R. v. Lowry

2024 BCCA 1 R. v. Lowry

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Lowry, 2024 BCCA 1 Date: 20240108 Docket: CA47682 Between: Rex Respondent And Robert Lowry Appellant File Sealed In Part Before: The Honourable Mr. Justice Fitch The Honourable Madam Justice DeWitt-Van Oosten The Honourable Justice Skolrood On appeal from: An order of the Supreme Court of British Columbia, dated July 16, 2021 (sentence) (R. v. Cantrill, 2021 BCSC 1652, Chilliwack Docket 65047-2). Counsel for the Appellant: R.J.A. Gregory Counsel for the Respondent: J.R.W. Caldwell Place and Date of Hearing: Vancouver, British Columbia December 15, 2023 Place and Date of Judgment: Vancouver, British Columbia January 8, 2024 Written Reasons by: The Honourable Mr. Justice Fitch Concurred in by: The Honourable Madam Justice DeWitt-Van Oosten The Honourable Justice Skolrood Summary: The appellant appeals a nine-year global sentence of imprisonment imposed following his convictions for kidnapping, extortion, aggravated assault, and choking to overcome resistance. The appellant was a 45-year-old first-time offender when these offences were committed. He submits that the reasons reflect material error in principle. In the alternative, he submits that the sentence is demonstrably unfit. The appellant also seeks to adduce fresh evidence in support of the appeal. Held: Leave is granted; the fresh evidence application and the appeal is

dismissed. The appellant failed to show that the proposed fresh evidence satisfies the Palmer criteria. The trial judge was alive to the applicable principles of sentencing in this case, including the principle of restraint. The judge was aware of the potential mitigating impact of an underlying health condition at the time of the commission of an offence and how such a condition could impact on the proportionality analysis. On the limited evidence before him, he declined to find a nexus between the appellant's health and his participation in the commission of these offences. That is a factual determination entitled to deference on appellate review. The judge did not fail to properly assess the appellant's moral culpability, nor did he impose a demonstrably unfit sentence. Reasons for Judgment of the Honourable Mr. Justice Fitch: I. Introduction [1] This is an application for leave to appeal and, if leave is granted, an appeal from a global sentence of nine years' imprisonment imposed on the appellant for the offences of kidnapping, extortion, aggravated assault, and choking to overcome resistance to the commission of an indictable offence. The sentencing judge imposed a sentence of nine years' imprisonment for kidnapping and concurrent sentences of three to five years' imprisonment on the other counts. [2] The appellant submits the judge erred in principle in ways that had a

material impact on the sentence. Alternatively, he submits that the imposition of a nine-year sentence on a first-time, middle-aged offender for these offences is demonstrably unfit. [3] In support of the appeal, the appellant applies to adduce fresh evidence concerning: (1) a post-sentence deterioration of his health; and (2) an assault perpetrated upon him by other inmates while he was serving the sentence under appeal. [4] The appellant submits that the sentence imposed on the kidnapping count should be varied to five years' imprisonment. [5] I would grant leave to appeal but dismiss the appeal. These reasons explain why. II. Background 1. Circumstances of the Offence [6] The illicit drug trade is the all too familiar backdrop for the offences committed by the appellant and his two co-accused. Neil Cantrill, one of the appellant's co‑accused, distributed marijuana grown illegally by the victim. The offences were motivated by Neil Cantrill's suspicion that the victim had "ripped him off" in the course of their drug-related dealings. The other co-accused, Stephan Cantrill, is Neil Cantrill's son. [7] The circumstances of the offences may be briefly stated. On August 1, 2016, Neil Cantrill asked the victim to meet him on a pullout off the highway near Hope, B.C. The appellant, who lived in Alberta but was vacationing in Kelowna at the time, agreed to join the Cantrills for this

meeting. The appellant had never met the victim. The plan, set in motion by Neil Cantrill, was to retaliate against the victim by kidnapping and extorting money from him. [8] Shortly after the victim arrived at the meeting place, Neil Cantrill grabbed him by the throat and said, "So you think you can rip me off!" The appellant, a former provincial boxing champion, punched the victim on the right side of his face, knocking off his glasses and causing him to bleed profusely. The victim attempted to escape. The appellant prevented him from doing so by jumping on his back. When the victim was on the ground, the appellant began choking him. The victim could not breathe. He was straining so hard that he soiled himself and almost lost consciousness. He thought he was going to die. [9] The victim was taken by the appellant and the Cantrills to a vehicle and directed to sit in the rear seat on the driver's side. The victim could not see without his glasses and his right eye was swollen shut as a result of the appellant's initial assault. Stephan drove the vehicle. Neil was a front seat passenger. The appellant sat in the back next to the victim. [10] The appellant pushed the victim's head towards the floor of the vehicle. He continued to strike the victim on the right side of his face in what the sentencing judge characterized as a "targeted beating". All three assailants threatened the

