SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Dockrill, 2016 NSSC 56
Date: 2016 02 29
Docket: CRH No. 418988
Registry: Halifax
Between:
Her Majesty the Queen
v.
Michael Paul Dockrill
SENTENCING DECISION
Judge:
The Honourable Justice Joshua Arnold
Heard:
August 19, October 22 and December 17, 2015, in Halifax,
Nova Scotia
Oral Decision:
February 26, 2016
Written Decision
February 29, 2016
Counsel:
Eric Woodburn and Tanya Carter, for the Crown
Brian Church, for the Defendant
Page 2
By the Court:
Overview
[1] This sentencing decision is in respect of Michael Dockrill. Mr. Dockrill was
charged:
1.
That he on or about the 12th day of June, 2011 at, or near Lakeside, in the
County of Halifax, in the Province of Nova Scotia, did unlawfully kill Jason
Dockrill while using a firearm, to wit., a Winchester rifle, and thereby commit
manslaughter, contrary to Section 236(a) of the Criminal Code.
2.
And further that he at the same time and place aforesaid, did use a firearm,
to wit., a Winchester rifle, in the commission of the offence of criminal negligence
by discharging said firearm at Jason Dockrill thereby causing the death of Jason
Dockrill contrary to Section 220(a) of the Criminal Code.
3.
And further that he at the same time and place aforesaid, did with intent to
would or maim or disfigure or endanger the life of Jason Dockrill did discharge a
firearm, to wit., a Winchester rifle, contrary to Section 244 of the Criminal Code.
4.
And further that he at the same time and place aforesaid, did intentionally
discharge a firearm while being reckless as to the life or safety of another person,
contract to Section 244.2(1) of the Criminal Code.
5.
And further that he at the same time and place aforesaid, did without lawful
excuse use a firearm, to wit., a Winchester rifle, in a careless manner or without
reasonable precaution for the safety of other persons, contrary to Section 86(1) of
the Criminal Code.
6.
And further that he at the same time and place aforesaid, did possess a
firearm, to wit., a Winchester rifle knowing he was not the holder of a license under
which he may possess it and a registration certificate for the firearm, contrary to
Section 92(1) of the Criminal Code.
7.
And further that he at the same time and place aforesaid, did possess a
firearm, to wit., a Winchester rifle, knowing that it was obtained by the commission
in Canada of an offence contrary to Section 96(1) of the Criminal Code.
[2] As agreed by counsel, the jury was directed to enter not guilty verdicts on
counts 3, 6 and 7 of the Indictment, leaving counts 1, 2, 4 and 5 to be decided by the
jury.
[3] On April 15, 2015, Mr. Dockrill was convicted by the jury of criminal
negligence causing the death of his son, Jason Dockrill, contrary to s. 220(a) of the
Criminal Code and use of a firearm in a careless manner contrary to s. 86(1). He
Page 3
was found not guilty of the remaining charges. A Pre-sentence Report was ordered
and the matter was adjourned for sentence.
[4] Because the offence involved being criminally negligent in causing death with
a firearm, Mr. Dockrill is subject to a mandatory minimum sentence of four years in
prison in relation to the s. 220 Criminal Code conviction. Mr. Dockrill challenges
the constitutionality of the mandatory minimum sentence, claiming it violates his
protection from cruel and unusual punishment as guaranteed by s. 12 of the
Canadian Charter of Rights and Freedoms (“the Charter”).
Determining the Relevant Facts
[5] In R. v. Ferguson, [2008] 1 S.C.R. 96, the Supreme Court of Canada was
asked to consider the constitutionality of the mandatory minimum sentence of four
years in prison when manslaughter is caused by use of a firearm. Chief Justice
McLachlin delivered the unanimous decision of the Court and outlined how a trial
judge should determine the relevant facts following a jury trial. She noted that the
appropriateness of the minimum sentence depended on what the jury had concluded,
and acknowledged that this raised some difficulty:
[16]
This poses a difficulty in a case such as this, since, unlike a judge sitting
alone, who has a duty to give reasons, the jury gives only its ultimate
verdict. The sentencing judge therefore must do his or her best to determine the
facts necessary for sentencing from the issues before the jury and from the jury’s
verdict. This may not require the sentencing judge to arrive at a complete theory of
the facts; the sentencing judge is required to make only those factual determinations
necessary for deciding the appropriate sentence in the case at hand.
[17]
Two principles govern the sentencing judge in this endeavour. First,
the sentencing judge “is bound by the express and implied factual implications of
the jury’s verdict”: R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, p.
523. The sentencing judge “shall accept as proven all facts, express or implied, that
are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must
not accept as fact any evidence consistent only with a verdict rejected by the
jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).
Second, when the factual implications of the jury’s verdict are ambiguous,
[18]
the sentencing judge should not attempt to follow the logical process of the jury,
but should come to his or her own independent determination of the relevant
facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402 (CanLII), 162 A.R. 117
(C.A.). In so doing, the sentencing judge “may find any other relevant fact that was
disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an
aggravating fact or previous conviction, the sentencing judge must be convinced of
Page 4
the existence of that fact or conviction beyond a reasonable doubt; to rely upon any
other relevant fact, the sentencing judge must be persuaded on a balance of
probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 CanLII 30
(SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont.
H.C.). It follows from the purpose of the exercise that the sentencing judge should
find only those facts necessary to permit the proper sentence to be imposed in the
case at hand. The judge should first ask what the issues on sentencing are, and then
find such facts as are necessary to deal with those issues.
[6] The Chief Justice went on to consider the task of the judge in these
circumstances:
[19]
Following these principles, the trial judge in this case was required to find
facts, consistent with the jury’s manslaughter verdict, to the extent that this was
necessary to enable him to sentence Constable Ferguson. The sentencing inquiry
was shaped by s. 236(a)’s prescription of a four-year mandatory
minimum sentence. The only issues were whether the sentence should be more than
four years, as the Crown contended, and whether the facts of the case were such
that a four-year sentence would be grossly disproportionate, as Constable Ferguson
contended.
[20]
The trial judge correctly turned his mind to the basis on which he had
instructed the jury it could reach a verdict of manslaughter. The trial judge had
instructed the jury that if it rejected both self-defence and intent for murder (intent
to cause death or bodily harm likely to cause death), it must reach a verdict of
manslaughter. The trial judge did not leave any other basis for a manslaughter
verdict with the jury. Hence the trial judge correctly concluded that on the basis of
the jury’s verdict, he must find facts consistent with the jury’s rejection of both selfdefence and intent for murder. On the basis of the jury’s rejection of intent for
murder, the trial judge properly concluded that the jury had found that when he
fired the second shot, Constable Ferguson neither intended to cause death nor
bodily harm that he knew was likely to cause death.
[7] The trial judge in Ferguson had erred by attempting to reconstruct the jury’s
reasoning process and by developing a speculative theory of his own:
[21]
However, the trial judge did not stop with these conclusions. He went on
to make detailed findings of fact on Constable Ferguson’s conduct. It was open to
him under s. 724(2)(b) of the Criminal Code to supplement the jury’s findings
insofar as this was necessary for sentencing purposes. However, it was not open to
him to go beyond what was required to deal with the sentencing issues before him,
or to attempt to reconstruct the logical process of the jury: Brown; Fiqia. Nor was
it open to him to find facts inconsistent with the jury’s verdict or the evidence; a
trial judge must never do this. The trial judge in the case at bar committed both
these errors.
Page 5
[22]
First, the trial judge erred in attempting to reconstruct the logical
reasoning of the jury. The law holds that the trial judge must not do this, and for
good reason. Jurors may arrive at a unanimous verdict for different reasons and on
different theories of the case: R. v. Thatcher, 1987 CanLII 53 (SCC),[1987] 1
S.C.R. 652. It is speculative and artificial to attribute a single set of factual findings
to the jury, unless it is clear that the jury must unanimously have found those
facts. Where any ambiguity on this exists, the trial judge should consider the
evidence and make his or her own findings of fact consistent with the evidence and
the jury’s findings.
[23]
Here the trial judge, having properly concluded that the jury must
have rejected self-defence and intent for murder, went on to attempt to reconstruct
further facts that may or may not reflect what was in the mind of the jurors. First,
he found that the jury must have concluded that the first shot had been fired in selfdefence. Although there is evidence capable of supporting such a finding, this
finding was not required by the jury’s verdict. The jury’s verdict does not
unequivocally indicate a particular characterization of the two shots. Indeed, the
jury was not asked to make a finding one way or the other about the first shot. The
Crown based its case on the second shot, presumably because the evidence was that
the second shot caused death, and the first shot did not. The trial judge should have
considered all the evidence in order to make his own findings of fact consistent
with the jury’s verdict to the extent they were relevant to the two issues before him.
[24]
Second, and more critically, the trial judge went on to develop a theory
to support the jury’s verdict which was not only speculative, but contrary to the
evidence. This theory was that Constable Ferguson’s second shot was
instantaneous and instinctive, the virtually automatic result of his police
training. The theory rests on the premise that Constable Ferguson was following
training that made the second shot following on a first self-defence shot a matter of
instinctive reaction rather than conscious decision. Based on this theory, the trial
judge found as a fact that Constable Ferguson was not acting in anger when he fired
the second shot, but in response to his training. This finding was critical to the trial
judge’s conclusion that the minimum sentence of four years prescribed by s. 236(a)
of the Criminal Code constituted cruel and unusual punishment, violating s. 12 of
the Charter.
[8] In Mr. Dockrill’s case, the jury obviously gave no reasons for their verdict.
They acquitted Mr. Dockrill of manslaughter and discharging a firearm while being
reckless as to the life or safety of another person. They convicted him of criminal
negligence causing death and of careless use of a firearm. The jury’s verdict is such
that I must come to my own independent determination of the relevant facts for
sentencing. Once those facts are determined, I must determine the appropriate
sentence for Mr. Dockrill.
Page 6
Procedural History and Framework for Factual Analysis
[9] During various pre-trial meetings in person and by telephone, starting in
January 2015, counsel for Mr. Dockrill and the Crown advised that they had been
involved with this case for years between the time Mr. Dockrill was charged and the
expected date of his trial and confirmed they had discussed and considered the legal
issues between themselves many times.
[10] Mr. Dockrill advised that he would be arguing self-defence. The Crown
initially stated that they had difficulty with the notion of applying self-defence to
negligence-based offences, such as criminal negligence causing death and careless
use of a firearm, however they eventually agreed with Mr. Dockrill that self-defence
would be left to the jury on all charges. The Crown squarely noted even if selfdefence would be left to the jury, they would be arguing that Mr. Dockrill was not
acting in self-defence when he shot Jason Dockrill.
[11] Discussions regarding the self-defence provision that should be left to the jury
began during the pre-trial conferences in January and February, 2015. Counsel for
Mr. Dockrill and the Crown eventually jointly proposed the self-defence provision
that was left to the jury.
[12] Mr. Dockrill proposed the defence he determined was most favourable to his
position, prepared for the trial on this basis, examined witnesses on this basis and
made closing arguments on this basis. That defence was left to the jury on all counts.
Mr. Dockrill had the benefit of the defence he felt was most strategically and legally
beneficial to his case.
[13] I cannot speculate about the logical process of the jury. Determining the facts
that led to the jury’s verdict is necessary to conduct the constitutional analysis and
to determine the appropriate sentence for Mr. Dockrill. Clearly, the only defence
raised to the charges upon which Michael Dockrill was convicted was self-defence.
Therefore, the jury must have rejected self-defence in relation to criminal negligence
causing the death of Jason Dockrill and use of a firearm in a careless manner.
The Evidence
[14] Placed into evidence as exhibits were:
1.
Book 1 – Scene 2011-06-13
2.
Book 2 – Autopsy
Page 7
3.
Book 3 – Exhibits
4.
Book 4 – Scene 2011-09-20
5.
Book 5 – Scene 2014-04-16
6.
Book 6 – Investigator on steps
7.
Book 7 – Plan Drawing
8.
Rifle
9.
Rifle rounds
10.
911 CD and transcript
11.
Police interview video and transcript
12.
Wildlife Resources System – Dockrill
13.
Qualifications of Joseph Jacques Marcel Rioux
14.
Forensic Science and Identification Services Laboratory Report –
2011-08-03
15.
Forensic Science and Identification Services Laboratory Report –
2011-10-04
16.
Forensic Science and Identification Services Laboratory Report –
2011-08-01
17.
Cartridge
18.
Rifle – Lee Enfield Rifle
19.
Photo of 4 glass bottles
20.
Enlargement of photo 43 – Exhibit #1
21.
Baseball bat
22.
Shotgun – Mossberg
23.
2 – 12-gauge shotgun shells
24.
Replica gun
25.
Enlargement of page 1 – Exhibit #7 (Plan)
26.
Enlargement of page 2 – Exhibit #7 (Plan)
27.
Enlargement of page 6 – Exhibit #7 (Plan)
28.
C.V. of Dr. Marnie Wood
Page 8
29.
Report of Dr. Wood
30.
Agreed Statement with 17 photographs
31.
List of Mr. Dockrill’s medication
32.
Stent copy – Mr. Dockrill
33.
First Aid Certificate copy – Mr. Dockrill
[15] The Crown witnesses who testified included:
1.
Constable Scott Roger Locke
2.
Constable Marc Eliot Gregoire
3.
Marlene Crawford
4.
Jacob Alexander Carey
5.
Detective Constable Don Dauphinee
6.
Jacques Marcel Rioux
7.
Sergeant Christopher Thomas
8.
Martin Francis McKenna
9.
Dr. Marnie Jane Wood
[16] The only defence witness was the accused, Michael Paul Dockrill.
[17] Michael Dockrill’s police statement of June 13, 2011, described the events
leading up to, during and after the shooting of Jason Dockrill. At trial, Mr. Dockrill
testified that he could not recall what happened during the critical moments of the
shooting. His memory was clear enough immediately after the incident to provide a
lucid statement to the police as to what occurred. Mr. Dockrill did not deny at trial
that he voluntarily provided the statement to the police and did not seriously dispute
its contents. Either Mr. Dockrill lost his memory between the time he gave his
statement to the police or he was not being truthful when he testified at trial that he
could not remember the critical moments of the shooting.
[18] Therefore, Mr. Dockrill’s police statement is the only evidence that directly
describes what occurred at the critical moments of the shooting. At times, Mr.
Dockrill’s in-court testimony conflicted with his police statement. For example, he
said in his police statement that he knew the gun was loaded when his son Jason
gave it to him, yet when testifying in court he said he did not know the gun was
loaded; he said the gun was in his closet in his police statement, yet during his
Page 9
testimony he said he did not know where the gun had been placed within his room;
he was inconsistent as to whether the gun was a handgun or a shotgun (and there is
a significant difference in how those two items look); during his testimony in court
he said he heard a bang before he grabbed the 30-30 and fired the gun, yet in his
police statement he did not say he heard anything like a bang. Additionally, the
critical moments after he grabbed the rifle are missing from his in-court testimony,
yet are detailed in his police statement.
[19] Mr. Dockrill’s demeanor during his testimony at trial was erratic.
[20] Based on all of the foregoing, I rely mainly on the police statement as being a
more accurate reflection of the events of June 12, 2011. I do rely at times on some
of Mr. Dockrill’s trial testimony.
Findings of Fact
Michael Dockrill
[21] A fair amount of background is required to put the events on the evening in
question into context.
[22] In 2009, someone broke into Michael Dockrill’s home. The police were not
called. No charges were laid. Within about a week of that incident, someone again
tried to force their way into Mr. Dockrill’s home, pepper spraying some of his family
members. Mr. Dockrill chased the perpetrator down the street with a crowbar. His
next-door neighbour tried to help catch the intruder, and was injured. By inference
it appears the neighbour was injured by the home invader he was chasing.
[23] The police were called in relation to the second 2009 incident. No charges
were laid. In Mr. Dockrill’s police statement of June 13, 2011, he says that he was
told by the investigators in 2009 not to bother calling the police again unless there
was blood.
[24] Mr. Dockrill confirmed in his police statement that his house had previously
been targeted by home invaders:
A.
Yeah, but the thing is, I just keep seeing these fucking guys getting slapped
on the wrist, slapped on the wrist, slapped on the wrist. Like, you know?
D/Cst. Dauphinee:
Yeah.
D/Cst. Thomas:
There’s no deterrent.
Page 10
A.
I mean…what?
D/Cst. Thomas:
There’s no deterrent.
A.
No deterrent, and these cocksuckers are the same thing. It’s just, like, you
know…but I mean, and I’ll…I’ll say you one thing. My house was…it was robbed
awhile back.
D/Cst. Dauphinee:
A.
Yeah, that was in two…
I can’t remember…
D/Cst. Dauphinee:
2009, wasn’t it?
A.
It was…okay, but it was…there was…there was…they made mention
that…they came and entered the house. Or they…they were there with guns...
D/Cst. Thomas:
A.
Yeah.
….and everything else. I don’t know who they were.
D/Cst. Dauphinee:
Mm-hmm.
A.
But what fucking…I don’t know. The detectives told me, Don’t ever call us
back unless there’s blood. Because I wouldn’t be their little guinea pig or gopher,
and Jason…like, I didn’t know who these people were. They were…they were
dressed in masks. I could have told you, you know, who I assumed they were, but
I mean, you know what has happened when you assume.
D/Cst. Dauphinee:
Yeah.
D/Cst. Thomas:
Mm-hmm.
A.
You know, that’s no good in a court of law.
D/Cst. Dauphinee:
Yeah. No, you’re right.
A.
And the same thing is…is like, you know, unless you can damned well
prove it, I still got to live there.
D/Cst. Thomas:
Yeah.
D/Cst. Dauphinee:
Mm-hmm.
D/Cst. Thomas:
Oh, I understand that. Now…
A.
You know, but I was told by the detective, Don’t call us back unless
someone is laying out there, bleeding.
D/Cst. Thomas:
A.
And you know that’s wrong, man. That’s wrong.
D/Cst. Dauphinee:
A.
Okay.
Yeah.
It’s just…you know, because I can’t fucking do their job.
D/Cst. Dauphinee:
I… I know.
Page 11
A.
This is not my job, my friend.
D/Cst. Dauphinee:
Yeah. No.
A.
But I’ve been doing that fucking job. Like, you know, (over something big?)
