R. v. Lamontagne

2019 BCSC 1251 R. v. Lamontagne

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lamontagne, 2019 BCSC 1251 Date: 20190719 Docket: 82229 Registry: Nanaimo Regina v. Colin Damen Gary Lamontagne Before: The Honourable Madam Justice Watchuk Oral Reasons on Sentence Counsel for the Crown: N. Barber Counsel for the Accused: S. Taylor Place and Dates of Trial/Hearing: Nanaimo, B.C. July 16-17, 2019 Place and Date of Judgment: Nanaimo, B.C. July 19, 2019 I. Introduction [1] Colin Lamontagne is before the court to be sentenced for offences on which he entered guilty pleas part-way through the trial. The counts as amended on which the pleas were entered are: ̶ Count 1 - aggravated assault of Brian McMillan on November 21, 2016, contrary to s. 268(2) of the Criminal Code, R.S.C. 1985, c. C-46; ̶ Count 3 - unlawful confinement of Brian McMillan on November 21, 2016, contrary to s. 279(2)(a) of the Criminal Code; ̶ Count 4 as amended - possession for the purpose of trafficking cocaine, heroin, methamphetamine and GHB on November 28 and 29, 2016 contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA]; ̶ Count 6 as amended - possession for the purpose of trafficking fentanyl and carfentanil on November 28, 2016 contrary to s. 5(2) of the CDSA; and ̶ Count 11 - possession of a loaded restricted firearm together with readily accessible ammunition, a VZOR 50 handgun, without being the

holder of an authorization or licence, on November 28, 2016, contrary to s. 95(1) of the Criminal Code. [2] On this sentencing, Crown submits that the fit sentence is 10 years after application of the totality principle. Mr. Lamontagne seeks a global sentence of two years less one day in order for him to serve the sentence in a provincial institution. II. Circumstances of the Offence [3] On the morning of November 22, 2016 a passerby discovered the victim, Brian McMillan, on a park bench in a badly beaten state. EHS was called and Mr. McMillan was taken to the hospital in an ambulance where he remained until November 29, 2016. [4] The injuries suffered by Mr. McMillan are stated in Admissions filed at the trial pursuant to s. 655 of the Criminal Code. They were: a broken left hand and wrist (requiring surgery), three broken ribs and partial lung collapse (requiring a chest tube), broken bones in his face and jaw and three fractures to his skull. There were various lacerations and contusions on Mr. McMillan's body, face and head as shown on photographs appended to the Admissions. [5] The circumstances of the aggravated assault and unlawful confinement are not entirely clear as a result of the state of Mr. McMillan at the time. It is not in dispute that the circumstances include that the assault commenced around dinner time on November 21, 2016. Mr. McMillan was tied up. It was a

prolonged beating. Mr. Lamontagne was in charge and played the primary role although a number of assailants took part in the assault. A weapon, a Taser on a cane, was used by Mr. Lamontagne in the assault. Another offender, who has pleaded guilty in other proceedings, pistol whipped Mr. McMillan and "gave him a bullet" so that he would remember the event. Other individuals were told by Mr. Lamontagne to stay in the room and watch the assault. At the conclusion of the assault, Mr. Lamontagne told Mr. McMillan to clean up the blood and Mr. McMillan attempted to comply. Mr. McMillan was then taken to the park where he was left outside on the bench on which he was located by the passer-by the next morning. [6] In a pre-sentence report, Mr. Lamontagne described Mr. McMillan as a "booster" or someone who commits property crimes to pay for their drug use. Mr. Lamontagne assaulted him because Mr. McMillan owed him money. [7] Police interviews of Mr. McMillan in the hospital led to the identification of Mr. Lamontagne as the person who had inflicted his injuries. The investigation of the assault of Mr. McMillan resulted in the execution of search warrants on two residences: 314 Ninth Street, Nanaimo, B.C. and 13237 Cedar Road, Ladysmith, B.C. on November 28, 2016. [8] The following drugs were located in the total quantities set out below at the two residences where the Search Warrants were executed. The quantity and number of doses for each drug located at each location were taken from the expert report of Corporal Nguyen of the Nanaimo R.C.M.P. (the "RCMP Report"). The "Street Value to End User" amount is my calculation done with the minimum values provided in the RCMP Report for a single dose sold to an end user.