victim and demanded compensation. While the victim was confined in the vehicle, Neil Cantrill burned the top of his head with a spoon heated by a lighter. Stephan Cantrill also participated in the assault by swinging his arm from the front seat back towards the victim. One of these blows opened a cut on the victim's forehead. [11] The appellant said to the victim, "we want your house." All three assailants told the victim he would have to execute documents transferring title to the house to them to settle the alleged drug debt. The victim agreed to do so because he feared for his life. [12] The assailants then drove the victim, who was covered in blood, to his residence. Once inside, the appellant rifled through a filing cabinet in the victim's house in search of land title documents. [13] Some time later, the police, who had been alerted by concerned citizens, arrived outside. The appellant and Stephan Cantrill instructed the victim to lie to the police about who had assaulted him. All three assailants were arrested outside the victim's home. One of the arresting officers testified at trial that, when the victim emerged from the house, the right side of his cheek was swollen to such an extent that she could not see his right eye. Photographs of the victim taken after the offence depict the serious injuries he sustained in the assault. His orbital bone was fractured. He had

numerous cuts on his forehead in addition to the burn caused by Neil Cantrill. Some of the victim's injuries took almost a year to heal. [14] In total, the victim was confined for about four hours. The judge found that the confinement and extortion would have continued but for intervention of the police. The conduct of the appellant and his two co-accused was prolonged, brutal and motivated by financial gain. [15] Neil Cantrill was the instigator and ringleader behind the commission of these offences. The appellant was the principal aggressor in the commission of the assault. [16] The victim, who was understandably traumatized by the assault, was admitted to the witness protection program and testified against all three accused. [17] The appellant's appeal from conviction was dismissed in reasons for judgment indexed as 2023 BCCA 60.

2. Circumstances of the Offender [18] The appellant was 45 years of age at the time of the commission of the offences and 49 at the time of sentencing. [19] The appellant had no prior criminal record. He is married with two children, who were 18 and 20 years old when sentence was imposed. Both children speak about their father with love and admiration. It is apparent that the appellant is a much-involved father who is heavily invested in the success of his children. [20] A number of character letters were filed on behalf of the appellant on sentencing, including a letter from his new employer, who described the appellant as an intelligent person with a "nose to the grindstone work ethic." [21] At an earlier stage in his life, the appellant developed innovative computer software and enjoyed a successful career as an entrepreneur. On one occasion, he was awarded a large grant by the Government of Canada to continue his work. [22] A number of medical reports were before the sentencing judge. In 2009, the appellant reportedly suffered a brain injury in a car accident. As early as 2013, the appellant was treated for anger management issues, memory loss, mood disorder, and sleep disturbance. As the sentencing judge noted, it was around this time that the appellant's life seemed to take a turn for the worse. He began associating with members of the Hells Angels. The appellant asked

the judge to infer that the injuries he suffered in the accident impaired his ability to regulate his behaviour and played a contributing role in the commission of the offences. [23] This was a disputed fact on sentencing. The Crown submitted that, "[w]hatever health issues [the appellant] had played no part in these offences." The Crown argued that the medical records before the court confirmed that the appellant's behavioral challenges, if any, had been treated and were under control at the time of the offences in 2016. [24] No expert evidence was adduced on sentencing to support the notion that the appellant's health challenges contributed to his involvement in these offences. The judge raised this evidentiary gap on the sentencing hearing, advising the appellant's counsel that he was struggling to "connect the dots" between the 2009 accident and the appellant's conduct. [25] A few months before being sentenced, the appellant reported losing consciousness. He was seen in emergency and instructed to consider follow-up with a cardiologist.

3. The Positions of the Crown and Defence on Sentencing [26] The appellant sought a sentence in the range of 3-4 years' imprisonment, emphasizing his medical difficulties and favourable prospects for rehabilitation. The Crown sought a sentence of 9-10 years' imprisonment along with a number of ancillary orders the judge imposed that are not challenged on appeal.

4. Reasons for Sentence (2021 BCSC 1652) [27] The judge noted that the offences of kidnapping, extortion, and overcoming resistance all carry a maximum penalty of life imprisonment, while the maximum sentence for aggravated assault is 14 years. The judge looked to R. v. Brar, 2014 BCCA 175 for guidance in identifying the case-specific considerations that assist in placing the offence of kidnapping on a scale of seriousness. [28] The judge concluded that the appellant served primarily as "the muscle" for Neil Cantrill's extortion scheme. He found that the appellant was aware of Neil Cantrill's plan to kidnap and extort the victim before arriving at the pullout. As he put it: while Mr. Lowry may not have intended to participate in such a violent attack before Neil Cantrill called him, he must have been aware of the plan to extort [the victim] by the time the offenders arrived at the pullout. His reaction when Neil Cantrill grabbed [the victim] on the top of the embankment was not one of surprise. Rather, Mr. Lowry continued the attack seamlessly and without pause. Furthermore, he continued his attack in the vehicle with tactical precision, making a series of threats. Finally, when they arrived at [the victim]'s home, Mr. Lowry assisted in the effort to find records that would facilitate the extortion plan, all without any obvious contemporaneous instruction from his co-accused.

