T.J. KEENE QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB Date: 2015 01 08 Docket: NJ 24 of 2012 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and JESSE MANULAK -and- ALEXANDER HILL -and- NICHOLAS FOSTER Counsel: James Fitzgerald for the Crown Darren Kraushaar for Jesse Manulak Doug Andrews, Q.C. for Alexander Hill Neil Tulloch for Nicholas Foster JUDGMENT GUNN J. JANUARY 8, 2015 [1] Jesse Manulak, Alexander Hill and Nicholas Foster have entered guilty pleas to breaking and entering dwelling house and committing the offence of assault causing bodily harm on December 28, 2011, contrary to s. 267(b) and s. 348(1)(b) of the Criminal Code, RSC 1985, C-46. [2] In addition, Nicholas Foster has entered guilty plea to, on that same date, using an imitation firearm while committing the indictable offence of break and enter with intent to commit the indictable offence of assault, contrary to s. 85(2)(a) of the Criminal Code. [3] The resident of the dwelling house and victim of the assault was Scott Cowan. [4] On December 27, 2011, the three accused went out for few drinks. They consumed alcoholic drinks at Bonzzini’s Brew Pub, at the south Boston Pizza, at Mr. Manulak’s residence and at Mr. Hill’s residence. Their alcohol consumption was extensive and prolonged and all three accused became extremely intoxicated. [5] It would appear from statements provided by the accused to the police that during the course of the evening of December 27th, the three accused shared some information with each other about Mr. Cowan. In Mr. Hill’s statement to the police, he advised them that Scott Cowan had called Mr. Hill’s boss, and had offered to sell him some televisions at suspiciously low prices $200.00 for Sony 60" flat screen TV and the same price for slightly smaller flat screen TV. Mr. Hill’s boss shared this information with Mr. Hill who decided to purchase TV. Even though suspicious about the transaction, Mr. Hill decided to buy TV and not to ask any questions. He met with Mr. Cowan and paid him total of $300.00, the last instalment being made outside Mr. Cowan’s residence. Mr. Hill did not receive TV. [6] Mr. Hill said he complained to the police about paying the money to Mr. Cowan and not receiving the TV. Initially, he tried to make this complaint anonymously. [7] In Mr. Manulak’s statement to the police, he described similar experience on December 22, 2011 involving his brother Jason. Mr. Cowan had offered to sell Jason 60" TV for $250.00. Once again, money was handed over, but no TV received. Mr. Manulak indicated that this incident was also reported to the police. [8] It is acknowledged by the Crown that by the time of this incident, complaints had been made but the police had not taken any steps to investigate the complaints made by Mr. Hill or by Mr. Manulak. The Crown also acknowledges that Mr. Cowan never had any TV’s to sell and had no intention of completing either of these transactions. [9] So during night of drinking, these three intoxicated young men discussed Mr. Cowan’s actions and decided to take some action of their own. Mr. Manulak and Mr. Foster wanted to go to Mr. Cowan’s residence to confront him. Mr. Hill did not want to go, but he acquiesced and went along. Knowing little about Mr. Cowan’s criminal history which is extensive Mr. Foster decided to take an imitation firearm which was in Mr. Hill’s residence. This was pellet gun, or BB gun, which had the appearance of real gun. The three accused drove to Mr. Cowan’s residence in Mr. Manulak’s company truck. [10] When the three accused arrived at Mr. Cowan’s residence, they pounded on the door to gain entrance. When not admitted, Mr. Manulak and Mr. Foster approached the back door. Mr. Foster was carrying the imitation firearm and Mr. Manulak was carrying roofing hammer. Mr. Hill hung back, but followed his friends. Mr. Manulak broke window and gained entry. He opened the door for the other two accused. [11] When Mr. Cowan heard them approaching, he made 9-1-1 call to the police in which he reported that his back window was being broken. The police were dispatched at 7:42 a.m. on December 28, 2011. The 9-1-1 recording was available to the court. It would appear that the events involving the assault on Mr. Cowan took approximately three and half to four minutes. The recording reflects the sound of male voices shouting, great deal of profanity, and the sound of blows being struck. It was not possible to attribute comments made to any individual accused. Someone said, “Open your mouth”. Someone said, “I want to blow his head off”. few seconds later, there is the sound of repetitive blows being struck. Someone said “Open your eyes or will kill you”. Someone said, “Wake the fuck up”. Mr. Cowan was repeatedly told to open his eyes. [12] The Crown was not in position to delineate with any precision what each accused did in the house. This lack of precision is attributable to few different factors. The events happened quickly and intensely. The victim was available to testify at the preliminary hearing because he was in custody, but he has not offered his complete co- operation to the Crown. The accused provided statements to the police in which some of the events are detailed. [13] In dealing with the facts, will, in the first instance, set out the Crown’s submissions. will then review the admissions made by the accused in their pre-sentence reports and in the submissions of their counsel. [14] The Crown submits it is clear that Mr. Foster carried the gun into the residence and used it. Mr. Foster put the barrel of the gun into Mr. Cowan’s mouth and threatened on more than one occasion to blow his head off. Mr. Cowan lost either three or four teeth as result of this. Mr. Foster also accepts responsibility for the bumps and bruises on Mr. Cowan’s head. Mr. Cowan initially believed the gun was real, but before the event was over, he knew it was not. [15] Mr. Cowan suffered numerous other bruises and lacerations as depicted in the photo exhibits filed by the Crown on the sentencing hearing. Photographs of some injuries are consistent with the roofing hammer being an assault weapon and this was confirmed by Mr. Cowan in his testimony at the preliminary hearing. Except for the loss of his teeth, there is no evidence that any of the other injuries were significant or long lasting. Mr. Cowan checked himself out of the hospital against the advice of his medical professionals so there is no additional medical evidence to be considered. [16] Mr. Manulak carried the roofing hammer into the residence. Mr. Hill indicated in his statement that “they” threw the roofing hammer to him and it struck him. Mr. Hill further indicated in his statement that he was not too sure, but he thought he gave the roofing hammer to Mr. Foster. Mr. Manulak indicated he wasn’t sure but he thought he struck Mr. Cowan with the hammer. Mr. Hill denies striking Mr. Cowan in any way. He says he went into the house when he heard someone yell something about knife. Mr. Hill says he pulled Mr. Foster away from Mr. Cowan. [17] Mr. Cowan testified at the preliminary hearing that all three participated in the assault against him but not equally. Mr. Cowan indicated that Mr. Hill had lesser involvement. Mr. Cowan says Mr. Hill kicked him