You know, through stress, this and that and everything else. I’m put in a position
where the fucking…I hate to do that job. I didn’t want to do their job.
[25] In his statement to the police, Mr. Dockrill clearly advised that he knew his
son, Jason, was trafficking in drugs at the time of the shooting:
D/Cst. Dauphinee:
Yeah.
A.
At the same time, I try to stay out of it. I got to give him (respect to it?) Did
I like what was going down? No. I thought he was clearing up the act and getting
out, I honestly did, because Lakeside is fucking going downhill big time. I mean…
D/Cst. Dauphinee:
A.
You’re right.
I mean, there’s been a lot of shit going down. Like, you know, fucking…
D/Cst. Dauphinee:
Mm-hmm.
…
D/Cst. Thomas:
A.
He was involved … he was selling dope, right?
Yeah, but where he keeps it and what he … what he does with it …
D/Cst. Thomas:
Yeah.
A.
Then, like, you know, I don’t even charge the fucking guy rent, because I
didn’t want to fucking … I didn’t want to live off the avails.
D/Cst. Thomas:
A.
You know what I’m saying?
D/Cst. Thomas:
A.
No, I understand.
Like, you know what I mean? He’s my son, right?
D/Cst. Dauphinee:
A.
Yeah.
Yeah.
Like, I’ve gone through a fucking … not even a divorce yet. I mean, I’ve
been separated. He hasn’t seen his mother since he was 14 years old. Like,
you know, I got three kids.
[26] By way of agreed facts, Mr. Dockrill admitted that the police had seized
1713.9 grams of marijuana from the basement of his home where Jason Dockrill
lived. Mr. Dockrill agreed that at $10.00 per gram, the marijuana had a street value
Page 12
of $17,130.00. In addition to marijuana, scales, a grinder, bags, bear spray, a
baseball bat, a replica gun, a Mossberg 12-gauge shotgun, and a collapsible baton
were found in and around the basement area. Clearly, this was a drug dealer’s
residence.
[27] Mr. Dockrill testified at trial that about two weeks prior to the June 12, 2011,
incident, Jason came to him and said, “Dad, no matter what ever happens, don’t ever
blame yourself”. He also said that around that same time, Jason said to him, “Dad
someone’s gunning for me. I’m getting texts that someone is going to kill me.” In
his police statement Mr. Dockrill said there had been recent threats against Jason
and as a result Jason gave him a gun:
D/Cst. Dauphinee: Did he say anything to you in the last day or two about
anybody being after him or being in trouble or anything like that?
A.
Just…he said something about there was…there was a threat. Now I don’t
know who it was. I…I swear to god, I don’t know who it was, and it’s just…but
there was a threat against him and that’s why…one reason…like, you know,
because I don’t own a weapon. The weapon wasn’t mine. It was just…that’s why
the weapon was in my room.
…
D/Cst. Dauphinee:
A.
Jason did.
D/Cst. Dauphinee:
A.
Jason did.
But I mean, fuck, man…
D/Cst. Dauphinee:
A.
Who brought the gun into your house?
And Jason put the gun in your room?
He brought…yeah.
…
A.
I mean, the guy’s got some (shit going on?)
D/Cst. Dauphinee:
A.
We all have…we all have kids and we…
He’s got his whole shit going down.
Page 13
…
D/Cst. Dauphinee:
ago was that?
A.
I don’t know.
D/Cst. Thomas:
months?
A.
Are we talking a couple of days ago or has it been there for
No, it wasn’t…it wasn’t. As far as I know. I don’t know, but it’s…
D/Cst. Dauphinee:
A.
All right. Jason brought the gun into the house? How long
How…how long has the gun been in your room?
A week and a half at the most.
D/Cst. Dauphinee: A week and a half. So Jason brought it into the house about
a week and a half ago or…
A.
I don’t know when he brought it in.
D/Cst. Dauphinee:
A.
I don’t know.
D/Cst. Dauphinee:
A.
Or did he have that downstairs for a while?
You don’t know.
But it’s just …he’s got his place and I got mine. It was just…
D/Cst. Dauphinee: Yeah. So a week and a half ago when Jason gave you this
gun, what…what was the conversation about?
A.
The…all I know is he said something about some…someone’s trying to
jack him up or going to jack him up. And he said, This is for you, to look after
yourself. And it’s like I says, I don’t want the fucking…
…
D/Cst. Dauphinee: Yeah. Okay. What type of rifle was it that Jason gave you
about a week and a half ago? Do you know what the caliber was?
A.
I believe it’s 30-30.
D/Cst. Dauphinee:
A.
… (inaudible)
D/Cst. Dauphinee:
A.
30-30?
Is it like a lever action?
Winchester, I think.
D/Cst. Dauphinee:
Winchester? Okay.
Page 14
…
D/Cst. Thomas:
A.
Where was the gun? In what thing?
In my porch … or not my porch. My … my closet.
D/Cst. Thomas:
In your closet.
D/Cst. Dauphinee:
Okay. So you grabbed that. You run to the door.
A.
And …
D/Cst. Thomas:
A.
And it was already loaded?
Yeah.
[28] In his police statement Mr. Dockrill said he was asleep in bed when a man
came into his room and started yelling at him. He said his TV was up almost full
volume. He said that this man said, “I’m going to fucking rob you.”
A.
Actually, the call will tell you. There was a guy standing there. There…there
was a guy coming in and he said, I’m going to fucking rob you. And he said
something about my son. And then it was like…he’s standing there. I’m…the only
light that’s on is the TV light. There’s no lights in the hall, because, like, you
know… And I swear to fuck, I seen a gun. I know I seen…if I don’t ever see…the
face was all blacked out. Darkened up with whatever. But that was…
…
D/Cst. Dauphinee:
up? Do you know?
A.
Someone there hollering at me.
D/Cst. Dauphinee:
before that.
A.
You didn’t hear any previous gunshots or …
I didn’t hear nothing. Nothing. Like, when…
D/Cst. Dauphinee:
A.
Somebody standing and hollering. You didn’t hear anything
No, I don’t…
D/Cst. Dauphinee:
A.
All right. Now tonight when you woke up, what woke you
Or anything like that.
I sleep. When I sleep, I sleep.
D/Cst. Dauphinee:
Mm-hmm.
Page 15
A.
Or even when I…like, when I put my head down, I …like, you know, I’m
hard of hearing at the best of times. I banged tin all my life.
….
A.
I was hoping to…actually, the only reason it’s turned down right now is
because…because this…like, you know, when I woke up, my TV was full-blast.
I’m looking just…like, and I’m trying to stare at this (guy now trying to get a gun
near me?) Well, he got…what he’s going to do…(inaudible)
D/Cst. Dauphinee:
A.
…move on me or what.
D/Cst. Dauphinee:
A.
Can you give me a description of this guy? Like, you said…
Just all…
D/Cst. Dauphinee:
A.
Okay.
…his face was dark.
It... it was just… it was covered.
D/Cst. Dauphinee:
Okay.
A.
Like I said, it’s just all…(gestures to face). To what extent it was, just…
like I says, because I… I look up and this …you know, but I mean…
D/Cst. Dauphinee:
Yeah.
A.
At the same time as, like, you know, you’re there. You don’t want to stare
someone down if they’re staring you down with a frigging gun, right?
D/Cst. Thomas:
Yeah.
D/Cst. Dauphinee:
But…
D/Cst. Thomas:
What was the face covered with?
A.
I don’t know.
D/Cst. Thomas:
A.
No?
I don’t know. It was just…it was dark. It was dark, and that’s all I know.
D/Cst. Thomas:
And your TV was on?
A.
My TV was on but my TV is there and the hallway is there. So there’s… it
cast no light on him.
…
D/Cst. Thomas:
Okay. Tell me about the gun. What did it look like?
Page 16
A.
Like, that’s just it. I don’t know. That’s something that’s blank too, right?
Like, you know, (but it was?)…
D/Cst. Thomas:
A.
It was…I’d say it was a dark handgun.
D/Cst. Thomas:
A.
Handgun, shotgun?
Handgun?
Or it could have been a shotgun. I don’t know.
…
D/Cst. Dauphinee: All right. So when buddy startles you and wakes you up,
what made him leave?
A.
I don’t know. Like I says, I … like, you know, I … I looked at him and I’m
staring at him, but I mean, obviously, you know, shitting my fucking pants.
D/Cst. Dauphinee:
Yeah.
A.
Know … like, you know? And then at the same time trying to turn the thing
down and then, like, you know, as I was going out and saying, Don’t be fucking
doing nothing stupid, I’m just turning the TV off. I can’t fucking hear what you’re
saying. I can’t hear what you’re fucking saying.
D/Cst. Dauphinee:
Yeah.
A.
And that’s … and then, like, you know, maybe a couple seconds later I woke
up and he’s gone and that’s when I grabbed the gun out of the thing.
…
D/Cst. Dauphinee: … I want you to play it over in your mind’s eye the part
where you see him standing in your bedroom door.
A.
And I can’t even put a face. Honest to fuck…
D/Cst. Dauphinee:
A.
No.
… I can’t, and that’s the worst of it.
[29] Mr. Dockrill confirmed in his statement to the police that he had no idea how
many of Jason’s friends might have been in the house when he fired the shot. This
is important as Mr. Dockrill never actually determined who he was shooting at:
D/Cst. Dauphinee: Tonight at the fire when you got home you said Jason was
out there with friends. Do you know how many friends he was out there with?
Page 17
A. I think there was two of them.
…
D/Cst. Thomas:
front door?
A.
Was there anybody else in the house when you went to the
I don’t know, bud. I don’t know.
…
D/Cst. Dauphinee: And you don’t know if anybody was downstairs with Jason
at the time that this happened or not.
A.
At the time it happened? I don’t know for … I just … fuck it, I don’t know
what happened.
[30] Mr. Dockrill admitted that he essentially fired blindly at a person who was
likely running out the front door of his house when the shot was fired:
A.
And someone (gestures with hands in the air) come scrambling out of the
basement and I hollered and the gun went off.
D/Cst. Thomas:
A.
And it was my son.
D/Cst. Thomas:
A.
Okay.
Was Jason shot in the chest or in the back or …
I have no idea, bud. I don’t know.
D/Cst. Thomas:
I don’t know either.
A.
God forbid I didn’t know how to … god forbid I shot him in the fucking
back. I don’t know, bud. I don’t know. I mean, god forbid, I shot him anyways, but
I mean, fuck, man, I don’t know.
D/Cst. Thomas:
Okay.
D/Cst. Dauphinee:
Okay. Are they the …
A.
…
I don’t know where …
Page 18
D/Cst. Thomas:
front door?
A.
Was there anybody else in the house when you went to the
I don’t know, bud. I don’t know.
D/Cst. Thomas:
Okay.
A.
That’s why I say, like, you know, I … there was … just what transpired was
mere frigging milliseconds.
D/Cst. Thomas:
Yeah, but I mean …
D/Cst. Dauphinee:
So you’re … you’re coming …
A.
(I don’t know what was?) going through my mind. Because just … I don’t
even know what’s going through my mind. Like I …
D/Cst. Dauphinee:
Yeah.
A.
… says, I don’t even know why I grabbed the fucking thing. Because the
thing is … is, like, you know, my biggest fear was for my son.
D/Cst. Dauphinee:
Yeah.
A.
Like, was it for me? No, because I mean, I never …. like, you know, once I
realized buddy was gone I could have fucking stayed there and hid in the fucking
room, right?
…
D/Cst. Dauphinee: You know … and you … you said to us that you saw
somebody running up out of the basement and that’s when the gun went off.
A.
Yes.
D/Cst. Dauphinee:
Okay. So …
D/Cst. Thomas:
Did …
D/Cst. Dauphinee:
door?
They were running up out of the basement towards the front
A.
Yeah. The front door was wide open.
D/Cst. Dauphinee:
Yeah. Okay.
D/Cst. Thomas:
door?
So the person that ran from downstairs went out the front
A.
(It was Jason?)
D/Cst. Dauphinee:
A.
And that was …
It was Jason. That’s what …
Page 19
D/Cst. Dauphinee:
A.
And I don’t know. It just …
D/Cst. Dauphinee:
A.
That was when the gun went off.
Just a knee-jerk reaction.
It’s … yeah.
D/Cst. Dauphinee:
Yeah.
A.
Because if I would have seen their face, I wouldn’t have pulled. I don’t think
I would. I honestly wouldn’t have.
D/Cst. Dauphinee:
No. No.
A.
I think I’d … I might have … for all I know is I seen a flash coming and it’s
like the deer that shoots the fucking guy in the woods. It’s, like … you know,
(inaudible) like, you know …
D/Cst. Dauphinee:
A.
Yeah.
Inexperience and fucking …
D/Cst. Dauphinee:
Inexperience and … yeah.
A.
Trigger-happy or whatever you want to call it. Buckshot or whatever. I don’t
know, man.
D/Cst. Dauphinee:
A.
Yeah.
I…
D/Cst. Dauphinee:
Yeah.
A.
Like I says, man I never shot a deer in my life. I hunted but I never shot …
like, you know?
…
D/Cst. Dauphinee:
Yeah. Yeah.
A.
But at the time when he come out of the basement I just … all I seen was a
flash, man. Fucking, I don’t … Fuck.
D/Cst. Dauphinee:
A.
And I don’t even think I aimed. I don’t think I even aimed.
D/Cst. Dauphinee:
A.
It startled you.
Just pointed in that direction and …
Just … you know, I turned my head and I don’t know … fuck what I did.
D/Cst. Dauphinee:
You saw the flash and, like …
A.
But I … I think … I didn’t even see the flash. Oh, my fuck, I never seen a
flash. I think my eyes were closed. I don’t fucking know.
Page 20
…
A.
When the kids were growing up, man, it’s just like … (inaudible) But I
mean, I don’t know. I don’t know. All I know is fucking … the world is going into
fucking shit in a … pretty fucking bad. But I mean, I can’t fucking blame the world
on this one, can I? Because I was the one that fucking pulled the trigger. I know it.
D/Cst. Thomas:
A.
And that’s like … that’s not a disputable fact.
D/Cst. Dauphinee:
A.
Well, maybe that guy is just …
Okay.
No.
D/Cst. Thomas:
Maybe if the guys that came to your house were already in
jail for something else this wouldn’t have happened.
…
D/Cst. Thomas:
No.
A.
but I mean, at the same time … fuck, man. I was the stupid fucking bastard
that pulled the trigger.
D/Cst. Thomas:
(Inaudible)
A.
And for that, I don’t care you guys do to me … I mean, I got a life sentence
already.
D/Cst. Dauphinee:
A.
Oh yeah.
I already got a life sentence, man.
…
D/Cst. Dauphinee: All right. Just let me check this on. Okay. Okay. That’s your
left hand. And did you bring the gun up like this (holds up two hands).
A.
I don’t know.
D/Cst. Dauphinee:
A.
I don’t know, bud. I don’t know.
D/Cst. Dauphinee:
A.
You don’t recall?
Okay.
I don’t know. Like I says, I don’t know if I aimed or if I shot … (inaudible)
Page 21
D/Cst. Dauphinee:
A.
Yeah.
I don’t know.
[31] Jason Dockrill was trafficking drugs and storing drugs in his father’s home.
Michael Dockrill was fully aware that his son was trafficking drugs from the home.
Their house had previously been the target of home invaders. That prior home
invasion had ended in violence. Jason Dockrill told his father that recent threats had
been made against him and that someone was coming to “Jack him up”. He gave
his father a loaded 30-30 rifle due to those threats. Mr. Dockrill knew he was being
given a loaded rifle to prevent a possible “jacking up” or home invasion related to
Jason Dockrill’s drug trafficking. In other words, criminals had targeted the home
due to Jason Dockrill’s being a drug trafficker. Jason Dockrill had knowledge that
a home invasion was planned because of the value of the drugs or cash at the home
from drug dealing. The loaded gun was kept in Mr. Dockrill’s bedroom. Instead of
calling the police, having Jason Dockrill remove the drugs from the home or leaving
the home, Jason Dockrill and Michael Dockrill armed themselves with a deadly
weapon in anticipation of an armed confrontation. Tragedy was sure to ensue.
[32] In his call to 911 immediately after the shooting Michael Dockrill said:
 His house was “just fucking robbed.”
 The “fucking cocksuckers come in.”
 Someone came in and “stuck a fucking gun” in his face.
 “Buddy come in and fucking put a gun” in his face.
 This person told him “Don’t fucking move.”
 He was told by this gunman that it was “a fucking robbery.”
 He turned the TV down.
 There was more than one intruder.
 They were masked.
[33] During his in-court testimony Mr. Dockrill stated that:
 He went to sleep with the TV on almost at full volume.
Page 22
 He was woken up by being prodded in the face with a gun barrel.
 He concluded he was looking up the barrel of a shotgun.
 Due to his poor hearing and high TV volume he could only hear several
words the intruder was saying including: “Jason”; “Money”; and “kill
you”, to which he says he was freaking out and said, “I can’t fucking hear
you I need to turn the TV down”.
 He says that he turned the TV down and heard a bang.
 When he worked up enough nerve to glance toward the door the intruder
was gone.
Other Witnesses
[34] Jacob Carey testified that on June 12, 2011, he was in the basement of the
Dockrill home with Jason Dockrill. He said that he heard people run up to the front
door. He then heard people kicking the front door. At this point he passed Jason a
baseball bat. Eventually the intruders kicked in the front door. He then heard
someone cock a gun.
[35] A male ran into the basement wearing a mask, hood and gloves, and said:
“Where’s the dope and the money,” while pointing the gun at Jacob Carey and Jason
Dockrill. This male was yelling, and he hit Jason Dockrill in the head with the gun,
whereupon the gun went off. When he was hit in the head Jason Dockrill fell to the
ground and dropped the baseball bat. The intruder then turned and pointed the gun
at Jacob Carey and said, “Where’s the money and the dope”.
[36] This intruder went to the other side of the room and began ripping insulation
out of the wall. He grabbed a couple of small bags of marijuana. Another voice
upstairs was yelling, “Let’s go, let’s go.” The intruder then ran up the stairs.
[37] Dr. Marnie Wood conducted the autopsy of Jason Dockrill. She testified that
Jason had bruising on his face that was caused by an injury before he died,
confirming the pistol whipping described by Jacob Carey. Mr. Dockrill testified that
he spoke to Jason Dockrill at a bonfire shortly before the incident and Jason Dockrill
had no injuries on his face.