This all suggests that he understood the basic parameters of the kidnapping and extortion plan in advance: Brar at para. 38. [Underlined emphasis in original.] [29] The judge found that there was a risk of further violence had the police not intervened when they did. [30] The judge accepted that the medical and mental health of an offender may be a factor in fashioning a fit and appropriate sentence. While he noted that "sentencing is guided by the principle of restraint" pursuant to s. 718.2(d) of the Criminal Code, R.S.C 1985, c. C-46 [the "Code"], he also recognized that general deterrence and denunciation play a predominant role in planned schemes of kidnapping for ransom. [31] The judge recognized, as a mitigating factor, the absence of a prior criminal record. [32] The judge noted the appellant's expression of remorse on sentencing but was "not convinced that Mr. Lowry truly recognize[s] the magnitude of [his] wrongdoing ". [33] The judge also identified a number of aggravating factors including: the offence was planned and premeditated; the victim was confined for several hours; the degree of violence to which the appellant resorted in carrying out the scheme including choking the victim almost to unconsciousness and repeatedly delivering blows to the same area of the victim's face; the substantial psychological and physical impact the offence has had on the victim; and,

the substantial public resources that have been invested in protecting the victim. [34] Neil Cantrill received a global sentence of 10 years' imprisonment. Neil Cantrill has a prior criminal record and one conviction involving violence--a common assault from 1995. Stephan Cantrill was 38 years of age at the time of sentencing. Like the appellant, he did not have a criminal record. He received a global sentence of six years' imprisonment. III. The Appeal 1. The Fresh Evidence Application [35] The appellant applies to have admitted as fresh evidence on appeal: his affidavit sworn on August 11, 2023; the affidavit of his counsel's legal assistant; and CCTV video clips depicting a serious assault perpetrated upon him by other inmates on November 18, 2022, while he was serving the sentence under appeal at Matsqui Institution. The video clips show the appellant being assaulted by another inmate who approached him from behind and struck him in the area of his left eye with a rock hidden in a sock. The appellant was then pursued and stabbed between five and seven times in the face, arm and shoulder. As a consequence of the assault, the appellant claims to have lost the vision in his left eye. [36] No Correctional Service of Canada ("CSC") staff member witnessed the assault, but they interacted with the appellant in the aftermath of the incident. The appellant also seeks to have

admitted as fresh evidence redacted written reports prepared by CSC staff that describe the assault based on what the videos depict. Those reports also document the interactions CSC staff had with the appellant after the assault. [37] In addition, the appellant seeks to have admitted medical reports establishing that, since being sentenced, he has been diagnosed with paroxysmal atrial fibrillation which, on occasion, has caused him to have fainting episodes leading to two hospital admissions. The appellant is being medically managed for this condition. Finally, the appellant seeks to have admitted as fresh evidence a photograph showing him wearing a heart monitor. [38] The appellant seeks to characterize the injuries he suffered in the assault as a collateral consequence that bears upon the fitness of the sentence. There is no suggestion in any of the proposed fresh evidence that the assault perpetrated upon the appellant was connected to, or in retribution for, his participation in these offences. Further, there is no support in the proposed fresh evidence for the notion that the appellant is currently at risk while serving his sentence. He was transferred to a different institution after the attack and there is nothing in the proposed fresh evidence to establish that he remains at risk of another attack. [39] The appellant characterizes his heart condition as something that

could have affected the length of the sentence had it been known at the time of sentencing. There is no suggestion in any of the proposed fresh evidence that the appellant has not or will not receive appropriate medical care for his heart condition. [40] The Crown opposes the admission of the fresh evidence. [41] I will frame my discussion of the admissibility of the proposed fresh evidence by referring to some of the seminal cases in this area. [42] In R. v. Lévesque, 2000 SCC 47, the Court held that the well-known Palmer criteria (Palmer v. The Queen (1979), [1980] 1 S.C.R. 759, 1979 CanLII 8) apply when fresh evidence is sought to be admitted on appeal. The Palmer criteria are applied to the end of determining the ultimate issue--whether it is in the interests of justice to admit the fresh evidence on appeal: at para.

14. In Lévesque, the Court rejected the notion that the Palmer criteria should be applied more flexibly on an appeal from sentence. The Court noted that, while rules concerning the sources and types of evidence are more flexible in sentencing proceedings, the criteria for admitting fresh evidence is the same, regardless of whether the appeal relates to a verdict or sentence: at para.

16. The Court emphasized, on this point, that the Palmer criteria, and particularly the due diligence criteria, already call for a relaxed and flexible application in criminal matters: at para. 19. [43] For convenience, the Palmer criteria are reproduced below: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see [McMartin v. The Queen, [1964] S.C.R. 484]. (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence muse be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [44] In R. v. Sipos, 2014 SCC 47, the Court confirmed that principled application of the Palmer criteria strikes a balance between the demands of justice and the desirability of promoting finality in criminal proceedings: at para. 31. [45] There is one other case of particular significance to the resolution of the fresh evidence application. In R. v. Suter, 2018 SCC 34, an accused who caused the death of a two-year-old in a tragic motor vehicle accident was set upon by a group of vigilantes after being

charged with impaired driving causing death. The vigilantes kidnapped the accused and cut off his thumb with pruning shears. The accused's wife was also attacked by vigilantes in a shopping mall parking lot. Both incidents were linked to the accused's role in the offence. [46] The Court concluded that vigilante violence flowing from commission of the offence can be considered when crafting an appropriate sentence: Suter at para.

45. There is no requirement that a collateral consequence be shown to emanate from state misconduct in order to be considered on sentencing: at para.

