records prior to the events of February 26, 2012. Both are now serving lengthy sentences for manslaughter arising from the incident that gave rise to these charges. Both pled guilty to manslaughter and thus accepted responsibility for their role in the home invasion. They have taken advantage of the programs available to them in custody to try to assist in their rehabilitation so they can find employment when they are released. In other words, any sentence I impose must properly consider the possibility that these two young men will be able to turn away from criminal activity and be rehabilitated. [50] Of the primary sentencing principles set out in s. 718 of the Criminal Code, the principles of general deterrence and denunciation are the most important factors in this case. Witnesses cannot be allowed to choose whether or not to testify based on their personal considerations. A refusal to testify strikes at the heart of the administration of justice. The sentence imposed must effectively sanction the contemptuous behaviour to deter others and denounce such an affront to the court's process. [51] At the same time, given the circumstances of the offenders, rehabilitation is also a significant factor. [52] In addition, I must consider the sentencing principles in s. 718.2. The principles which are important in this case include subparagraph (b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; subparagraph (c), where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and subparagraph (e), in relation to Mr. Martinez, I must consider his circumstances as an Aboriginal offender. [53] When I consider all of these sentencing principles in the circumstances of this case, the following matters are of particular importance: · A significant custodial sentence must be imposed, given the refusal of Messrs. Lyde and Martinez to testify in a case involving a charge of second degree murder. · The refusal to testify very likely impacted the verdict in the murder trial. In other words, justice may not have been done as a result of the contemnors' deliberate actions. · The length of sentence should not be out of line with other sentences that have been imposed for contempt for refusing to testify in a murder case. As I have noted above, there have been no cases in British Columbia where a contemnor has been sentenced to more than two years for a refusal to testify. While sentences of three years have been imposed in other parts of Canada, the circumstances of those offenders or offences are worse than those of Messrs. Lyde and Martinez. The circumstances of the offenders in the Manitoba and Ontario cases are more serious. The individuals were involved in criminal organizations. There is no evidence before me to suggest that Messrs. Lyde and Martinez were involved in gangs or that they refused to testify out of loyalty to gang members. · While the circumstances of the offence are very serious, the circumstances of both offenders are positive. Neither of them had a criminal record prior to the shooting of Mr. Rogers. Both men are young and have taken steps in custody to place themselves in a position to become productive members of society and avoid criminal behaviour on their release from custody. · Messrs. Lyde and Martinez have received significant sentences for their participation in the home invasion and shooting of Mr. Rogers. I must therefore consider the totality of their sentences in accordance with R. v. M. (C.A.), [1996] 1 S.C.R. 500. As noted in McMillan, this means ensuring that when a consecutive sentence is imposed, the cumulative sentence is not disproportionate to the offender's overall culpability. Here, a sentence of three years or more for the contempt offences, consecutive to the lengthy manslaughter sentences, would result in a disproportionate cumulative sentence. It would negatively impact on the prospects for the contemnors' rehabilitation. [54] When I consider all of these factors, I conclude that a fit sentence for both men is 24 months. In arriving at that sentence for both men, I acknowledge that Mr. Martinez's circumstances, absent the Gladue considerations, are not as favourable as Mr. Lyde's. Quite simply, his personal circumstances, which include additional convictions for possession of the firearms and greater involvement with criminal elements, might call for a longer sentence than Mr. Lyde's. However, when I take the Gladue factors into account, I conclude that he should receive the same sentence as Mr. Lyde. [55] Mr. Lyde, can you please stand: I sentence you to 24 months in prison for contempt of court. That is to be served consecutively to the sentence you are now serving. I hope that you continue to take advantage of programs available to you in custody and that you are successful in re-integrating into society on your release. In particular, I hope you can avoid getting involved with negative elements in society. It appears to me that you have strong family support. You should take advantage of that and you should do what you can to avoid further criminal activity. [56] Mr. Martinez, can you please stand: I sentence you to 24 months in prison for contempt of court to be served consecutively to the sentence you are now serving. I also urge you to take advantage of the opportunities available to you to improve yourself. It is evident to me that you are a bright and capable young man. You should take advantage of your mother's support and turn your back on those individuals who want to involve you in drug trafficking and criminal behaviour. I wish you success in that. [57] That concludes my reasons for sentence. "Butler J."