



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Van Buskirk,









2012 BCCA 34




Date: 20120118

Docket:
CA036409

Between:

Regina

Respondent

And:

Brent William Van
Buskirk

Appellant




Before:



The Honourable Mr. Justice Tysoe





The Honourable Madam Justice Neilson





The Honourable Mr. Justice Hinkson




On Appeal from: Supreme
Court of British Columbia, December 10, 2007
(
R. v. Van Buskirk,
2007 BCSC 1925, Victoria Dockets 130269 & 130270)

Oral Reasons for Judgment




Counsel for the Appellant:



P. M. Fullerton





Counsel for the Respondent:



M.J. DeWitt-Van
  Oosten, Q.C.





Place and Date of Hearing:



Victoria, British
  Columbia

January 18, 2012





Place and Date of Judgment:



Victoria, British
  Columbia

January 18, 2012








[1]

TYSOE, J.A.:
The appellant was found to have committed the
offences of contempt of court, murder and two conspiracies to commit murder. He
was sentenced as a youth under the
Youth Criminal Justice Act
, S.C. 2002,
c. 1, in respect of the murder, and he was sentenced as an adult in
respect of the other three offences. This appeal relates to his sentences for
the two conspiracies to commit murder, which the appellant says are unfit as a
result of the operation of s. 743.5 of the
Criminal Code
.

[2]

The convictions for contempt of court and murder both related to a
contract killing of a man outside his home. The appellant shot the man in the
back of his head with a .45 calibre handgun in August 2004. At the time, the
appellant was a few days away from his eighteenth birthday.

[3]

Another man, named Mr. Abu-Sharife, was also charged in connection
with the murder. The appellant refused to give evidence at the trial of Mr. Abu-Sharife,
who was ultimately found not guilty. The appellant was held to have committed
contempt of court and, on December 21, 2006, he was sentenced by Mr. Justice
Grist to two years incarceration (2006 BCSC 1981).

[4]

Mr. Justice Groberman sentenced the appellant for the murder on
November 30, 2007 (2007 BCSC 1924). It was agreed that the appropriate
length of the sentence was the maximum youth sentence of 10 years, consisting
of up to six year custody and the balance under conditional supervision to be
served in the community.

[5]

Mr. Justice Groberman held that the murder sentence should be
consecutive to the contempt sentence and that the appellant should be given a
one-to-one credit on the murder sentence for the period of his pre-sentence
custody. The result was a sentence of four years and two months custody and
four years community supervision.

[6]

The sentencing for the two conspiracies to murder also came before
Mr. Justice Groberman, and the sentences imposed by him are the ones that are
the subject matter of this appeal. The sentences were imposed on December 10,
2007 (2007 BCSC 1925).

[7]

The first charge involved a conspiracy to murder competitors of Mr. Abu‑Sharife
in the drug trade. It was planned that the appellant would detonate a plastic
explosive in a night club, killing the competitors and other people in the
club. Efforts were made to obtain the explosive, but it was not procured. Mr. Abu-Sharife
was also charged, and he received an effective eight year sentence after
pleading guilty.

[8]

The second charge involved a conspiracy with someone else to kill an unidentified
person in Whistler. The planning did not get past the stage of travelling to
Whistler to conduct preliminary reconnaissance. The co-conspirator was awaiting
trial at the time of the appellants sentencing.

[9]

Mr. Justice Groberman concluded that the appropriate sentences for
the two conspiracies were eight years and six years imprisonment,
respectively, to be served concurrently. He disagreed with the defence position
that the conspiracy sentence should be concurrent to the murder sentence. Mr. Justice
Groberman also concluded that the appellant should be given additional credit
in respect of his pre-sentence custody because he had only received one-to-one
credit when he was sentenced for the murder, and he gave a further one year
credit. The result was concurrent sentences of seven and five years
imprisonment.