1. COCAINE Street Value to End User Ninth Street 118.56 grams 237.0 doses Cedar Road 112.10 grams 244.2 doses 230.66 grams 481.2 doses $19,248.00 2. METHAMPHETAMINE Ninth Street 172.12 grams 334.24 doses Cedar Road 572.00 grams 1,144.00 doses 744.12 grams 1,478.24 doses $59,129.60 3. GHB Ninth Street 49.36 litres 9,872 doses Cedar Road 15.25 litres 3,050 doses 64.61 litres 12,922 doses $64,610.00 4. HEROIN Cedar Road 17.8 grams 178 doses $4,450.00 5. HEROIN MIXED WITH FENTANYL Ninth Street 227.10 grams 2,271.0 doses Cedar Road 227.10 grams 23,360.5 doses 454.20 grams 25,631.5 doses $640,787.50 6. FENTANYL Ninth Street 29.87 grams 5,885 doses $147,125.00 7. CARFENTANIL Ninth Street 4.9 grams 49 doses $1,225.00 $936,574 [9] In the RCMP Report, Corporal Nguyen explained the reason for the number of doses attributed to the heroin mixed with fentanyl that was located at Cedar Road. As the heroin contained fentanyl of various levels of purity including 5.3%, the single doses were calculated taking into consideration the median lethal dose of 0.2% w/w. As such the amount of single doses was significantly higher for this quantity. [10] Drug paraphernalia was also located in the residences. Those items were: digital scales; new dime bags; three sandwich bags with white cutting agent powder; a 25 kg bag of sodium hydroxide, a precursor for GHB; and a handwritten note "4 litres of G" on

Rob Grey paper often referred to as a "score sheet". [11] The amount of $16,890 in cash was located, mostly on the person of the offender. [12] It was also admitted at trial that a fully functional, loaded, VZOR 50 32-calibre, semi-automatic handgun was located in a safe at 314 Ninth Street. This handgun is a restricted firearm. Mr. Lamontagne is not licensed to possess any firearm of any kind, nor did he possess a registration certificate for any firearm of any kind. III. Circumstances of the Offender [13] Mr. Lamontagne is now 43 years old; he was 41 at the time of the offences. The writer of the pre-sentence report dated July 5, 2019 (the "PSR") set out his family background. [14] Mr. Lamontagne was born in Duncan, B.C. and lived the first four years of his life with his parents in a normal upbringing although his father consumed alcohol to excess. When his parents separated at the time he was four years old, he and his mother and brother moved to other locations on Vancouver Island. During this time, when Mr. L was six or seven, his father was murdered, an event which deeply affected Mr. Lamontagne. [15] The family later returned to Duncan where his mother remarried. He lived with his mother and step-father, who was a pro-social influence, until he was 18. He then lived with his high school sweetheart for five years; they remain good friends. [16] Mr. Lamontagne attained a

Grade 12 education. Since being in custody he has completed a number of certificates including Food Safe, Hospitality Industry, First Aid, construction safety, yoga, and a university level criminology course which can lead to other university courses. [17] Long term employment has included working with his uncle in a concrete business throughout his life on and off. He also worked as a machine operator for two years when he was 21, and as a personal security guard for a wealthy Vancouver family for six years starting in about 2005. [18] The writer of the PSR states that Mr. Lamontagne reported a history of abusing substances commencing with alcohol and marihuana in his teens. He later used cocaine and alcohol daily, ceasing when he went into custody at age 26. A residential treatment program after his release from custody was not completed. While living in Vancouver he fell back into the drug subculture and became addicted to daily use of GHB and crystal meth. Since his arrest on these offences in 2016 he has stopped using substances and he has been working with an addictions counsellor, Steve Kelly. [19] Mr. Lamontagne has a criminal record with convictions for serious offences: Disposition Date Charge Sentence April 7, 2003 Possession non- unauthorized firearm Jail 15 Day(s); Prohibition, Firearms - 5 years April 29, 2004 Unlawful confinement or imprisonment Sexual

