



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Brooks, 2012 ONCA 703

DATE: 20121019

DOCKET: C54962

Doherty, Hoy and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Leonard Brooks

Appellant

Jonathan Rudin and Amanda Driscoll, for the appellant

Holly Loubert, for the respondent

Heard:  September 19, 2012

On appeal from the sentence imposed on March 22, 2011 by
    Justice Stephen J. Hunter of the Ontario Court of Justice.

Doherty J.A.:


[1]

The appellant pled guilty to and was convicted of manslaughter.  He
    received a seven-year sentence less one year credit for time served prior to
    sentencing.  He appeals from that sentence.

[2]

On June 27, 2010, the appellant, the victim Jessie Archer, and two other
    young men were enjoying a social afternoon and evening together.  Mr. Archer
    and the appellant were both in the music business.  It is unclear how well they
    knew each other, but there was no animosity between them.

[3]

All four men were consuming alcohol during the day and having a good
    time.  Sometime during the evening, the appellant came into possession of a loaded
    .25 calibre semi-automatic pistol.  Mr. Archer did not know that the appellant
    had the weapon.  The pistol is a prohibited firearm under s. 84 of the
Criminal
    Code
.

[4]

The appellant, Mr. Archer and their two friends visited two bars that
    evening.  They left the second bar at closing time.  Mr. Archer and one of the
    other men went straight to the vehicle.  The appellant and the other man stood
    outside on the street talking to the dancers.  The appellant, apparently
    showing off for the dancers, fired the pistol into the air.  Mr. Archer was
    not present when this happened.

[5]

The appellant and the other man who had been talking to the dancers then
    joined Mr. Archer and the fourth man in the vehicle and drove away from the bar. 
    The appellant was sitting in the backseat on the passenger side.  Mr. Archer
    was sitting in the passenger seat on the front side.  The appellant had the loaded
    gun in his hand.  He accidentally pulled the trigger.  The gun, which was only
    a few inches from the headrest, discharged and the bullet passed through the
    headrest striking Mr. Archer in the throat and entering his head.

[6]

The driver of the vehicle drove directly to the hospital.  On the way to
    the hospital, the appellant threw the gun out of the car window.  Mr. Archer
    was pronounced dead at the hospital.

[7]

The police found the gun in a grassy area near the road four days later. 
    There was a bullet in the chamber and a second bullet in the magazine.

[8]

Although the appellant has acknowledged from the outset that he fired
    the fatal bullet, he has not been entirely forthright with the authorities. 
    Initially, he lied to the police about the circumstances surrounding his
    acquisition of the gun and how he came to discharge the gun in the car.  Even
    after the appellant subsequently acknowledged the details surrounding the
    discharge of the gun, he would not tell the police how he got it.

[9]

The trial judge faced a very difficult sentencing problem.  The offence,
    manslaughter using a firearm, carries a minimum sentence of four years in the
    penitentiary.  Mr. Archer was a fine young man with a bright future who was
    well loved by his family and friends.  The appellant, despite a very
    disadvantaged young childhood and problems with alcohol in his teens and early
    adulthood, has become a productive member of the community and a loving
    father.  The trial judge gave careful and thoughtful reasons.  The sentence he
    imposed is entitled to deference.

[10]

Counsel
    for the appellant submits that the trial judge ignored the appellants Aboriginal
    heritage and consequently failed to have particular attention to the
    circumstances of Aboriginal offenders as required by s. 718.2(e) of the
Criminal
    Code
.  I cannot agree with this submission.  Although the trial judge did
    not review the relevant information in any detail in his reasons, those reasons
    demonstrate that he appreciated that he had to consider the appellants Aboriginal
    background in affixing the appropriate sentence.  His ultimate determination
    that it did not affect the quantum of sentence in this case reveals no error.

[11]

It
    must be stressed that the appellant faced a significant mandatory minimum jail sentence.
    This was not a situation in which the trial judge had a variety of sentencing
    options available to him.  The appellant had to go to the penitentiary for at
    least four years.  No doubt, s. 718.2(e) applies in all cases, including those
    where there is a mandatory minimum jail term.  However, the existence of a
    minimum, particularly one that requires a four-year penitentiary sentence, must,
    of necessity, limit the practical impact of s. 718.2(e) just as it limits the
    impact of other potentially mitigating factors particular to the individual
    offender.

