



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Richer,









2005 BCCA
            3




Date: 20050106




Docket: CA032133; CA032257

Docket: CA032133

Between:

Regina

Respondent

And

Jason Donald
      Richer

Appellant

- and -

Docket: CA032257

Between:

Regina

Respondent

And

Eric Henderson

Appellant






BAN ON PUBLICATION
SECTIONS 486(4.1) AND 539(1) OF THE CRIMINAL CODE

THE COURT ORDERS A BAN ON AND PROHIBITS THE
        PUBLICATION IN PRINT AND THE BROADCASTING ON TELEVISION, FILM, RADIO
        AND THE INTERNET OF ANY INFORMATION TENDING OR SERVING TO PUBLICLY IDENTIFY
        UNDERCOVER POLICE OFFICERS IN THE INVESTIGATION OF THE CO-ACCUSED IN
        THIS MATTER, INCLUDING BUT NOT LIMITED TO, ANY LIKENESS OF THE OFFICERS,
        THE APPEARANCE OF THEIR ATTIRE AND THEIR PHYSICAL DESCRIPTION






Before:



The Honourable
            Chief Justice Finch





The Honourable
            Mr. Justice Mackenzie





The Honourable
            Madam Justice Levine









D.H. Silverman



Counsel for the Appellant, Jason Donald
            Richer





G. Orris,
            Q.C.



Counsel for the Appellant, Eric Henderson





K. Ker



Counsel for the Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia





December 1, 2004





Place and
            Date of Judgment:



Vancouver, British Columbia





January 6, 2005









Written
              Reasons by
:





The Honourable
            Madam Justice Levine





Concurred
              in by:





The Honourable
            Chief Justice Finch

The Honourable
            Mr. Justice Mackenzie





Reasons for Judgment of the Honourable Madam Justice
        Levine:

Introduction

[1]

The
      appellants were convicted of manslaughter by a Supreme Court judge and
      jury on April 18, 2004 and sentenced on July 2, 2004 to four-and-a-half
      years in prison, taking into account credit of three-and-a-half years for
      time served. They appeal the sentences, claiming an effective sentence
      of eight years in prison is excessive.

[2]

I
      would not interfere with the sentence in the case of Mr. Henderson and
      would dismiss his appeal. In the case of Mr. Richer, I would allow the
      appeal and reduce his sentence to seven years, less three-and-a-half years
      for pre-trial custody.

Circumstances of the Offence

[3]

The
      trial judge summarized the circumstances of the offence in his reasons
      for sentencing (2004 BCSC 965 at paras. 2-7):

Henderson
      and Richer were employed at a crack cocaine house in Sechelt.  They became
      enraged with Baptiste over the course of January the 14 and 15, 2002, because
      Baptiste was causing trouble at the crack house, demanding more and free
      drugs and attacking the door of the crack house with a hammer, large stone
      and machete.  At one point, during the afternoon of January the 14, there
      was a standoff between Henderson and Baptiste outside the back door of
      the crack house, Baptiste, holding a hammer, and Henderson, a metal pipe.  However,
      neither man assaulted the other at that time.

Shortly
      after midnight of January the 15, Baptiste returned to the crack house
      and was again demanding drugs and beating on the door.  He was given some
      crack cocaine by John Varady, the employer dealer in the house, and was
      leaving the property.  Henderson, with Richer following, accosted Baptiste
      in the parking lot of the crack house.  Baptiste was walking away and had
      no weapons on his person.  Henderson kicked Baptiste in the chest and then
      punched and kicked him in the head while he was down on the paved surface.  Richer
      then stomped on Baptiste's head.

After
      the assault, Baptiste was left lying unconscious in the parking lot.  Henderson
      and Richer returned to the crack house.  Baptiste continued to lie unconscious
      in the parking lot.  Some other customers came to the crack house and asked
      about Baptiste, whom they knew.  Varady told them, through a closed door,
      that an ambulance had been called.

At
      one point, Richer was sent out by either Varady or Henderson, out to the
      parking lot with a bowl of water to throw on Baptiste to wake him up.  Baptiste
      appeared to be snoring and was not revived by the water poured on his head.

Subsequent
      autopsy results revealed that Baptiste was in a coma with fatal injuries
      to his brain from the blows inflicted by Henderson and Richer.