56. The vigilante violence experienced by Mr. Suter was a collateral consequence relevant to his personal circumstances and, in turn, to an individualized sentencing process that values parity: at para. 57. [47] Writing for a majority of the Court, Moldaver J. addressed the scope of the principle this way: [51] Our courts have held that where an offender is attacked by fellow inmates in a prison and the attack is related to the offence for which the offender is in custody, such violence may be considered as a factor at sentencing: see R. v. MacFarlane, 2012 ONCA 82, 288 O.A.C. 114, at para. 3; R. v. Folino, 2005 ONCA 258, 77 O.R. (3d) 641, at para. 29; R. v. Anderson, 2014 ONSC 3646, at paras. 14 and 18 (CanLII). Although being assaulted by a fellow inmate is not the same thing as being abducted and attacked by vigilantes, the rationale for taking these collateral consequences into account when sentencing an offender remains. In both scenarios, attacks relating to the commission of the offence form part of the personal circumstances of the offender. To ensure that the principles of individualization and parity are respected, these attacks are considered at sentencing. [52] Australian jurisprudence has recognized violent retribution by members of the public as a relevant collateral consequence for sentencing. In R. v. Mamarika, [1982] FCA 94, 42 A.L.R. 94, the Federal Court of

Australia accepted that the violence inflicted upon Mr. Mamarika by members of his community as a result of his role in killing the deceased could be taken into account at sentencing. Specifically, it noted: by reason of his action, the appellant brought on himself the anger of members of the community and , as a result, he received severe injuries from which he fortunately made a good recovery. So seen, it is a matter properly to be taken into account in determining an appropriate sentence, without giving any sanction to what occurred. [p. 97] [53] I agree with this approach. As indicated, violent actions against an offender for his or her role in the commission of an offence - whether by a fellow inmate, or by a vigilante group - necessarily form part of the personal circumstances of that offender, and should therefore be taken into account when determining an appropriate sentence. [54] In this case, the vigilante violence flowed from the publics perception of the events of May 19, 2013, and the tragic consequences of Mr. Suter's actions. Although this violence did not flow directly from the commission of the s. 255(3.2) offence (nor did it flow from the length of the sentence or the conviction itself), it is nevertheless a collateral consequence as it is inextricably linked to the circumstances of the offence. [Emphasis added.] [48] The Court held that even though violence

visited upon an accused or offender related to the offence for which they have been charged or are in custody may be considered on sentencing, it should be accorded limited weight. Doing otherwise would allow vigilante violence to gain undue legitimacy in the judicial process: at paras. 58-59. [49] Although it predates Suter, R. v. MacFarlane, 2012 ONCA 82 is an example of a case where the post-offence beating of an offender directly related to the commission of the offence was recognized as a relevant consideration on appeal: at paras. 3, 9. [50] Unlike Suter and MacFarlane, there is no evidence before us that the institutional attack perpetrated upon the appellant was related to the offence for which he is in custody. Absent this link, the evidence is not relevant to the fitness of the sentence and founders on the second Palmer criteria. In my view, the appellant has also failed to show that this evidence meets the fourth Palmer criteria. Specifically, I am not satisfied that this evidence, when taken with the evidence as a whole, could reasonably have affected the result. [51] I would add that the serious consequences of the assault do not, in my view, rise to a level justifying appellate intervention on compassionate grounds which would, in any event, be a matter left in all but the most exceptional of cases to the National Parole Board. Sections 121(b) and (c) of the

Corrections and Conditional Release Act, S.C. 1992, c. 20 provide that, subject to certain exceptions not applicable in the appellant's case, parole may be granted to an offender whose physical or mental health is likely to suffer serious damage if the offender continues to be held in confinement, or for whom continued confinement would constitute an excess of hardship that was not reasonably foreseeable at the time sentence was imposed: R. v. Swope, 2015 BCCA 167 at para. 36; R. v. May, 2018 BCCA 391 at para. 38; R. v. Scholz, 2022 BCCA 339 at para. 40. [52] It follows that I would not admit the appellant's affidavit to the extent that it addresses the assault, the video clips depicting that assault, or the CSC staff reports that describe what the videos depict. [53] I turn next to consider the admissibility of the medical records and, in particular, the appellant's post-sentence development of paroxysmal atrial fibrillation. As noted earlier, there is no evidence that the appellant has been deprived of proper medical care for this condition. Indeed, the records establish that the appellant has received prompt care and that he is being medically managed for this problem. [54] Again, it is my view that the evidence is not relevant under the second prong of the Palmer criteria as it does not bear on a potentially decisive issue on sentencing. Further, the admissibility of this

evidence also founders on the fourth Palmer criteria because it could not, when taken with the other evidence adduced on sentencing, reasonably be expected to have affected the outcome. [55] In saying this, I appreciate that the judge recognized that the physical and mental health of an offender may be a factor to be considered in fashioning a fit and proper sentence. He was not wrong to do so. But I think it is apparent that the judge made this observation in response to the appellant's submission that his moral culpability was attenuated by the disinhibiting behavioural effects of a brain injury. In contrast, the appellant's treatable heart condition does not go to his moral culpability. Although I accept that this condition forms part of the appellant's personal circumstances, I am not satisfied that, had this diagnosis been made prior to sentencing, it would have had any impact on the sentence imposed. [56] In the result, I would not admit the appellant's affidavit to the extent it addresses this issue, the medical records, or the photograph of the appellant wearing a heart monitor. In the result, I would dismiss the fresh evidence application.