Page 23
[38] In his statement to the police, Michael Dockrill said that after the intruder left
his bedroom he grabbed the gun out of his closet. He said that someone came
scrambling out of the basement. He said he hollered and the gun went off. Only later
did he determine it was Jason.
[39] Mr. Dockrill said that once he realized the intruder was gone he could have
stayed in his in the room. He also said that if he had seen the person’s face he does
not think he would have pulled the trigger. He said all he saw was a flash coming,
and that it was inexperience and being trigger-happy that caused him to fire the
round. He said he did not even think that he aimed. He said he just turned his head.
He thought his eyes were closed when he fired but was not sure. He fired blindly at
a moving shape as the person was running toward the door of the house.
[40] Dr. Wood indicated that the bullet entered Jason Dockrill through the top of
his shoulder from the front of his body and traveled sideways through his body,
exiting his back. She described the trajectory of the bullet as being front to back, top
to bottom. Clearly, Mr. Dockrill was not faced with an armed intruder when he
actually fired the fatal shot.
[41] During his in-court testimony Michael Dockrill testified that he could not
recall the details of the shooting, making the 911 call or the details of the 911 call,
nor was he able to recall the details of his police statement.
[42] Mr. Dockrill testified that he recalled being woken up with a gun barrel
pressed to his face and the interchange between himself and the gunman. He said he
was terrified. He testified that the next thing he could recall was being in the living
room, then seeing Jason Dockrill running through the front door and falling. He
recalled trying to perform first aid on Jason and just little of what happened
thereafter.
[43] Mr. Dockrill did not deny that it was his voice on the 911 call and that he was
the one depicted in the police interview. He said that he simply could not remember
the details.
[44] Marlene Crawford lived across the street from the Dockrills. She said that on
the evening in question she heard a gunshot, which caused her to panic. Ms.
Crawford turned her lights off, fearing for her safety. She ran to her bedroom to see
what was going on across the street. The Dockrills’ house was dark. When she
looked across the street the only light she could see on was in Jason Dockrill’s room.
She then saw a male wearing a hoodie and dark clothes come running across the
Page 24
street. After that she heard someone moaning in pain. Soon after that Ms. Crawford
saw Mr. Dockrill come out of the doorway and yell “Call 911 I shot my son”. The
outside light only came on when Mr. Dockrill came out of the house.
Legislation
[45] Section 86 of the Criminal Code states:
Careless use of firearm, etc.
86 (1) Every person commits an offence who, without lawful excuse, uses, carries,
handles, ships, transports or stores a firearm, a prohibited weapon, a restricted
weapon, a prohibited device or any ammunition or prohibited ammunition in a
careless manner or without reasonable precautions for the safety of other persons.
Punishment
(3) Every person who commits an offence under subsection (1) or (2)
(a) is guilty of an indictable offence and liable to imprisonment
(i) in the case of a first offence, for a term not exceeding two years,
and
(ii) in the case of a second or subsequent offence, for a term not
exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
[46] Section 219 of the Criminal Code defines criminal negligence:
Criminal negligence
219. (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
Definition of “duty”
(2) For the purposes of this section, “duty” means a duty imposed by law.
[47] Section 220 of the Criminal Code defines specifically the punishment for
criminal negligence causing death:
Causing death by criminal negligence
220 Every person who by criminal negligence causes death to another person is
guilty of an indictable offence and liable
Page 25
(a) where a firearm is used in the commission of the offence, to
imprisonment for life and to a minimum punishment of imprisonment for a
term of four years; and
(b) in any other case, to imprisonment for life.
[48] Section 244.2 of the Criminal Code states:
Discharging firearm with intent
244. (1) Every person commits an offence who discharges a firearm at a person
with intent to wound, maim or disfigure, to endanger the life of or to prevent the
arrest or detention of any person — whether or not that person is the one at whom
the firearm is discharged.
Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an
indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of
the offence or if the offence is committed for the benefit of, at the direction
of, or in association with, a criminal organization, to imprisonment for a
term not exceeding 14 years and to a minimum punishment of imprisonment
for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years; and
(b) in any other case, to imprisonment for a term not exceeding 14 years and
to a minimum punishment of imprisonment for a term of four years.
Subsequent offences
(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person
has committed a second or subsequent offence, if the person was earlier convicted
of any of the following offences, that offence is to be considered as an earlier
offence:
(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244.2; or
(c) an offence under section 220, 236, 239, 272 or 273, subsection
279(1) or section 279.1, 344 or 346 if a firearm was used in the commission
of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed
between the day on which the person was convicted of the earlier offence and the
day on which the person was convicted of the offence for which sentence is being
imposed, not taking into account any time in custody.
Page 26
Sequence of convictions only
(4) For the purposes of subsection (3), the only question to be considered is the
sequence of convictions and no consideration shall be given to the sequence of
commission of offences or whether any offence occurred before or after any
conviction.
The Canadian Charter of Rights and Freedoms
[49] Section 12 states:
Treatment or punishment
12.
Everyone has the right not to be subjected to any cruel and unusual
treatment or punishment.
Section 718 of the Criminal Code
[50] Section 718 of the Criminal Code sets out the fundamental purpose of
sentencing:
Purpose
718. The fundamental purpose of sentencing is to protect society and to contribute,
along with crime prevention initiatives, to respect for the law and the maintenance
of a just, peaceful and safe society by imposing just sanctions that have one or more
of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the
community that is caused by 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 a sense of responsibility in offenders, and acknowledgment
of the harm done to victims or to the community.
[51] Section 718.1 of the Criminal Code states:
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree
of responsibility of the offender.
Page 27
[52] Section 718.2 of the Criminal Code elaborates on the sentencing principles:
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the
following principles:
(a) a sentence should be increased or reduced to account for any relevant
aggravating or mitigating circumstances relating to the offence or the offender, and,
without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based
on race, national or ethnic origin, language, colour, religion, sex, age,
mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the
offender’s spouse or common-law partner,
(ii.1) evidence that the offender, in committing the offence, abused a person
under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position
of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim,
considering their age and other personal circumstances, including their
health and financial situation,
(iv) evidence that the offence was committed for the benefit of, at the
direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence, or
(vi) evidence that the offence was committed while the offender was subject
to a conditional sentence order made under section 742.1 or released on
parole, statutory release or unescorted temporary absence under
the Corrections and Conditional Release Act
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders
for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should
not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions
may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in
the circumstances and consistent with the harm done to victims or to the
community should be considered for all offenders, with particular attention
to the circumstances of Aboriginal offenders.
Page 28
Sentencing Principles
[53] In R. v. Gladue, [1999] 1 S.C.R. 688, the Supreme Court of Canada set out
considerations that should be taken into account when sentencing an aboriginal
offender. Mr. Dockrill is not aboriginal, however, the Supreme Court of Canada’s
general comments regarding incarceration are important to keep in mind when
considering a custodial sentence of any sort. In considering s. 718 of the Criminal
Code, Cory and Iacobucci JJ. said, for the court, at para. 43:
… Clearly, s. 718 is, in part, a restatement of the basic sentencing aims, which are
listed in paras. (a) through (d). What are new, though, are paras. (e) and (f), which
along with para. (d) focus upon the restorative goals of repairing the harms suffered
by individual victims and by the community as a whole, promoting a sense of
responsibility and an acknowledgment of the harm caused on the part of the
offender, and attempting to rehabilitate or heal the offender. The concept of
restorative justice which underpins paras. (d), (e), and (f) is briefly discussed below,
but as a general matter restorative justice involves some form of restitution and
reintegration into the community. The need for offenders to take responsibility for
their actions is central to the sentencing process: D. Kwochka, “Aboriginal
Injustice: Making Room for a Restorative Paradigm” (1996), 60 Sask. L. Rev. 153,
at p. 165. Restorative sentencing goals do not usually correlate with the use of
prison as a sanction. In our view, Parliament’s choice to include (e) and (f)
alongside the traditional sentencing goals must be understood as evidencing an
intention to expand the parameters of the sentencing analysis for all offenders. The
principle of restraint expressed in s. 718.2(e) will necessarily be informed by this
re-orientation.
[54] In Gladue, the court strongly criticized Canada’s over-reliance on
incarceration, and noted:
57 Thus, it may be seen that although imprisonment is intended to serve the
traditional sentencing goals of separation, deterrence, denunciation, and
rehabilitation, there is widespread consensus that imprisonment has not been
successful in achieving some of these goals. Overincarceration is a long-standing
problem that has been many times publicly acknowledged but never addressed in a
systematic manner by Parliament. In recent years, compared to other countries,
sentences of imprisonment in Canada have increased at an alarming rate. The 1996
sentencing reforms embodied in Part XXIII, and s. 718.2(e) in particular, must be
understood as a reaction to the overuse of prison as a sanction, and must accordingly
be given appropriate force as remedial provisions.
Page 29
[55] In R. v. Proulx, [2000] 1 S.C.R. 61, Lamer C.J. speaking for the unanimous
court delivered the leading decision regarding conditional sentences. He also
referred to Canada’s over reliance on prison as a form of punishment:
(1) Reducing the Use of Prison as a Sanction
16
Bill C-41 is in large part a response to the problem of overincarceration
in Canada. It was noted in Gladue, at para. 52, that Canada’s incarceration rate of
approximately 130 inmates per 100,000 population places it second or third highest
among industrialized democracies. In their reasons, Cory and Iacobucci JJ.
reviewed numerous studies that uniformly concluded that incarceration is costly,
frequently unduly harsh and “ineffective, not only in relation to its purported
rehabilitative goals, but also in relation to its broader public goals” (para. 54). …
Prison has been characterized by some as a finishing school for criminals and as illpreparing them for reintegration into society… iv. In Gladue, at para. 57, Cory
and Iacobucci JJ. held:
Thus, it may be seen that although imprisonment is intended to serve
the traditional sentencing goals of separation, deterrence, denunciation, and
rehabilitation, there is widespread consensus that imprisonment has not
been successful in achieving some of these goals. Overincarceration is a
long-standing problem that has been many times publicly acknowledged but
never addressed in a systematic manner by Parliament. In recent years,
compared to other countries, sentences of imprisonment in Canada have
increased at an alarming rate. The 1996 sentencing reforms embodied in
Part XXIII, and s. 718.2(e) in particular, must be understood as a reaction
to the overuse of prison as a sanction, and must accordingly be given
appropriate force as remedial provisions. [Emphasis by Lamer C.J.]
17
Parliament has sought to give increased prominence to the principle of
restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and
(e). Section 718.2(d) provides that “an offender should not be deprived of liberty,
if less restrictive sanctions may be appropriate in the circumstances”, while s.
718.2(e) provides that “all available sanctions other than imprisonment that are
reasonable in the circumstances should be considered for all offenders, with
particular attention to the circumstances of aboriginal offenders”. Further evidence
of Parliament’s desire to lower the rate of incarceration comes from other
provisions of Bill C-41: s. 718(c) qualifies the sentencing objective of separating
offenders from society with the words “where necessary”, thereby indicating that
caution be exercised in sentencing offenders to prison; s. 734(2) imposes a duty on
judges to undertake a means inquiry before imposing a fine, so as to decrease the
number of offenders who are incarcerated for defaulting on payment of their fines;
and of course, s. 742.1, which introduces the conditional sentence. In Gladue, at
para. 40, the Court held that “[t]he creation of the conditional sentence
suggests, on its face, a desire to lessen the use of incarceration”. [Emphasis
added]
Page 30
[56] Nonetheless, Parliament has legislated a mandatory minimum sentence of
four years in prison for anyone who is convicted of criminal negligence causing
death while using a firearm. Michael Dockrill shot and killed his son, Jason Dockrill,
with a firearm. It is crystal clear that Michael Dockrill never intended to shoot Jason
Dockrill. He meant to shoot a home invader, having been threatened with a gun
shortly before the shooting. However, Mr. Dockrill took a loaded rifle, made no
effort to turn on lights so he could see what was happening and fired blindly at a
shape that was moving up the stairs toward the open front door. That figure could
have been anybody. It could have been one of Jason Dockrill’s bonfire guests. It
could have been Jacob Carey. It could have been, and it was, Jason Dockrill. While
Mr. Dockrill was no doubt terrified when all of this occurred, he was not at risk of
harm when he fired the rifle. And by firing the rifle, he killed an innocent human
being, who happened to be one of the people he loved most in the world.
[57] This is precisely why gun crimes are treated so seriously.
Defence Position
[58] The defence argues that the mandatory minimum sentence of four years
incarceration imposed by Parliament is grossly disproportionate in Michael
Dockrill’s circumstances, that it constitutes cruel and unusual punishment contrary
to s. 12 of the Charter and that as a result, s. 220(a) of the Criminal Code must be
struck down. Mr. Dockrill argues that instead of four years in prison, Michael
Dockrill should receive a suspended sentence followed by three years probation. Mr.
Dockrill adds that if a prison sentence is required, a minimum Federal sentence in
the range of two years would be appropriate.
Crown Position
[59] The Crown’s position is that the appropriate range of sentence for Michael
Dockrill in these circumstances is five to seven years in a Federal Penitentiary and
as a result the mandatory minimum of four years in prison is not disproportionate.
Section 12 Charter Analysis in the Context of Mandatory Minimum Sentences
[60] In R. v. Morrisey, [2000] 2 S.C.R. 90, Gonthier J. spoke for the majority in
determining that the four-year mandatory minimum sentence required for an offence
under s. 220 if a firearm is involved does not offend s. 12 of the Charter. The facts
in Morrisey are important to keep in mind:
Page 31
II. Facts
3
The relevant facts of this appeal are not in dispute. The appellant is
a woodsman and a labourer who lived with his mother in Belmont, Nova Scotia,
near Truro. At the time of the offence, he was 35 years old. He had no prior
criminal record. He had a drinking problem from the age of 14 until his early
30s. He stopped drinking when he entered a relationship with the victim’s sister,
Anita Teed. When they broke up, the appellant started drinking again.
4
One such occasion was on May 14, 1996. On that day, the appellant
was drinking with his friend, Adrian Teed, and Mr. Teed’s father, Karl Staples, at
the house of Mr. Teed’s mother, Essie. The three men left the house together and
travelled to the Teeds’ isolated camp in the woods. There, the three continued to
drink, and the appellant began taking prescription drugs, including Valium. While
Mr. Staples was inside the cabin, the appellant and Mr. Teed successfully cut off a
length of a rifle barrel. The appellant told Mr. Teed that the gun was to be used to
commit a robbery, but alleges that, in fact, he had intended to kill himself with the
weapon. The appellant testified that he wanted to commit suicide as a result of
severe depression from a recent breakup with Mr. Teed’s sister, Anita. The trial
judge accepted that, at the time, the appellant was quite distraught. It was also
accepted that he was very intoxicated.
5
While Mr. Teed remained at the camp, the appellant drove Mr. Staples
home. Upon returning to the camp, the appellant found Mr. Teed lying in the top
bunk in the cabin. While holding the rifle which he knew to be loaded, the appellant
jumped up to the lower bunk in order to shake Mr. Teed – either to awaken him, or
to get his attention. As might be expected in this state of intoxication, the appellant
lost his footing while he jumped, and he fell. The gun discharged, and the bullet
struck Mr. Teed in the head, killing him instantly. The gun was not susceptible to
shock discharge. There was no evidence that the appellant intended to aim the gun
at the victim.
6
The appellant dragged Mr. Teed’s body out of the cabin to a point in
the woods approximately five kilometres away from the cabin, and covered it with
a blanket. The appellant then drove to Essie Teed’s house. He pointed the gun at
Mr. Teed’s mother, telling her to be quiet and to sit down. He told her he had
already killed one person that night. Mrs. Teed calmed the appellant down, and
took the rifle from him. The appellant stated that he wanted to kill himself. In
order to calm the appellant down further, Mrs. Teed took the accused to see the
victim’s sister, Anita Teed.
After this meeting, Essie Teed returned the rifle to the appellant, and
7
told him to not bring it around anymore. The appellant disposed of the rifle in a
river. The following day, he allegedly attempted to commit suicide by setting the
cabin on fire while remaining inside. Forty-five minutes later, he admitted himself
into the psychiatric ward of a local hospital, where he confessed to killing
Mr. Teed. The appellant has always been very remorseful. At trial, the appellant
pleaded guilty to criminal negligence causing death, contrary to s. 220(a) of
Page 32
the Criminal Code, R.S.C., 1985, c. C-46, and unlawfully pointing a firearm,
contrary to s. 86 of the Code.
[61] In determining that the mandatory minimum was constitutional, Gonthier J.
stated:
1
Is a four-year minimum sentence of imprisonment cruel and unusual
punishment for the offence of criminal negligence causing death with a firearm? As
I set out in these reasons, it is my view that this punishment does not constitute
cruel and unusual punishment. The offence of criminal negligence causing death
requires proof of wanton and reckless disregard for the lives and safety of other
people – a high threshold to pass. This offence does not punish accidents. Nor
does it punish the merely unfortunate. It punishes those who use firearms in a
manner that represents a marked departure from the standard of care employed by
a reasonable person, resulting in death. It is no trivial matter, and Parliament has
treated it accordingly.
2
Considering all of the factors set out in R. v. Smith, 1987 CanLII 64
(SCC), [1987] 1 S.C.R. 1045, and R. v. Goltz, 1991 CanLII 51 (SCC),[1991] 3
S.C.R. 485, a four-year minimum sentence does not constitute a grossly
disproportionate sentence, either for this individual offender, or for any reasonable
hypothetical offender. Accordingly, I am of the opinion that the minimum sentence
does not infringe s. 12 of the Canadian Charter of Rights and Freedoms, and the
appeal is dismissed on this ground. … [emphasis added]
[62] The personal circumstances in Morrisey were sympathetic in that the accused
and the victim were friends; the accused had been dating the victim’s sister; the
accused and the victim were drinking together; the accused also took prescription
drugs; the accused was very intoxicated, distraught and suicidal; the accused did not
intend to aim or fire the gun at the victim; the accused was just trying to wake the
victim to get his attention or wake him up when he slipped, fell and the gun
discharged; the bullet struck the victim in the head killing him instantly; the accused
tried to commit suicide the next day and shortly thereafter turned himself in to the
psychiatric ward of a local hospital; the accused confessed; and the accused was very
remorseful.