Baptiste was finally found about two hours after the
      assault by a security guard who was doing his rounds.  That security guard
      knew Baptiste and called Emergency Services, 911.  The Royal Canadian Mounted
      Police and ambulance arrived a few minutes later.  Baptiste was taken to
      the local hospital in Sechelt, then airlifted to the Vancouver General
      Hospital a few hours later, and from there to the intensive care unit at
      Victoria General Hospital where he died from his head injuries a week later,
      on January 22, 2002.

[4]

The
      trial judge found (at paras. 13-15) that Mr. Henderson had instigated the
      fight with the victim, and "succeeded in putting him to the ground".
      Mr. Richer, a "follower", "decided to participate by stomping
      on [the victim's] head." He found both accused "are equally culpable
      in causing [the victim's] death."

Circumstances of the Offenders

Mr. Henderson

[5]

At
      the date of the offence, Mr. Henderson was 30 years old. He was raised
      primarily by his mother, who continued to support him through the criminal
      proceedings. Mr. Henderson has a son from a common-law relationship from
      whom he is involuntarily estranged. His criminal record, until his conviction
      for robbery in 2001, involved minor matters. He has a grade 10 education
      and has held a series of jobs, none for more than two years. He has a black
      belt in tae-kwon do. He had some anger management counselling while on
      probation for the robbery, but did not avail himself of any programs or
      courses while in custody awaiting trial for this offence. Mr. Henderson
      has used alcohol to excess; both he and Mr. Richer had been drinking the
      day of this offence.

[6]

Mr.
      Henderson was on probation following his conviction for robbery when this
      offence was committed. His co-accused in the robbery was convicted of manslaughter.
      The robbery involved an attempt to break-in and steal from a marijuana
      grow operation. He and his co-accused did not expect the house to be occupied.
      They left when they became aware that there was someone in the house. The
      co-accused fired shots from outside which the trial judge found resulted
      in the death of the victim. The trial judge concluded that: "The defendants
      came armed, in a planned endeavour, fully willing to participate with deadly
      force." Mr. Henderson was sentenced to four years in prison, reduced
      to five months after allowing credit for 43 months spent in custody before
      sentencing, and one year probation "to promote efforts towards rehabilitation".

[7]

After
      his release from prison following the robbery, Mr. Henderson took a job
      with the drug house in Sechelt as an enforcer, to make some money and buy
      a car. In the pre-sentence report, the probation officer points out that
      in both the robbery and in taking the job with the drug house, Mr. Henderson
      made a conscious decision to participate in matters centering on the drug
      trade, knowing of the potential for violence in these enterprises.

[8]

The
      sentencing judge noted that Mr. Henderson has been described by corrections
      officers as respectful and courteous, and that he has plans to complete
      his education, restore access to his son and stabilize his life.

Mr. Richer

[9]

Mr.
      Richer was 24 years old at the date of this offence. He lived with his
      mother from the age of 12 until 2000. He maintains supportive relationships
      with his father, his siblings and a woman with whom he lived for three
      years before this offence and who is a positive influence on him. Mr. Richer
      has limited cognitive ability. He finished grade seven after repeating
      some grades several times. Despite his limited education, he has maintained
      steady employment. He had no criminal record before this offence. He has
      an alcohol abuse problem, for which he sought counselling and completed
      courses while in prison awaiting trial. He applied to a treatment centre,
      hoping to attend on his release from custody.

[10]

Mr.
      Richer's relationship with Mr. Henderson involved training in tae-kwon
      do and drinking beer together. The trial judge commented (at para. 12)
      that: "He looked to Henderson as an older brother and mentor." Although
      the trial judge said (in para. 2) that both Mr. Henderson and Mr. Richer
      were employed at the drug house, he noted that both Mr. Henderson and Mr.
      Richer had stated that Mr. Richer only went there to keep Mr. Henderson
      company.

Counsel's Positions at Sentencing

[11]

Crown
      counsel sought an effective sentence of 16 years in custody for Mr. Henderson
      and 13 years for Mr. Richer.