several times. Mr. Cowan’s DNA was located on Mr. Hill’s jeans, but Mr. Hill also indicated he fell and may have gotten blood on him that way. The Crown acknowledges that Mr. Cowan may have made an effort to defend himself with knife, although in his testimony at the preliminary hearing he denied that he did this. Mr. Foster asserts in his statement that he was cut with knife and that it was after that he used the imitation firearm. Mr. Manulak mentioned something about steak knife, without details. Mr. Foster did have cut fingers which required bandaging after his arrest. Jesse Manulak [18] In his pre-sentence report, he said the following as reported at p. 5: The subject recalls attending the victim’s residence, however claims “I don’t remember really anything” about the assault that occurred in the victim’s home because “I lost my memory after drinking the rum.” Despite experiencing temporary memory loss, the subject reports “I remember getting arrested” immediately after the index offences. [19] In the written submission made by counsel on behalf of Mr. Manulak he says the following at paras. 9. Jesse’s recollection from that evening is somewhat patchy, given his intoxication. He told police that he consumed twenty or more drinks that night. He does recall some discussion about going to Mr. Cowan’s house to confront him about the scam. He does not recall any plan to break into the house or to assault Mr. Cowan. He doesn’t recall leaving Mr. Hill’s residence to go to Mr. Cowan’s, but does remember arriving at Mr. Cowan’s residence. The group knocked on the door to confront Mr. Cowan. 10. Jesse does recall having the hammer at some point. He acknowledges he was the first person through the window. It was dark in the house. He opened the door for Mr. Hill to come in. He doesn’t recall if Mr. Foster came in through the door or the window. He states that he did not know that Mr. Foster had the BB gun, and he doesn’t recall seeing it during the assault. The intention was to confront Mr. Cowan and possibly scare him into giving the money back. Unfortunately once the three men were inside Mr. Cowan’s residence things quickly escalated. Jesse recalls hearing that Mr. Cowan was armed with knife. He recalls immediately thinking that the situation was bad. Jesse acknowledges he was involved in the assault, but to significantly lesser degree than Mr. Foster. [20] In counsel’s submission to the court he indicated that Mr. Manulak does not remember if he hit Mr. Cowan with the hammer but he does not deny it. Overall, he says Mr. Foster was the most involved, then him and that Mr. Hill had the least involvement. Alexander Hill [21] In his pre-sentence report, Mr. Hill accepts full responsibility for his actions. He exhibited high level of remorse although he did not describe his actual participation. Nicholas Foster [22] In his pre-sentence report, Mr. Foster took full responsibility for his actions. He indicated that the three accused discussed confronting the victim after night of drinking. They broke into the home and confronted the victim. Mr. Foster acknowledged he carried the pellet gun and used it in threatening manner against the victim. [23] Mr. Foster’s counsel filed written submissions at the sentencing hearing in which he described the offence as follows at p. 2: Upon arriving at Mr. Cowan’s residence, Nicholas, Mr. Hill and Mr. Manulak knocked on Mr. Cowan’s door, but received no response. Mr. Manulak, armed with roofing hammer, decided to break window in the back of the residence and enter through it, he then proceeded to open the door for Nicholas and Mr. Hill. Upon entering the residence, Nicholas and Mr. Cowan were involved in skirmish in which Mr. Cowan cut Nicholas’ fingers with knife. It was only after Nicholas was cut by Mr. Cowan, and in the heat of the moment, did he remove the pellet gun from his waistband and proceed to assault Mr. Cowan, along with Mr. Manulak and Mr. Hill, who used their fists, feet, and the hammer to overcome and assault Mr. Cowan. THE PERSONAL CIRCUMSTANCES OF THE ACCUSED [24] pre-sentence report was prepared for the assistance of the court for each accused. The court has relied on the information contained in the pre-sentence report as well as the submissions made by counsel in respect to each accused to provide some background information. JESSE MANULAK [25] Jesse Manulak is now 29 years of age. Mr. Manulak was raised in Regina by his mother and step-father, with limited involvement by his birth father after the age of five. Up to age five, Mr. Manulak would have observed some domestic violence in the home. After that time, Mr. Manulak indicates his basic needs were met and says there was no substance abuse or use in his home. [26] Mr. Manulak graduated from high school, even though he experienced some learning difficulties. He was talented skateboarder while in high school and he received some professional sponsorships which he ultimately lost after he suffered some injuries. Mr. Manulak is an experienced roofer and has maintained full-time employment since age 16. Mr. Manulak taught his twin brother, Jason, the skills needed as roofer and together they have started company called “Masterworks Roofing”. Mr. Manulak is reportedly very hard worker, often working 10 or 11 hours day, six days week. [27] The Crown filed criminal record containing one previous criminal conviction for driving while impaired in Estevan in 2006. Mr. Manulak received $750.00 fine and one year driving prohibition. [28] Mr. Manulak has pro-social supports in his life consisting of his mother, step-father, siblings, and common law partner. He acknowledged to the author of the pre-sentence report that he had history of negative peer associations which involved substance abuse and criminal behaviour. Since the time of this offence, Mr. Manulak states he has severed his ties with this negative peer group and has concentrated on building his company. [29] Just prior to this offence, Mr. Manulak was reportedly drinking heavily. He had broken up with his long-term common law partner and was depressed. He reports that he only remembers being excessively drunk on two occasions, one of those occasions being the time of this offence. Since the offence, the accused states he has maintained his sobriety “pretty much since the offence”. Apparently the one exception to this was at his brother’s wedding last summer, when Mr. Manulak consumed some alcohol. Mr. Manulak’s brother Jason indicated that since the offence, the accused “actually limits himself” when using alcohol. Other than the one occasion last summer, Mr. Manulak submits he has completely abstained from the consumption of alcohol since the offence. [30] In August of 2012, while on bail, Probation Services referred Mr. Manulak to the Addiction Treatment Centre [ATC], to complete an addictions screening assessment. Mr. Manulak attended in 2012 and was found to have moderate probability of having substance dependence disorder. ATC recommended that he complete three sessions of Discovery Group at the Centre. Mr. Manulak completed one of the required three sessions and has had no further contact with ATC since October 16, 2012. Mr. Manulak’s explanation for this is that he did not know he had to complete