2. The Grounds of Appeal [57] The appellant asserts that the judge erred by: (1) failing to apply the principle of restraint; (2) erroneously assessing his culpability; and (3) failing to recognize the mitigating effect of the appellant's mental health challenges arising from a 2009 accident said to have resulted in a brain injury. [58] The standard of review on an appeal from sentence is well established. Absent an impactful error in principle, an appellate court should only intervene to vary a sentence imposed at trial if the sentence is shown to be demonstrably unfit: R. v. M. (C.A.), [1996] 1 S.C.R. 500, 1996 CanLII 230 at para. 90; R. v. Lacasse, 2015 SCC 64 at para.

11. Appellate courts use a variety of expressions to describe a sentence that is demonstrably unfit, including "clearly unreasonable", "clearly excessive or inadequate", or representing a "substantial and marked departure" from sentences imposed in like circumstances. As noted in Lacasse at paras. 51-52, all of these expressions reflect the highly deferential standard of review applicable to an appeal from sentence. [59] In my view, the first and third grounds of appeal assert error in principle in the reasons for sentence. In the context of this case, the second ground amounts to an allegation that the sentence is demonstrably unfit. (a) Failure to Apply the Principle of Restraint [60] On the first issue, the appellant submits that the judge made only passing reference to the principle of restraint. He says the judge imposed a sentence that fails to give sufficient weight to his age, status as a first-time offender, or prospects for rehabilitation. The appellant says that, while the judge made "perfunctory reference" to the principle of restraint, it is evident from the sentence imposed that he gave it no meaningful expression. [61] I see no error in principle here. The judge knew that he was sentencing a middle-aged, first-time offender and identified the principle of restraint, embodied in s. 718.2(d) of the Code, as being among the sentencing principles he was obliged to consider. [62] Sentencing judges exercise a broad, case-specific discretion in determining the weight to be accorded to the principles set out in s. 718 and 718.2 of the Code: R. v. Nasogaluak, 2010 SCC 6 at para.

43. Sentencing judges also exercise a broad discretion in determining how those principles are best achieved in a particular case: R. v. L.S.N., 2020 BCCA 109 at para.

51. The extent to which the principle of restraint shapes the imposition of sentence depends very much on the nature of the crimes an offender commits. Further, proportionality is the cardinal principle of sentencing: Lacasse at para.

12. This means that all sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Proulx, 2000 SCC 5 at para. 54; R. v. Friesen, 2020 SCC 9 at para.

30. Here, the offences that the appellant was sentenced for are extremely serious and his moral culpability is very high. The judge was right to emphasize general deterrence and denunciation. The appellant does not dispute this. [63] As the judge was alive to the proper principles, I see no basis upon which we could interfere with the sentence on grounds that the judge erred in principle by failing to give adequate expression to the principle of restraint. I would not give effect to this ground of appeal. (b) Assessment of the Appellant's Moral Culpability and the Fitness of the Sentence [64] There are two branches to the appellant's argument on this ground of appeal. First, he says the judge erred by treating his culpability as being equivalent to the culpability of Neil Cantrill--the instigator and directing mind of the plot. Relatedly, the appellant argues that the judge's erroneous assessment of his culpability is reflected in the judge's reliance on comparator cases said to contain more aggravating features than those present in the case at bar. [65] With respect to the first branch of the appellant's argument, he concedes that the 10-year sentence imposed on Neil Cantrill was justified given his leadership role and prior criminal record. He submits that the nine-year sentence imposed upon him does not properly reflect the different roles they played in the offences, or

the degree to which each of them is morally culpable. [66] I see no merit in this submission. The judge recognized the parity principle and made factual findings respecting the roles played by each of the three assailants in the commission of these offences. He accepted that Neil Cantrill was the instigator, but that the appellant administered the bulk of the beating. The appellant was also the principal offender in the choking offence--an inherently dangerous act of domination: R. v. Lemmon, 2012 ABCA 103 at para.

28. The judge found Stephan Cantrill's involvement to be more limited than that of the appellant. [67] The judge was also obliged to sentence each of the offenders having regard to the findings he made respecting their individual circumstances. He found that Neil Cantrill, who was 62 years old at the time of sentencing, was suffering from a variety of serious medical conditions, including prostate cancer and diabetes. The judge found that these conditions "will make any custodial time more difficult for him." The judge made no similar finding with respect to the appellant's personal circumstances. [68] R. v. Carr, 2015 BCCA 293 is instructive on this issue because a similar argument was advanced and rejected in that case. Carr appealed from a nine-year global sentence imposed upon him for kidnapping and extortion. A 10-year sentence was imposed on his co-accused, Crawford, for the same offence. This Court increased to five years' imprisonment the sentence imposed on a third co-accused, Brar. While Crawford (like Neil Cantrill) was acknowledged to be the instigator or "main guy" behind the commission of the offences, Carr was found to be involved in all aspects of the kidnapping and extortion and (like the appellant in the case at bar), the "muscle in the piece." Carr argued that his culpability was significantly less than Crawford's, but that this was not reflected in the

