CITATION: R. v. Shearer, 2015 ONSC 3890
COURT FILE NO.: 13309A/13
DATE: 2015-06-18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD THOMAS SHEARER
Defendant
D. Slessor & L.A. Turner, for the Crown
C. Avery, for the Defendant
HEARD: June 5, 2015
Justice B. Glass
[1] The Defendant was found guilty of second degree murder on March 26, 2015 after a jury trial. The jurors recommended a variety of years to be served before Mr. Shearer would be eligible to apply for parole. The breakdown was: 1 had no recommendation, 8 recommended 10 years, 1 recommended 11 years, 1 recommended 12 years and 1 recommended 15 years.
[2] A Pre-Sentence Report and a Gladue Report were ordered for the sentence hearing.
[3] Victim impact statements were given by several people with respect to the death of Charles Bath, who died after being struck on the head two times with a baseball bat.
[4] The Crown position was that the motive for the murder of Mr. Bath was jealousy. Mr Shearer had resided with Cindy Guest for several years and they had one son who is in his teenage years. Charles Bath lived in the same area and commenced a relationship with Cindy Guest several weeks before his death.
[5] The position of the Defence was that Mr. Shearer did not intend to kill Mr. Bath but rather to beat him because Mr. Bath had beaten Cindy Guest. That would have led to a manslaughter finding if the jury made such a determination. It is clear that the jury did not accept the Defence position.
[6] The Crown seeks a sentence of life imprisonment without parole eligibility for 14 years coupled with a DNA order and a lifetime weapons prohibition order.
[7] The Defendant seeks a sentence that would enable him to apply for parole at 10 years.
[8] The Defendant has been in custody since August 19, 2012.
Victim Impact Statements
[9] Five Victim Impact Statements were presented to the court from the mother, 2 sisters, step-daughter and a close friend of Charlie Bath. All explained how the loss of Mr. Bath has imposed sadness, anger and loss upon them.
[10] Brendon Madden is Mr. Bath’s mother. She has experienced the greatest loss with her son dying during her lifetime. To her credit, Ms. Madden has undertaken counselling to assist her.
[11] Mr. Bath’s two sisters are Kelly Bath and Marilyn Bath read their Victim Impact Statements. Both were obviously very emotional when explaining how the loss of their brother has caused them continuous stress and sadness. They reflect on how children in the family will not have the benefit of experiencing a father and uncle as they grow to adulthood. They explain how Mr. Bath was a person with whom they enjoyed many good experiences in their lives. Both Kelly and Marilyn advise that they have been robbed of what they expected would be good life experiences had Mr. Bath not been killed.
[12] Crystal Breau is Charlie Bath’s step-daughter. She had a double loss in the same year because her mother passed away 4 months prior to Mr. Bath. Then, with the violent death of her step-father, Ms. Breau explains the cumulative effect on her.
[13] A long-time friend of Mr. Bath is Carmella Ruscica explained in her Victim Impact Statement how she was so overwhelmed with the death of her friend that it almost destroyed her relationship with her partner. She has difficulty sleeping and experiences nightmares.
[14] Twenty-two letters of support from friends and family were filed. Mr. Shearer’s son as well as his mother and father have written in support of him. All point out positive features of Mr. Shearer as one who has been known to help people, to be a person with the ability to repair equipment, and to be a fine person. The death of Charles Bath is recognized within the support letters as a great tragedy. Although the authors of the support letters acknowledge that being found guilty of second degree murder will require a significant penalty by its very nature, they also ask that the court consider the positive features as well as the medical challenges he has encountered when determining a sentence.
Gladue Report
[15] The report outlines a life of unfortunate challenges stemming from his father’s over-use of alcohol and being physically aggressive to Richard’s mother. Richard’s father is an Aboriginal person so that Richard is an Aboriginal person within section 35 of the Constitution Act, 1982 and a status Indian under the Indian Act. The Defendant is registered with the Georgina Island First Nation. Richard was not raised as an Aboriginal person, but when attending school he was often referred to in a degrading manner as “an Indian”.