Assault Assault Jail 4 years; 39 months time credited; 15 months to be served, Prohibition, Firearms - Mandatory Lifetime April 29, 2004 Attempt to obstruct justice Jail 6 Months June 16, 2008 Assault Fine $3,000 June 27, 2018 (Offence Date April 9, 2015) Manslaughter 4 Year(s) 10 Month(s); Prohibition, Firearms - Mandatory Lifetime [20] I note that the Reasons of Justice Gaul on the manslaughter sentencing in 2018 do not refer to these changes, which were then outstanding. [21] At the time of these offences Mr. Lamontagne was on bail for the manslaughter offence. Terms of bail included: keep the peace and be of good behaviour; no contact with individuals including Chelsea Burns; abstain from alcohol and CDSA substances; no possess drug paraphernalia; no possess firearms or weapons; and no go to any place where there are firearms or weapons. All of those bail terms were breached as at the date of these offences. [22] Since his incarceration on arrest for these offences Mr. Lamontagne has been a model prisoner at the institution. The guards' daily records, referred to as Client logs or C-Logs, were filed on sentencing. Both the records from before the manslaughter sentencing in September 2018 and the recent C-Logs, following that sentencing to May 27, 2019, are consistent in their description of Mr. Lamontagne as compliant, co-operative, polite, and respectful to staff and

sociable with other inmates. He is described as an "old-timer" and as a mature inmate. He was the Unit Rep before his transfer to the Right Living Unit. On his transfer to this highly regarded unit, the C-Log comment is that he is a great addition and he took on a mentoring role, becoming Unit Co-ordinator. One guard writes that he is a natural leader and that "when he leaves, which is likely as he expects to do Federal time, we will be worse off." Mr. Lamontagne is also described as a hard worker, a positive role model, and a steady, mature presence on the unit. [23] Letters of support were filed by Mr. Lamontagne's mother and two counsellors, Mr. Kelly and Ms. Colleen Stevenson, and a University of Victoria Associate Professor, Ms. Audrey Yap. Mr. Lamontagne's mother describes her son as having undergone profound changes and as being finally at peace. She attributes the healing to the addictions counselling and the healing and spiritual practices at the institution, specifically yoga, the First Nations elders, and his self-study into Buddhist and Taoist practices. [24] One of the elders, Frazer Smith, wrote a letter of support for the manslaughter sentencing. He noted a big difference in Mr. Lamontagne's appearance and demeanour, and a willingness to "man up" and accept responsibility. [25] Ms. Stevenson describes Mr. Lamontagne's progress in glowing terms. She states that

she is wary of manipulation "but the fact is that Mr. Lamontagne has built mutually respectful and mutually caring relationships with a broad spectrum of corrections staff and other professionals." Rather unusually in a letter of reference rather than in an expert opinion, Ms. Stevenson recommends that the court allow Mr. Lamontagne to stay on the Right Living Unit or attend a therapeutic recovery community so that he can continue his therapeutic work. I take this as a sincere expression of Ms. Stevenson's support of and commitment to Mr. Lamontagne [26] Mr. Kelly writes that Mr. Lamontagne is a senior mentor on the Right Living Unit and has been a wise and sage voice for many younger men in the unit. He describes Mr. Lamontagne as carrying himself with humility and compassion rather than his past ego driven arrogance. Mr. Lamontagne, he says, is a man who can be trusted and expected to do the right things from here on in. [27] Ms. Yap who taught a philosophy course for inmates found Mr. Lamontagne to be insightful and hard working and a great assistance in facilitating the group discussions. She noted that he may have a teaching future in education. [28] In his statement to the court on his sentencing, Mr. Lamontagne said through tears that he had hit bottom and his life had become unmanageable with anger and fear. Truth, love and peace were missing, and through his

counselling with Mr. Kelly over 2½ years and the Native Circle and his work with the trauma counsellor, Ms. Stevenson, for 80 weeks, he has learned a different way. He expressed sincere remorse for his actions and gratitude to all in court for listening to his statement. IV. Sentencing Positions of the Parties [29] Crown counsel submits that the fit sentences for each of the offences total 16 years, but on application of the totality principle, a sentence of 10 years is appropriate. It is the position of the Crown that Mr. Lamontagne is an intelligent, charismatic, violent, and dangerous offender. The court, Crown says, should take Mr. Lamontagne's claims of rehabilitation with a grain of salt. [30] In particular, Crown counsel refers to the April 29, 2004 sentencing Reasons of Justice Cullen to indicate that little has changed. The charges were unlawful confinement, sexual assault and assault of Mr. Lamontagne's girlfriend. At para. 30, Cullen J. states: As I have said, elements of the accused's conduct towards the complainant involved calculated cruelty. In my opinion, this is not the case of a man who has lost control of his impulses. Rather, it is the case of a man who was determined to exercise control over the complainant and took deliberate and purposeful steps to do so. [31] Crown counsel submits that the same controlling and cruel behaviour was exhibited by Mr.