[63] Justice Gonthier reviewed the standard for a conviction under s. 220:
18
Generally speaking, Parliament prescribes penalties in
the Criminal Code to punish individuals who not only commit a wrongful act, but
who also commit that wrongful act intentionally. However, even in the absence of
any intent to bring about a given result, Parliament has also created criminal
liability under s. 219 for people whose conduct evinces a wanton or reckless
disregard for the lives or safety of other people. To be convicted of an offence
Page 33
under s. 220, that wanton or reckless disregard must have caused the death of
another person. To receive a four-year minimum sentence, a firearm must have
been used in the commission of this offence.
19
The standard that must be met for a conviction under s. 220(a) is
therefore higher than a negligence standard in the civil context. To be convicted
under this provision, one must have acted in a manner that represents a marked
departure from the norm: R. v. Anderson, 1990 CanLII 128 (SCC), [1990] 1 S.C.R.
265, at p. 270. Where the risk of harm is very great, as is the case in criminal
negligence in the use of firearms causing death cases, it is often easy to conclude
that the accused must have foreseen the consequences: Anderson, at
p. 270. Nonetheless, in all cases, the Crown must prove more than the simple fact
that a gun discharged, causing death. Section 220(a) is not an absolute liability
offence. It requires proof of conduct which is such a marked departure from the
behaviour of a reasonably prudent person as to show a wanton or reckless disregard
for the life or safety of others.
[64] Justice Gonthier went on to consider facts that meet this standard, confirming
that not all tragedies attract criminal liability:
20
A simple review of some of the facts of the criminal negligence cases
where the accused pleaded guilty reveals the type of conduct caught by this
provision. In reviewing these cases, I am not suggesting that these represent the
standard that must be met in order to sustain a conviction; rather, they are simply
indicative of context. In Bell, supra, the accused had inserted a spent casing of a
bullet into his gun and pulled the trigger while pointing it at one of his friends. By
accident, a live round had become mixed into the spent rounds and the gun
discharged, killing his friend. On a sentence appeal, the Court of Appeal noted the
moral blameworthiness of “play acting with a deadly weapon” (p. 37). Even more
seriously, in Saswirsky, supra, a police officer played a form of Russian roulette
with his girlfriend, knowing a live shell was in the gun, but mistakenly thinking the
bullet was not in the firing chamber.
In J.C., supra, a young offender pointed a gun at his friend’s head and
21
pulled the trigger four times, knowing that there was a single bullet in the
gun. After the fourth pull, he opened the gun, smacked the top of the barrel, heard
something hit the ground. He thought it was the bullet in the gun falling out. He
put the gun to his friend’s head and pulled the trigger again. There was a bullet in
the firing chamber and he killed his friend. J.C. thought he checked the gun, but in
fact he was not careful enough. In another case, a drunk man shot his drunk friend
who had himself asked to be shot at, to see if it would scare him (R. v. Davis, [1985]
B.C.J. No. 1732 (QL) (C.A.)). Another drunk man did not remember loading his
gun and, to scare his friend, pointed the gun at him and said “bang” as he pulled the
trigger and shot him in the face; he killed him (R. v. Morehouse (1982), 38 N.B.R.
(2d) 367 (C.A.)). The irresponsibility of these people in endangering the lives of
their friends and loved ones is startling and deserving of criminal liability.
Page 34
22
The criminal negligence provision also catches the reckless behaviour
of hunters. In R. v. McCrea, [1970] 3 C.C.C. 77 (Sask. C.A.), the accused shot at
a Department of National Resources Bombardier in which the victim was a
passenger. The accused testified he thought it was a “hump”, and fired his highpowered rifle, killing the other hunter, without knowing what he was firing at. As
such, the jury found him guilty under s. 191, the predecessor to s. 220. So too, in R.
v. Weber, [1973] 1 W.W.R. 262 (B.C.C.A.), the accused shot at a 14-foot aluminum
boat, thinking it to be a moose. It carried three people, one of whom was killed.
23
In R. v. Stewart, [1993] O.J. No. 954 (QL) (Prov. Div.), the trial judge
gave examples of criminal negligence in the context of hunting. These included
“firing across a road or from a vehicle; ... firing at shadows during false dawn; ...
firing at the rustle or movement of a branch”. Simply stated, shooting without
adequately determining the nature of the target is a marked departure from the
behaviour of a prudent hunter. When this behaviour causes the death of an
individual, criminal liability attaches under s. 220(a).
24
Any behaviour that is “reasonable” cannot be “wanton”. A person
handling a gun in a reasonable way with a reasonable belief that a gun is not loaded
or cannot go off, or whose gun malfunctions, or who has an ordinary accident with
a gun, like dropping it and setting it off, cannot be said to be wanton and
reckless. Anderson, supra, in which a man who drove through a red light while
intoxicated was acquitted on a charge of criminal negligence causing death, does
not preclude the Court from holding that an accident in handling firearms that
involves illegal drugs or alcohol is due to objectively wanton and reckless
behaviour.
The case of R. v. Olav D (1986), 1 W.C.B. (2d) 42 (Ont. U.F.C.),
25
illustrates a situation where death by gunfire did not amount to criminal
negligence. The accused young offender had a reasonable belief that the gun was
unloaded. Detailed jurisprudence has also developed around hunting in which
judges have exonerated people who had a reasonable belief that the person they
shot was prey and not a person. That a hunter was camouflaged in the colours of a
moose made this belief reasonable in Stewart, supra, for example. There the hunter
took precautions and made a reasonable mistake. There are reasonable and
unreasonable hunting accidents, just as there are reasonable and unreasonable
accidents that occur with firearms in other contexts. All of these accidents are
tragic, but not all of them attract criminal liability. [emphasis added]
[65] Firing at shadows during false dawn or firing at the rustle or movement of a
branch can meet the criteria of s. 220. Justice Gonthier clarified that shooting
without adequately determining the nature of the target is a marked departure from
the behaviour of a prudent hunter and when this behaviour causes the death of an
individual, criminal liability attaches under s. 220.
Page 35
[66] Section 12 of the Charter was considered by Gonthier J. in the context of s.
220:
26
Section 12 of the Charter provides a broad protection to Canadians
against punishment which is so excessive as to outrage our society’s sense of
decency: Smith, supra, at p. 1072; Goltz, supra, at p. 499; R. v. Luxton, 1990
CanLII 83 (SCC), [1990] 2 S.C.R. 711, at p. 724. The court’s inquiry is focussed
not only on the purpose of the punishment, but also on its effect on the individual
offender. Where a punishment is merely disproportionate, no remedy can be found
under s. 12. Rather, the court must be satisfied that the punishment imposed
is grossly disproportionate for the offender, such that Canadians would find the
punishment abhorrent or intolerable. As I said in Goltz, at p. 501, “the test is not
one which is quick to invalidate sentences crafted by legislators.”
27
In order to properly consider a s. 12 challenge to a punishment, the
court must examine all of the relevant contextual factors. No single factor set out
in Smith or Goltz is paramount: see Goltz, at pp. 501-2. In Smith, at p. 1073,
Lamer J., as he then was, set out some of the relevant factors as follows:
In assessing whether a sentence is grossly disproportionate, the court must
first consider the gravity of the offence, the personal characteristics of the
offender and the particular circumstances of the case in order to determine
what range of sentences would have been appropriate to punish, rehabilitate
or deter this particular offender or to protect the public from this particular
offender.
[67] Gonthier J. went on to state that a full contextual understanding of the
particular sentencing provision can only be achieved by a court if certain factors are
considered:
28
In Goltz, at p. 500, I also noted that certain other factors were
necessary for a full contextual understanding of the sentencing provision. In
particular, a court is to consider: the actual effect of the punishment on the
individual, the penological goals and sentencing principles upon which the sentence
is fashioned, the existence of valid alternatives to the punishment imposed, and a
comparison of punishments imposed for other crimes in the same
jurisdiction. None of these factors will be “in themselves decisive to a
determination of gross disproportionality” (p. 500).
[68] Justice Gonthier determined that a four-year minimum sentence would not
be cruel and unusual punishment for Mr. Morrisey, after undertaking the analysis
as set out in R. v. Goltz, [1991] 3 S.C.R. 485, and R. v. Smith, [1987] 1 S.C.R.
1045:
Page 36
(1) Gravity of the Offence
As set out above, the first factor to consider is the gravity of the
35
offence. An analysis of the gravity of the offence requires an understanding of both
the character of the offender’s actions, and the consequences of those
actions: Goltz, at pp. 510-11. That the appellant’s actions had particularly grave
consequences for the victim is not challenged. Mr. Teed was killed because of the
appellant’s actions. There is no more serious consequence.
36
The other aspect of the gravity factor – the character of the offender’s
actions – caused more concern for the trial judge. Scanlan J. thought that an
unintentional act constituted a far less grave offence than an intentional act:
para. 23. As a general rule, this point cannot be seriously challenged. We attribute
greater moral blameworthiness to those who knowingly break the law than those
who do so unintentionally: see R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2
S.C.R. 633, at p. 645. However, the analysis does not stop there. As I explained at
paras. 17-24 above, Parliament has set a very high threshold that must be met in
order to attract criminal liability under s. 220(a). One must demonstrate wanton
and reckless disregard for life and safety. One cannot emphasize this point enough:
this provision does not convict people who merely cause death unintentionally. In
addition to causing death using a firearm, the Crown must establish that the accused
acted in a manner that was a marked departure from the standard employed by a
reasonable person. Their actions must be wanton or reckless, and deserving of
criminal liability.
37
When both aspects of the gravity of the offence factor are considered,
it is clear that s. 220(a) involves those who have committed a particularly grave
offence. The actions attracting liability must exhibit wanton and reckless disregard
for human life and safety. Where one acts in such a manner, using a firearm, and
causes death, then one is guilty of a particularly serious crime. Tragic though it
may be for the offender as well as the victim, the offence remains a very serious
one. [Emphasis added]
[69] As to the next factor, the particular circumstances of the offender and the
case, Gonthier J. said:
38
These two factors require an inquiry into the events that transpired on
May 14, 1996. At this stage, the reviewing court is to look for mitigating and
aggravating factors that would affect the appropriateness of the
sentence: Goltz, supra, at pp. 512-13. In this case, there are both. The appellant
was very intoxicated. Further, he mixed alcohol with prescription drugs. He
carried a loaded weapon into a small cabin. He was in a state of extreme
psychological distress. In this state of intoxication, he recklessly jumped from the
ground to a bunk bed carrying a loaded gun, with the foreseeable consequence of
losing his footing and falling. The gun was not susceptible to shock discharge, yet
it discharged. Mr. Teed was killed by a wound to the head. Instead of contacting
Page 37
the police or ambulance services, the appellant dragged the victim’s body from
what was described at the sentencing as an “incomprehensibly abhorrent scene” to
a location in the woods in order to hide it. Clearly, the circumstances of this offence
indicate the seriousness of the appellant’s crime.
That said, there are mitigating factors as well. The trial judge noted
39
that the appellant has never been in trouble with the law prior to this offence. The
appellant was remorseful, not only before the court, but from the time that he killed
Mr. Teed. The trial judge found this remorse to be sincere. Further, he accepted
that the appellant had assumed responsibility for his actions. Finally, the trial judge
found that the appellant is able to work and support himself in the future. In a
traditional sentencing regime, all of these factors would be relevant for fashioning
an appropriate sentence.
40
On balance, I am not convinced that the mitigating factors offset the
aggravating factors in this case. Nor am I convinced that the mitigating factors
displace the gravity of the offence. The remorse demonstrated by the appellant is
not at all surprising, given the nature of the offence. Nobody is alleging that the
appellant intended to kill Mr. Teed; malice is neither alleged nor proven. In these
circumstances, remorse is to be expected. The absence of a criminal record is also
not surprising, given the nature of this offence. As the criminally negligent do not
intend the results they cause, acts of criminal negligence are not generally
committed as part of a pattern or a career of criminality. I would sincerely doubt
that there are many career criminals founding their crime spree on criminal
negligence. Finally, the prospects for employment, while relevant, cannot be
dispositive by themselves for determining the constitutionality of the punishment.
[70] Moving on to consider the actual effect of the punishment on the offender,
Gonthier J. said:
41
This factor requires the court to consider how the offender will be
personally affected by the actual punishment imposed. It will be relevant to
consider the nature and conditions of the sentence, as well as the duration of the
sentence: Smith, at p. 1073; Goltz, at pp. 513-14. The availability of escorted
absences and intermittent sentences will also be relevant for this inquiry: Goltz, at
p. 514. In R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at
para. 62, Lamer C.J. said that “a grant of parole represents a change in the
conditions under which a judicial sentence must be served” (emphasis
omitted). Therefore, the possibility of day parole and full parole will also be
relevant: Luxton, supra, at p. 725; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2
S.C.R. 309, at pp. 339-43. In short, this factor requires the reviewing court to fully
understand the impact of the sentence as it will be actually served.
A four-year term in a federal penitentiary is unquestionably a serious
42
sentence. However, this seriousness does not constitute, by itself, cruel and unusual
punishment. As the Attorney General of Canada correctly pointed out, there are no
Page 38
special punitive measures created to punish these offenders. Further, it is notable
that on a four-year sentence, individuals convicted of criminal negligence causing
death using a firearm would be eligible for parole after 16 months unless the trial
judge directs otherwise: Corrections and Conditional Release Act, S.C. 1992,
c. 20, s. 120(1); Criminal Code,s. 743.6. Day parole would be possible after 10
months: Corrections and Conditional Release Act, s. 119(1)(c)(i). Excessive
hardship and physical or mental health problems are addressed by s. 121(1) of
the Corrections and Conditional Release Act. Further, it is relevant to note that
in Wust, supra, this Court has held that pre-trial custody can be counted against a
minimum sentence. All of these factors serve to mitigate against the harshness of
the appellant’s sentence.
[71] Gonthier J. addressed the relevant penological goals and sentencing
principles:
43
These factors are analysed to determine whether Parliament was
responding to a pressing problem, and whether its response is founded on
recognized sentencing principles. The respondent and the interveners made ample
submissions on the necessity for a unified approach on firearm-related
crimes. While it is true that gun-related deaths in general have been decreasing
steadily since the 1970s, certain key statistics are telling. In 1995 alone, there were
49 “accidents” causing death involving firearms, coupled with 145 homicidal
deaths
involving
firearms:
K. Hung,
Firearm
Statistics
(1999),
Table 14. Accidental deaths involving firearms in Canada have remained relatively
constant since 1979. Unquestionably, Parliament is entitled to take appropriate
measures to address the pressing problem of firearm-related deaths, especially
given that it has been consistently a serious problem for over 20 years. Further, it
is appropriate for Parliament to discourage the careless use of firearms generally
since, as Cory J. noted in R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 S.C.R.
199, at p. 211, a firearm always “presents the ultimate threat of death to those in its
presence”.
44
Of course, Parliament can only do so in a manner consistent with
existing sentencing principles. The fundamental principle of sentencing is
proportionality: Criminal Code, s. 718.1; R. v. Proulx, [2000] 1 S.C.R. 61, 2000
SCC 5 (CanLII), at para. 54. It is the essence of a s. 12 analysis. The other
sentencing principles set down by Parliament in s. 718 and recognized by this Court
in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at paras. 42-43,
and Proulx, supra, include separation, specific and general deterrence, retribution,
rehabilitation, and restorative justice principles of reparations for harm and
promoting a sense of responsibility in the offender for the harm done to the victims
and the communities.
With respect, the trial judge placed too much emphasis on the absence
45
of any need for specific deterrence for this crime, while the Court of Appeal placed
too much emphasis on the need for general deterrence. The presence or absence of
Page 39
any one sentencing principle should never be determinative at this stage of the
analysis under s. 12. General deterrence cannot, on its own, prevent a punishment
from being cruel and unusual. But it is still relevant when the court is considering
a range of sentences that are all acceptable under s. 12. General deterrence can
support a sentence which is more severe while still within the range of punishments
that are not cruel and unusual. It could also possibly serve as a justification under
s. 1 if it were ever necessary to justify a violation of s. 12, but that is not the case
here.
46
While it may be ideal to craft a minimum sentencing regime for this
crime that would simultaneously pursue all of the traditional sentencing principles,
this is not necessary for s. 12 purposes. As La Forest J. said in Lyons, supra, at
p. 329, “the respective importance of prevention, deterrence, retribution and
rehabilitation will vary according to the nature of the crime and the circumstances
of the offender”. I am convinced that this legislation survives constitutional
scrutiny even if the sentence pursues sentencing principles of general deterrence,
denunciation, and retributive justice more than the principles of rehabilitation and
specific deterrence. In other words, the punishment is acceptable under s. 12 while
having a strong and salutary effect of general deterrence. It cannot be disputed that
there is a need for general deterrence. This legislation dictates that those who pick
up a gun must exercise care when handling it. It is consistent with the jurisprudence
on the use of firearms: R. v. Pettigrew (1990), 1990 CanLII 5417 (BC CA), 56
C.C.C. (3d) 390 (B.C.C.A.), at p. 398. Failure to exercise care will have tragic
consequences not only for the victim, but also for the offender.
47
Further, this minimum sentence serves the principle of denunciation,
which Lamer C.J. described in M. (C.A.), supra, at para. 81, as being “a symbolic,
collective statement that the offender’s conduct should be punished for encroaching
on our society’s basic code of values”. One of the most fundamental of our basic
code of values is respect for life. Although less morally blameworthy than murder,
criminal negligence causing death is still morally culpable behaviour that warrants
a response by Parliament dictating that wanton or reckless disregard for the life and
safety of others is simply notacceptable.
48
Finally, the minimum sentence serves the principle of retributive
justice. In M. (C.A.), at para. 79, this Court unanimously recognized the
importance of retribution to sanction the moral culpability of an
offender. Retribution represents “the fundamental requirement that a sentence
imposed be ‘just and appropriate’ under the circumstances”. This idea is apposite
in the context of upholding a minimum sentence for criminal negligence causing
death with a firearm. The minimum sentence forces the offender to acknowledge
the harm that he has caused, and metes out a punishment commensurate with that
harm.
