R. v. Terriak

R. v. Terriak Court Supreme Court Date 2005-01-20 Citation 2005 NSSC 27 Docket CR 225729, CR 225937 Judge/Registrar/Adjudicator Kennedy, Joseph P. (Honourable Chief Justice) (SC) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Terriak, 2005NSSC27 Date: 20050120 Docket: CR 225729 & CR 225937 Registry: Halifax Between: Her Majesty The Queen v. Christopher Terriak Judge: The Honourable Chief Justice Kennedy Heard: January 20, 2005, in Halifax, Nova Scotia Written Release of Decision: February 3, 2005 Counsel: Anne Derrick, Q.C. for Mr. Terriak John Scott and Chrystal MacAulay (A/C) for Crown By the Court: (Orally) [1] This is a two count situation, manslaughter, attempted murder. I have considered this matter a great deal over the last week or so. I must say, that over all reaction to this matter, this situation, is to be depressed, depressed by so many aspects of this situation that leads us to this sentencing process today. Depressed about how Joseph William Murphy died, circumstances of his death. Mr. Murphy was obviously, on the totality of the information provided to me about him, a man who had some real and serious problems, including substance abuse; but he was a man that shouldn’t have died in the manner that he did. He was a human being, he was entitled to dignity; concern that we must foster and maintain. [2] I think of Mr. Thomas Henry Baker in circumstances of the beating that almost led to his death, but as a result we have attempted murder charge and I recognize what Ms. Derrick said about Mr. Terriak having had the opportunity to finish the job, so to speak, but not doing so, and I think there is some evidence that supports that suggestion, on the other hand, I think there is evidence that might suggest that it was more good luck than any other factor that lead to the survival of Mr. Baker, that he could have just as easily have died from the beating that he took. [3] I think about the circumstances explained to me, about what was going on in both of these occasions; the anger that developed as a result of slights or perceived slights. They are more than slights, particularly in the mind of Mr. Terriak, I guess, combined with the ever present overriding factor of substantial substance abuse that was going on both occasions. And here we have it. You wake up the next day and Mr. Murphy is dead. Remains in the premises for two days before his body is dumped. You wake up and Mr. Baker is in the hospital very seriously injured. It’s sad. It’s depressing. [4] I read the circumstances of Mr. Terriak’s background. All of the details. Ms. Derrick, during the course of some discussion that counsel and I had in relation to this matter, referred to Mr. Terriak as a very bright man, well beyond normal intelligence. I hear him express himself as succinctly and articulately as he did today and I think of what might have been. What might have been, yet here we are, and that is sad, that is depressing. And I considered all of the information that has been provided to me about Mr. Terriak’s background circumstances and how he got to November of 2000, December of 2003, and all of the contributing factors. How he developed circumstances that he was required to overcome. It’s depressing that we don’t do better, that in this rich, decent country, we don’t do better than we do. [5] I have recommendations for sentencing. Let me say something about recommendations. Caselaw directs me to take them seriously and to consider them seriously. One of the factors is, I am not bound by the recommendations, I want people to know that, I do not have to accept the recommendations put forward by crown counsel and defence counsel, but I am going to accept the recommendations and I want to express why. [6] Firstly, the recommendations are within the range of sentencing, manslaughter and attempted murder. They didn’t shock me with those recommendations. I am not in a situation where I have to try to reconcile an unusual sentence in relation to these matters. We are within range here. [7] Secondly, I have a recommendation from two very experienced counsel, particularly with expertise in criminal law and that’s important. Both counsel looking after their client’s interest. Ms. Derrick, obviously looking after the interest of Mr. Terriak, her only concern, her client, his best interest. Mr. Scott, senior crown prosecutor, looking after the interest of people of the Province of Nova Scotia. When both experienced Crown and experienced defence come to some recommendations, conclusions, agreement, after considerable negotiation, knowing all of the facts, the circumstances, and the law and what courts have done in similar circumstances throughout this Country, they can come up with recommendations and those recommendations are to be given serious consideration, and I have and I conclude at the end of the day that I can accept those recommendations. They make sense to me and they address the principles of sentencing and the concerns that I have. [8] On the one hand I am dealing with human life in the case of Mr. Murphy, the sanctity of human life that we have to maintain or pack it in. If we can’t respond appropriately to the taking of a human life in the criminal justice system, then what do we respond to appropriately. [9] I have to consider the instance of Mr. Baker in an attempt to take a human life, what a serious, serious, offence that is. Serious breach of the society’s contract, contract that we have with one another, treat each other with respect. [10] At the same time I have to consider an appropriate sentencing for the human being before me, Mr. Terriak. The recommendations make sense. [11] Let me state that the suggestion of eight years on the manslaughter, given the caselaw with respect to manslaughter and given my sense of what I think justice is in these circumstances, is a reasonable recommendation. I am aware of the sentencing range and with manslaughter it is considerable and properly