Lamontagne in his demeaning unlawful confinement and assault of Mr. McMillan in 2016, some 14 years after the assault and confinement of his girlfriend. [32] Further, the Crown says that the same explanation and plan was proffered to the court in 2004. At paras. 23 and 24 of the 2004 sentencing Reasons, remorse and treatment are described: [23] [Defence counsel] submits that the accused has shown remorse, and he cites the calls to Kelly Pratt and the expressions of remorse in those calls, as well as the guilty pleas that he has entered, both in relation to the unlawful confinement and in relation to the attempt to obstruct justice. He also submits that the accused has shown a willingness to take responsibility for his misconduct. He refers to statements made by the accused to the complainant's mother on December the 14th not only as showing remorse, but also as isolating the use of drugs and alcohol as an underlying cause or condition of the misconduct with which he is charged. [24] He points out that the accused has taken initiatives to get help for his problems with anger, with drugs and alcohol. He mentioned the accused as seeing a therapist who believes some of his issues may relate to the fact his father was murdered when he was six, and that he has not fully come to terms with that fact. [33] In conclusion, Crown submits that a long jail sentence is required both to save

Mr. Lamontagne and to protect the community. It is only in jail that Mr. Lamontagne does the good work to further his rehabilitation. The fact that he is the perfect inmate does not militate against the lengthy sentence that is appropriate in these circumstances where a repeat violent offender on bail for killing a man then beat a man. [34] Defence counsel submits that the fit sentence is two years less a day so that Mr. Lamontagne can remain on the Right Living Unit at the provincial institution and continue serving his sentence in the same place as he is now serving the manslaughter sentence. He says that this sentence can be fashioned with a sentence for the aggravated assault at the low end, with the treatment of the drug offences and the gun offence as aggravating factors. With Mr. Lamontagne's extraordinary efforts resulting in his increased insight and clarity, the risk of reoffending is low. Further, the period of incarceration can be followed by a three-year Probation Order ensuring control of Mr. Lamontagne for five years. [35] It is also submitted by defence counsel that Mr. Lamontagne has been sincere in his rehabilitation over many months as indicated by the consistent C-Logs. He submits that this cannot be an act, rather, this is who Mr. Lamontagne is now. Thus, defence counsel argues that the importance of deterrence and denunciation are diminished. He asks:

"What more could Mr. Lamontagne have done while in custody to confirm his sincerity?" V. The Law [36] I commence with the fundamental sentencing principle - proportionality. Section 718.1 of the Code contains that principle. In R v. Mann, 2018 BCCA 265 at para. 73, it is stated to be the sine qua non of a just sanction, citing R v. Ipeelee, 2012 SCC 13 at paras. 37 and 39. That section states: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [37] With regard to the responsibility, or moral blameworthiness, of the offender, Chief Justice Lamer stated in R. v. M. (C.A.), [1996] 1 S.C.R. 500 at para. 40 that "those causing harm intentionally [should] be punished more severely than those causing harm unintentionally." Similarly, the more grave or serious the offence, the more severe the sentence: Mann at para. 73. [38] The purpose of sentencing is set out in s. 718 of the Criminal Code. It is well established that in cases involving the trafficking of fentanyl and now carfentanil, the objectives of primary importance are denunciation and deterrence. Rehabilitation is also to be considered. In drug cases, the court must be mindful of s. 10(1) of the CDSA, which states: 10(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to

the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [39] With regard to the range of sentences for the offence of aggravated assault, Crown counsel submits that the range is, as set out in R. v. Payne, 2007 BCCA 541 at para. 44, six to eight years for serious aggravated assaults. Defence counsel submits that the range is 16 months to six years. Support for both positions is found in R. v. Berry, 2014 BCCA 7 where Mr. Justice Willcock states at para. 59: [59] The parties have referred the Court to jurisprudence that establishes a range of sentences for aggravated assault. In R. v. Kim, 2010 BCCA 590, the range of sentences for unprovoked aggravated assault is said to range from 16 months to six years. Notwithstanding that range, numerous cases were provided to the Court, and referred to in R. v. Kim, where sentences in excess of six years were imposed. Those included: R. v. Payne, 2007 BCCA 541 (10 years); R. v. Wallin, 2003 BCSC 809 (9 years); R. v. Armstrong, 2003 BCSC 1057 (8 years); and R. v. Hiscock, 2002 BCSC 1772 (8 years). A sentence of seven years in R. v. Kim was not demonstrably unfit. However, I find on recent case law that the high end of the range is six years. [40] There are two cases of the B.C. Court of Appeal that are of particular assistance on the sentencing for the drug offences, especially the fentanyl and carfentanil offences. [41] An important factor in the analysis of relevant caselaw is the timing of the fentanyl offence. The circumstances of the offence at the time it was committed must be assessed: R v. Smith, 2017 BCCA 112 at para.