any further sessions as he was not drinking. [31] Mr. Manulak has maintained his residence as required and has maintained his curfew. number of individuals have written letters of support. The pain being experienced by Jesse’s mother is palpable as she describes the worst day of her life when she received notice of Jesse’s arrest. Mr. Manulak’s grandparents are confident he fully realizes the seriousness of his actions. All speak to his industrious nature and strength of character. [32] Mr. Manulak was assessed by Probation Services as being at medium risk to re-offend. Mr. Manulak believes himself to be at low risk to re-offend. [33] Mr. Manulak was in custody immediately after his arrest from December 28, 2011 to January 9, 2012, period of 13 days. Upon release, he was placed on strict conditions including being confined to his residence and being on electronic monitoring from January 9, 2012 to May 2, 2012 (four months). He remained on curfew after that. [34] When given the opportunity to speak at the sentencing hearing, Mr. Manulak apologized to his family. ALEXANDER HILL [35] Alexander Hill is now 28 years of age. He was raised in Regina by his parents and had good upbringing. He played sports, attended the family cottage on weekends, was not exposed to family violence or the abuse of drugs or alcohol. He has close relationship with his parents and they are pro-social supports for him. He is engaged to be married to Jannah, who is currently employed as nurse. [36] Mr. Hill graduated from high school in 2005 and earned his Red Seal Journeyman designation in sheet metal in 2010. Mr. Hill has been regularly and steadily employed. [37] Mr. Hill states he never was “big drinker” but he has refrained from all alcohol use since the offence and has been attending Alcoholics Anonymous [AA]. Mr. Hill is in good physical and mental health. He has been seeing counsellor since the offence. [38] His counsellor, Dr. Darrell Davis, wrote letter of support for Mr. Hill. Dr. Davis advised that Mr. Hill has demonstrated integrity and willingness to learn from his experiences while in counselling. According to Dr. Davis, Mr. Hill has suffered intense emotional pain resulting primarily from guilt, shame and remorse and has used those emotional experiences for true personal gain and positive learning. Dr. Davis is of the view that Mr. Hill has addressed issues in his life which might be considered to be problematic and contributing factors towards his participation in this criminal activity. [39] significant number of individuals have filed letters of support and character references for Mr. Hill. These people include former employers, family and friends. [40] Notably, these individuals not only report their views of Mr. Hill as an honest, caring, considerate and intelligent young man, but they also report that Mr. Hill has accepted responsibility for his actions and has shown honest remorse. They are convinced this was an isolated incident in the life of Mr. Hill. [41] Mr. Hill has no previous criminal convictions and he accepts full responsibility for his actions. Mr. Hill was assessed by Probation Services as being at low risk to re-offend. [42] Mr. Hill spent 13 days in custody following his arrest. At the time of his arrest, he indicates he was kicked in the face and lost tooth as result. He was in considerable pain for the 13 days he spent in custody. He has been bound by restrictive bail conditions since his release. [43] Mr. Hill had nothing to say when given the opportunity to speak at his sentencing hearing. NICHOLAS FOSTER [44] Mr. Foster is now 28 years old. His parents separated when he was four years of age and he lived with his father and saw his mother on vacations. Mr. Foster describes this separation as traumatic for him. Things deteriorated when Mr. Foster’s father remarried as he did not have good relationship with his step-mother. [45] Mr. Foster completed high school in 2004 and was asked to leave the family home at the age of 17 by his father as result of the conflict between Mr. Foster and his father’s new wife. Mr. Foster continues to have relationship with both of his parents and they are both supportive of him. [46] Mr. Foster participated in some counselling after this offence. He saw counsellor on two occasions, the last being December 18, 2012. Mr. Foster started drinking in grade eleven and, after high school, his drinking escalated dramatically. He would drink if he was bored, would drink alone or with others, and would drink until he was ill or lost consciousness. Since the offence, he has attended 50 to 60 AA meetings. According to his father, he continued to abuse alcohol for time after this offence, but he now denies any substance abuse since early 2012. [47] He has previous criminal record for driving while over .08 in May of 2008. He was fined $2,000.00 and prohibited from driving for one year. [48] Mr. Foster is employed at Sterling Plumbing and Heating. His work ethic has improved dramatically since this offence. He completed his journeyman’s papers in plumbing in the fall of 2014. [49] Mr. Foster accepts full responsibility for his actions and gave statement to the police shortly after his arrest. He is assessed by Probation Services as being at medium risk to re-offend. Mr. Foster believes himself to be at low risk to re-offend. [50] number of individuals filed character references for Mr. Foster. In their view, this is surprising and isolated incident. [51] Mr. Foster was in custody for 13 days following the offence. He has been bound by strict conditions of release. [52] Mr. Foster had nothing to say when offered the opportunity to speak at his sentencing hearing. THE IMPACT ON THE VICTIM [53] Mr. Cowan did not file a victim impact statement with the court and he was not overly co-operative with the Crown once he was out of custody. Mr. Cowan has significant criminal record. It would appear that he engaged in activity which incited these three accused to take some action, once their complaints to police went unaddressed. This is not to say that any of the actions of the accused were justified in the circumstances, but Mr. Cowan may bear some responsibility for setting up set of circumstances which led to unintended consequences. [54] Even without victim impact statement, am still entitled to consider, in sentencing, the effect of this offence on the victim. The circumstances of the offence lead to clear conclusion that Mr. Cowan must have been terrorized by these three individuals. The 9-1-1 recording brings home what was happening during that short but intense time period. THE CROWN’S POSITION ON SENTENCE [55] The Crown submits that denunciation and deterrence are the most important principles of sentencing in this case. [56] The Crown takes the position that the accused should not in any way be excused for their actions as result of Mr. Cowan’s potential fraud on them. Mr. Cowan has been dealt with criminally as result of his interaction with Jason Manulak. Vigilante justice cannot be countenanced, even if the accused had valid complaint. [57] The Crown relies on the comments of Madam Justice Smith in Payne, 2007 SKCA 28 (CanLII) at para 22, 293 Sask 31: 22 At the same time, it is my respectful view that the trial judge