nine-year sentence imposed upon him. [69] Writing for the Court, Justice Donald rejected this argument and dismissed the appeal: [12] The appellant's main argument comes down to this: that the judge failed to give sufficient effect to the differences in his role and that of Mr. Crawford. [13] Measuring the respective culpability of the participants in a crime and manifesting the difference in the sentences are discretionary matters subject to a deferential standard of review. The special advantages of the judge who has heard and seen the witnesses through a trial are discussed in R. v. M.(C.A.), [1996] 1 S.C.R. 500 at paras. 89-91, and are often cited. Deference arises from the very task itself, according to Lamer C.J. in M.(C.A.): [91]... The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. [14] This Court only interferes in cases like this when the spread between the sentences is substantially wrong; "fine distinctions are inappropriate": R. v. Helm, 2006 BCCA 240 at para. 4. [15] The judge found a difference in the culpability

of Mr. Crawford and the appellant, but not a substantial difference, and that there was more to be said for Mr. Crawford in mitigation. These were reasonable findings grounded in the evidence. On that basis, the difference in one year in the sentences between the two offenders for kidnapping and extortion was rationally based. [Emphasis added.] [70] The principles expressed in Carr have application here. They were emphasized in R. v. Sidhu, 2011 BCCA 246 at para. 20 and Brar at paras. 28-31, the Court noting in the latter case that "[i]t is for the trial judge to assess the relative culpability of the offenders": at para. 31. [71] The judge presided over a lengthy trial in this case and was uniquely positioned to make nuanced factual findings respecting the participation and moral culpability of each of the offenders. He found that Neil Cantrill was deserving of a higher, but not substantially higher, sentence than the appellant. He also found that Neil Cantrill's medical challenges needed to be reflected in mitigation of penalty. These were reasonable findings grounded in the evidence before the judge. I see no basis upon which we could properly intervene based on "the spread" the judge determined to be appropriate between the sentences imposed upon the appellant and Neil Cantrill: Carr at para. 5. [72] The second branch of the appellant's argument on this point is that the

judge's erroneous assessment of his moral culpability is demonstrated through his reliance on comparator cases that contain aggravating features not present in the case at bar. The appellant submits that these cases, including Carr, are distinguishable and should not have been relied on by the judge in fashioning a sentence "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances": Code, s. 718.2(b). [73] In developing this argument, the appellant submits that evidence of an offender's involvement in planning the kidnapping and extortion (as opposed to participating in the execution of a scheme concocted by others) has been recognized as a significant aggravating feature: Brar at paras. 38, 46, 54-55. He emphasizes that he did not have such a role in this case. In addition, he argues that the confinement in this case was of shorter duration, the plan was less sophisticated, and its execution did not involve the degree of physical restraint to which the victim in Brar/Carr was subjected. Finally, the appellant notes that the nine-year sentence imposed on Carr appropriately reflected his prior criminal record for the commission of violent offences including robbery, assault, and the fact that he committed the kidnapping and extortion while on bail for robbery. By contrast, the appellant emphasizes that he had no prior criminal record. [74] This Court has rejected the notion that kidnappings should be placed into distinct categories for sentencing purposes: R. v. Deo and Mangat, 2007 BCCA 626 at paras. 12-14; Brar at para.

23. Nevertheless, in Deo and Mangat, the Court declined to rule out the possibility of sentences for kidnappings in an "intermediate range" of seven to nine years: at para.

12. Similarly, in Brar, the Court noted that a planned kidnapping, confinement and extortion, even without a ransom demand, usually attracts a sentence in the five to ten-year range, depending on other factors including the degree of violence inflicted on the victim: at para. 51. [75] The appellant says that a fit sentence in this case would have been towards the low end of the five to ten-year range mentioned in Brar. Although framed on appeal primarily as an alleged error in principle, I understand the thrust of the appellant's submission on this point to be an assertion that the sentence imposed is demonstrably unfit in the sense that it is a substantial and marked departure from sentences imposed on similarly situated offenders for similar criminal conduct. [76] I am unable to accept the appellant's position that the judge's assessment of his moral culpability reflects an error in principle or that the sentence is demonstrably unfit. [77] What distinguishes this case from Brar is the degree of violence used by the appellant in the commission of these offences. This significantly aggravated the appellant's moral culpability. Brar, a middle-aged offender with no relevant criminal record, played an instrumental role in facilitating the kidnapping but did not physically harm the victim. Further, the sentencing judge accepted that Brar was genuinely remorseful for his

misconduct. On the Crown appeal, this Court found the substitution of a five-year global sentence to be appropriate in light of Brar's active participation in the planning and execution of the kidnapping scheme and his willful blindness to the consequences of his participation. [78] The defence appeal from the nine-year sentence imposed on Carr--Brar's 30-year-old confederate who had a significant record for offences involving violence--was dismissed. The Court rejected Carr's submission that he should have received a significantly lower sentence than his co-accused, Crawford, the directing mind behind the commission of the offences. I note that while Carr participated in threatening and physically restraining the victim, he did not engage in the choking or assaultive behaviour displayed by the appellant in this case. Unlike the appellant, Carr was not convicted of aggravated assault or choking to overcome resistance to the commission of an offence. The judge was alive to the factual differences between Carr and the case at bar, noting that while Carr had an extensive prior record, the appellant was responsible for the infliction of more violence on the victim. [79] While no two cases are alike, this Court has dismissed appeals from sentences in kidnapping and extortion cases that fall within or above the range imposed in this case, including on youthful, first-time offenders.