53. Many cases address conduct which occurred during or after the emergence of full public awareness of the dangers associated with fentanyl use as evidenced by the increase in deaths from its use. [42] In this case, the offence date is November 2016 which is after the public gained awareness on the issue. A Nanaimo newspaper article in October 2016 is illustrative of the publicity and public concern. This timing issue and many of the statistics provided by the Crown in this case are addressed in the seminal B.C. Court of Appeal case of Smith at paras. 54 to 64 by Mr. Justice Harris who concludes that: [63] In my view, the landscape in 2015 and 2016 was transformed and is now qualitatively different from what it had been at the time of the offence [January 2015] in terms of the severity of the crisis and recognition of the role of fentanyl in it. For example, as also discussed in Smith at para. 63, the number of fentanyl-detected deaths in British Columbia increased from 2013. The updated statistics are 333 deaths in 2013 to 368 in 2014; to 530 in 2015; to 993 in 2016; and in 2017, to 1,493 deaths where fentanyl was detected. [43] The other preeminent case and most recent court of appeal case in British Columbia is Mann, which included an appeal of four-year sentences for 2017 offences of trafficking in fentanyl and possession for the purpose of trafficking fentanyl by two

youthful first-time offenders. One offender also appealed a five-year sentence imposed for those offences involving carfentanil. The court of appeal upheld all sentences imposed by the trial judge in a decision involving a complex fact pattern which included offences arising from a loaded firearm and threatening. [44] The court of appeal case of R. v. Kachuol, 2017 BCCA 292 sets out the law regarding sentencing for possession of a loaded prohibited or restricted firearm. At para. 26, Madam Justice Dickson describes the seriousness of the offence being a "true crime" offence: [26] As Madam Justice Smith recognised in Guha at para. 30, when an offender possesses a firearm, particularly a handgun, for an illicit purpose, that purpose can only be to threaten or inflict serious bodily harm or death, if and when considered necessary. Common sense and human experience suggest no other reasonable explanation or lesser risk posed by possession of this sort. As Crown counsel aptly put it, most unlawful possession of loaded firearms represents nothing short of "tragedy in gestation". By criminalizing such conduct via s. 95(1), the law intervenes before someone is actually harmed or some other crime actually committed. By imposing severe exemplary sentences for possession simpliciter, courts support and advance the goals of this intervention. [45] Finally, the law with regard to the

application of the totality principle is relevant and important on this sentencing. In R. v. G.F., 2018 BCCA 339, Mr. Justice Goepel summarised the law as follows: [35] The totality principle recognizes that the quantum of sentence imposed should be broadly commensurate with the gravity of the offences committed and the moral blameworthiness of the offender: R. v. C.A.M., [1996] 1 S.C.R. 500 at para. 40. [37] In R. v. K.R.J., 2014 BCCA 382 (K.R.J. BCCA), reversed in part on other grounds, 2016 SCC 31 (K.R.J. SCC), Groberman J.A., speaking for the Court on this issue, described the operation of the totality principle: [27] Where an offender is convicted of more than one offence, the sentencing judge is required to consider the offender's overall culpability in fixing the global sentence. In R. v. Li, 2009 BCCA 85, this Court recommended a two-stage approach: [26] Whether sentences for multiple offences are made consecutive or concurrent, it is the task of the sentencing judge to fix an appropriate global sentence that reflects the specific circumstances of the offences and the unique circumstances of the offender. The importance of this balancing is reflected in the principle of proportionality, which has been codified in s. 718.1 of the Criminal Code under the heading "fundamental principle": A sentence must be proportionate to the gravity of the offence and the degree of

responsibility of the offender. [27] The principle of totality also factors into the imposition of an appropriate aggregate sentence for multiple offences. In M.(C.A.), Lamer C.J.C. described the principle: [42] In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979) at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate". [28] Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the