[16] Richard did not have pleasant school experiences. In elementary school, he did not like to attend school. He tried marihuana while in school. His parents smoked cigarettes and pot. He discovered that he was Native when he was 15. The Defendant was expelled from high school at 15 for assaulting his science teacher. At age 17, Richard commenced using Crystal Meth.
[17] Richard’s mother described his school experiences as horrible. Richard was a bigger student and was “the Native Kid”, whose appearance was darker than other students. If trouble arose, Richard’s mother said that the teachers saw Richard first.
[18] Richard was diagnosed with Hodgkin’s Lymphoma in 1999. He commenced using prescription medications and became dependant on OxyContin and Fentanyl patches. He has undergone chemotherapy for his cancer. His cancer is described as slowly progressing and incurable.
[19] Drug and alcohol abuse have influenced Richard’s life for years. Marihuana, cocaine, crystal meth and acid are substances he has used.
[20] Mr. Shearer told Julie Bigham, the Gladue Caseworker, that he spoke with Cindy Guest after she had been dating Charles Bath and that she had black eyes and choke marks, that he had never lost his temper as he did, inferring losing his temper towards Mr. Bath, and that he should have told her that the issue with Charles Bath was Cindy’s problem. He noted that he had ruined his son’s life with the death of Mr. Bath. In addition, Mr. Shearer advised Julie Bigham that he regretted ruining Mr. Bath’s kids and family’s lives.
[21] The report recommends that Richard be placed in an institution with an Aboriginal Pathways Unit.
Pre-sentence Report
[22] Many life events from the Gladue Report are referenced in the Pre-Sentence Report as well. The Defendant’s father told Stephen Feitler, the author of the Pre-Sentence Report, that he had many alcohol-related convictions and transgressions referring to himself as a “drunken Indian”.
[23] Richard began consuming alcohol and using drugs at age 14. He had a close relationship with Cindy Guest and they have one son who is now 15 years old. The relationship with Cindy Guest was not an easy one.
[24] Richard Shearer told Mr. Feitler that all his criminal offences were committed when he was under the influence of drugs and/or alcohol. One of those offences led to an assault conviction in 2007 when he had assaulted Cindy Guest with whom he lived. Ms. Guest told Mr. Feitler that that was the first and only time Richard had assaulted her.
[25] A very positive influence on Richard’s life is the birth and life of his son.
[26] Dr. Frances McCordic is the family physician for Richard and reported that the Defendant is at Stage 4 of Hodgkin’s Lymphoma having had stem cell transplant treatment after which Richard encountered a relapse. The disease is not curable, but it is slow-advancing.
[27] Richard has had his medication for Hodgkin’s Lymphoma discontinued at Central East Correctional Centre because of alleged hoarding of the medication. Currently, he refuses medication for Cellulitis, a bacterial skin infection on his legs, unless he receives pain medications.
[28] Richard reported that his Aboriginal heritage had little impact on his youthful years, but he was taunted and teased about being “an Indian”.
[29] At school, Richard was identified in elementary school with learning problems when he was attending grade four.
[30] Richard has three adult criminal convictions for assault with a weapon in 2002, assault in 2007 and theft under $5,000 in 2010. He also has four convictions in Youth Court for break, enter & theft in 1995, two assaults in 1996 and possession of a narcotic in 1997.
[31] Mr. Feitler prepared the pre-sentence report and recommends that Richard Shearer receive substance and personal counselling while in custody. He would benefit upgrading his education and employment skills.
Criminal Record
[32] Mr. Shearer’s Youth Record is break enter and theft in Oshawa Youth Court on March 28, 1995 for which he was placed on probation for 15 months. In addition, on March 31, 1996, the Defendant was found guilty of 2 assaults in Oshawa Youth Court and was sentenced to 7 days secure custody on 1 count and 15 days secure custody on the second count. Mr. Shearer was convicted of possession of a narcotic in Oshawa Youth Court on April 29, 1997 and fined $500.