[12]

Both
      defence counsel argued that the appropriate range of sentence was four
      to six years before credit for pre-sentence custody. Counsel for Mr. Henderson
      suggested a sentence of less than two years and probation (taking into
      account pre-sentence custody). Counsel for Mr. Richer suggested that an
      appropriate sentence would be time served or a conditional sentence if
      further time in prison was necessary.

Grounds of Appeal

Description of Offence as "Near Murder"

[13]

Both
      appellants claimed that the trial judge erred in principle by describing
      the offence as equivalent to murder as defined in s. 229(a)(ii) of the
Criminal
      Code
:

229.  Culpable homicide is murder

(a)   where the person who causes the death of a human
      being

. . .

(ii)  means to cause
      him bodily harm that he knows is likely to cause his death, and is reckless
      whether death ensues or not;

[14]

The
      appellants object to the following passages of the trial judge's reasons
      for sentencing (at paras. 18 and 32):

[18]  . . .

1.    The beating was brutal. While it is unclear which
      of the two offenders directly caused the victim's death, both ought to
      have known that the force of their attacks may well cause death. In other
      words, there was reckless indifference as to the consequences.

. . .

[32]  [after referring
      to manslaughter cases "approaching the very serious offence category
      of near murder"] This case comes close to the "very serious" category.



[15]

The
      appellants suggest that by describing this offence in terms of murder,
      the trial judge gave excessive weight to the aggravating factors.

[16]

I
      agree with Crown counsel that it cannot be said, considering the trial
      judge's reasons as a whole in the context of his experience as a trial
      judge and having heard the evidence in this particular case, that the trial
      judge did not understand the nature of the offence of which the appellants
      had been convicted.

[17]

As
      pointed out by Crown counsel, the trial judge was articulating the objective
      standard for "unlawful act manslaughter".

[18]

In
R.
          v. Creighton
, [1993] 3 S.C.R. 3 at 42, McLachlin J. (as she
          then was) stated that manslaughter consists of (1) conduct causing
          the death of another person, and (2) fault short of intention to kill.
          The fault may consist of committing another unlawful act, in this case
          the assault of the victim. She continued at 42-43:

The cases establish that in addition to the
actus reas
and
mens
        rea
associated with the underlying act, all that is required to support
        a manslaughter conviction is reasonable foreseeability of the risk of
        bodily harm. While s. 222(5)(a) [the definition of culpable homicide
        by means of an unlawful act] does not expressly require foreseeable bodily
        harm, it has been so interpreted: see
R. v. DeSousa
, [[1992] 2
        S.C.R. 944]. The unlawful act must be objectively dangerous, that is,
        likely to injure another person. The law of unlawful act manslaughter
        has not, however, gone so far as to require foreseeability of death.

[19]

After
      reviewing the history of the development of the test of objective foreseeability,
      McLachlin J. summarized the test at 44-45:

So the test for the
mens rea
of unlawful act manslaughter
      in Canada, as in the United Kingdom, is (in addition to the
mens rea
of
      the underlying offence) objective foreseeability of the risk of bodily
      harm which is neither trivial nor transitory, in the context of a dangerous
      act.

[20]

The
      appellants were charged with second degree murder. Provocation and intoxication
      were factors for the jury to consider in determining their intent. The
      jury found the appellants did not have the specific intent for murder,
      but the trial judge's description of the offence as being "very close
      to the "very serious" category" of "near murder" does
      not indicate any confusion on his part. Rather, it reflects the well-established
      spectrum of culpability in manslaughter cases ranging from "near accident" to "near
      murder": see
R. v. Billings
, 2004 BCSC 653 at para.
      50, where Romilly J. cites
R. v. Pettigrew
(1990), 56 C.C.C.
      (3d) 390 (B.C.C.A.) and
R. v. Vaudreuil
(1995), 98 C.C.C.
      (3d) 316 (B.C.C.A.). The location of this offence on the spectrum is a
      factual matter. This Court will not interfere with the trial judge's findings
      of fact unless it is shown that he misapprehended the evidence. That has
      not been shown in this case.

[21]

I
      would dismiss this ground of appeal.

Mr. Henderson's Grounds of Appeal

[22]

Mr.
      Henderson raises three additional grounds of appeal.

[23]

Mr.
      Henderson claims that the trial judge erred in considering as aggravating
      factors Mr. Henderson's participation in the drug trade as an employee
      of the drug house and his involvement in the robbery of the marijuana grow
      operation in which a man died.