second stage is to determine whether the sentences, in the aggregate, offend the totality principle. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence. See R. v. P.P.H., 2003 BCCA 591. [28] In R. v. Joseph, 2010 BCCA 525 at para. 17, the Court made it clear that the recommended two-stage approach is not an absolute requirement, but rather a means of ensuring that the sentencing judge has properly considered the totality principle: [17] While I do not suggest that sentencing judges are required to follow a rigid two-step approach in sentencing for multiple offences, there should be something in the reasons for sentence which reflects that the totality principle was taken into account, and the two-step approach makes that clear. [18] The question remains whether, even if the sentencing judge erred in failing to take into account the totality principle, the sentence was, nonetheless fit. [Emphasis added.] VI. Aggravating and Mitigating Factors [46] The aggravating factors of the aggravated assault and unlawful confinement are that this was the debt related prolonged beating of a vulnerable drug addict. It occurred in the context of a drug trafficking operation. The injuries were significant. An ancillary purpose of the assault was to send a message to

others of possible repercussions to them. The assault was premeditated, and not impulsive or a momentary lapse of judgment. A weapon, a Taser, was used in the assault. [47] The aggravating factors of the drug offences are that this was a large scale trafficking operation with multiple hard drugs and firearms including a loaded handgun. The operation was sophisticated. The quantity and variety and approximate value of drugs are set out above. There were two locations used as well as safes, weapons, cash, assorted drug paraphernalia, and a hidden room. [48] The presence of carfentanil in the stockpile of drugs is an aggravating factor. There is no human need for this substance which is only used to sedate large animals. Consuming a single dose of carfentanil is equivalent to ingesting 100 doses of fentanyl. The RCMP Report states that users "who consume carfentanil will almost overdose immediately due to its potency." I take this to mean that absent resuscitation, users will die. Selling this drug illicitly for profit exhibits the most egregious callous disregard for human life. [49] Additional aggravating factors are that Mr. Lamontagne was on bail for manslaughter at the time of these offences. He was in breach of many of the terms of that bail. He was also in breach of the lifetime weapons prohibition imposed in 2004. He has a related serious record for similar violent

offences. [50] The mitigating factors are that Mr. Lamontagne entered a guilty plea mid-trial. Although it was a late plea, it was entered before the victim testified for the second time, he having testified at the preliminary inquiry. [51] It is mitigating that Mr. Lamontagne has family support and has made significant efforts at his rehabilitation. The courses he has completed, the consistent counselling with Mr. Kelly and Ms. Stevenson, his reading and his participation in the Native Circle have assisted his understanding of himself and his past behaviour. He has taken full responsibility for the offences on which he is being sentenced - there were no excuses or rationalisations in his sincere statement to the court. VII. Analysis [52] I will proceed by determining first the fit and appropriate sentences for each of the offences or groups of offences. After so doing I will turn to the application of the totality principle. [53] First, the sentence for the aggravated assault will be addressed. Defence counsel has submitted eleven cases in which sentences in the two-year range or less were imposed. All of those cases have been considered although not all will be referred to. The principles to be derived from these cases are that certain factors or a combination of factors result in sentences at the low end of the range: Those factors include: no weapon was used; the offender

is young and/or a first offender or has cognitive limitations (R. v. Burbine, [2001] N.S.J. No. 432); the offender is one for whom the Gladue considerations play an important role (R. v. Carlson, 2015 BCSC 1032); the offence was committed on impulse without premeditation or in a burst of anger (R. v. Grassick, 2012 BCCA 432); the injury resulted from a consensual fight (R. v. Barahona, 2018 BCPC 74); and the minimal severity of the injury. [54] The present case involves more serious facts than all of the cases submitted by the defence. Here, a weapon was used by Mr. Lamontagne; Mr. Lamontagne is an offender with a record for violence including manslaughter and assault and unlawful confinement; the assault of Mr. McMillan was premeditated for the purposes of collecting a debt and instilling fear in others in his criminal enterprise; Mr. McMillan was restrained during the beating and could not therefore mount any defence; he was seriously injured; and at the end of the assault he was demeaned by being told to clean up his own blood and then being left on a park bench outside on a November night. [55] This is an aggravated assault at the serious end of the spectrum and thus the sentence is at the high end of the range. The facts are similar to those in Payne in which a 10 year sentence was imposed and upheld. That sentence was noted in Berry as one in which the usual high end of