[33] The adult record is assault with a weapon in 2002 in Oshawa for which he received a 60-day conditional sentence and a weapons prohibition order was imposed for 5 years. In 2007 in Oshawa, the Defendant was convicted of assault for which he was given a suspended sentence and probation for 12 months with credit for 12 days for pre-sentence custody along with a discretionary weapons prohibition order for 5 years. The 2007 conviction appears to be the assault upon Cindy Guest referenced earlier in these reasons. In 2010, Mr. Shearer was convicted of theft under $5,000 and was placed on probation for 12 months.
Aggravating Factors
[34] Ms. Turner, for the Crown, recommends that this offence be considered a domestic-related offence whereby an enhanced custodial sanction be considered prior to parole eligibility.
[35] Mr. Avery, for Mr. Shearer, does not agree with the submissions advanced by the Crown when the court is encouraged to treat this offence as a domestic-related homicide. He accepts that travelling to the location of Mr. Bath be considered for deterrence if the court were looking at a range of 12-15 years prior to being able to apply for parole.
[36] I accept that the circumstances of the offence here might be considered egregious in that the Defendant drove to the location of the deceased man and beat him with a baseball bat many times after which he just left.
Mitigating Factors
[37] Mr. Avery, on behalf of Mr. Shearer, submits that the criminal record is not a long one, that his health problems have impacted his life since diagnosis of stage 4 Hodgkin’s Lymphoma in 1999, and that he has a positive relationship with his 15-year old son. Further, Mr. Avery emphasizes the positive support from many family members and friends. At trial, Rick Shearer, through his counsel, acknowledged having caused the death of Charles Bath but not having planned to cause the death.
[38] Although Mr. Shearer was not raised in a traditional Aboriginal setting, his mother commented about how her son was referred to as “the Indian” at school and that he stood out from other students because his skin was darker and he was bigger than many.
[39] Even though Mr. Shearer did not experience being educated in a residential school, I am satisfied that he encountered racial prejudice as an Aboriginal person.
The Core Facts of This Trial
[40] Richard Shearer lived with Cindy Guest for several years in the Beaverton area in southern Ontario. They had 1 son who is a teenager now. During the summer of 2012, Ms. Guest took up a relationship with Charles Bath and ceased living with Mr. Shearer.
[41] Charles Bath was known to be a heavy consumer of alcoholic beverages. If he did not consume alcoholic products regularly, he would experience the shakes and he would not be able to consume food.
[42] On August 11, 2012, the Defendant had encountered Mr. Bath at a pizza restaurant in Beaverton. When Mr. Bath held a ceramic tip cup in his hand as if he would throw it, Mr. Shearer told him that he would need a weapon.
[43] The following week on August 18th, Charles Bath and Cindy Guest were at a place called the Barn. Mr. Bath consumed a considerable quantity of alcoholic beverages to the point that he was described as being drunk. Ms. Guest had consumed much as well. The following day Ms. Guest and Mr. Bath were to travel to Orillia to confirm a rental contract for an apartment.
[44] Mr. Bath had returned to the Barn on the nite of August 18/19, 2015. He slept there. Ms. Guest came to the Barn looking for Charles Bath but he did not leave in the early morning hours.
[45] Rick Shearer had encouraged Cindy Guest to return to live with him, but she had not agreed to do so. She did not tell Mr. Shearer that she and Charles Bath were planning to rent a place on the 19th of August.
[46] Mr. Shearer travelled on an ATV with a baseball bat to confront Charles Bath over Mr. Bath hitting Cindy Guest. He entered the Barn and asked for the location of Charles Bath. He was directed to the area of a couch upon which Mr. Bath was sleeping. Mr. Shearer was seen by Mr. Beshkok swinging the metal bat at Mr. Bath along his legs, body and head area. Mr. Bath wore a hoodie so that Mr. Beshkok did not see directly contact of the bat with the person of Mr. Bath.