[10]

The appellant does not say that the sentences for the conspiracy
offences are themselves unfit, but contends that the sentences offend the
totality principle as a result of the operation of s. 743.5(1) of the
Criminal
Code
, which provides that the youth sentence is to be dealt with as if it
had been a sentence imposed under the
Criminal Code
as a result of the
fact that the adult sentences for the conspiracy offences were imposed while
the appellant was subject to the youth sentence. Subsection (3) of s. 743.5
states that, for greater certainty, the youth sentence and the adult sentence
are deemed to constitute one sentence of imprisonment for the purposes of s. 139
of the
Corrections and Conditional Release Act
, S.C. 1992, c. 20
(the 
CCRA
). Section 139 of the
CCRA
provides that, if a person
serving a sentence receives another sentence, the person is deemed to have received
one sentence such that the two sentences are merged.

[11]

The appellant has provided an affidavit sworn by a representative of the
Correctional Service of Canada in October 2008 to the effect that in
calculating the appellants parole eligibility, the full length of the youth
sentence, and not just the custodial component of the sentence, is to be taken
into account. The appellant says this has the effect of transforming the entire
youth sentence into a committal to custody and results in a custodial sentence
that is four years longer than Mr. Justice Groberman intended.

[12]

Our attention has been drawn to a decision of the Federal Court of
Appeal that post-dates the affidavit provided by the appellant. In
P. (J.)
v. Canada (Attorney General)
, 2010 FCA 90, 253 C.C.C. (3d) 425, the
offender received a youth sentence for second degree murder consisting of a 22
month custodial portion and a 36 month conditional supervision portion. He was
over 20 years of age at the time of his sentencing and, as a result of s. 89(1)
of the
Youth Criminal Justice Act
, he was committed to a provincial correctional
facility for adults to serve his sentence. The National Parole Board calculated
the offenders parole eligibility in the same fashion as the Correctional
Service did in the present case; namely, the length of the sentence for the
purpose of the calculation included both the custodial portion and the
conditional supervision portion.

[13]

The offender challenged the calculation of the National Parole Board by
way of judicial review, taking the position that the calculation should only be
done on the custodial portion of the youth sentence. The judicial review
application was successful in the Federal Court, and its ruling was upheld on
appeal. The Federal Court of Appeal concluded that the term sentence as
defined in s. 2 of the
CCRA
, and as used in sections 119 and 120 of
the
CCRA
to calculate parole eligibility, means only the custodial
portion of the youth sentence.

[14]

The appellant in this case has not sought to judicially review the
decision of the Correctional Service and urges us to decide the appeal on the
basis that its decision is correct. However, I have difficulty in determining
this appeal on that basis because I have reservations as to the correctness of
the decision of the Correctional Service. It would seem to me that there is an
argument of some substance that the reasoning in
P. (J.)
applies to the
present situation and that the result is not affected by the provisions of s. 743.5
of the
Criminal Code
.

[15]

In my view, it would not be appropriate for us to make a definitive
decision on the correctness of the Correctional Services position. The Federal
Crown is not a party to this appeal, and no submissions have been made on its
behalf. In addition, a decision by us on the point in this appeal would not be
binding on the Correctional Service or the National Parole Board.

[16]

The situation produces a form of stalemate. I would not be willing to
decide the appeal on the assumption that the decision of the Correctional
Service is correct, nor am I prepared to make a determination as to whether the
decision is correct or not. We cannot force the appellant to seek judicial
review of the decision of the Correctional Services.

[17]

In these circumstances, I have concluded that the appropriate course of
action is to stay the appeal, with liberty to apply for a dissolution of the
stay in the event of a determination by the Federal Court that the decision of
the Correctional Service is correct.

[18]

NEILSON J.A.:
I agree.

[19]

HINKSON J.A.:
I agree.

[20]
TYSOE J.A.:
The
appeal is stayed with liberty to apply for a dissolution of the stay in the
event of a determination by the Federal Court that the decision of the
Correctional Services is correct.

The Honourable Mr. Justice
Tysoe