the range was exceeded. However, having determined that six years is the high end of the range, in this case I impose a sentence of six years for the aggravated assault. [56] Similarly, the unlawful confinement is serious given the facts set out above, particularly the demeaning nature of the confinement in being made an example of by ordering others to remain present. It is aggravating that Mr. Lamontagne has a prior conviction for this offence. I impose a sentence of four years for the unlawful confinement to run concurrently to the sentence for the aggravated assault. [57] The drug offences must be addressed separately. With regard to Count 4, possession for the purpose of trafficking cocaine, heroin, methamphetamine and GHB, Crown seeks a sentence of three years. But for the amount of heroin mixed with fentanyl I would agree with Crown's submissions. However, given the seriousness of the fentanyl crisis at the time of the offence, this offence is at the more serious end of the spectrum. In 2016, when Mr. Lamontagne committed the offence, the crisis took many lives, largely from unsuspecting users consuming what they expected to be heroin or other drugs, only to learn, often tragically and too late, that fentanyl had been mixed in. I therefore impose a sentence of four years consecutive on this count. [58] Count 6 is the charge of possession for the purpose of trafficking fentanyl and carfentanil. As I stated above, the possession of carfentanil for the purpose of trafficking is an aggravating factor. I say that knowing that the offence involving carfentanil is itself more serious than the possession of fentanyl: Mann at para.

73. I agree with the Crown that the fit sentence for this count is five years concurrent to Count 4 and consecutive to Count 1. [59] With regard to the offence of possession of a loaded handgun, the factors that result in it being not only a "true crime" offence but a grave crime are that it was present in the context of a drug operation and violent enforcement of the behaviour of underlings in the operation. Thus, the likelihood of the handgun being used to inflict death or harm is high, even if that usage was accidental rather than intentional. On the basis of the principles enunciated in R. v. Nur, 2015 SCC 15 and R. v. Holt, 2015 BCCA 302 as cited in Kachuol, I impose a sentence of four years on this offence consecutive to all other counts. [60] The total of those individual sentences result in a sentence of 15 years - that sentence, however, must be reconsidered in light of the totality principle. It is disproportionate and must be recalculated in the second step of the analysis concerning the sentencing of an offender, here with a high level of moral culpability, convicted of multiple offences as set out in the case law above. [61] I also pause here to address the sentencing objectives of denunciation, deterrence and rehabilitation. All have been taken into account in arriving at the sentences above. All must also be considered in determining the appropriateness of Mr.

Lamontagne's aggregate sentence on the second step. [62] Another matter that must be addressed is the fact that Mr. Lamontagne has a Métis background. From which of his ancestors and to what extent is unknown to the court. The Métis heritage came to light only late in the sentencing hearing when the Reasons of Mr. Justice Gaul on the manslaughter sentencing were provided. The writer of the PSR on this sentencing did not refer to it, and defence counsel was unaware of it. It is somewhat of a puzzle why Mr. Lamontagne, who would no doubt be aware of Gladue factors from the manslaughter sentencing, would not advise his counsel of that consideration. However, it is now required that the court address the Gladue factors. [63] In his manslaughter sentencing reasons indexed at 2018 BCSC 2520, Gaul J. said as follows on this issue: [37] Mr. Lamontagne has a First Nations history in that his father was Métis. The jurisprudence indicates that the court should approach the task of sentencing aboriginal offenders with special attention to the difficulties they have experienced as a result of their First Nations ancestry and how they have been historically treated by society. The court must not turn a blind eye to the systemic discrimination First Nations people have suffered in the past, nor to the present day consequences of that discrimination. The jurisprudence also reminds judges that

the task of sentencing an aboriginal offender is one that requires a careful and thoughtful consideration of the special sociological and ethnocentric factors. In no way, however, is this meant to minimize the fact that Mr. Lamontagne is being sentenced for a serious offence in which the life of Mr. McGregor was taken. [38] In this case there is very little information about Mr. Lamontagne's Métis background, how any sociological or ethnocentric factors may have influenced his life, or how they may explain how he has come to be before the court. The fact that Mr. Lamontagne has a Métis heritage only came to light in these proceedings during the course of his counsel's submissions on sentence. To adjourn the proceedings so that a presentence report could be prepared was not something that the defence wished. On the contrary, Mr. Lamontagne expressed a desire to have this matter concluded without any further delay. That, in my view, made sense. [39] Although hesitant to proceed without a presentence report, the submissions of senior and experienced Crown counsel and defence counsel have been, as I have previously noted, comprehensive and I am prepared to bring this matter to a close for the benefit of everyone involved, including Mr. McGregor's family. [64] I would adopt that reasoning and arrive at the same result. Defence counsel submits that Mr. Lamontagne does not seek to