[24]

In
      my opinion, these were important matters relating to Mr. Henderson's background
      that the trial judge had to take into account as aggravating factors. They
      reflect on Mr. Henderson's character and his willingness to be involved
      in illegal and potentially serious, violent activities. The circumstances
      of the robbery conviction attain greater relevance because Mr. Henderson
      was on probation from that offence when this offence was committed.

[25]

I
      would not accede to these two grounds of appeal.

[26]

Mr.
      Henderson claims that the trial judge erred in finding that the victim
      was impaired by drugs or drug withdrawal and likely unable to defend himself
      and characterizing that as an aggravating factor. He does not challenge,
      however, the trial judge's description of the victim's activities and condition
      during the day preceding the beating. He was a drug addict who kept returning
      to the house, acting erratically and violently until he was given more
      drugs. There is no error in drawing the inference from those facts that
      at the time of the beating the victim was impaired by drugs or drug withdrawal.

[27]

I
      would not accede to this ground of appeal.

Mr. Richer's Grounds of Appeal

[28]

Mr.
      Richer argues that the trial judge failed to give sufficient weight to
      the mitigating factors in his case and therefore placed insufficient emphasis
      on the principle of rehabilitation. He also claims that the trial judge
      failed to consider a conditional sentence.

[29]

I
      will deal with the first ground after the discussion of the range of sentence,
      below.

[30]

The
      trial judge did not discuss a conditional sentence in his reasons for sentence,
      but during submissions of counsel, he made it clear that he did not consider
      this case appropriate for a sentence of imprisonment of less than two years,
      stating: "In my view, this case calls for an additional term of imprisonment
      amounting to federal penitentiary time."

[31]

I
      would not accede to this ground of appeal.

Range of Sentence

[32]

Both
      appellants say that the effective sentence of eight years is outside the
      range of sentences for this type of manslaughter. They cite
R. v.
      Gillies
, [1998] B.C.J. No. 1153 (C.A.)(QL) as establishing a range
      of four to six years.

[33]

This
      Court dealt with the applicability of a "range" of sentences
      in
R. v. Bernier
(2003), 177 C.C.C. (3d) 137 (B.C.C.A.).
      All of the justices who decided that case agreed that when this Court refers
      to a "range" of sentences for a particular offence, it reflects
      the sentences the Court has approved or determined in previous appeals
      involving similar offenders and similar offences. A "range" is
      meant to serve as a guideline for trial judges, not a rule that imposes
      a minimum or maximum for a particular offence. As Prowse J.A. pointed out
      at para. 75:

I
      agree with my colleagues that references to ranges of sentence should not
      distract the court from giving appropriate weight to the other principles
      of sentencing set forth in the
Code
, or from adjusting each sentence
      to the specific circumstances of the offence and the offender.  The goal
      of the Court in each case will be the same  to determine whether the sentence
      is fit for this offender committing this crime.

[34]

Thus,
      the four to six year range suggested in
R. v. Gillies
is
      just that, a suggestion. The question is whether, in determining the sentences
      imposed on these offenders for this offence, the trial judge considered
      the relevant principles of sentencing, gave appropriate emphasis to the
      aggravating and mitigating factors, and took into account the particular
      circumstances of each of Mr. Henderson and Mr. Richer and of the offence.

[35]

Mr.
      Henderson's counsel cited
R. v. Gillies
(seven years; youthful
      offender "fueled by alcohol and drugs" stabbed the victim during
      a fight) and
R. v. R.E.A.
, 2003 BCSC 925 (five years 10 months;
      offender stabbed victim during a fight; both using cocaine) in support
      of his submissions that Mr. Henderson should receive an effective sentence
      of six years. Taking into account credit for pre-sentence custody, the
      sentence would be 24 to 30 months in prison.