[47] Mr. Shearer then left the Barn saying words to the effect that if Mr. Bath hurt Ms. Guest again he would kill him.
[48] Mr. Shearer left the Barn property on his ATV with the bat.
[49] Mr. Beshkok and Mr. Komar had been at the Barn for the weekend. They tried to get Mr. Bath off the floor. 911 was called for an ambulance. The paramedics arrived and performed CPR upon Charles Bath and found little or no response. One of the paramedics noticed blood in the ear of Charles Bath and saw some blood on the floor. Mr. Bath was pronounced dead when he arrived at the Uxbridge Hospital.
[50] The autopsy revealed two significant fractures to the back of the skull of Charles Bath along with bruises on the head, the body, broken ribs from the contact with an elongated object like a bat, broken ribs on the front of the torso consistent with CPR pressure, and bruises on the legs. The cause of death was blunt force trauma.
[51] The photographs of the back of Mr. Bath’s skull dramatically show 2 major breaks in the skull.
[52] The Defendant did not testify but had made an utterance when leaving the Barn to the effect that he would kill Mr. Bath should he hit Ms. Guest again.
[53] Obviously, the jury concluded that this was not just a beating gone wrong but rather that there was an intention to cause Charles Bath’s death or a beating conducted in a way to result in a finding of guilt to second degree murder.
Sentencing Principles
[54] At the sentencing stage of the case against Mr. Shearer, the court considers the character of the convicted person, that nature of the offence and the circumstances at play when the offence was committed. These factors were taken into account by the jurors when they were asked if they had recommendations about the number of years Mr. Shearer should serve in custody before being able to apply for parole. The sentence is a life sentence with time being served in prison for at least 10 years when the Defendant is convicted of second degree murder.
[55] When there is a requirement that the sentence be one of imprisonment without an opportunity to apply for parole for 10 years, considerations of rehabilitation are adjusted to a lesser consideration out of necessity. At the same time, the court considers general and specific deterrence when imposing a sentence. General deterrence tells the public at large that the conduct involved with the offence must be discouraged so that others do not undertake such conduct. Specific deterrence tells the person charged that not only is the conduct inappropriate, but also that this particular person must understand that he or she must avoid acting in the manner which brought about the charge. In other words, with Mr. Shearer, do not go about clubbing another human being severely with a baseball bat when one is angered by that other person. If one does so, one will face more and more severe sentences. When clubbing another and killing that person, one jeopardizes their freedom by facing a homicide charge. If found guilty of first or second degree murder, a person faces a sentence of life imprisonment with a variety of considerations for parole applications.
[56] R. v. Shropshire 1995 CanLII 47 (SCC), [1995] S.C.J. No. 52, R. v. Lyons 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, R. v. Salah 2015 ONCA 23, R. v. Borbely 2013 ONSC 3355, [2013] O.J. No. 2593, R. v. Srun [2013] O.J. No. 5931, R. v. McKnight 1999 CanLII 3717 (ON CA), [1999] O.J. No. 1321, R. v. Hayden [2006] O.J. No. 1914, and R. v. D.B. [2013] 5163 have been referenced during the sentence submissions.
[57] In Shropshire (supra), the Supreme Court of Canada referenced the need for the sentencing court to consider the character of the offender, the nature of the offence and the circumstances surrounding the commission of the offence. Denunciation and assessing future dangerousness are included in the sentencing analysis. The Court referred to R. v. Lyons (supra) at page 329 where La Forest J. set out that considerations of prevention, deterrence, retribution and rehabilitation vary as does the nature of the crime and the circumstances of the offender when conducting a sentencing hearing.