Page 40
[72] Finally, Gonthier J. commented on the “other factors” aspect of the analysis:
49
Counsel for the appellant has presented no other arguments to suggest
that the minimum sentence is cruel and unusual. No valid alternatives were
identified. It has not been demonstrated that a comparison with other crimes in the
same jurisdiction suggests that this sentence is cruel and unusual. In fact, when
considering the nature of the harm caused by the appellant, it is at least arguable
that this crime is more serious than others that receive the same sentence, such as
robbery with a firearm. From a harm perspective, this crime is much more
severe. As it is my conclusion that the trial courts below were correct in finding
that the minimum sentence is not cruel and unusual punishment for the appellant,
it is now necessary to address the hypothetical situations considered by the trial
judge in striking down s. 220(a). [emphasis added]
[73] In Morrisey, Gonthier J. confirmed that if the four-year mandatory minimum
is grossly disproportionate to the offender then the court proceeds to analyse whether
the infringement of s. 12 can be justified under s. 1 of the Charter. If it is not
disproportionate for the individual offender, as in Morrisey, then the court must still
consider the constitutionality of the sentence with reasonable hypotheticals. If the
sentence would be grossly disproportionate in the case of a reasonable hypothetical
then a s. 1 analysis would have to be undertaken in relation to the sentencing
provision. Gonthier J. commented on what constituted a “reasonable hypothetical”:
30
What constitutes a reasonable hypothetical? In Goltz, at p. 506, I said
that reasonable hypotheticals could not be “far-fetched or marginally imaginable
cases”. They cannot be “remote or extreme examples” (p. 515). The
reasonableness of the hypothetical cannot be overstated, but this means that it must
be reasonable in view of the crime in question. In Smith, the hypothetical used to
invalidate the impugned punishment was a very realistic one. There, the legislation
attached criminal liability to importers of illegal narcotics, irrespective of the
quantity imported. The natural and probable consequence of the legislation would
be to catch individuals who could only be described as “small offenders” (p. 1080),
such as the individual importing a single “joint”.
31
In Goltz, I required examples that “could commonly arise in day-today life” (p. 516). This was appropriate for the offence of driving while prohibited
under the B.C. Motor Vehicle Act because that Act touched upon everyday life. It
must be recognized that criminal negligence homicides do not easily lend
themselves to resorting to reasonable hypotheticals as guides to assessing
punishment as cruel and unusual as they can be committed in an almost infinite
variety of ways. Nevertheless, hypotheticals remain very useful in determining
whether s. 12 is violated in this case.
32
In this case, the trial judge and the Court of Appeal preferred to rest
their analysis on reported cases, rather than conjuring up imagined hypotheticals. I
Page 41
sympathize with the approach taken by the trial judge; it is unquestionable that there
is an “air of unreality” about employing creative energy in crafting reasonable
hypotheticals: Smith, per McIntyre J.
(dissenting),
at
p. 1083; R.
v.
Kumar (1993), 1993 CanLII 1445 (BC CA), 85 C.C.C. (3d) 417 (B.C.C.A.), at
p. 449. However, as the Court of Appeal discovered, there are also difficulties
involved with using actual cases. The facts may not be reported accurately where
an individual pleads guilty to the offence, and the facts are entered by way of agreed
statement. Further, a reported case could be one of the “marginal” cases, not
contemplated by the approach set out in Goltz.
Again, it is to be remembered that the courts are to consider only those
33
hypotheticals that could reasonably arise. Homicide is far from a common
occurrence in Canada. Criminal negligence causing death with a firearm is even
less common. It is thus appropriate to develop hypotheticals from the case law by
distilling their common elements. Goltz requires that hypotheticals be “common”
rather than “extreme” or “far-fetched”. It is sufficient when dealing with a rare and
uncommon crime that the hypotheticals be common examples of the crime rather
than examples of common occurrences in day-to-day life. However, in
constructing hypotheticals, courts can be guided by real life cases, but to the extent
that these cases may not be exhaustively reported, they are not bound to limit the
fashioning of hypotheticals to the cases that are made available to them. In
fashioning hypotheticals for the purpose of a s. 12 analysis, reported cases can be
used with caution as a starting point, and additional circumstances can be added to
the scenario to construct an appropriate model against which to test the severity of
the punishment.
[74] In Morrisey, Gonthier J. held that reasonable hypotheticals could not be “farfetched or marginally imaginable cases” or “remote or extreme examples”. The
hypothetical must be reasonable in view of the crime in question. In reviewing what
would and would not constitute a reasonable hypothetical, Gonthier J. stated:
D. Reasonable Hypotheticals
50
The hypotheticals used by the trial judge were actual reported
cases. As I explained above, these reported cases have inherent problems, based as
they are on evidence adduced by way of agreed facts. Further, it is questionable
whether all of the cases considered by the trial judge are common examples of cases
that arise under s. 220(a). Finally, each of these reported cases turns on its own
idiosyncrasies and involves considerations at a level of specificity never
contemplated by Smith, supra. Under all of these circumstances, I am reluctant to
enter into a case-by-case analysis of the specific circumstances of each of the
individuals who pleaded guilty to this offence. Instead, the proper approach is to
develop imaginable circumstances which could commonly arise with a degree of
generality appropriate to the particular offence. It is to be recalled that
Page 42
in Smith there were only two considerations for the hypothetical: first, the offender
was a first-time offender; and second, he or she imported a single joint.
51
It appears to me that there are two types of situations that
commonly arise and which can be gleaned from the reported cases. The first
involves an individual playing around with a gun. The offender unreasonably
thinks that the gun will not go off. He aims it at another person and discharges it,
killing someone. This includes playing Russian roulette (Saswirsky, supra, and
J.C., supra), and pretending to shoot a friend to frighten him (Davis, supra,
and Morehouse, supra).
52
The second hypothetical situation that arises from the reported
cases involves a hunting trip gone awry. While hunting, the offender spots an
object in the woods. The offender is either unsure what the object is or forms a
completely unreasonable belief that the object is game. In either case, the object is,
in fact, another human being. The hunter fires a gun at the object and kills the
other person (McCrea, supra, and Weber, supra).
53
In both of these hypotheticals, it is my view that a four-year
imprisonment would not be cruel and unusual punishment for such
offenders. Perhaps the most egregious hypotheticals reviewed are the individuals
playing with guns. Firearms are not toys. There is no room for error when a trigger
is pulled. If the gun is loaded, there is a sufficient probability that any person in
the line of fire could be killed. The need for general deterrence is as great (if not
greater) for the hypothetical offenders playing with guns as it is for people such as
the appellant. Considering the gravity of the offence, the denunciation and
retributive justice principles satisfied by the minimum sentence are equally
applicable in this hypothetical. In such circumstances, there can be no question that
the four-year minimum is as appropriate as it is for the appellant.
54
The four-year minimum sentence equally sends a message to
people who are in a position to harm people to take care when handling their
weapon. Hunting accidents occur all too easily. When individuals with weapons
are hunting in such a degree of proximity, extra steps are necessary to ensure that
other hunters are not harmed. Therefore, when hunting, before hunters pull the
trigger on their guns, they must form a reasonable belief that the object they are
shooting at is not another human. Extra vigilance is necessary with guns, and while
society would expect people to take precautions on their own, unfortunately people
do not always do so. Consequently, Parliament has sent an extra message to such
people: failure to be careful will attract severe criminal penalties. The sentence
represents society’s denunciation, having regard to the gravity of the crime; it
provides retributive justice to the family of the victim and the community in
general; and it serves a general deterrent function to prevent others from acting so
recklessly in the future. [emphasis added]
[75] Justice Arbour wrote for the minority in Morrisey, on behalf of herself and
McLachlin J. (as she was then). The minority agreed with the majority that the
Page 43
appeal should be dismissed, but differed as to the form of reasonable hypotheticals
that should be used in analysing the constitutionality of mandatory minimum
sentences:
60
… it is with regard to the second stage of the analysis, where the
constitutionality of the sentencing provision is considered in light of reasonable
hypotheticals, that I disagree with the reasons of my colleague. Because the offence
of criminal negligence causing death with a firearm is so fact-driven, I cannot
conclude that the four-year minimum sentence is not grossly disproportionate for
“any” reasonable hypothetical offender. My colleague is able to reach this
conclusion largely because he has restricted the reasonable hypothetical analysis to
“imaginable circumstances which could commonly arise with a degree of generality
appropriate to the particular offence” (para. 50). I believe that this approach is
inappropriate and, indeed, unworkable for the offence before us, for several
reasons.
61
First, the analysis cannot be confined to the specific offence
contained in s. 220(a) of the Code. There is a great deal of overlap between some
of the culpable homicides which are not classified as murder, such as unlawful act
manslaughter and manslaughter by criminal negligence. Moreover, there is no
difference between the offence charged here and manslaughter by criminal
negligence. Section 222(5)(b) of the Criminal Code, read in conjunction with s.
234, makes clear that the offence of criminal negligence causing death is a type of
manslaughter; see also R. v. Creighton, 1993 CanLII 61 (SCC),[1993] 3 S.C.R. 3,
at pp. 41-42, per McLachlin J. (as she then was)…
[76] Justice Arbour went on to discuss a broad range of factual hypothetical
scenarios that could be captured by the offence of criminal negligence causing death:
62
The circumstances of this case palpably demonstrate the overlap: the
accused was initially charged with manslaughter and there is nothing in the record
that explains why he was committed for trial on the charge of criminal negligence
causing death rather than on the original charge of manslaughter. Nothing turns on
this since the two are totally interchangeable. This is further demonstrated by cases,
such as R. v. Collins, [1999] O.J. No. 2437 (QL) (S.C.J.), which indicate that the s.
86(2) offence of careless handling or use of a firearm is a lesser, included offence
to criminal negligence causing death, the distinction turning on the degree to which
the conduct departs from the required standard. The equivalency between the two
offences is further demonstrated by the sentencing provisions of s. 220(a) and s.
236(a), both of which provide a four-year, mandatory minimum sentence where a
firearm is used in the commission of criminal negligence causing death and
manslaughter, respectively.
63
Secondly, as recognized in Creighton, at p. 48, and demonstrated by
the reported cases, manslaughter can occur in a great variety of circumstances. This
Page 44
is reflected by the very wide range of sentences imposed for the offence. It does
not overstate the circumstantial diversity giving rise to the offence of manslaughter
to observe that it is only with respect to this offence that one could expect to see fit
sentences ranging from suspended sentences to life imprisonment. The Nova
Scotia Supreme Court (in banco), as many other courts have done before and since,
recognized the wide range of appropriate sentences for manslaughter in R. v.
Gregor (1953), 31 M.P.R. 99, at p. 101:
It may be said of manslaughter, differing in that respect from other crimes,
that the legal limits of possible sentences is [sic] very great. There are cases
of manslaughter where the line between crime and accident is narrow and
where a sentence of a few months’ imprisonment is appropriate. On the
other hand, there are cases where the proper sentence approaches or reaches
the legal limit of imprisonment for life. Different cases involve different
facts, as varied as are the actions and the thoughts of man and it is always
difficult to determine the punishment appropriate under the
circumstances. No one case can be an exact guide for another.
64
Thirdly, even where the range of conduct is narrowed to cases where death
resulted from the criminally negligent use of a firearm, there is still great variation
in the type of conduct that is captured by the prohibition. Therefore, to limit this
Court’s constitutional analysis to reasonable hypotheticals involving only two
generic situations, deaths in a hunting context and deaths resulting from individuals
“playing around with a gun”, seems to me to contradict the very nature of the
offence and to distort the projection of whether, in the future, a situation will arise
where the four-year mandatory minimum will be a grossly disproportionate
punishment and thus a breach of s. 12.
65
Essentially, I believe that it is impossible to canvass, with the requisite
richness of factual details, the many varied circumstances in which a charge of
manslaughter could arise, even when the factual scenarios are restricted to
manslaughter by criminal negligence, and involving the use of a
firearm. Furthermore, in my view, real cases, representing situations that have
arisen, must be seen as reasonable hypotheticals for purposes of a s. 12 analysis, no
matter how unusual they may appear. If s. 12 had been raised in any one of the
reported cases, and the punishment had been found to be grossly disproportionate
for that offender, the penalty would have had to be struck down as unconstitutional,
no matter how uncommon the circumstances of the case. In the same way, if such
a case were to arise in the future — where the Court would not be able to find it a
far-fetched projection since it would have already happened — the same result
would prevail.
…
Page 45
68
My colleague’s reasons do recognize (at para. 50) that the cases relied upon
by the trial judge turned on idiosyncracies demonstrating a level of specificity never
contemplated by the approach to s. 12 laid out in R. v. Smith, 1987 CanLII 64
(SCC), [1987] 1 S.C.R. 1045. With this observation, I agree. However, to go
further, and suggest that the reported cases must only be used as a general guide,
erases the level of specificity which is a hallmark of this offence and which, I
believe, necessitates the preservation of individualized sentencing for this
crime. In this case, of course, individualized sentencing must be achieved not only
with reference to the circumstances of the offence and the offender, but also with
reference to the constitutional guarantee provided by s. 12, and to the parameters
set out by Parliament both in the codified principles of sentencing in Part XXIII of
the Code and in the mandatory minimum sentence of s. 220(a).
[77] The conflict between the need for individualized sentencing and Parliament’s
imposition of mandatory minimum sentences was discussed by Arbour J.:
69
In articulating my concern that the Court cannot possibly canvass all
reasonable hypothetical situations in which this minimum sentence could offend s.
12, I do not mean to suggest that all mandatory minimum sentences risk violating s.
12 of the Charter. Lamer J., as he then was, stated in Smith, supra, at p. 1077, that
a “minimum mandatory term of imprisonment is obviously not in and of itself cruel
and unusual”. Although mandatory minimum sentences depart from the general
principles of sentencing expressed in the Code, in particular the fundamental
principle of proportionality (s. 718.1), the constitutional norm requires that they be
upheld even though demonstrably unfit, as long as they are not grossly
disproportionate to the just punishment that would otherwise be required by the
particular circumstances of the offence and of the offender.
70
When Parliament brought forward the Firearms Act, S.C. 1995, c. 39, it
imposed mandatory minimum sentences of four years for several firearms-related
offences in addition to criminal negligence causing death with a firearm (s.
220(a)): manslaughter (s. 236(a)); attempted murder (s. 239(a)); discharging a
firearm with intent (s. 244); sexual assault with a weapon (s. 272(2)(a)); aggravated
sexual assault (s. 273(2)(a)); kidnapping (s. 279(1.1)(a)); hostage-taking (s.
279.1(2)(a)); robbery (s. 344(a)); and extortion (s. 346(1.1)(a)). The mandatory
minimum sentences for these crimes formed part of the federal
government’s overall approach to gun control and reflects Parliament’s intent to
deter the criminal misuse of firearms: Reference re Firearms Act (Can.), [2000] 1
S.C.R. 783, 2000 SCC 31 (CanLII), at para. 20; see also R. v. Wust, [2000] 1 S.C.R.
455, 2000 SCC 18 (CanLII), at para. 32. This Court’s s. 12 jurisprudence has also
stressed the importance of deferring to legislated sentences by affirming a stringent
s. 12 test: R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, at p.
501, per Gonthier J.; Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990]
2 S.C.R. 1385, at p. 1417, per Cory J. And as the Attorney General of Canada
brought to this Court’s attention in its written submissions, some of the mandatory
Page 46
four-year minimum sentences enacted by the Firearms Act have been challenged
on constitutional grounds and upheld.
For example, s. 344(a) of the Code (robbery with a firearm) has been found
71
not to infringe s. 12: R. v. Wust (1998), 1998 CanLII 5492 (BC CA), 125 C.C.C.
(3d) 43 (B.C.C.A.), rev’d on other grounds, [2000] 1 S.C.R. 455, 2000 SCC 18
(CanLII); R. v. McDonald (1998), 1998 CanLII 13327 (ON CA),127 C.C.C. (3d)
57 (Ont. C.A.); and R. v. Lapierre (1998), 1998 CanLII 13203 (QC CA), 123
C.C.C. (3d) 332 (Que. C.A.). Similarly, s. 279(1.1)(a) of theCode (kidnapping
committed with a firearm) has been found not to violate s. 12: R. v.
Mills (1999), 1999 BCCA 159 (CanLII), 133 C.C.C. (3d) 451 (B.C.C.A.). In
addition, the New Brunswick Court of Appeal found that the four-year minimum
in s. 244(b) of the Code (discharging a firearm with intent to endanger life) did not
breach s. 12: R. v. Roberts (1998), 1998 CanLII 12247 (NB CA), 199 N.B.R. (2d)
387. And with respect to s. 236(a) of the Code(manslaughter committed with a
firearm), one court has found the four-year mandatory minimum consistent with s.
12: R. v. Hainnu, [1998] N.W.T.J. No. 101 (QL) (S.C.).
[78] Justice Arbour examined the need for flexibility in sentencing for crimes such
as manslaughter and criminal negligence causing death because of the broad range
of circumstances under which such crimes can be committed:
74
Prior to the Firearms Act amendments imposing mandatory minimum
punishments for manslaughter and criminal negligence causing death with a
firearm, this Court recognized the importance of flexibility in determining the
appropriate sentence for the offence of manslaughter. McLachlin J. in
Creighton, supra, at pp. 48-49, made the following observations regarding the
inappropriateness of a minimum sentence to the offence of manslaughter:
Murder entails a mandatory life sentence; manslaughter carries with it no
minimum sentence. This is appropriate. Because manslaughter can occur
in a wide variety of circumstances, the penalties must be flexible. An
unintentional killing while committing a minor offence, for example,
properly attracts a much lighter sentence than an unintentional killing where
the circumstances indicate an awareness of risk of death just short of what
would be required to infer the intent required for murder. The point is, the
sentence can be and is tailored to suit the degree of moral fault of the
offender.
While Creighton and Bill concerned unlawful act manslaughter, as opposed to
manslaughter by criminal negligence, McLachlin J.’s words remain resonant for
this case, which concerns the constitutionality of the mandatory minimum sentence
for a type of manslaughter, criminal negligence causing death.
75
To the extent possible, mandatory minimum sentences must be read
consistently with the general principles of sentencing expressed, in particular, in ss.
718, 718.1 and 718.2 of the Criminal Code: Wust (S.C.C.), supra, at para. 22. By
Page 47
fixing a minimum sentence, particularly when the minimum is still just a fraction
of the maximum penalty applicable to the offence, Parliament has not repudiated
completely the principle of proportionality and the requirement, expressed in s.