nonetheless failed to give sufficient weight to the aggravating factors that did exist in this case. As was pointed out in Pelly, central purpose of s. 348.1 is to recognize the peculiar vulnerability of victims who are subject to violence or threats of violence in their homes, where they are out of sight of passers‑by and often unable to summon help. In addition, this was violent offence. The respondent entered this home wielding machete. While the trial judge found that the respondent intentionally struck with the dull side of the machete, and did not intend to use it as knife, he clearly meant to use it, at the very least, for intimidation, and did, in fact, strike the three victims with it. [58] The Crown references the very recent decision of the Court of Appeal in Debigare, 2014 SKCA (CanLII), 433 Sask [Debigare], released January 15, 2014, which involved home invasion and where the accused were treated with considerable leniency compared with previous cases. The Crown notes that Justice Caldwell indicates that these are not standard sentences to be imposed (para. 41). [59] The Crown takes the position that “but for Debigare”, four year sentence for Mr. Manulak and Mr. Foster on the break and enter would be appropriate with slightly lesser sentence for Mr. Hill. Mr. Foster would face in addition minimum sentence of one year for the use of the imitation firearm. Even viewing these circumstances through the lense of Debigare, the Crown takes the same position, without any confidence that its position is sustainable, as it acknowledges that the Debigare decision has changed the landscape significantly in relation to home invasions. [60] In addition, the Crown seeks DNA order, firearms prohibition and forfeiture order in relation to the imitation firearm. THE ACCUSED’S POSITION ON SENTENCE [61] All three accused rely on Debigare. Mr. Manulak and Mr. Hill seek leniency from the court and suggest sentence in the range of nine to twelve months. [62] Mr. Foster relies on Debigare and seeks sentence of one year to 18 months, bearing in mind that there is minimum sentence of one year for the use of the imitation firearm. [63] The starting point in considering an appropriate sentence is always review of the sentencing principles set forth in the Criminal Code. [64] Section 718 provides as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender... (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,... [65] Section 348.1 is also relevant. 348.1 If person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to dwelling‑house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling‑house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling‑house was occupied; and (b) used violence or threats of violence to person or property. [66] decision on an appropriate sentence must be made with reference to the principles of sentencing earlier quoted. Each case is decided on its own facts and circumstances, but the principles of sentencing will help to inform that decision. will now consider the relevant principles of sentencing as they relate to the case before me: (a) denounce unlawful conduct; and (b) deter the offender and other persons from committing offences. [67] The sentence should denounce unlawful conduct. It should deter the offender and other persons from committing offences. These two principles are often dealt with together as being the objectives of denunciation and deterrence. [68] Courts of Appeal across Canada have dealt with these principles by establishing ranges of sentencing resulting in significant periods of incarceration, even for those without previous criminal records. (See Ross (1999), 1999 CanLII 4397 (MB CA), 138 Man (2d) 75 (Man CA); Harris, 2000 NSCA (CanLII), 181 NSR (2d) 211; Leggo, 2003 BCCA 392 (CanLII), 184 BCAC 150) [69] In Alberta, in Matwiy (1996), 1996 ABCA 63 (CanLII), 178 AR 356 (Alta CA) [Matwiy], the court said the following at para. 26 ... While offences of violence are abhorrent wherever they occur, offences which strike at the right of members of the public to the security of their own homes and to freedom from intrusion therein, must be treated with the utmost seriousness. Individuals in their own homes have few of the security devices available to commercial institutions. They are often alone, with little hope that help will arrive. Such offences, whether they result in injuries or not, are almost always terrifying, traumatic experiences for the occupants of the residence often leaving them with total loss of any sense of security. [70] Matwiy involved violent home invasion and robbery involving some serious threats to the victims. The Alberta Court of Appeal was prompted to establish range of sentencing starting at eight years for mature offender without previous criminal record. [71] The Saskatchewan Court of Appeal has had much to say over the years on this particular crime. In Seymour (1994), 1994 CanLII 4672 (SK CA), 116 Sask 234 (Sask CA), Sherstobitoff J.A. said this at para 7: ... Crimes of this nature are the very crimes that give rise to public concern as to whether the justice system is adequately protecting the public from what many perceive to be continuing rise in violence and lawlessness in our society. The duty of the court in such cases is to protect the public right to be secure in one's home and the public right to be free from gratuitous and unlawful assaults, and to maintain public confidence in the administration of justice by imposing penalties commensurate to such crimes. The sentences must also be of sufficient force to deter Mr. Seymour as well as others from committing such crimes in the future. [72] In Pelly, 2006 SKCA 60 (CanLII), 279 Sask 252 [Pelly], Cameron J.A. said the following at para. 57 It must be clear to all that crimes of this nature strike at the very core of peaceful and safe society, violate the security of the home, and often result in lasting physical and psychological injury. They are terrifying crimes, and it is imperative they be treated with the utmost seriousness in the interest of preserving public safety and upholding public confidence in the administration of justice. So, all should know that the courts of this province, in step with those of others, will come down hard on violent crimes entailing "home invasions" in order to protect the public from the invasiveness and violence associated with them. [73] The court has also said that consideration must be given to all of the relevant circumstances, even in cases of home invasions. Chief Justice Klebuc (as he then was) said the following at para. 32 in Campeau, 2009 SKCA (CanLII), 320 Sask 132: 32 In sum, Pelly does not impose mandatory starting point sentence of seven years for all forms of home invasion. Rather, as noted in Payne, each case involving home invasion within the meaning of s. 348.1, must be decided on its own facts having regard to aggravating factors such as (i) the motive for unlawfully entering the dwelling‑house; (ii) the degree of violence inflicted on the victim; (iii) the nature of the accompanying listed offences; and (iv) other factors relevant to the listed offences. [74] It is clear and find that denunciation and deterrence are the primary factors for consideration in case such as