[58] In R. v. Salah (supra) the Ontario Court of Appeal took a look at the governing principles of sentencing in paragraphs 265 to 274 noting that sentencing is to be proportionate to the gravity of the offence and the degree of responsibility of the offender under section 718.2 and stated that parole ineligibility orders are to be similar but not identical for similar offences and similar offenders. There is no need for proof of unusual circumstances when considering an increase in the period of parole ineligibility as had been stated in Shropshire at paragraphs 26-27 and 31-33. Watt J.A. at paragraph 270 commented that the recommendation of a jury for parole ineligibility is a factor for a sentencing court to consider, but he goes on to emphasize that the sentencing objectives set out in sentencing objectives of section 718.01 and 718.02 include denunciation and deterrence along with parole ineligibility provisions in section 745.4 are not ranked in the legislation with any priority, but rather are all factors for consideration. He pointed out how jury instructions about parole ineligibility are notorious for being brief and without detail. In paragraph 273, Watt J.A. took note of trial evidence providing a jury with some understanding of the nature of the offence, the circumstances surrounding the commission of the offence and the character of the person charged; however, he said that the evidence of the character of the accused person varies. As a result, for the purposes of sentencing, there is an incomplete picture of the character of the Defendant. And Watt J.A. added that while the verdict is a unanimous one, the recommendation for parole ineligibility does not have to be unanimous. In the end, a sentencing court should consider the recommendations coming from the jury but does not follow them in an obligatory manner.
[59] The decisions in Borbely, Srun and McKnight (supra) were cases in which the parole ineligibility periods were greater than 10 years. Each case involved circumstances in which the sentencing court took into account all sentencing factors but imposed greater parole ineligibility times because of factors that appeared to require more than a minimum of 10 years. Two of these cases involved domestic homicides which usually draw an elevated custodial sanction.
[60] As noted earlier in these reasons, I am satisfied that there are aggravating and mitigating circumstances, that Mr. Shearer has not had an easy life, that Mr. Shearer has encountered racism as an Aboriginal person, that Rick Shearer has endured many years of serious health problems with stage 4 Hodgkin’s Lymphoma, and that he has positive support from family and friends while at the same time recognizing that his actions have impacted on not only his family and son but also on the family and children of the late Charles Bath.
[61] The circumstances of the murder of Charles Bath as noted above warrant serious consideration to general and specific deterrence because no one should travel to another person and beat that individual to death. Both that person and the public must understand that consequences follow such behaviour.
Consideration of Aggravating Factors
[62] The minimum sentence for Mr. Shearer is life imprisonment without parole eligibility for at least 10 years when a person is found guilty of second degree murder.
[63] Beating a person to death is an alarming way to end the life of another human being. The skull fractures and rib fractures indicate that considerable force was used to engage a beating on Charles Bath.
[64] Ms. Turner, for the Crown, requests that the parole ineligibility period be 14 yeas partly on the basis that this might be considered akin to a domestic homicide. The Crown points out that 12-15 years before parole eligibility is the appropriate range when the homicide is a domestic-related event. The courts have provided additional consideration because of concern about domestic homicides in Canada.
[65] I am not persuaded that this case should be categorized as a domestic homicide. Ms. Turner acknowledges that the case is not a taken-for-granted domestic offence; however, she points to the domestic features of Cindy Guest having been a partner with Rick Shearer for many years and that she had separated from the Defendant to live with Charles Bath. The evidence reflected that Mr. Shearer searched for Mr. Bath for the purpose of inflicting physical injuries because he perceived that Mr. Bath had struck Ms. Guest. Cindy Guest testified at the trial that she had a black eye after she fell and struck her head while talking with Richard Shearer. There had been a previous assault upon her by Mr. Shearer on one occasion in 2007 and that was the only time she was struck by Mr. Shearer. I think that the cases referenced by the Crown reflect on killing a wife or husband by the other partner and that killing Mr. Bath is beyond being a domestic situation. Had the evidence demonstrated that Mr. Shearer killed Mr. Bath because he was living with Cindy Guest and that he was reaping revenge upon Charles Bath, one might consider this taking of life to be domestic-related.