718.2(b), that a sentence should be similar to sentences imposed on similar
offenders for similar offences committed in similar circumstances. Therefore, in
my view, the mandatory minimum sentences for firearms-related offences must act
as an inflationary floor, setting a new minimum punishment applicable to the socalled “best” offender whose conduct is caught by these provisions. The mandatory
minimum must not become the standard sentence imposed on all but the very worst
offender who has committed the offence in the very worst circumstances. The
latter approach would not only defeat the intention of Parliament in enacting this
particular legislation, but also offend against the general principles of sentencing
designed to promote a just and fair sentencing regime and thereby advance the
purposes of imposing criminal sanctions.
[79] As Arbour J. noted, the mandatory minimum has inflated the consequences
for this offence:
76
The proper approach to the determination of the constitutional validity of
mandatory minimum sentences, under the guidance of the jurisprudence of this
Court, is, in my view, to give effect to this inflationary scheme, except when the
statutory impossibility of going below the minimum is offensive to s. 12 of
the Charter where the mandatory minimum requires the imposition of a sentence
that would be not merely unfit, which is constitutionally permissible, but rather one
that is grossly disproportionate to what the appropriate punishment should be. The
search for the appropriate punishment is not an abstract exercise. It is very much
guided by the types of sentences that have been imposed in the past on similarly
situated offenders, and because of that, it changes over time, and may come to
reflect the inflationary consequences of the proper application of mandatory
minimum sentences for particular types of offences. In this respect, I would
disagree with Quinn J., who in the firearms manslaughter case of R. v.
Scozzafava, [1997] O.J. No. 5804 (QL)(Gen. Div.), at para. 33, observed that the
existence of the four-year minimum should not result in a proportional general
increase beyond the range of sentences found in pre-1996 cases.
[80] Justice Arbour concluded that the four-year minimum was not grossly
disproportionate on the facts in Morrisey:
92
In the present case, the trial judge expressed the view that a fit sentence
would be three years’ imprisonment. Not only do I agree that, in the circumstances,
four years is not grossly disproportionate, but even if the provision were to be struck
down, on a strict application of Smith and Goltz,because it is likely to be grossly
disproportionate in some completely different case in the future, I do not believe
that it would be appropriate to reduce the sentence. Parliament is entitled to dictate
Page 48
the range of applicable sentences for any offence, subject only to constitutional
restraints, in this case the restraint imposed by s. 12 of the Charter. I believe that
courts must give effect to Parliament’s direction that a threshold be applied as the
minimum penalty for the offence, save in cases where such penalty is grossly
disproportionate punishment for the particular offender.
[81] In R. v. Ferguson, [2008] 1 S.C.R. 96, 2008 SCC 6, the Supreme Court of
Canada again reviewed the test for determining whether a mandatory minimum
sentence offended s. 12 of the Charter. The appellant RCMP officer argued that a
four-year mandatory minimum sentence was cruel and unusual punishment for the
offence of manslaughter with a firearm. Chief Justice McLachlin reviewed the facts:
[4]
The events leading to the shooting of Mr. Varley may be briefly
summarized. On the evening of October 2, 1999, Darren Varley went to Leo’s bar
in Pincher Creek to socialize with friends. He met up with his fiancée, Chandelle
Bachand, and his sister, Alaine Varley. At some point, unnoticed by Mr. Varley,
Ms. Bachand left the bar. Later in the evening, Mr. Varley and his friend Rod
Tuckey became involved in a fight with a number of persons in the bar’s parking
lot, because he believed Ms. Bachand had gotten into a van with strangers. Mr.
Tuckey required medical attention and was taken to hospital by Pat Bitango and
Sarah Weatherill. Mr. Varley stayed behind to search for Ms. Bachand, with the
help of his sister.
[5]
Around 3:30 in the morning of October 3, Darren Varley and Alaine
Varley arrived at Pincher Creek Hospital to visit Mr. Tuckey. Mr. Varley remained
concerned about the whereabouts of his fiancée. The security officer on duty, Earl
Langille, called the RCMP and Mr. Varley spoke to the RCMP Telecoms Operator.
As a result of this call, Constable Ferguson was dispatched to the hospital, where
he met Darren Varley, Alaine Varley, Sarah Weatherill, Pat Bitango, and Earl
Langille in the lobby. Mr. Varley, who was intoxicated, insistently demanded that
Constable Ferguson take action to find his fiancée. Constable Ferguson grabbed
Mr. Varley and, according to the testimony of witnesses, punched him in the jaw
and forced him to the ground. Constable Ferguson handcuffed Mr. Varley and took
him to the police cruiser. Alaine Varley repeatedly asked Constable Ferguson to
release Mr. Varley into her custody, but he refused.
[6]
After placing Mr. Varley in the police cruiser, Constable Ferguson
returned to the hospital. Left alone, Mr. Varley kicked in the window of the police
cruiser. On returning, Constable Ferguson drove Mr. Varley to the detachment.
Constable Ferguson booked Mr. Varley and the two entered the cell area with the
assistance of the booking officer. After opening Mr. Varley’s cell, the booking
officer walked back to his desk, a few feet away, and Constable Ferguson entered
the cell with Mr. Varley. Within a few seconds, Mr. Varley was shot twice: first,
non-fatally, in the stomach, and then, fatally, in the head. Up to three seconds
elapsed between the first and second shot. Constable Ferguson emerged from the
Page 49
cell and telephoned an off-duty colleague. Mr. Varley died from the second shot
after having been transported to Calgary Foothills Hospital by air ambulance.
Constable Ferguson testified that Mr. Varley attacked him when he entered the
cell, pulling his bulletproof vest over his head and face and grabbing his firearm
from its holster. At trial, he testified that he and Mr. Varley were still struggling for
the gun when the shots went off. However, in an earlier statement, supported by
expert evidence and accepted by the trial judge for sentencing purposes, Constable
Ferguson said that he had regained control of the gun when the shots were fired.
[82] Chief Justice McLachlin went on in Ferguson to confirm the court’s decision
in Morrisey, and noted the distinction between unlawful act manslaughter and
criminal negligence causing death:
[10]
This Court has held that the four-year mandatory minimum sentence for
criminal negligence causing death with a firearm (s. 220(a) of the Criminal Code)
is not unconstitutional: R. v. Morrisey, [2000] 2 S.C.R. 90, 2000 SCC 39
(CanLII). In so holding, the Court applied the reasonable hypotheticals analysis of
cases that might be expected to arise, developed in R. v. Goltz, 1991 CanLII 51
(SCC), [1991] 3 S.C.R. 485. Here we are concerned with the mandatory minimum
sentence imposed by s. 236(a) for a different offence, manslaughter committed
with the use of a firearm.
As Arbour J. indicated in her concurring opinion in Morrisey (para. 61),
[11]
there is considerable overlap between unlawful act manslaughter, which is the
offence we are dealing with in this case, and criminal negligence causing death,
which was the offence before the Court in Morrisey. The British Columbia Court
of Appeal has taken this fact into account in upholding the constitutionality of s.
236(a): R. v. Birchall (2001), 158 C.C.C. (3d) 340, 2001 BCCA 356
(CanLII). Constable Ferguson’s argument at sentencing and in the Court of Appeal
appears to have implicitly accepted that, as a matter of precedent, s. 236(a) does
not violate s. 12 of the Charter.
[83] In determining the proper test for considering whether a particular sentence
constitutes cruel and unusual punishment, McLachlin C.J. stated:
[14]
The test for whether a particular sentence constitutes cruel and unusual
punishment is whether the sentence is grossly disproportionate: R. v. Smith, 1987
CanLII 64 (SCC), [1987] 1 S.C.R. 1045. As this Court has repeatedly held, to be
considered grossly disproportionate, the sentence must be more than merely
excessive. The sentence must be “so excessive as to outrage standards of decency”
and disproportionate to the extent that Canadians “would find the punishment
abhorrent or intolerable”: R. v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84 (CanLII),
at para. 4, citing Smith, at p. 1072, and Morrisey, at para. 26. The question thus
becomes: is a four-year sentence of imprisonment grossly disproportionate to the
offence of manslaughter as committed by Constable Ferguson?
Page 50
[15]
The appropriateness of a sentence is a function of the purpose and
principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied
to the facts that led to the conviction. It follows that the appropriateness of the
minimum sentence of four years that Parliament has prescribed for Constable
Ferguson’s offence depends on what the jury concluded about Constable
Ferguson’s conduct.
[84] In considering whether the four-year mandatory minimum in Ferguson was
grossly disproportionate, McLachlin C.J. considered the offender’s level of moral
blameworthiness and the following aggravating factors: the standard of care
expected of a police officer in these circumstances; the offender’s level of training
with firearms; and the position of trust the offender had in relation to the victim. As
mitigating factors she pointed to: the lack of planning regarding the incident; the
altercation having not been initiated by the offender; the small amount of time the
offender had to consider his actions; and the role the offender’s instincts played in
the shooting. Even with all of those mitigating factors, the Supreme Court of Canada
found that the mandatory minimum was not grossly disproportionate on the facts in
Ferguson:
[27]
The finding that Constable Ferguson’s second shot was not a matter of
anger or judgment, but simply a matter of training, is a vital component of the trial
judge’s conclusion that Constable Ferguson was at the very low end of the
spectrum of moral blameworthiness, such that four years’ imprisonment would be
grossly disproportionate and intolerable to an informed public, and so would
violate s. 12 of the Charter. It follows that his conclusion that the four-year
minimum sentence was unconstitutional in this case is fatally flawed.
… The mitigating factors are insufficient to make a four-year sentence
[28]
grossly disproportionate. The absence of planning, the apparent fact that Mr. Varley
initiated the altercation in the cell, and the fact that Constable Ferguson did not have
much time to consider his response, are more than offset by the position of trust
Constable Ferguson held and by the fact that he had been trained to respond
appropriately to the common situation of resistance by a detained person. I agree
with the Court of Appeal that the mitigating factors do not reduce Constable
Ferguson’s moral culpability to the extent that the mandatory minimum sentence is
grossly disproportionate in his case.
[85] In Ferguson¸ the offender did not suggest a reasonable hypothetical to the
court either at the trial level or at the first level of appeal. Instead, he simply relied
on his own facts to support his claim that the sentencing provision was
unconstitutional. Because of this, McLachlin C.J. was explicit in determining that
the constitutional analysis was limited in Ferguson to the actual facts of that case
and no reasonable hypothetical was to be considered:
Page 51
[30]
Ordinarily, a s. 12 analysis for a mandatory minimum sentence requires
both an analysis of the facts of the accused’s case and an analysis of reasonable
hypothetical cases: Goltz, at pp. 505-6. At his sentencing hearing and in the Court
of Appeal, however, Constable Ferguson did not rely on reasonable hypotheticals
to contest the constitutionality of s. 236(a). He contended simply that s. 236(a) was
unconstitutional as applied to the facts of his case. The reasonable hypotheticals not
having been argued, there was no basis for the sentencing judge or the Court of
Appeal to reach a conclusion on whether s. 236(a) was unconstitutional on a
reasonable hypotheticals analysis. Constable Ferguson offers an alternative
argument based on reasonable hypotheticals for the first time in this Court. In my
view, Constable Ferguson has not pointed to a hypothetical case where the
offender’s minimum level of moral culpability for unlawful act manslaughter using
a firearm would be less than that in the reasonable hypotheticals considered
in Morrisey.
[86] In both Morrisey and Ferguson the Supreme Court of Canada confirmed that
a four-year mandatory minimum sentence was not grossly disproportionate when a
gun related death occurred in the context of a criminal negligence causing death
conviction or a conviction for manslaughter.
[87] In R. v. Nur, 2015 SCC 15, McLachlin C.J. spoke for the majority in striking
down the mandatory minimum sentence in relation to possession of a firearm in
accordance with s. 95 of the Criminal Code. In doing so she stated:
[1]
Gun-related crime poses grave danger to Canadians. Parliament has
therefore chosen to prohibit some weapons outright, while restricting the
possession of others. The Criminal Code, R.S.C. 1985, c. C-46, imposes severe
penalties for violations of these laws.
[88] Chief Justice McLachlin went on to discuss the gravity of firearms offences,
and the scope of regulation to which they are subject:
[6]
Firearm-related offences are serious crimes. Parliament has
sought to protect the public from firearm-related injuries and to deter crimes
involving firearms through a combination of strict licensing and registration
requirements under the Firearms Act, S.C. 1995, c. 39, and criminal prohibitions
under Part III of the Criminal Code: Reference re Firearms Act (Can.), 2000 SCC
31 (CanLII), [2000] 1 S.C.R. 783 (“Firearms Reference”).
[7]
The Criminal Code imposes severe restrictions and sanctions
on two classes of firearms. A “prohibited firearm” includes short-barrelled
handguns, sawed-off rifles and shotguns, and automatic firearms: Criminal Code, s.
84(1). It is unlawful to possess a prohibited firearm unless the individual possessed
the firearm prior to the prohibition coming into force: Firearms Act, s. 12. This
Page 52
grandfathering also applies to next of kin. A “restricted firearm” includes any
handgun that is not a prohibited firearm, some semi-automatic firearms, and some
firearms that are less than the specified length: Criminal Code, s. 84(1). These
weapons are inherently dangerous and are commonly used in criminal activity.
[8]
Anyone who wishes to possess a firearm must obtain a licence
under the Firearms Act. Although one can obtain licences that authorize the
possession of prohibited or restricted firearms, stringent criteria must be
met: Firearms Act, ss. 7(2) and 12. The Firearms Act imposes controls on places
where a person who has a licence can possess the restricted or prohibited
firearms: s. 17. A Chief Firearms Officer may deny a person a licence in the
interests of public safety: s. 5. A licensed person must obtain authorization to
transport firearms from one designated place to another: s. 19. In addition, the Act
requires that a person obtain a registration certificate for the firearm: s. 12.1.
[9]
Restricted or prohibited firearms must be stored unloaded,
with a secure locking device and in a locked container or in a vault, safe or room
that has been constructed or modified for the secure storage of firearms.
Ammunition may not be stored with the firearm unless both the ammunition and
the unloaded locked firearm are stored in a securely locked room or container that
cannot be readily broken open or into: Storage, Display, Transportation and
Handling of Firearms by Individuals Regulations, SOR/98-209, ss. 6 and 7. The
firearms may only be loaded in a place where they can be lawfully discharged: s.
15.
[10]
These licensing and registration requirements under
the Firearms Act are reinforced through a series of Criminal Code offences that
criminalize the possession of firearms where the possession contravenes the terms
and conditions of the Firearms Act. The provision at issue in this appeal is s. 95 of
the Criminal Code. The relevant version came into force in December 1998: S.C.
1995, c. 39, s. 139. It prohibits the possession of a loaded prohibited or restricted
firearm, or the possession of an unloaded prohibited or restricted firearm together
with readily accessible ammunition that is capable of being discharged in the
firearm: s. 95(1). The offence applies to a person in possession of a prohibited or
restricted firearm who does not have an authorization or a licence to possess the
firearm at the specific place at issue and a registration certificate for the firearm.
[89] In commencing the analysis of the constitutionality under s. 12, McLachlin
C.J. outlined the overall factors that must be considered:
[38]
Section 12 of the Charter states that everyone has the right not to be
subjected to any cruel and unusual punishment. The question is whether the
mandatory minimum sentences imposed by s. 95(2) violate this guarantee. The
respondents say they do, because s. 95(2) catches conduct that falls far short of true
criminal conduct — for example licensing offences. The Attorney General for
Ontario responds that these examples are inadmissible hypotheticals and should not
Page 53
enter into the constitutional analysis, and that in any event, the Crown will choose
to prosecute offences of lesser culpability by summary conviction, avoiding the
mandatory minimum provisions.
[39]
This Court has set a high bar for what constitutes “cruel and unusual
. . . punishment” under s. 12 of the Charter. A sentence attacked on this ground
must be grossly disproportionate to the punishment that is appropriate, having
regard to the nature of the offence and the circumstances of the offender: R.
v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1073. Lamer J. (as he
then was) explained at p. 1072 that the test of gross disproportionality “is aimed at
punishments that are more than merely excessive”. He added, “[w]e should be
careful not to stigmatize every disproportionate or excessive sentence as being a
constitutional violation”. A prescribed sentence may be grossly disproportionate
as applied to the offender before the court or because it would have a grossly
disproportionate impact on others, rendering the law unconstitutional.
[90] Chief Justice McLachlin noted that the court must take into account the
sentencing principles and purposes found at s. 718, 718.1 and 718.2 of the Criminal
Code, with the fundamental principle being that the sentence “must be proportionate
to the gravity of the offence and the degree of responsibility of the offender”: s.718.1.
She continued:
[43]
It is no surprise, in view of the constraints on sentencing, that imposing
a proportionate sentence is a highly individualized exercise, tailored to the gravity
of the offence, the blameworthiness of the offender, and the harm caused by the
crime: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para.
80. “Only if this is so can the public be satisfied that the offender ‘deserved’ the
punishment he received and feel a confidence in the fairness and rationality of the
system”: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486,
at p. 533, per Wilson J. As LeBel J. explained in R. v. Ipeelee, 2012 SCC
13 (CanLII), [2012] 1 S.C.R. 433:
Proportionality is the sine qua non of a just sanction. First, the principle
ensures that a sentence reflects the gravity of the offence. This is closely
tied to the objective of denunciation. It promotes justice for victims and
ensures public confidence in the justice system… . Second, the principle of
proportionality ensures that a sentence does not exceed what is appropriate,
given the moral blameworthiness of the offender. In this sense, the
principle serves a limiting or restraining function and ensures justice for the
offender. In the Canadian criminal justice system, a just sanction is one that
reflects both perspectives on proportionality and does not elevate one at the
expense of the other. [para. 37]
[44]
Mandatory minimum sentences, by their very nature, have the
potential to depart from the principle of proportionality in sentencing. They
emphasize denunciation, general deterrence and retribution at the expense of what
Page 54
is a fit sentence for the gravity of the offence, the blameworthiness of the offender,
and the harm caused by the crime. They function as a blunt instrument that may
deprive courts of the ability to tailor proportionate sentences at the lower end of a
sentencing range. They may, in extreme cases, impose unjust sentences, because
they shift the focus from the offender during the sentencing process in a way that
violates the principle of proportionality. They modify the general process of
sentencing which relies on the review of all relevant factors in order to reach a
proportionate result. They affect the outcome of the sentence by changing the
normal judicial process of sentencing.