this. (c) separate offenders from society where necessary. [75] There is nothing in the facts before me which would indicate that it is necessary to separate any of the accused from society. They are all young men. They are all employed. They all have significant number of pro-social supports in their family and friends. They have each been contributing members of society. It is clear that this was an extraordinary event in the lives of each of these young men. The information provided about each of them would indicate that they have taken individual responsibility for their actions and that they appreciate the significance of their actions. Mr. Hill has no prior criminal record. Mr. Manulak and Mr. Foster each have one previous conviction for drinking and driving. Excessive consumption of alcohol was significant factor in the offence before the court. Each of the accused has taken certain steps in relation to the use of alcohol. Mr. Manulak has quit drinking since the offence with the exception of one occasion last summer. Mr. Hill has attended AA meetings and has totally abstained from the consumption of alcohol since this offence. Mr. Foster has acknowledged he has problem with alcohol and has attended 50 to 60 AA meetings since the offence and has completed an anger management workshop. (d) assist in rehabilitating offenders. [76] The only evidence before me is to suggest that this particular action on the part of each of these accused was exceptional. Given the positive steps taken by each of these accused since the commission of the offence, am not satisfied that they require rehabilitation or that incarceration would assist in this endeavour if it were seen to be necessary. (e) provide reparations for harm done to victims or to the community; and (f) promote sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community. [77] Victims have powerful voice in criminal proceedings. This voice is generally heard through their victim impact statements. Mr. Cowan did not file a victim impact statement with the court, but I am prepared to draw the inference that this event would have been terrifying. Mr. Cowan believed initially that the imitation firearm was real. By the end of the incident, he had concluded it was not. Even so, there were three intoxicated and angry young men in his home, assaulting him. The effect of crimes, particularly home invasions, on victims must be acknowledged. [78] The guilty pleas entered by each accused reflect their acceptance of individual responsibility for their actions. Statements provided by the accused to the police also reflect measure of personal acceptance. They were all co-operative after their arrest. sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). [79] This is the fundamental principle of sentencing according to the Saskatchewan Court of Appeal as stated in Pelly at para 32. The Court went on to say the following at para. 33 We explained the import of this in R. v. McGinn (1989), 1989 CanLII 4784 (SK CA), 49 C.C.C. (3d) 137, and more recently in R. v. Keshane (D.S.) (2005), 2005 SKCA 18 (CanLII), 257 Sask.R. 161, noting in Keshane that the gravity of an offence lies in its nature, its comparative seriousness, and in the harm caused in its commission. We also explained that the degree of responsibility of the offender lies in the extent of the offender's moral culpability in committing the offence. [80] Clearly breaking into dwelling when someone was home is an extremely serious offence. The gravity of the offence is high, given that the maximum sentence for this offence is life imprisonment. [81] The facts have been recited earlier. At this point, it is valuable to describe as clearly as possible the degree of responsibility of each of the offenders. It is clear that all three accused went to Mr. Cowan’s home with the intention of confronting him and scaring him. They pounded on his door, and when he didn’t answer, they forcibly entered Mr. Cowan’s home, knowing he was home. The forcible entry was not pre-meditated. Mr. Manulak broke the window and entered the house through the broken window. Mr. Manulak then opened the door for Mr. Foster and Mr. Hill. [82] Mr. Foster was armed with the imitation firearm. Mr. Manulak was armed with the roofing hammer. Mr. Hill was unarmed. [83] Mr. Cowan was ultimately hit with the hammer which is evidenced by the bruises he exhibited afterwards. The Crown candidly admits it is unable to say with any precision who did what. Mr. Manulak apparently told the police he thought he hit Mr. Cowan with the hammer but at the sentencing hearing said he didn’t know if he did or not. He acknowledges telling the police he might have struck the victim. Ultimately, he does not deny hitting Mr. Cowan with the hammer he simply does not remember due to his excessive consumption of alcohol. [84] In Mr. Foster’s brief to the court, he said the following at p. 9: “...it is likely that Nicholas’ actions caused Mr. Cowan to lose teeth, and that he more than likely caused the majority of the bumps and bruises to Mr. Cowan’s head....”. [85] Mr. Foster asserts that he only used the firearm because Mr. Cowan was armed with knife and cut him. Mr. Foster did have cuts to his hands at the time of his arrest. [86] Mr. Cowan indicated that all three accused assaulted him, but that Mr. Hill was less involved than the other two. Mr. Foster put the imitation firearm in Mr. Cowan’s mouth, threatening to shoot him. Mr. Cowan lost three to four teeth as result of this action by Mr. Foster. sentence should be increased or reduced to account for aggravating or mitigating circumstances (s. 718.2(a)). Mitigating Factors [87] The three accused entered guilty pleas. They were heavily intoxicated, which in and of itself is not a mitigating factor, but the fact of their intoxication negatives any clear intention to commit this crime. They did not plan this event in advance. None of the accused has any history of violence. The assault on Mr. Cowan was serious, but of brief duration. All of the accused are otherwise fully employed and contributing members of society. [88] Mr. Manulak accepted responsibility for his actions early on and gave a statement to the police. His post-offence conduct has been exemplary. He has turned his life around and has concentrated on building his company. He has one previous conviction but it is unrelated and somewhat dated. [89] Mr. Manulak has been bound by restrictive conditions of release for almost three years. These conditions initially included, in part, the following conditions: that he participate in the electronic monitoring program; that he remain in his residence unless given permission to leave by his bail supervision supervisor; that he live in an approved residence; that he not consume or possess alcohol; that he not travel beyond 40 kilometer radius from his place of residence without written permission from his bail supervisor; that he attend and participate in assessments, programming and treatment for substance abuse as arranged and directed by his electronic monitoring supervisor; and that he have no contact with the victim or the co-accused. [90] Mr. Hill has fully accepted responsibility and has exhibited remorse since the crime was committed. He has attended AA and has