[66] I conclude that this case should not be categorized as a domestic homicide with a parole ineligibility period enhanced to 14 years. Rather, this is a homicide of a man by another man who had sought out the deceased with an intent to cause his death or to cause Charles Bath bodily harm that Mr. Shearer knew was likely to kill Charles Bath, and was reckless whether Mr. Bath died or not. He found the late Mr. Bath and inflicted a beating upon him with a baseball bat from head to feet. Although such a beating might lead a court to consider more than 10 years imprisonment before being allowed to apply for parole, I conclude that the decision would not be made by labelling the homicide as a domestic event.
[67] The criminal record for Rick Shearer is not lengthy. It has one break and enter and 2 assault convictions from Youth Court in the 1990’s. There are 3 adult convictions for assault with a weapon in 2002, assault in 2007 and theft under $5,000 in 2010. I am not persuaded that the record should be considered scant and dated without a need to give it much consideration because there is a demonstration of consistency with assaults in Youth Court and as an adult. This sentence hearing is dealing with the ultimate of assault activity when a person died
Mitigating Factors for Sentencing
[68] Mr. Shearer is a Hodgkin’s Disease patient and has been since his late teenage years. He relies on prescription medication in the form of OxyContin and Percocet. He has had surgery for this illness. He survives on a disability pension from the Province of Ontario.
[69] The Defendant has a positive relationship with his 15-year old son. Even though his relationship with Cindy Guest ended, Mr. Shearer continued to care for his son and appears to be a loving parent who wants to assist his son to grow into adulthood.
Considerations of Richard Shearer as a Person of Aboriginal Heritage
[70] Section 718.2 of the Criminal Code provides that when a court is determining a sentence for an Aboriginal person, the court ought to look at sanctions other than imprisonment where reasonable and that particular attention should be given to the circumstances of Aboriginal offenders. That consideration does not amount to what might be colloquially described as “a get-out-of-jail ticket”. Rather, the section recognizes that a disproportionate number of Aboriginal persons have been imprisoned in Canada and that very challenging circumstances through their lives have drawn Aboriginal persons into criminal activities.
[71] For example, Mr. Shearer has not encountered a life of privilege. The financial foundation of the family was limited. He experienced difficulties in school both with learning challenges and not liking to attend school. Mr. Shearer was the Aboriginal student in a rural area of Ontario who was referred to as “the Indian”. He did not know he was Aboriginal until he was 15. One might conclude that if he was not raised through his Aboriginal heritage, he missed the prejudice experienced by many Aboriginal persons; however, I think that if he was called “the Indian” at school, he must have encountered racism that cannot help but have a negative impact on his development.
[72] Very recently, the Truth and Reconciliation Commission reported to the Government of Canada on residential schools and the impact that they had upon thousands of children. And I might note that in 1996 the Royal Commission on Aboriginal Peoples was released. That report was very extensive in the analysis of how Aboriginal persons have lived since colonization of British North America. Encouragement to improve life for Aboriginal persons, to address economic disparities, improve education and move away from an historical approach of trying to assimilate Aboriginal people with the rest of the population in the country were explored in Volume 5 of the Report of the Royal Commission.
[73] Now, almost 20 years after the Royal Commission Report was released, we might question how committed we have been to make positive changes. That Report was commissioned in 1991 and was released in October 1996.
[74] In R. v. D.B. [2013] O.J. No. 5163, the Ontario Court of Appeal reviewed a sexual interference conviction of a Defendant of Aboriginal heritage. There was a Gladue Report considered by the trial judge; however, on appeal the court was concerned that the sentencing judge did not use properly the principles of a Gladue Report because the sentencing court had not connected such principles to the offender there. By making that error, the sentencing court reduced the moral culpability of the person for that offence. If a Defendant has been a victim of deprivations experienced by many Aboriginal persons, that would reduce the moral culpability of the offender, but if there is no deprivation experienced, there ought not to be a reduction in moral blameworthiness.
