M. Cousineau

Caleb Burgler pleaded guilty to criminal negligence causing death after robbing an 86-year-old woman, Marion Fenwick, causing her to fall and sustain a hip fracture, which led to her death from pneumonia.

The court considered aggravating factors including the victim's vulnerability, foreseeability of harm, the offender's flight, and the significant impact on the victim's family and community.

Mitigating factors included the guilty plea, remorse, first offender status, harsh pre-sentence custody conditions, and family support for rehabilitation.

The offender's long-standing opioid addiction was not considered a mitigating factor.

The court sentenced the offender to six years in jail, less pre-sentence custody, followed by three years of probation, emphasizing denunciation, deterrence, and public protection.

The Crown sought to admit four statements from a deceased witness (J.T.) at a preliminary hearing under s. 540(7) of the Criminal Code.

The court applied the "prima facie air of reliability" test to determine admissibility.

It found the portions of J.T.'s statements related to the kidnapping credible and trustworthy due to corroborating evidence, despite procedural deficiencies in statement-taking.

However, the portions related to drug possession and the identification of "Z" were deemed unreliable and were excised, as J.T.'s account was inconsistent and self-serving regarding her involvement with drugs.

The court affirmed its power to excise unreliable portions of a statement.