As noted in R. v. Wong and Poon, 2008 BCCA 64: [26] This Court has made it clear that periods of imprisonment of ten years or more are appropriate in cases involving planned schemes of kidnapping for ransom. It has also made it clear that denunciation and deterrence are the principal factors in sentencing for this type of offence: R. v. Abrosimo, 2007 BCCA 406, 225 C.C.C. (3d) 253 (12 years); R. v. Chong, 2000 BCCA 359, 142 B.C.A.C. 7 (14 years); R. v. Hiltz (1998), 115 B.C.A.C. 315 (nine years in addition to 18 months pre-sentence custody); R. v. Hui (1995), 61 B.C.A.C. 234 (14 years). This is so even when the offender is young: R. v. Mulvahill (1993), 21 B.C.A.C. 296 at para. 27 (18 years). [27] The reason for this is that kidnapping strikes at the heart of the community's sense of safety and security. It is an offence that is intended to incite fear and terror in not only the person kidnapped, but also his or her family and friends, many times using that fear to extort money in return for that person's safe return. Even when the victim is released without having sustained any permanent physical injuries, the psychological and emotional scars may be slow to heal, if they ever do. [80] In Wong and Poon, sentences of 12 years' imprisonment were found to be appropriate for youthful first-time offenders involved in the planned kidnapping for ransom of a victim who was held

captive for eight days. An imitation handgun was used by the appellants' co-accused in the commission of the offence. The victim was threatened with grievous bodily harm and punched by the appellants' co-accused in the course of his confinement. The length of the confinement and the use of an imitation firearm distinguish Wong and Poon from the case at bar and explain why 12-year sentences were imposed in that case. [81] In R. v. Hiltz (1998), 115 B.C.A.C. 315, 1998 CanLII 6235 (B.C.C.A), the appellant and two accomplices arranged to meet the victim, an art dealer, at a restaurant under the pretense of discussing the appraisal of certain estate items. The victim was abducted at gunpoint, kicked in the knee by the appellant, blindfolded, and threatened with death. He was taken to his home, confined, and required to identify valuable objects in the house preparatory to their removal. As in this case, the appellant and his co-accused were arrested in the victim's home during the commission of the offences. The offences were planned and premeditated. The appellant's co-accused, Owens and Cousley, pleaded guilty. Owens, who admitted being the "guiding mind" behind the commission of the offences, was sentenced to eight years' imprisonment on the kidnapping charge. Cousley, who appears to have joined the enterprise late in the day, was sentenced to five years' imprisonment for

kidnapping. The sentences imposed on the co‑accused were in addition to the eight months each of them spent in pre-trial custody. The appellant was convicted following a trial of kidnapping with a firearm, unlawful confinement, robbery with a firearm and assault causing bodily harm. Considering time spent by the appellant in pre-trial custody, the sentence imposed upon him approximated a 13-year custodial term. Neither the appellant nor Owens had significant criminal records. This Court rejected the appellant's contention that the sentence imposed upon him was demonstrably unfit or excessive having regard to the sentence imposed on Owens. The Court noted that it was the appellant's repeated threats and gratuitous act of violence in kicking the victim that caused the judge to differentiate between the two offenders: at para.

17. The appeal was dismissed. The Court noted that sentence was within the range for these very serious offences committed with violence: at para.

20. Again, the use of a firearm distinguishes Hiltz from the case at bar. [82] In Deo and Mangat, sentences of seven and eight years' imprisonment, respectively, were upheld in relation to two youthful offenders who participated in the planning and execution of a kidnapping for ransom scheme that resulted in the confinement of the victim for three days. The victim was bound, blindfolded, threatened and beaten during the confinement. He suffered physical injuries, although none of them catastrophic or long-term in nature. Deo, who was 23, had no criminal record. Mangat, who was 27, had a record the sentencing judge considered to be only minimally significant: 2007 BCSC 1893 at paras. 25-27. [83] Against this background, I cannot say that the nine-year sentence imposed on the appellant is the product of error in principle as a consequence of the judge's failure to properly assess his moral culpability, or that it is demonstrably unfit. [84] The appellant was found to be aware of the kidnapping and extortion plan before the victim arrived at the meeting place. The level of violence the appellant inflicted upon the victim was extreme. The appellant was not only an enthusiastic participant in the scheme, but one who stood to benefit from the extortion together with the Cantrills. While a somewhat lesser penalty would also have been within the range, given the appellant's high moral

culpability and the need to impose a sentence which generally deters and denounces offences of this kind, I am unable to say that the sentence the judge imposed is demonstrably unfit. (c) Failing to Recognize the Mitigating Effect of the Appellant's Health Challenges [85] The appellant submits that the judge failed to "connect the dots" between his car accident in 2009 and his participation in these offences. In essence, the appellant submits that the judge erred by failing to infer a causal or contributory nexus between the two. In his written submissions filed in support of this appeal, the appellant submits that "an assessment was needed of whether and to what extent [his] medical history factored into assessment of his moral responsibility." The appellant cites R. v. Penttila, 2020 BCCA 63 at paras. 68-69 in support of this ground of appeal. [86] The mitigating effect of a cognitive impairment, including a mental health disorder that causes or contributes to the commission of the offence has been addressed by this Court in a number of recent decisions: see R. v. Badhesa, 2019 BCCA 70 at paras. 40-44; Penttila at paras. 68-70, 74; R. v. Milne, 2021 BCCA 166 at paras. 45-48; R. v. Merkel, 2021 BCCA 445 at paras. 47-55; and R. v. Nystrom, 2023 BCCA 232. The law was summarized in Nystrom in these terms: [21] A medically recognized mental disorder such as cognitive impairment,