General deterrence — using sentencing to send a message to
[45]
discourage others from offending — is relevant. But it cannot, without more,
sanitize a sentence against gross disproportionality: “General deterrence can
support a sentence which is more severe while still within the range of punishments
that are not cruel and unusual” (R. v. Morrisey, 2000 SCC 39 (CanLII), [2000] 2
S.C.R. 90, at para. 45, per Gonthier J.). Put simply, a person cannot be made to
suffer a grossly disproportionate punishment simply to send a message to
discourage others from offending.
[91] The Chief Justice summarized the analysis in the following terms:
[46]
To recap, a challenge to a mandatory minimum sentencing provision
on the ground it constitutes cruel and unusual punishment under s. 12 of
the Charter involves two steps. First, the court must determine what constitutes a
proportionate sentence for the offence having regard to the objectives and principles
of sentencing in the Criminal Code. Then, the court must ask whether the
mandatory minimum requires the judge to impose a sentence that is grossly
disproportionate to the fit and proportionate sentence. If the answer is yes, the
mandatory minimum provision is inconsistent with s. 12 and will fall unless
justified under s. 1 of the Charter.
[92] The majority in Nur determined that a s. 12 Charter review is not limited by
the circumstances of the offender bringing the challenge; this would run “counter to
the long and settled jurisprudence of this Court relating to Charter review generally,
and to s. 12 review in particular” (para. 50). In determining that any court
considering a constitutional challenge must consider “reasonable hypotheticals”
McLachlin C.J. provided guidance as to what this term encompasses:
[57]
Unfortunately, the word “hypothetical” has overwhelmed the word
“reasonable” in the intervening years, leading to debate on how general or particular
a hypothetical must be, and to the unfortunate suggestion that if a trial judge fails
to assign a particular concatenation of characteristics to her hypothetical, the
analysis is vitiated. With respect, this overcomplicates the matter. The question is
simply whether it is reasonably foreseeable that the mandatory minimum sentence
Page 55
will impose sentences that are grossly disproportionate to some peoples’ situations,
resulting in a violation of s. 12. The terminology of “reasonable hypothetical” may
be helpful in this regard, but the focus remains squarely on whether the sentence
would be grossly disproportionate in reasonably foreseeable cases. At its core, the
process is simply an application of well established principles of legal and
constitutional interpretation.
I conclude that the jurisprudence on general Charter review and on s.
[58]
12 review of mandatory minimum sentencing provisions supports the view that a
court may look not only at the offender’s situation, but at other reasonably
foreseeable situations where the impugned law may apply. I see no reason to
overrule this settled principle.
…
[64]
Refusing to consider an impugned law’s impact on third parties would
also undermine the prospect of bringing certainty to the constitutionality of
legislation, condemning constitutional jurisprudence to a wilderness of single
instances. Citizens, the police and government are entitled — and indeed obliged
— to know what the criminal law is and whether it is constitutional. Looking at
whether the mandatory minimum has an unconstitutional impact on others avoids
the chilling effect of unconstitutional laws remaining on the statute books.
I conclude that a mandatory minimum sentence may be challenged
[65]
on the ground that it would impose a grossly disproportionate sentence either on
the offender or on other persons in reasonably foreseeable situations. The constant
jurisprudence of this Court and effective constitutional review demand no less. In
the result, a mandatory minimum sentencing provision may be challenged on the
basis that it imposes cruel and unusual punishment (i.e. a grossly disproportionate
sentence) on the particular offender before the court, or failing this, on the basis
that it is reasonably foreseeable that it will impose cruel and unusual punishment
on other persons.
[93] Having concluded that the constitutional analysis was not confined to the case
of the offender before the court, McLachlin C.J. went on to consider the some of the
ancillary issues surrounding the reasonable foreseeability test in this context. She
rejected the suggestion that “the s. 12 question is whether it is likely that the general
application of the offence would result in the imposition of a grossly
disproportionate sentence amounting to cruel and unusual punishment” (para. 67).
She said:
[68]
The reasonable foreseeability test is not confined to situations that are
likely to arise in the general day-to-day application of the law. Rather, it asks what
situations may reasonably arise. It targets circumstances that are foreseeably
captured by the minimum conduct caught by the offence. Only situations that are
“remote” or “far-fetched” are excluded: Goltz, at p. 515. Contrary to what the
Page 56
Attorney General of Ontario suggests there is a difference between what is
foreseeable although “unlikely to arise” and what is “remote [and] far-fetched”:
A.F. (Nur), at para. 66. Moreover, adoption of the likelihood standard would
constitute a new and radically narrower approach to constitutional review of
legislation than that consistently adhered to since Big M. The Court has never
asked itself whether a projected application of an impugned law is common or
“likely” in deciding whether a law violates a provision of the Charter. To set the
threshold for constitutional review at common or likely instances would be to allow
bad laws to stay on the books.
[69]
The Attorney General of Ontario urges that the approach she
proposes is necessary to prevent uncertainty in the law. A presumption of
constitutionality arising from the appropriateness of the mandatory minimum
(having regard to the purpose and gravity of the offence) in common or likely cases,
she asserts, will set a constant standard that can only exceptionally be rebutted by
a finding that the mandatory minimum is grossly disproportionate as applied to a
particular offender. This, she argues, will provide certainty.
[70]
I am not persuaded by this argument. In essence, it would
make the sentencing range for common occurrences of the offence the
constitutional norm. This is problematic for two reasons. Appropriate sentencing
ranges are themselves subject to debate and, more importantly, any gain in clarity
would come at the price of appropriate constitutional review and unconstitutional
applications of the law. The question is, certainty for whom? The Attorney General
of Ontario’s test provides a degree of certainty for offenders in situations that
commonly occur. But it provides no certainty for offenders outside that
category. They — and their prosecutors and judges — are left to wonder whether
the mandatory minimum will be unconstitutional in their situation. Finally, as
discussed below, the reasonably foreseeable test, applied in accordance with the
principle of stare decisis, will provide sufficient certainty in the law.
[94] The Chief Justice went on to consider several additional ancillary questions:
[71]
This brings us to the second ancillary question — the effect of
a ruling that a particular mandatory minimum provision does not violate s. 12. Two
questions arise. First, can a particular offender argue in a future case that the
provision violates s. 12 because it imposes cruel and unusual punishment on him or
her? The answer, all agree, must be yes. If the offender can establish new
circumstances or evidence, including mitigating factors specific to the offender, it
is open to a court to reconsider the constitutionality of the law. Second, can the
offender in a future case argue that the provision as applied to others violates s.
12? The answer to this question is that it depends. Once a law is held not to
violate s. 12, stare decisis prevents an offender in a later case from simply
rearguing what constitutes a reasonably foreseeable range of the law. But stare
decisis does not prevent a court from looking at different circumstances and new
evidence that was not considered in the preceding case. A court’s conclusion based
Page 57
on its review of the provision’s reasonably foreseeable applications does not
foreclose consideration in future of different reasonable applications: Morrisey, at
para. 89, per Arbour J. That said, the threshold for revisiting the constitutionality
of a mandatory minimum is high and requires a significant change in the reasonably
foreseeable applications of the law. In a nutshell, the normal rules of stare
decisis answer the concern raised by the Attorney General of Ontario that “each
subsequent trial court [will be asked] to duplicate the analysis”: A.F. (Nur), at para.
39.
[72]
A third ancillary question is whether reported cases should be
considered in determining whether it is reasonably foreseeable that a mandatory
minimum sentencing provision will result in cruel and unusual punishment,
contrary to the s. 12 guarantee. The majority in Morrisey said reported cases
should be excluded if the court considers them “marginal”, and the minority,
without qualification, said they may be considered. In my view, they
can. Reported cases illustrate the range of real-life conduct captured by the
offence. I see no principled reason to exclude them on the basis that they represent
an uncommon application of the offence, provided that the relevant facts are
sufficiently reported. Not only is the situation in a reported case reasonably
foreseeable, it has happened. Reported cases allow us to know what conduct the
offence captures in real life. However, they do not prevent the judge from having
regard to other scenarios that are reasonably foreseeable: see Morrisey, at para. 33.
[73]
A fourth ancillary question concerns the personal characteristics of
hypothetical offenders that should be considered. Some have suggested that the
consideration must be generalized to the point where all personal characteristics are
excluded, while others assert that any and all characteristics should be
included. This debate is largely the result of the reification of the notion of the
reasonable hypothetical discussed earlier. It is answered by recognizing two
aspects of the reasonably foreseeable application test. [Emphasis added]
[95] Chief Justice McLachlin summarized the analysis:
[74]
First, what is reasonably foreseeable necessarily requires
consideration of the sort of situations that may reasonably be expected to be caught
by the mandatory minimum, based on experience and common sense. This means
that personal characteristics cannot be entirely excluded. For example, as we will
see in applying the test to this case, it may be relevant to look at the fact that an
offender at the licensing end of the spectrum caught by the mandatory minimum
might come into innocent possession of the prohibited or restricted firearm, or be
mistaken as to the scope of the prohibition.
[75]
Second, cutting the other way, is the admonition of Goltz that farfetched or remotely imaginable examples should be excluded from
consideration. This excludes using personal features to construct the most innocent
and sympathetic case imaginable — on that basis almost any mandatory minimum
Page 58
could be argued to violate s. 12 and lawyerly ingenuity would be the only limit to
findings of unconstitutionality. To repeat, the inquiry must be grounded in
common sense and experience.
[76]
Thus, the inquiry into reasonably foreseeable situations the law may
capture may take into account personal characteristics relevant to people who may
be caught by the mandatory minimum, but must avoid characteristics that would
produce remote or far-fetched examples.
In summary, when a mandatory minimum sentencing provision is
[77]
challenged, two questions arise. The first is whether the provision results in a
grossly disproportionate sentence on the individual before the court. If the answer
is no, the second question is whether the provision’s reasonably foreseeable
applications will impose grossly disproportionate sentences on others. This is
consistent with the settled jurisprudence on constitutional review and rules of
constitutional interpretation, which seek to determine the potential reach of a law;
is workable; and provides sufficient certainty.
[96] With respect to the mandatory minimum attached to s. 95 of the Criminal
Code, McLachlin C.J. stated:
[82]
Section 95(1) casts its net over a wide range of potential
conduct. Most cases within the range may well merit a sentence of three years or
more, but conduct at the far end of the range may not. At one end of the range, as
Doherty J.A. observed, “stands the outlaw who carries a loaded prohibited or
restricted firearm in public places as a tool of his or her criminal trade. . . . [T]his
person is engaged in truly criminal conduct and poses a real and immediate danger
to the public”: para. 51. At this end of the range — indeed for the vast majority of
offences — a three-year sentence may be appropriate. A little further along the
spectrum stands the person whose conduct is less serious and poses less danger; for
these offenders three years’ imprisonment may be disproportionate, but not grossly
so. At the far end of the range, stands the licensed and responsible gun owner who
stores his unloaded firearm safely with ammunition nearby, but makes a mistake as
to where it can be stored. For this offender, a three-year sentence is grossly
disproportionate to the sentence the conduct would otherwise merit under the
sentencing provisions of the Criminal Code.
[83]
Given the minimal blameworthiness of the offender in this
situation and the absence of any harm or real risk of harm flowing from the conduct
(i.e. having the gun in one residence as opposed to another), a three-year sentence
would be grossly disproportionate. Similar examples can be envisaged. A person
inherits a firearm and before she can apprise herself of the licence requirements
commits an offence. A spouse finds herself in possession of her husband’s firearm
and breaches the regulation. We need not focus on a particular hypothetical. The
bottom line is that s. 95(1) foreseeably catches licensing offences which involve
little or no moral fault and little or no danger to the public. For these offences three
Page 59
years’ imprisonment is grossly disproportionate to a fit and fair sentence. Firearms
are inherently dangerous and the state is entitled to use sanctions to signal its
disapproval of careless practices and to discourage gun owners from making
mistakes, to be sure. But a three-year term of imprisonment for a person who has
essentially committed a licensing infraction is totally out of sync with the norms of
criminal sentencing set out in the s. 718 of the Criminal Code and legitimate
expectations in a free and democratic society. As the Court of Appeal concluded,
there exists a “cavernous disconnect” between the severity of the licensing-type
offence and the mandatory minimum three-year term of imprisonment: para.
176. Consequently, I conclude that s. 95(2)(a)(i) breaches s. 12of the Charter.
[97] Chief Justice McLachlin specifically commented on the applicability of
Morrisey in this context and stated:
[84]
It may be noted that the offence in s. 95(1) captures less serious
conduct than other gun-related crimes that attract mandatory minimum terms of
imprisonment. For example, in Morrisey, the Court upheld a four-year mandatory
minimum term of imprisonment for the offence of criminal negligence causing
death with a firearm. Unlike the offence of criminal negligence causing death with
a firearm, s. 95(1) does not require proof of harm — it is a simple possession
offence.
[98] Morrisey was again mentioned and distinguished by McLachlin C.J. in
rejecting the argument that parole eligibility reduces the impact of a mandatory
minimum sentence:
[98]
Finally, the Attorney General of Canada, relying on Morrisey, argues
that parole eligibility reduces the actual impact of the three-year mandatory
minimum penalty for an offence. We simply cannot know whether that is in fact
the case. Nur correctly argues that parole is a statutory privilege rather than a right.
The discretionary decision of the parole board is no substitute for a constitutional
law. Canada’s submission also misunderstands the role of the parole board —
which is to ensure that an offender is safely released into the community, not to
ensure that an offender serves a proportionate sentence. That is the function of one
person alone — the sentencing judge.
[99] Mr. Dockrill argues that Morrisey “is no longer binding precedent” on the
constitutionality of the mandatory minimum sentence because Nur has “entrenched
a method of judicial reasoning that will require [the court] to look at the
constitutional arguments afresh,” without reference to the previous decision. In
keeping with comments by McLachlin C.J. on bringing new constitutional
challenges, the offender says he is not “simply rearguing what constitutes a
reasonably foreseeable range of the law,” as forbidden by McLachlin C.J. Rather, he
Page 60
says, “his specific circumstances make out the substance of the s. 12 challenge.” In
his brief, Mr. Dockrill argues that his situation is not analogous to the situations
considered in Morrisey:
Mr. Morrisey himself was convicted after drunkenly slipping and falling with a
loaded gun while trying to wake a hunting companion. In addition to the specific
situation before it, the Supreme Court’s majority also considered two additional
scenarios: hunting accidents, and “an individual playing around with a gun.”…
Having considered these situations, the majority concluded that in none of them
could the minimum sentence be said to be cruel or unusual, and accordingly upheld
the provision.
[100] Mr. Dockrill makes no further argument for striking down the mandatory
minimum. The defence position is premised entirely on the claim that the mandatory
minimum sentence is grossly disproportionate in Mr. Dockrill’s specific
circumstances. The defence does not suggest any reasonable hypotheticals. Mr.
Dockrill merely argues that his particular circumstances were not before the court in
Morrisey.
[101] The Crown says Nur does not displace Morrisey. The language used by the
majority in Nur consistently reaffirms Morrisey, with the single qualification
respecting hypotheticals.
[102] In R. v. Oud, 2015 BCSC 1040, [2015] B.C.J. No. 1266, the court dealt with
a s. 12 Charter challenge to a mandatory minimum under s. 244.2(3)(b) of the
Criminal Code (reckless discharge of a firearm). In applying the “foreseeable case”
analysis, the court said:
69
The foreseeable case must now be analyzed in light of the considerations
stipulated in R. v. Morrisey, 2000 SCC 39, as well as Nur CA and Nur SCC. In
addition to the personal characteristics of the reasonably foreseeable offender and
the circumstances of his case, which I have already discussed, these are: (1) the
gravity of the offence; (2) the actual effect of the punishment on the individual; (3)
the penological goals and sentencing principles reflected in the challenged
minimum; (4) the existence of valid, effective alternatives to the mandatory
minimum; and (5) comparison of punishments imposed for other similar crimes.
[103] In Oud, the offender fired seven shots from a rifle into a house where he was
attempting to obtain drugs, knowing there were people inside. Baird J. held that a fit
sentence in the circumstances, using the four-year minimum as a starting point,
would be five to six years and that absent the mandatory minimum, four to five years
Page 61
would have been fit and proper. Justice Baird held that the mandatory minimum was
not grossly disproportionate for Mr. Oud:
54 … The impugned sentencing law requires me to impose a somewhat lengthier
sentence than I would if left to my own calibration of the principles of sentencing,
and to accord slightly more emphasis to the principle of deterrence and slightly less
to those of rehabilitation and restraint. In my view, however, there is no question
of gross disproportionality in this. The sentence required by s. 244.2(3)(b) in the
circumstances is certainly significant, but I am unable to conclude, for the reasons
set out above, that this constitutes one of those clearest of cases in which application
of the penalty required would be so excessive as to shock the conscience of the
community or to outrage standards of decency.
[104] Moving to the second step of the s. 12 analysis in Oud, Baird J. considered
“other reasonably-foreseeable situations where the impugned law may apply to
determine if, in such situations, it would oblige the imposition of a grosslydisproportionate penalty... The focus of a s. 12 inquiry is the nature of the law itself,
not the status of the accused before the court” (para. 56). In describing the scope of
acceptable hypotheticals, he summarized the requirements of Nur:
57 Reasonably foreseeable applications of a law must include all elements of the
offence necessary to engage the mandatory minimum. They must not be remote or
far-fetched, but nor are they limited to common or likely applications of the
challenged provision. The court must ground the analysis in experience and
common sense... The court may take into account the personal characteristics of an
offender, but not to the extent that this produces a remote or far-fetched application
of the law...
[105] As for the hypothetical proposed by the offender, Baird J. said:
58
In the present case, counsel for Mr. Oud presented me with a hypothetical
situation about which I do not propose to say much. In brief terms, it involved a
distraught father firing shots into an occupied drug house, when its operators
refused to guarantee that they would stop selling narcotics to his daughter. While
one might empathize more closely with such a person than with Mr. Oud, for
example, or with a number of the other offenders referred to in the cases that I have
already reviewed, nevertheless the posited circumstances would amount to drug
trade-related mayhem of a distinctly dangerous type in which innocent bystanders
might well be injured or killed, and which would constitute an acutely blameworthy
foray into street-level vigilantism for which a minimum mandatory sentence of four
years would, in my view, be no more disproportionate than it would be for Mr. Oud.