complied fully with the conditions of his release. The conditions have been restrictive and include requirement that he reside in residence approved by his bail supervision officer; that he not travel beyond 40 kilometer radius from his residence except for employment; that he abide by curfew and be in his approved residence from 11:00 p.m. to 7:00 a.m. (except for employment); that he abstain from the use, possession or consumption of alcoholic beverages and non-prescription drugs; that he not be in any premises where the primary function is the sale or consumption of alcohol; and that he have no contact with the co-accused or the victim. [91] He has, from the outset, accepted responsibility for his actions. He is deeply remorseful. He has no previous criminal record. He was the least involved in the incident in question. [92] Mr. Foster has accepted responsibility for his actions and has been co-operative throughout. He has admitted he has problem with alcohol and has taken steps to deal with this problem. Mr. Foster has attended many AA meetings and has also taken steps to deal with underlying anger issues and has met with counsellor. Mr. Foster has had difficulty eating and sleeping since this event. He has received medication for depression. His relationship with his long time girlfriend has ended as result of this incident. He has suffered extreme embarrassment and he recognizes daily the effects of disappointing his family and his friends. [93] Mr. Foster has complied with the conditions of his release for almost three years. These conditions included requirements that he live at an approved residence; not travel outside 40 kilometer radius of his approved residence without the prior written permission of his bail supervisor; that he be in his approved residence from 11:00 p.m. to 6:00 a.m. unless given prior written permission to be absent; and that he not have any contact with the victim or the co-accused. Aggravating Factors [94] Pursuant to s. 348.1 of the Criminal Code, these circumstances shall be considered to be aggravating by any sentencing court. [95] In considering this issue, note the comments of Madam Justice Hunter in Akapew, 2009 SKCA 137 (CanLII) at paras 21-22, 343 Sask 155 in relation to parties to offences: [21] The trial judge seemed to be of the view that the sentence to be imposed on Akapew as party to the offences pursuant to s. 21(1)(b) and (c) and s. 21(2), must be less than the sentence imposed on Starr, the principal of the offences in s. 249.1 and s. 221. This factor was emphasized by the trial judge when she considered each of the sentencing principles of proportionality, parity and totality of sentence. [22] Section 21 of the Code provides four ways person is party to an offence: (i) by committing it; (ii) aiding it; (iii) abetting it; or (iv) by having the common intention to carry out an unlawful act and to assist each other person may be liable for an offence beyond that which was initially contemplated. There is nothing in the language of s. 21 that provides that the degree of culpability is different for any of the four ways person may be party to an offence. The sentence for each offender is determined in accordance with the general sentencing principles stated in s. 718 to s. 718.3 of the Code. [96] Section 348.1 is applicable to all three accused even though their level of participation in the crime differs. [97] The aggravating factors which apply to all three accused are that they entered Mr. Cowan’s residence by breaking a window. The circumstances of the crime, as evidenced by the 9-1-1 call, were brief but intense. Two of the three accused were carrying weapons and these weapons were used on the victim. Mr. Cowan has some lasting injuries as a result of losing three to four teeth. sentence should be similar to sentences imposed on similar offenders in similar circumstances (s. 718.2(b)). [98] This is often referred to as the parity principle. As stated by Epstein J.A. in Rawn, 2012 ONCA 487 (CanLII)at para 18 [Rawn]: 18 The parity principle serves to preserve fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences. See: Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008), at para. 2.21. [99] In the most recent case of our Court of Appeal in Debigare, there were three individuals. The facts are set out in paras. 3-9 in the decision of Caldwell J.A. as follows: The facts are not complex. At the time of the offence, Mr. Debigare had known Ms. Schachtel for few weeks. They were dating. Throughout their short relationship, Ms. Schachtel had disparaged her former boyfriend, Charles Hein, to Mr. Debigare as she held some bitterness towards Mr. Hein. For his part, Mr. McQuinn was simply friend to Mr. Debigare, but had only known him few months. On November 27, 2011, the respondents were drinking together in Weyburn, Saskatchewan. Ms. Schachtel opined that "someone should kick the shit out of" Mr. Hein. Mr. Debigare said he would do it. Neither Mr. Debigare nor Mr. McQuinn knew Mr. Hein. Mr. McQuinn drove the respondents to Estevan, where Mr. Hein lived with his then girlfriend, who was eight months pregnant. Mr. McQuinn drove Mr. Debigare's truck. The respondents arrived at Mr. Hein's mobile home shortly after 8:00 p.m. They all exited the truck, but Mr. Debigare told Mr. McQuinn to go back. Mr. McQuinn ignored him because he wanted to ensure his friend was not ganged up on in Mr. Hein's home. He said he wanted to "make this fair". Mr. Debigare armed himself with sledgehammer and Mr. McQuinn armed himself with box‑cutter‑style knife, which he had brought with him. They knocked at the door to Mr. Hein's mobile home and it was answered by resident of the home. Mr. Debigare rushed into the home wielding the sledgehammer. He was confronted by Mr. Hein's dog. The dog attempted to stop Mr. Debigare. Mr. Debigare struck the dog with the sledgehammer causing severe injury to the dog. Mr. Debigare continued into Mr. Hein's home while swinging the sledgehammer. Some damage was done to the home and its contents. Mr. McQuinn followed Mr. Debigare into the home. Mr. McQuinn had masked his face and was brandishing the knife. Mr. McQuinn found himself facing two men who were visiting the residence. He confronted them while holding his knife and told them to sit on the couch in the living room and not to move. He then followed Mr. Debigare to the back of the home. Once Mr. McQuinn had exited the living room, one of the men he left there called 9‑1‑1. Ms. Schachtel entered the home after Mr. Debigare and Mr. McQuinn. She was known to all of the individuals present in the home. Ms. Schachtel was screaming, "Charlie deserves this". Upon Ms. Schachtel's entry, one of the female occupants of the home retreated to back bedroom where her baby had been sleeping in crib. It appeared to her that someone had entered the baby's room. She locked herself and her baby in that bedroom until after the respondents had fled. Mr. Hein and his girlfriend were in their bedroom with the door closed. They heard the commotion caused by the respondents' entry to their home. Then, Mr. Debigare smashed their bedroom door off its hinges with the sledgehammer. Mr. Debigare entered the bedroom and began to punch Mr. Hein. Mr. Debigare said he "punched