[12]

The
    trial judge also considered the serious nature of the offence, the limited
    connection the appellant had to his Aboriginal heritage, and the absence of any
    connection between the offence and the Aboriginal community.  He considered
    these factors not to exclude any consideration of s. 718.2(e), but rather to
    determine what effect that section would have in the specific circumstances of
    this case.  As pointed out in
R. v. Ipeelee
, 2012 SCC 13, [2012] 1
    S.C.R. 433, at paras. 68-73, sentencing of all offenders, including Aboriginal
    offenders, is an individualized process.  Section 718.2(e) must be addressed in
    all cases involving Aboriginal offenders.  That is not to say, however, that
    the circumstances relevant to s. 718.2(e) do not have to have some connection
    to the offence and/or the offender before they will impact on the sentence.  As
    explained in
Ipeelee
, at para. 83:

Systemic and background factors do not operate as an excuse or
    justification for the criminal conduct.  Rather, they provide the necessary
    context to enable a judge to determine an appropriate sentence.  This is not to
    say that those factors need not be tied in some way to the particular offender
    and offence.  Unless the unique circumstances of the particular offender bear
    on his or her culpability for the offence or indicate which sentencing
    objectives can and should be actualized, they will not influence the ultimate
    sentence.

[13]

In
    my view, the trial judge did not err in holding that having regard to the
    circumstances of the offence and the offender as well as the statutory minimum
    of four years imprisonment, the appellants Aboriginal background would not
    influence the length of sentence imposed.  The more detailed Gladue report
    filed with the Crowns consent on appeal does not alter my assessment.

[14]

Counsel
    also submits that the trial judge erred in principle in his consideration of
    the relevant aggravating factors.  In my view, there is merit to this
    submission, although I frame it more as a failure to appreciate a very
    significant mitigating factor.

[15]

The
    trial judge was faced with two significant aggravating factors.  First, the
    appellant was on bail for some unspecified charge when he killed Mr. Archer.  The
    terms of his bail prohibited him from possessing any firearm.  Second, the
    homicide was part of a course of conduct during which the appellant displayed a
    repeated and blatant disregard for the safety of those around him.  Not only
    did the appellant have a prohibited loaded firearm in his possession, he was
    drinking at the time.  The extremely dangerous conduct that killed Mr. Archer
    was not an isolated event.  The appellant had engaged in equally dangerous
    conduct moments earlier outside of the bar.  The appellant further compounded
    the danger posed to the public when he threw the weapon, with a bullet in the
    chamber, out of the car window onto an embankment near a public thoroughfare. 
    Anyone, including a child, might have picked the gun up in the four days before
    the police recovered it.

[16]

As
    the trial judge acknowledged, however, there were also significant mitigating
    factors to be considered.  In reviewing those factors, the trial judge referred
    to the unintentional nature of the offence, the appellants sincere remorse,
    his early guilty plea, and importantly, he is a first offender.

[17]

The
    mitigating factors identified by the trial judge were important.  However, the
    appellant has done much more than simply avoid the accumulation of a criminal
    record.  He began life in a very negative and abusive environment. 
    Fortunately, he was taken from that environment by his loving grandparents when
    he was about five years old.  They provided a loving and supportive
    environment.  Unfortunately, his grandfather died when the appellant was seven
    years old and his grandmother then shouldered the responsibility for the
    appellants upbringing.

[18]

The
    appellant did relatively well until early adolescence.  By the time he was 18
    he had moved out of his grandmothers home, was abusing alcohol, and appeared
    headed in the wrong direction.

[19]

The
    appellant became involved in the music industry in his early twenties.  By all
    accounts, he is talented and has worked very hard to establish himself,
    especially in the last few years.  The appellant now earns a good living in the
    music business.

[20]

The
    appellants personal life is also very positive.  He has a long-term
    relationship with his girlfriend and together they have a young son.  The
    appellant is actively and positively involved in his sons life.

[21]

I
    do not disagree with the trial judges description of the appropriate range as
    four to eight years.  I also agree that this was not a case for the minimum
    sentence.  The aggravating factors, particularly the fact that the appellant
    was under a court order prohibiting the possession of any firearm, demanded a
    sentence greater than the four-year minimum.

[22]

In
    my view, however, the trial judge erred in failing to give significant
    mitigating value to the very positive steps that the appellant has taken in his
    young life.  Despite the appalling circumstances in which the appellant began
    his life, he has become a contributing member of the community and a loving and
    attentive partner and father.  Those are accomplishments for anyone.  They are
    particularly laudatory given the circumstances in which the appellant started
    his life.