rely on the application of s. 718.2(e). While that submission is noted, it is not determinative. It is determinative that on the facts of this case, both of the offender and the offences, while Mr. Lamontagne's Aboriginal background must be considered, it is not appropriate in this case to impose a lesser sanction because of the Gladue factors at play. In making that determination I am mindful of the law as set out in the SCC cases of R. v. Gladue, [1999] 1 S.C.R. 688, R. v. Wells, 2000 SCC 10 and R. v. Ipeelee, 2012 SCC 13, as well as the guidance from the B.C. Court of Appeal in R. v. Lavallee, 2011 BCCA 531 at para. 31. [65] I now return to the sentencing objectives of denunciation, deterrence and rehabilitation. It is uncontroverted that for the drug offences and the gun offence the objectives of denunciation and deterrence are the primary sentencing objectives. In these circumstances, they are also the primary sentencing objectives for the aggravated assault and the unlawful confinement. The court in the strongest terms denounces the behaviour of Mr. Lamontagne in these offences. [66] The issue is the role of the objective of rehabilitation in this sentencing for all offences. Proportionality, the fundamental principle engaging the gravity of the offence and the degree of responsibility of the offender, refers in both respects to the circumstances of the offence and

offender at the time that the offence was committed. It is consideration of the objective of rehabilitation that brings into a sentencing the present circumstances of an offender. The reason for so doing, for having that objective of rehabilitation, along with the other objectives, is to further the fundamental purpose of sentencing which is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions: s. 718 of the Criminal Code. As the totality principle, s. 718.1 of the Criminal Code, mandates, the sentence overall must be just. [67] I do find that Mr. Lamontagne has undertaken significant steps towards his own rehabilitation. He has had the resources in the institution and he has made good use of them to his benefit and to the benefit of his surroundings, both guards and fellow inmates. There is some overstatement of his insight as this is not a new process for Mr. Lamontagne; he was engaged in a similar journey of self-awareness in 2004, as seen from the sentencing Reasons of Cullen J. However, I accept that the degree of progress Mr. Lamontagne has demonstrated is greater at this time than with past sporadic efforts. [68] There is, however, the issue raised by the Crown - will Mr. Lamontagne continue with his respectful behaviour and resourceful learning absent the controlled environment of

a prison? Past experience indicates not. However, I find that this is not determinative of the answer going forward. In addition to his treatment, Mr. Lamontagne is now of the age that many individuals with criminal records change their manner of living in society and become contributing members of the just, peaceful and safe society referred to in the sentencing purpose stated above. This is a question to which there is no known answer - on this sentencing the complex Criminal Code provisions and case law must simply be applied. VIII. Sentence [69] Please stand Sir. In summary, the application of the objective of rehabilitation here is not to eliminate the objectives of deterrence and denunciation but to form a part of a just sentence to the degree appropriate on the facts. For each individual sentence above, the length imposed is just. However, for all of the sentences taken together, on a reconsideration, I consider a just sentence in these circumstances to be nine years. [70] The allocation of that nine year sentence is as follows: - Aggravated assault - Count 1 - five years; - Unlawful confinement - Count 3 - four years concurrent to Count 1; - Possession for the purpose of trafficking heroin, cocaine, GHB and methamphetamine - Count 4 - four years consecutive; - Possession for the purpose of trafficking fentanyl and carfentanil - Count 6 - five years concurrent to all

other charges; and - Possession of loaded handgun - Count 11 - four years concurrent to all other charges. [71] The Crown is seeking ancillary orders to be imposed and there are no objections. [72] There is an order pursuant to s. 487.051 of the Criminal Code authorizing the taking of a sample of your DNA. [73] There will be a lifetime firearms prohibition with respect to all counts pursuant to s. 109 of the Criminal Code. [74] There is an order pursuant to Criminal Code, sections 490 and 491, for forfeiture of all property seized, with the exception of the personal identification and the diaries. [75] Counsel, thank you very much for your assistance throughout. "The Honourable Madam Justice Watchuk"