[36]

Mr.
      Richer's counsel's position is that Mr. Richer's sentence should be lower
      than that of Mr. Henderson. He suggests a sentence of time served plus
      a year of probation, or a conditional sentence of up to 18 months. The
      effective sentence would be four to five years. He cites in support of
      his submissions
R. v. Gillies
,
R. v. Hancock
,
      2001 BCSC 871 (18 months prison plus two years probation for manslaughter
      involving torture of a masochist);
R. v. Chao
, 2003 BCSC
      879 (conditional sentence of two years less a day; youthful first offenders
      part of a group assault at a Karaoke club);
R. v. Aldridge
(11
      December 2002), North Vancouver 13503-C2 (B.C.P.C.) (five years; young
      first offender kicked victim at a New Year's party).

[37]

Crown
      counsel provided cases where offenders were sentenced to seven to ten years.
      Of particular note are:
R. v. Henderson and Kieler
(22 June
      2001), New Westminster CWC X040473 (B.C.S.C.) (44 months (effective eight
      years) following guilty plea to manslaughter; this was Mr. Henderson's
      co-accused in the robbery);
R. v. Glover
, 2002 BCCA 271 (seven
      (effective 10) years; youthful offender struck victim from behind with
      a hammer; co-accused stabbed the victim);
R. v. Nowacki
,
      [1998] B.C.J. No 481 (C.A.)(QL) (ten years; 32-year-old offender put victim
      in a sleeper hold; co-accused beat victim);
R. v. Dasilva
,
      [1988] B.C.J. No. 1744 (C.A.)(QL) (eight years; 22-year-old offender beat
      victim). (The trial judge cited
Gillies
,
Glover
and
Nowacki
in
      his reasons for sentence.)

[38]

Each
      of these cases may be distinguished from each other and from this case.
      Every case cited involves unthinking, horrific violence with the worst
      ultimate consequences. It is not the role of this Court to examine the
      facts of each authority to precisely calibrate the degrees of violence
      of each incident. The role of this Court is to determine whether the trial
      judge imposed a sentence that is demonstrably unfit in the circumstances
      of the particular case he had to decide, considering the principles of
      sentencing, the aggravating and mitigating factors, and the relevant authorities.

[39]

In
      the case of Mr. Henderson, I find no basis to conclude that a sentence
      of eight years is, in all of the circumstances, demonstrably unfit.

[40]

In
      the case of Mr. Richer, however, in my opinion the trial judge placed too
      much emphasis on denunciation and too little on his greater prospects of
      rehabilitation.

[41]

The
      trial judge considered as an aggravating factor in Mr. Richer's case that
      his role in the beating was particularly brutal, but found both appellants
      equally culpable in the beating death of the victim. Given that finding,
      the trial judge failed to give sufficient emphasis to the mitigating differences,
      from Mr. Richer's point of view, between his background and that of Mr.
      Henderson.

[42]

Mr.
      Richer has no criminal record; no proclivity to violence; has been regularly
      employed despite learning difficulties that have resulted in bare literacy
      and a grade seven education; and made efforts at rehabilitation while in
      prison awaiting trial. Mr. Henderson has a criminal record, including a
      conviction in 2001 for robbery in which his co-accused was convicted of
      manslaughter. Mr. Henderson committed this offence while he was on probation
      relating to the robbery conviction. Both of the convictions involved the
      drug trade.

[43]

The
      trial judge correctly considered that denunciation and general deterrence
      were the main principles of sentencing applicable in this case. He found
      that specific deterrence was not a concern because neither appellant is
      likely to commit another homicide. He should have considered, in addition,
      the likelihood of each of the appellants being involved in further criminal
      activity and the relative effect of rehabilitative measures. Had he done
      so, in my opinion he would have concluded that Mr. Richer is less likely
      than Mr. Henderson to be involved in criminal activity following his release
      from prison and more likely to benefit from rehabilitation programs while
      he is there.

[44]

For
      these reasons, I would reduce the sentence imposed on Mr. Richer to an
      effective seven years. Allowing credit for pre-sentence custody, his sentence
      would be three-and-a-half years in prison.

Conclusion

[45]

I
      would grant Mr. Henderson an extension of time in which to bring his sentence
      appeal, grant leave to appeal, and dismiss his appeal.

[46]

I
      would grant Mr. Richer leave to appeal, allow the appeal, and vary his
      sentence by reducing it by one year to three-and-a-half years in prison.



The Honourable
Madam Justice Levine

I Agree:

The Honourable
Chief Justice Finch

I Agree:

The Honourable
Mr. Justice Mackenzie