so, because manslaughter is a charge that covers a great deal of territory with a lot circumstances, many conceivable situations bring themselves under the general heading of manslaughter. [12] I am aware of that decision R. v. G.A.M. [1996] N.S.J. 52 (N.S.C.A.), quote from that decision, paragraph 34 of the decision: The Criminal Code recognizes the significant disparity of facts that may result in convictions for manslaughter, by granting the sentencing judge power to impose penalties, ranging from a suspended sentence to life imprisonment. [13] That’s the range. Says, wider range as exists in the criminal law. Where a very recent decision of R. v. Clarke [2003] O.J. 1966 (Ont.C.A.) sentence of nine years, with a credit for three years because of pre-trial custody, for aggravated manslaughter, the totality was, the twelve year sentence became nine years imposed after the credit was given and counsel makes reference to the fact that it was an aggravated manslaughter that involved circumstances more serious than these. The result was the same. I will not go on to cite numerous cases put forward, although let the record reflect that I have thought about them, considered them. The eight year sentence is within the range of sentencing and I intend to impose a sentence of eight years with respect to the manslaughter. [14] The recommendation of five years consecutive, specific to the attempted murder charge, is also within the range, but very important to consider with respect to both the eight year and the five year suggestion is the totality principle. It may well have been that each of these charges considered separately; if there had only been one charge, for instance of manslaughter, it may well have been that the sentence would have justifiably been at least slightly more significant. The same would apply to the attempted murder, but when one considers both of them together and considers the totality principle, what the individual will receive at the end of the process, both are appropriate sentences. [15] I consider Ms. Derrick’s suggestion. Firstly, can I say for record purposes that I am aware of the R. v. Gladue [1997] 1 S.C.R. 688, decision of the Supreme Court of Canada. I recognize the principle of Gladue, the principle that I agree with. I have not ignored that decision, but I consider that the gravity of the charges before this court causes me to determine that Mr. Terriak, notwithstanding his aboriginal background, should be sentenced as I would any other individual, no matter what the background circumstances, the ethnicity of the individual. That having been said, I have a request on the part of Ms. Derrick that I make a recommendation that at least a portion of the period of incarceration that results from this sentencing today be accomplished in an Aboriginal Healing Centre, specifically I think they mention the centre that is in the Montreal area, Laurentian Mountains. And I do make that recommendation, I will make that recommendation. It seems to me that Mr. Terriak would be the kind of individual that those various centres throughout Canada have been created for. [16] That brings me to my final statement with respect to Mr. Terriak, and that is, that notwithstanding the life that he has had to this date, there is no reason why it has to continue. It is not compulsory. It will take Mr. Terriak a great deal of self-discipline and self-concern to overcome what he is going to have to overcome in the next number of years, but others have done it and he has expressed in his statement to me an interest in doing better, an interest in exercising the talents that he was born with, taking advantage of the fact that he is more capable perhaps than many others in relation to some important areas. Try to make his life finally a good life. At least the second half Mr. Terriak. Start today. You still have a half of life to go. Going to make the recommendation that the portion of the incarceration be accomplished within that Healing Centre environment. I want the public to understand that that environment, this is a Canadian Correctional Service Program, it is accomplished the Aboriginal Healing Lodge process is accomplished within the Canadian Correctional Service and Canadian Correctional Facility circumstances so that I would understand that does not otherwise compromise any of the other things that Correctional Services are required to accomplish. [17] Would you stand please Mr. Terriak, I am going to sentence Mr. Terriak on the charge that he did commit manslaughter in relation to Joseph William Murphy, to a period of eight years federal incarceration; on the charge of attempted murder specific to Thomas Henry Baker, a period of five years consecutive. I will then state that I am giving him credit for the period of time incarcerated on remand when I give him the usual formula, I apply the usual formula to that, and that is times two. I understand as a result of the information provided, that that means two years in this instance. So that from the totality of thirteen years incarceration, will be subtracted the two years time spent in remand. His sentencing therefore, from this point forward, will be the period of eleven years. I am going to sign the orders that were passed up to me by the Crown, specific to weapons and ammunition, explosive substances and the DNA order. [18] Mr. Terriak would you stand again please for a moment? Mr. Terriak I am led to believe that you understand the magnitude of the offences that you have committed. I want you to please with every ounce of power and ability in self-discipline that you can muster, spend the next period of time, while incarcerated in federal institutions trying to stay out of difficulty, trying to make the second half of your life better than the first, taking advantage of some of the talents that you were born with. Please do that for your sake sir, for the sake of people who have to live with you. Thank you. Chief Justice Kennedy