him out", although the assault was brief. Mr. McQuinn entered the bedroom while Mr. Debigare was assaulting Mr. Hein. Either Mr. Debigare or Mr. McQuinn pushed Mr. Hein's girlfriend down onto the bed. Ms. Schachtel then entered the bedroom and began to assault Mr. Hein's girlfriend. She struggled with her on the bed and then struck her repeatedly with pillow. While doing so, Ms. Schachtel screamed at Mr. Hein's girlfriend and said something about her being pregnant with Mr. Hein's child. The respondents then all left Mr. Hein's home. But, before doing so, Ms. Schachtel twice warned the occupants that if any of them said anything about the incident or called the police she and her accomplices would be back for retribution. In the end, Mr. McQuinn had to drag Ms. Schachtel out of the home. She stole blanket when she left. [100] None of the three accused had previous criminal record. Mr. Debigare was 23 years old and of Métis ancestry. He co-operated with the police and was remorseful. He had never been unemployed. Post-offence, he attended an alcohol treatment program. Mr. McQuinn was 25 years old. He co-operated with police and was remorseful. He was employed in the oil industry. Ms. Schachtel was 20 years old. She admitted to using alcohol and cocaine on regular basis. She had sought treatment but had been unsuccessful in addressing her addictions. She had some periods of employment. [101] The Court of Appeal set aside the suspended sentence imposed by the trial judge and substituted sentences of two years less one day for Ms. Schachtel followed by three years probation; 18 months for Mr. Debigare followed by 18 months probation and 10 months for Mr. McQuinn followed by 18 months probation. In doing so, Justice Caldwell said the following at paras. 41-42: 41 want to make it perfectly clear that in varying these sentences in this way am not suggesting the sentences now imposed are standard sentences to be followed in offences under s. 348(1)(b) which might be characterised as home invasions. The varied sentences are, in my opinion, lenient sentences where the leniency was called for chiefly by reason that none of the respondents had criminal record prior to their commission of this offence. 42 Moreover, the leniency of sentence is warranted with respect to Messrs. Debigare and McQuinn also by their respective post‑sentence conduct and by the plainly aberrant nature of their offending in this case. Restorative justice had role to play in their sentences in the circumstances and the rehabilitative efforts of Messrs. Debigare and McQuinn have had considerable tangible impact on the length and nature of their sentences as set out above. This is because their rehabilitative efforts have so obviously extended beyond the usual pre‑sentence promises of reform, which seem all too frequently forgotten following the imposition of lenient sentence. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d)). [102] Balancing the various factors in order to arrive at an appropriate sentence is very difficult task for trial judge. As counsel for Mr. Foster so poignantly put it these were the worst five minutes of these young men’s lives five minutes they will pay for for the rest of their lives. [103] In C.A.M., 1996 CanLII 230 (SCC), [1996] SCR 500 at 566, the Court commented on the position of the trial judge at sentencing: .. sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. The determination of just and appropriate sentence is delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of sentencing judge should thus not be interfered with lightly. [104] In Debigare, Justice Caldwell found that the suspended sentences initially imposed were demonstrably unfit. He held that the suspended sentences imposed failed to satisfy the sentencing objectives of general denunciation and deterrence and they did not properly reflect the fundamental principle that sentence must be proportionate to the gravity of the offence and the offender’s moral culpability in committing it (para. 16). [105] Justice Caldwell further held that an offence pursuant to s. 348 where s. 348.1 was applicable would always mandate the placement of the sentencing objectives of denunciation, deterrence and protection of the public “at the foremost when judge is fashioning sentence which properly contributes to respect for the law and the maintenance of just, peaceful and safe society” (para. 20). [106] This is consistent with the approach taken by the Ontario Court of Appeal in Rawn. There, Justice Epstein (with Weiler J.A. and Watt J.A. concurring), said the following at para. 33 General deterrence and denunciation are the most important factors in the determination of sentence in case such as this one: see R. v. Nusrat, 2009 ONCA 31 (CanLII), 244 O.A.C. 241. Other, like‑minded people need to know that irresponsible use of motor vehicle on our highways will not be countenanced. sentence can only denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence, is, therefore, punishment: R. v. B.W.P., 2006 SCC 27 (CanLII), [2006] S.C.R. 941, at paras. 2‑5. [Emphasis added] [107] In Debigare, Justice Caldwell held that the facts before him put the offence at the lower end of violent home invasions. [108] will now consider the factors Justice Caldwell considered to be aggravating in Debigare in an attempt to compare them to the circumstances before me. Mr. Debigare and Mr. McQuinn did not know anyone in the house. Here, Mr. Manulak and Mr. Foster were known to the victim as result of their previous business dealings. Mr. Debigare and Mr. McQuinn armed themselves, thereby escalating the probability of serious personal injury. Here, Mr. Foster was armed with the imitation firearm and Mr. Manulak was armed with the roofing hammer. Mr. Hill was unarmed. None of these three accused were masked. Mr. Debigare overcame resistance to his entry to the home by the use of force, and Mr. Debigare severely injured the dog. In the case before me, all three accused entered the house without an invitation to do so. When Mr. Cowan did not grant them entry, Mr. Manulak broke window and gained entry that way. Mr. Manulak opened the door for the other two accused. [109] Justice Caldwell found that in Debigare, each of the accused were responsible for the events, although to different degrees. Mr. McQuinn was considered to be the least culpable and he masked himself, and armed himself and willingly participated in an assault on complete stranger after breaking into that stranger’s home. [110] comparison of the facts before me and those in Debigare would lead me to conclude that absent the imitation firearm, the facts of Debigare were generally more serious, the length of time during which the occupants of the house were being terrorized was longer and the actions of the accused involved more premeditation in Debigare. [111] Here, the fact that this is Mr. Hill’s first criminal offence is unusual, given that it is such serious offence. This is equally applicable to Mr. Manulak and to Mr. Foster who each had one previous conviction for drinking and driving which are offences of quite different nature. All three accused here are young men. They are all high school graduates and they have all gone on to become productive members of