Court of Appeal for Ontario
CITATION: R. v. Brooks, 2012 ONCA 703
DATE: 20121019
DOCKET: C54962
Before: Doherty, Hoy and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Michael Leonard Brooks
Appellant
Counsel: 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 appellant’s 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 appellant’s 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 appellant’s Aboriginal background would not influence the length of sentence imposed. The more detailed “Gladue” report filed with the Crown’s 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 appellant’s 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 appellant’s upbringing.
[18] The appellant did relatively well until early adolescence. By the time he was 18 he had moved out of his grandmother’s 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 appellant’s 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 son’s life.
[21] I do not disagree with the trial judge’s 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 appellant’s 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 appellant’s 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 appellant’s Aboriginal grandparents, who provided a stable and loving urban home for the appellant’s mother and their other children, and then for the appellant, were the most positive influence in the appellant’s life. The trial judge noted the role they played. The unique systemic and background factors adversely affecting Aboriginal people in Canadian society described in Ipeeleedid not appear to have played a role in the abuse which the appellant suffered in his early years or in the appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 pistol’s 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 judge’s 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.”