[23]

The
    seriousness of the offence and the terrible consequences of the offence demanded
    a significant penitentiary sentence.  In my view, however, the trial judge
    should have, to the extent possible, fashioned a sentence that would minimize
    the risk that the imprisonment of the appellant would undo all of the positive things
    he had recently achieved and set him on a more antisocial course.  The
    community as a whole will be the loser if the appellant does not continue the
    positive development demonstrated by him in the last several years.  The grim
    reality is that the longer the appellant spends in the penitentiary, the
    greater the risk to his chances of becoming a contributing and respected member
    of his community.

[24]

Giving
    proper weight to the mitigating factors as described above, I think a sentence
    of five years properly balances the mitigating and aggravating factors present
    in this case.  Like the trial judge, I would give the appellant credit for one
    year based on his pre-sentence custody, leaving a sentence of four years.  I
    would grant leave to appeal and vary the sentence accordingly.

Doherty J.A.

I agree S.E. Pepall
    J.A.




Hoy
    J.A. (Dissenting):

[25]

I
    would not interfere with the sentence imposed by the trial judge.

[26]

I
    agree with my colleague that the trial judge did not err in holding that,
    having regard to the circumstances of the offence and the offender and the
    applicable statutory minimum, the appellants Aboriginal background would not
    influence the length of the sentence imposed.

[27]

The
    trial judge was alive to the challenges that the appellant had faced. He
    considered that the appellants early life was fraught with displacement and
    difficulty and that, prior to living with his grandparents, the appellant was
    exposed to an extremely abusive environment and may well be subject to
fetal
alcohol syndrome.

[28]

The
    appellants Aboriginal grandparents, who provided a stable and loving urban
    home for the appellants mother and their other children, and then for the
    appellant, were the most positive influence in the appellants life. The trial
    judge noted the role they played. The unique systemic and background factors
    adversely affecting Aboriginal people in Canadian society described in
Ipeelee
did not appear to have played a role in the abuse which the appellant
    suffered in his early years or in the appellants conduct.

[29]

Unlike
    my colleague, I would not disturb the sentence imposed by the trial judge on
    the basis that he accorded insufficient weight to the positive steps the
    appellant had taken in his life.  I come to this conclusion for three reasons.

[30]

First,
    the trial judge considered the positive steps that the appellant had taken in
    his life. He credited the appellant with establishing a relationship with his
    girlfriend and developing financial independence through his music, and remarked
    that it was noteworthy that, given the appellants history, he had not acquired
    a criminal record.

[31]

Second,
    as my colleague notes, the trial judge faced a very difficult sentencing
    problem. He imposed a sentence within the appropriate range after presiding
    over a highly emotional, two-day sentencing hearing. He had an opportunity to
    observe the appellant, who testified at the sentencing hearing. The trial judge
    is also closer to the community affected by this tragedy than this court.
    Having regard to the foregoing, the weight he accorded this factor should, in
    my view, be subject to considerable deference.

[32]

Third,
    without minimizing the appalling circumstances of a portion of the appellants
    early life and the positive steps taken by the appellant, from my review of the
    record I have a somewhat less rosy sense of the appellants life at the time of
    the offence than my colleague.

[33]

I
    differ from my colleague in one other respect. He would balance the mitigating
    factors against two significant aggravating factors: (1) the appellant was on
    bail for an unspecified charge at the time of the shooting and the terms of his
    bail prohibited him from possessing any firearm; and (2) the shooting was part
    of a course of conduct during which the appellant displayed a blatant disregard
    for the safety of those around him.  The trial judge adverted to what in my
    view is a third significant aggravating factor: the firearm was a prohibited
    weapon. Section 95 of the
Criminal Code
provides for a three year
    minimum sentence merely for possessing a loaded prohibited firearm. This case
    is very different than one involving an accident with a hunting rifle.

[34]

The
    appellant argues that the trial judge erred in treating the fact that the
    pistols registration numbers had been altered or defaced as a further
    aggravating factor, in the absence of evidence that the appellant was aware
    that the registration numbers had been defaced. Like my colleague, I agree
    that, on the record, it was not appropriate to do so; however, this factor was
    largely subsumed by the trial judges proper consideration that the firearm was
    a prohibited weapon and, therefore, in my view, does not warrant altering the
    sentence imposed by the trial judge.

[35]

I also think that a proper balancing of the significant aggravating
    factors and the mitigating factors in this case demands a sentence more than
    the one year above the statutory minimum for this offence that my colleague
    would impose.

[36]

I would dismiss the appeal.

RELEASED:  DD OCT 19 2012

Alexandra Hoy
    J.A.