which has caused or contributed to the commission of an offence, may be a mitigating factor that reduces an offender's moral culpability and thereby warrants a reduction in sentence. In these circumstances, both general and specific deterrence will necessarily play a diminished role in determining a fit sentence: R. v. Badhesa, 2019 BCCA 70 at para. 42; R. v. Penttila, 2020 BCCA 63 at paras. 68-69. [22] Sentencing judges must consider evidence of the nature and magnitude of the disorder, determine its overall role in the offending conduct, and be satisfied on a balance of probabilities that the disorder caused or contributed to the commission of the offence. Detailed and specific medical evidence is necessary to properly understand the relationship between the disorder and the offending conduct; generalized evidence is not sufficient: Badhesa at para. 43; R. v. Botticelli, 2022 BCCA 344 at paras. 21-22; see also R. v. Scofield, 2019 BCCA 3; R. v. Okemow, 2017 MBCA 59 at para. 73. [23] The assessment of an offender's moral culpability, and more particularly how a disorder impacts this, is a question of fact. Absent palpable and overriding error, this finding is entitled to deference on appeal: Badhesa at para. 26; Botticelli at para. 19; Penttila at para. 70; Scofield at paras. 48, 56. [87] The judge had before him a selection of medical records addressing some of the

appellant's challenges that appear to have emerged after his accident in 2009. In a report dated December 12, 2013--two-and-a-half years before the commission of the index offences--a neurologist assessed the appellant and reported back to his family physician as follows: The main issue with this gentleman is problems with his attention, insomnia, and possible depression. His past medical history is positive for multiple anger bursts and many years of boxing, at least one car accident at which time he went through the windshield, and several skiing accidents with head traumas. He has also been involved in several fights with head traumas and, from one of these fights, his left pupil has been affected. Now it is not reacting to light. Left pupil does not react well to light, and it is almost fixed and dilated as compared to the right. I think cognitively this gentleman is doing very well. I do not have concerns about it. His issues might be arising from either bipolar disorder where he does not sleep for a while and then sleeps or it may be a depressive syndrome, along with it, and anger management problem and behavioural problem. [Emphasis added.] [88] In a follow-up report dated March 26, 2014, the neurologist noted that the appellant was being treated by a psychiatrist for behavioural and anger management issues. No psychiatric report was put before the sentencing judge. The

neurologist reported to the appellant's family physician that he was closing his file because "I believe now we know what is going on with him and he is improving and I think under the care of [named psychiatrist] things will improve even much more." [89] The appellant did not testify at the sentencing hearing. No pre-sentence report was prepared. There was scant support in the character letters filed on sentencing that the appellant's behaviour on this occasion was attributable to a previously incurred brain injury. Letters tendered from the appellant's wife and mother--those who know him best--provided no clear support for the inference the appellant was asking the judge to draw. One letter from a member of the Alberta bar who provided legal advice to the appellant did note behavioural changes between 1999 and approximately 2014, including occasional slurred speech and diminished cognitive acuteness, but this is as far as the evidence went. [90] No expert evidence was put before the judge linking the appellant's participation in these offences to a brain injury. Further, none of the medical records before the judge addressed the appellant's condition in 2016, the year the appellant committed these offences. In a note made by the appellant's family physician on October 11, 2018--more than two years after the commission of the offence--it was reported that the appellant was

stable on his current medications and had undergone a complete physical with no concerns found. [91] Whether there was a nexus between the appellant's injuries from the 2009 accident and his behaviour on this occasion was a disputed fact relied on by the appellant in mitigation of penalty. The appellant bore the burden of proving this fact on a balance of probabilities: Code, s. 724(3)(b) and (d); R. v. Dreger, 2014 BCCA 54 at para.

45. The judge certainly did not err in principle by failing to embark on his own inquiry and seek out information relevant to the determination of whether the appellant's culpability might be attenuated by a pre-existing brain injury that contributed to the deregulation of his behaviour. Penttila does not assist the appellant on this issue. It was the appellant's obligation to adduce evidence to persuade the judge that it was appropriate to draw this inference. [92] The judge was aware of the potential mitigating impact of an underlying medical or mental health disorder at the time of the commission of an offence. On the evidence and submissions before him, the judge declined to draw the factual inference sought by the appellant. His decision not to do so engages a question of fact. I see no basis upon which we could properly interfere with it. I would not give effect to this ground of appeal. IV. Conclusion [93] For the foregoing reasons, I would dismiss the fresh evidence application. I would grant leave to appeal, but dismiss the appeal from sentence. "The Honourable Mr. Justice Fitch" I AGREE: "The Honourable Madam Justice DeWitt-Van Oosten" I AGREE: "The Honourable Justice Skolrood"