society. They co-operated with the police. They are all remorseful. They all consumed excessive amounts of alcohol on the night in question. [112] After the offence, all three accused have been bound by restrictive conditions for significant period of time approaching three years. There have been no reported breaches. Mr. Manulak has started successful roofing company with his twin brother, Jason. Mr. Manulak works long hours as his company continues to gain new clients. Mr. Hill, who has his journeyman’s status in sheet metal, has new employer. Mr. Foster has obtained his journeyman’s designation in plumbing. He has been promoted by his current employer and he supervises six man crew at various jobs. He has volunteered his time with PlayLotz Contracting, assisting in the building of playgrounds in low income areas of Regina. [113] In terms of the reasons for leniency in Debigare, the focus was on the accused’s lack of criminal record and post-sentencing conduct. Here, Mr. Hill has no criminal record and Mr. Manulak and Mr. Foster have no related records. All of them have had exemplary post-offence conduct. [114] In light of the position taken by the Court of Appeal in Debigare, and considering the principles of parity, I am prepared to extend leniency to Mr. Hill, Mr. Manulak and to Mr. Foster. However, the sentence impose will clearly denounce their unlawful conduct and will deter others from committing like offences. In my view, some period of incarceration is necessary to satisfy the requirement for denunciation and deterrence in committing this most serious offence. [115] All three accused received very positive pre-sentence reports. As the authors of some of the reports referenced conditional sentence as an option, it perhaps bears mentioning that conditional sentence is not available at law. [116] find that Mr. Hill was the least involved and is entitled to the greatest degree of leniency. This is acknowledged by the Crown. Mr. Manulak’s participation was more extensive in that he was armed with the roofing hammer and he physically broke into the house, and then let the others in. Mr. Foster is the most culpable of the three in that he carried the imitation firearm, for which he must serve mandatory minimum period of incarceration consecutive to any other sentence. But beyond that, he terrorized Mr. Cowan by placing this firearm in his mouth at the time threats were being made to the victim. This act alone is deserving of additional punishment to serve as deterrence to others. [117] Accordingly, I sentence Mr. Hill to a period of incarceration of ten months followed by a period of probation for eighteen months. The terms of the probation are the following: 1. He shall keep the peace and be of good behavior. 2. He shall appear before the court when required to do so by the court. 3. He shall notify his probation officer in advance of any change of name or address, and promptly notify his probation officer of any change of employment or occupation. 4. He shall report to probation office within seven days of his release from custody and thereafter as directed by his probation officer. 5. He shall attend, participate in and complete any counselling or programming which may include substance abuse management as directed by his probation officer. 6. He shall have no contact directly or indirectly with Scott Cowan except through a member of a law society in Canada. [118] Ancillary orders pursuant to s. 109, s. 487.051 and s. 737 of the Criminal Code are mandatory. There will be an order forfeiting the imitation firearm pursuant to s. 491(1) of the Criminal Code. [119] I sentence Mr. Manulak to a period of incarceration of 11 months followed by 18 months probation on the following terms and conditions: 1. He shall keep the peace and be of good behavior. 2. He shall appear before the court when required to do so by the court. 3. He shall notify his probation officer in advance of any change of name or address, and promptly notify his probation officer of any change of employment or occupation. 4. He shall report to probation office within seven days of his release from custody and thereafter as directed by his probation officer. 5. He shall attend, participate in and complete any counselling or programming which may include substance abuse management as directed by his probation officer. 6. He shall have no contact directly or indirectly with Scott Cowan except through a member of a law society in Canada. [120] Ancillary orders pursuant to s. 109, s. 487.051 and s. 737 of the Criminal Code are mandatory. [121] I sentence Mr. Foster to a period of incarceration of 12 months less one day on the break and enter charge and one year consecutive on the charge under s. 85(2)(a) of the Criminal Code to be followed by 18 months probation on the following terms and conditions: 1. He shall keep the peace and be of good behavior. 2. He shall appear before the court when required to do so by the court. 3. He shall notify his probation officer in advance of any change of name or address, and promptly notify his probation officer of any change of employment or occupation. 4. He shall report to probation office within seven days of his release from custody and thereafter as directed by his probation officer. 5. He shall attend, participate in and complete any counselling or programming which may include substance abuse management as directed by his probation officer. 6. He shall have no contact directly or indirectly with Scott Cowan except through a member of a law society in Canada.
HELD: This was an extraordinary event for all of the accused and nothing in the evidence suggested that they required rehabilitation or that incarceration would assist in rehabilitation. The victim did not provide a victim impact statement, but the court concluded that the event would have been terrifying for him. The gravity of the offence was high given the maximum sentence of life imprisonment. The court found the following mitigating factors: 1) guilty pleas; 2) the event was not planned in advance, it was prompted by alcohol use; 3) the assault was serious but brief; 4) the accused were all employed and contributing members of society; 5) the accused all accepted responsibility for the offence; and 6) the accused all complied with strict release conditions for three years. The aggravating factors were: 1) s. 348.1 of the Criminal Code was applicable to all accused even though their level of participation differed; 2) they entered the victim’s residence by breaking a window; 3) the crime was intense; 3) two of three accused had weapons and used them on the victim; and 4) the victim had some lasting injuries from losing three to four teeth. The court was prepared to extend leniency to the accused; however, some period of incarceration was found necessary to meet the objectives of deterrence and denunciation. A.H. was sentenced to 10 months incarceration, J.M. to 11 months incarceration, and N.F. to 12 months less a day incarceration for the break and enter charge and one year consecutive incarceration on the s. 85(2) charge. All accused were given an 18-month probation period to follow their incarceration. Terms of the probation included counselling as required and no contact with the victim.