[75] In D.B. (supra), the sentencing court took the fact that the Defendant was Aboriginal in a more isolated way as if to give extra consideration to the Defendant simply because he was of Aboriginal heritage. D.B. had limited knowledge of his Aboriginal culture, he grew up off-reserve and was raised by parents who were married for over 45 years and ran a successful business. No residential school history within his mother’s family of origin existed. The Defendant never attended a residential school. The Court of Appeal concluded that the sentencing judge should have connected the dots for a link between the Defendant’s circumstances and the offence involved. Gladue Reports explore social and economic deprivation whereby people have few opportunities to develop positively. As such, there is a life developed with reduced moral culpability. In other words, a Gladue Report’s purpose is to explore alternatives to imprisonment as it applies to the unique circumstances of Aboriginal offenders.
[76] The sentence created for the Richard Shearer murder of Charles Bath will take into account his Aboriginal heritage, but it cannot remove a custodial sanction because the provisions of the Criminal Code require a minimum period of time in custody. The Gladue Report and the Pre-Sentence Report show some awareness of Aboriginal heritage but rather limited. He was not raised as an Aboriginal person. Rick Shearer did not live on a Reservation. Mr. Shearer did not attend a residential school. Basically, he grew up within a rural Ontario society. But, I do not think one can say he was in the category of D.B. who had a more privileged life than Mr. Shearer.
[77] Since Mr. Shearer is not in the position of Aboriginal persons who have encountered extremely difficult circumstances during their lives, I do not conclude that the sentence should be reduced for that reason. The Aboriginal factors affecting Mr. Shearer during his lifetime are taken into account as in R. v. D.B. (supra) at the Court of Appeal. In other words, the facts here do not warrant a higher parole ineligibility number of years as in some other cases and then a reduction closer to 10 years because of concerns raised in the Gladue Report.
Conclusion
[78] The sentence will demonstrate disapproval of the Defendant’s conduct with a number of years in custody prior to being allowed to apply for parole designed to tell Mr. Shearer that no matter how angry one might be, he must contain his self-control. Further, the sentence will advise people in general that such violent conduct results in significant limitations on the freedoms of individuals.
[79] I conclude that the sentence for second degree murder will be life imprisonment without parole eligibility for 10 years. I consider the assistance provided by the jurors who had the opportunity to hear all the evidence presented at the trial. Although jurors do not impose the sentence, they are asked for their recommendations if they want to express them.
[80] I recommend that Mr. Shearer be placed in an institution with an Aboriginal Pathways Unit. This was recommended in the Gladue Report.
[81] Further, I recommend that while in custody Mr. Shearer receives substance and personal counselling while serving his sentence and that he be provided the opportunity to upgrade his education and employment skills.
[82] Mr. Shearer has been in custody since August 19, 2012. Time has been running since then when determining parole ineligibility. He will be able to apply for parole in August 2022. I point out that applying for parole is not an automatic release from custody. The sentence is a life sentence so that regardless of when Rick Shearer is granted parole, he will be on parole for the rest of his life.
[83] There will be an order that Mr. Shearer provide DNA samples pursuant to section 487.051 of the Criminal Code. The Crown and Defence counsel accept that such an order be made.
[84] There will be a weapons prohibition order for life pursuant to section 109 the Criminal Code prohibiting Mr. Shearer from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substances. Again, that is accepted by both Crown and Defence counsel.
[85] Copies of the Gladue Report, the Pre-Sentence Report, the Victim Impact Statements, the criminal record of Mr. Shearer, the character letters and his doctor’s letter filed as exhibits in this sentence hearing shall be sent to the custodial facility to which he will be transferred.
[86] A copy of these reasons will go to the custodial facility as well.
Justice B. Glass
Released: June 18, 2015