Page 62
[106] Justice Baird went on to consider potential applications of the specific
minimum sentence in reported cases, concluding at para. 64 that the “breadth of
conduct and culpability proscribed by s. 244.2 … covers a form of reckless
vandalism at one end of the spectrum, to drive-by shootings, public gun fights, and
intentional, actual endangerment of life at the other.” While it was “difficult to
imagine” circumstances where the four-year minimum would be cruel and unusual
at the “more serious and morally-culpable end of this range of conduct” (where
Oud’s offence fell), constitutional problems were likely present “at the lower end of
the range.”
[107] Justice Baird went on to frame a “reasonably foreseeable” hypothetical
application of s. 244.2 by adjusting the facts of a reported case and then analyzing it
through the framework originally set out in Morrisey (at paras. 59-63). The reported
case relied on in Oud involved an incident where a 21-year old man who had been
subjected to extensive bullying went to the home of one of the bullies and fired six
shots into it, while sincerely believing it to be empty; his purpose was to intimidate
the bully so as to end the bullying. The adjustments made by Baird J. (at paras. 6667) to create a “foreseeable case” essentially involved reducing the age of the
offender to 18, and reducing the number of shots into the house to one.
69
The foreseeable case must now be analyzed in light of the considerations
stipulated in R. v. Morrisey, 2000 SCC 39, as well as Nur CA and Nur SCC. In
addition to the personal characteristics of the reasonably foreseeable offender and
the circumstances of his case, which I have already discussed, these are: (1) the
gravity of the offence; (2) the actual effect of the punishment on the individual; (3)
the penological goals and sentencing principles reflected in the challenged
minimum; (4) the existence of valid, effective alternatives to the mandatory
minimum; and (5) comparison of punishments imposed for other similar crimes.
[108] With respect to the gravity of the offence, Baird J. said:
70 As noted by the Ontario Court of Appeal in Nur CA, the gravity of the offence
is perhaps the most important consideration in the test under s. 12 of the Charter...
The seriousness of a crime is the product of the harm targeted by the elements of
the crime and the moral culpability required to establish guilt for the crime. The
greater the harm and the higher the moral culpability, the more serious the crime...
71 Certainly, s. 244.2 contemplates more serious conduct than s. 95, the provision
at issue in the Nur decisions, as the former requires the actual discharge of a firearm,
while the latter prohibits mere possession. As the present case shows, furthermore,
the conduct captured by s. 244.2 includes acts of considerable violence and
significant intentional endangerment of life. However, to be found guilty under s.
Page 63
244.2 does not require proof of actual harm, distinguishing it from the most serious
firearms offences elsewhere in the Criminal Code involving death or bodily harm,
and s. 244.2(1)(a) in particular does not even require endangerment of life or safety.
72 In other words, s. 244.2 outlaws conduct which cuts across a broad range of
blameworthiness. Firing into a dwelling house which the offender knows to be
occupied, as Mr. Oud did, is far worse than firing into an abandoned warehouse,
for example, which the offender sincerely but wrongly believes to be vacant.
Discharging a firearm into a place because of a drug deal gone wrong or as part of
a vendetta against the staff of a bar merits a far heavier measure of censure than
firing into a place for the puerile thrill of vandalism or to ward off bullying.
73
Constitutionally speaking, as I see it, this is the weakness of s. 244.2. It
proscribes misconduct ranging from reckless acts where no harm is intended or
caused, to serious intentional mayhem involving actual endangerment to life or
safety, and it applies the same heavy minimum sentence to both. [Emphasis added.]
[109] By contrast, the “range of blameworthiness” for criminal negligence causing
death, as we are dealing with in Mr. Dockrill’s case, is narrower: firstly, the state of
mind for criminal negligence requires “wanton or reckless disregard for the lives or
safety of other persons”, a standard more onerous (and thus more narrow in its
application) than the civil standard. Secondly, the offence requires that the criminal
negligence actually causes death.
[110] In Oud, Baird J. was particularly concerned with the scope of the s 244.2
offence, which raised concerns at every stage of the analysis. He concluded that the
four-year minimum would shock the public if applied to the foreseeable case; that
the minimum sentence had been primarily intended for circumstances of urban gang
violence, “not for hammering the sort of offender contemplated in the foreseeable
case”; that a “considerably shorter” jail sentence or restorative justice would be a
valid alternative sentence in the foreseeable case; and that, in comparison with
punishments imposed for other firearm-related offences, “the hypothetical 18-yearold in the reasonably foreseeable case would be punished by the same overall
minimum mandatory sentencing regime designed by our lawmakers for application
to a demographic of offenders to which he does not belong.”
[111] Justice Baird’s comments on the comparator offences, firearms offences
carrying four-year minimum sentences, including s. 220(a), are of interest in Mr.
Dockrill’s case:
84 Section 244(1) of the Criminal Code, as previously stated, applies where an
offender discharges a firearm with intent to wound, maim, endanger life, or prevent
detention or arrest, which is far more blameworthy conduct than committed by my
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notional 18-year-old, who, in a misguided response to bullying, fires a single shot
into a house mistakenly thinking it is unoccupied. It hardly bears saying that these
two courses of conduct are poles apart in terms of moral culpability, yet the same
mandatory minimum penalty of four years applies to both.
85
The offence of attempted murder with a firearm also stipulates a four-year
minimum penalty: s. 239(1)(a.1). The starting point sentence for the offender in the
foreseeable case, in other words, would be the same as for a person who takes a
firearm in hand and intentionally fires it at another human being with the settled
intention of killing him or her.
86 A similar point can be made regarding s. 220(a) of the Code, which imposes
a four year minimum for criminal negligence causing death with a firearm, s. 236(a)
which refers to manslaughter involving a firearm, and ss. 272(2)(a)(i) and
273(2)(a)(i), using a firearm in the commission of a sexual assault or aggravated
sexual assault.
87
The following offences also come with a four-year minimum mandatory
penalty when committed with a firearm: s. 279(1.1)(a)(i), kidnapping with intent;
s. 279.01(1)(b), trafficking in persons; s. 279.1(2)(a)(i), hostage taking; s. 344(a)(i),
robbery; and s. 346(1.1)(a)(i), extortion. In terms of both moral blameworthiness
and consequences, all of these offences are far more serious than that posited in the
foreseeable case, yet s. 244.2 requires the imposition of the same minimum
sentence on the foreseeable, far less culpable offender. [Emphasis added.]
[112] Mr. Dockrill took the Winchester 30-30 in hand and fired it at another human
being without checking to confirm the identity of his target.
[113] In Oud, Baird J. held that a better comparison for the purpose of the reasonably
foreseeable case was s. 86(1):
88
Section 86(1) of the Criminal Code, which prohibits the careless use of a
firearm, amongst other things, also merits consideration. Offenders have been
convicted under that section for deliberately firing a gun in the vicinity of a public
park during daytime, R. v. Phillips, [2009] O.J. No. 400 (SC) at paragraph 76; firing
warning shots at canoeists, R. v. MacLeod, 2013 SKPC 67 at paragraph 39; and
discharging a firearm into an empty SUV parked in front of a home on a residential
street, R. v. Vidal, 2009 BCSC 788 at paragraph 113; see also R. v. D.K.D.B., 2013
BCSC 2321.
89
In other words, s. 86(1) prohibits the same kind of conduct captured by s.
244.2 and has often been used to prosecute citizens who have done worse things in
less sympathetic circumstances than the notional 18-year-old of the foreseeable
case. Yet the offender lucky enough to be prosecuted under s. 86(1) faces a hybrid
offence punishable by a maximum jail sentence of six months if the Crown
proceeds summarily, and by a maximum of two years for a first offence and no
minimum sentence if the Crown proceeds by indictment. In the meantime, my
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notional 18-year-old prosecuted under s. 244.2 would be exposed to a four-year
mandatory minimum sentence. This cannot be right. [Emphasis added.]
[114] Accordingly, on the basis of the reasonably foreseeable hypothetical case,
Baird J. held that the mandatory minimum sentence under s. 244.2(3)(b) was grossly
disproportionate and violated s. 12 of the Charter. (The s. 1 argument was
adjourned.)
[115] In R. v. Skinner, 2015 NSPC 28, [2015] N.S.J. No. 220, Derrick Prov. Ct. J.
took the view that Morrisey remained authoritative on the “inflationary floor” in
sentencing for firearms offences, and that this had not been altered by Nur:
43 Mr. Skinner is subject to the mandatory minimum sentence that applies to a
section 244 conviction. At a minimum he faces a five year sentence. The Supreme
Court of Canada in R. v. Morrisey, [2000] S.C.J. No. 39, had this to say about
mandatory minimum sentences for firearms offences:
75 ...the mandatory minimum sentences for firearms-related offences must
act as an inflationary floor, setting a new minimum punishment applicable
to the so-called "best" offender whose conduct is caught by these
provisions. The mandatory minimum must not become the standard
sentence imposed on all but the very worst offender who has committed the
offence in the very worst circumstances. The latter approach would not only
defeat the intention of Parliament in enacting this particular legislation, but
also offend against the general principles of sentencing designed to promote
a just and fair sentencing regime and thereby advance the purposes of
imposing criminal sanctions.
44 I am bound by the direction of the Supreme Court of Canada. Its most recent
pronouncement on mandatory minimums for firearms offences -- R. v. Nur, [2015]
S.C.J. No. 15 - has not altered the "inflationary floor" concept. This is even though
the Court expressly confronted the deterrent value of mandatory minimum
sentences for gun crimes:
113 The government has not established that mandatory minimum terms of
imprisonment act as a deterrent against gun-related crimes. Doubts
concerning the effectiveness of incarceration as a deterrent have been
longstanding. Sentencing Reform: A Canadian Approach -- Report of The
Canadian Sentencing Commission (1987), concludes as follows:
a) Even if there seems to be little empirical foundation to the
deterrent efficacy of legal sanctions, the assertion that the presence
of some level of legal sanctions has no deterrent effects whatsoever,
has no justification. The weight of the evidence and the exercise of
common sense favour the assertion that, taken together, legal
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sanctions have an overall deterrent effect which is difficult to
evaluate precisely.
b) The proper level at which to express strong reservations about the
deterrence efficacy of legal sanctions is in their usage to produce
particular effects with regard to a specific offence. For instance, in
a recent report on impaired driving published by the Department of
Justice, Donelson asserts that "law-based, punitive measures alone
cannot produce large, sustained reductions in the magnitude of the
problem" (Donelson, 1985; 221-222). Similarly, it is extremely
doubtful that an exemplary sentence imposed in a particular case can
have any perceptible effect in deterring potential offenders.
c) The old principle that it is more the certainty than the severity of
punishment which is likely to produce a deterrent effect has not been
invalidated by empirical research. In his extensive review of studies
on deterrence, Beyleveld (1980; 306) concluded that "recorded
offence rates do not vary inversely with the severity of penalties
(usually measured by the length of imprisonment)" and that "inverse
relations between crime and severity (when found) are usually
smaller than inverse crime-certainty relations". [Emphasis added;
136-37.]
114 Empirical evidence suggests that mandatory minimum sentences do
not, in fact, deter crimes: see, e.g., A.N. Doob and C.M. Webster, "Sentence
Severity and Crime: Accepting the Null Hypothesis" (2003), 30 Crime &
Just. 143; M. Tonry, "The Mostly Unintended Effects of Mandatory
Penalties: Two Centuries of Consistent Findings" (2009), 38 Crime &
Just. 65. The empirical evidence "is clear: mandatory minimum sentences
do not deter more than less harsh, proportionate, sentences" (A.N. Doob and
C. Cesaroni, "The Political Attractiveness of Mandatory Minimum
Sentences" (2001), 39 Osgoode Hall L.J. 287, at p. 291).
45 These pronouncements, acknowledging the "frailty of the connection between
deterrence and mandatory minimum sentence provisions", do not provide any relief
to Mr. Skinner. The mandatory minimum sentence of five years, as "an inflationary
floor" applies to him even though its effectiveness as a deterrent, and the
effectiveness of severe penalties generally in relation to crime prevention, has been
recognized by the Supreme Court of Canada as "extremely doubtful."
Application to Michael Dockrill
[116] In Morrisey, the Supreme Court of Canada determined that the mandatory
minimum sentence of four years in custody for an offender who is convicted of being
criminally negligent in shooting and killing a person with a gun does not infringe s.
12 of the Charter. In Nur the Supreme Court of Canada ruled that new hypotheticals
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or reasonably foreseeable cases beyond those considered by the majority in Morrisey
could be relied on in considering the constitutionality of a particular mandatory
minimum sentence. Mr. Dockrill has not presented the court with a new hypothetical
to consider or other cases that have actually arisen. Instead he says that the facts of
his case standing alone are such that a four-year custodial sentence is grossly
disproportionate and therefore s. 12 of the Charter is violated by the mandatory
minimum sentence.
[117] The majority of Supreme Court of Canada ruled in Nur that a mandatory
minimum sentence may be challenged on the ground that it would impose a grossly
disproportionate sentence either on the offender or on other persons in reasonably
foreseeable situations. The majority determined that a mandatory minimum
sentencing provision may be challenged on the basis that it imposes cruel and
unusual punishment (i.e. a grossly disproportionate sentence) on the particular
offender before the court, or failing this, on the basis that it is reasonably foreseeable
that it will impose cruel and unusual punishment on other persons.
[118] The first ancillary question to consider in Mr. Dockrill’s case is whether his
facts, unusual in nature, can properly be considered in this analysis. According to
Nur, since the facts in Mr. Dockrill’s case actually occurred, while unusual, they are
now reasonably foreseeable and can be relied on in performing the analysis.
[119] The second ancillary consideration is the effect of the ruling in Morrisey that
the mandatory minimum does not violate s.12 of the Charter. Can this be re-argued
or is Mr. Dockrill barred from making such an argument?
[120] In Nur, Chief Justice McLachlin confirmed that different circumstances and
new evidence can allow for reconsideration:
[71]
This brings us to the second ancillary question — the effect of a
ruling that a particular mandatory minimum provision does not violate s. 12. Two
questions arise. First, can a particular offender argue in a future case that the
provision violates s. 12 because it imposes cruel and unusual punishment on him
or her? The answer, all agree, must be yes. If the offender can establish new
circumstances or evidence, including mitigating factors specific to the offender, it
is open to a court to reconsider the constitutionality of the law. Second, can the
offender in a future case argue that the provision as applied to others violates s.
12? The answer to this question is that it depends. Once a law is held not to violate
s. 12, stare decisis prevents an offender in a later case from simply rearguing what
constitutes a reasonably foreseeable range of the law. But stare decisis does not
prevent a court from looking at different circumstances and new evidence that was
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not considered in the preceding case. A court’s conclusion based on its review of
the provision’s reasonably foreseeable applications does not foreclose
consideration in future of different reasonable applications: Morrisey, at para. 89,
per Arbour J. That said, the threshold for revisiting the constitutionality of a
mandatory minimum is high and requires a significant change in the reasonably
foreseeable applications of the law. In a nutshell, the normal rules of stare
decisis answer the concern raised by the Attorney General of Ontario that “each
subsequent trial court [will be asked] to duplicate the analysis”: A.F. (Nur), at para.
39. [emphasis added]
[121] Mr. Dockrill did not mishandle a gun while intoxicated. He did not aim a gun
he thought was unloaded. He was not hunting and mistakenly killed a human that
he mistook for game. Mr. Dockrill had a loaded firearm in his bedroom as protection
in relation to an anticipated drug-related home invasion. As predicted the “jacking
up” occurred and Mr. Dockrill’s home was invaded. Instead of calling the police,
Mr. Dockrill took the loaded Winchester 30-30 and fired it at a person who was
running upstairs from the basement toward the open front door, and was unarmed.
It is fair to assume that when firing a loaded 30-30 at this human being, Mr. Dockrill
was wantonly reckless as to whether they died.
[122] The only mistake from Mr. Dockrill’s perspective came about because he was
careless as to whom he shot. According to his police statement, he did not even
know he had shot his son until he went outside. The identity of the deceased is not
determinative: in this case Jason Dockrill was shot by his father Michael Dockrill.
However, the fact that this incident occurred during a home invasion certainly is a
different circumstance than those situations described in Morrisey.
[123] The Supreme Court of Canada’s ruling in Nur allows Mr. Dockrill to argue
that s. 12 imposes cruel and unusual punishment on him. He has established new
circumstances and evidence, along with mitigating factors specific to him, differing
from those considered in Morrisey, such that the constitutionality of s.220 can be reconsidered.
[124] Whether Mr. Dockrill can argue that the provision as applied to others violates
s. 12 is not relevant. Mr. Dockrill has not raised any reasonable hypotheticals or
reasonably foreseeable scenarios. Additionally, he has not raised any reported cases
in an effort to determine whether it is reasonably foreseeable that the mandatory
minimum sentencing provision violates s. 12. The real-life conduct for
consideration here is that of Michael Dockrill. The Supreme Court of Canada’s
ruling in Ferguson at para. 30 implies that this court’s consideration on the facts or
reasonably foreseeable cases is limited to the arguments presented by counsel.
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[125] In Nur, McLachlin C.J.C. reconsidered the minority position in Morrisey and
concluded:
[72]
A third ancillary question is whether reported cases should be
considered in determining whether it is reasonably foreseeable that a mandatory
minimum sentencing provision will result in cruel and unusual punishment,
contrary to the s. 12 guarantee. The majority in Morrisey said reported cases
should be excluded if the court considers them “marginal”, and the minority,
without qualification, said they may be considered. In my view, they
can. Reported cases illustrate the range of real-life conduct captured by the
offence. I see no principled reason to exclude them on the basis that they represent
an uncommon application of the offence, provided that the relevant facts are
sufficiently reported. Not only is the situation in a reported case reasonably
foreseeable, it has happened. Reported cases allow us to know what conduct the
offence captures in real life. However, they do not prevent the judge from having
regard to other scenarios that are reasonably foreseeable: see Morrisey, at para. 33.
[126] The personal characteristics of the offender in this case are certainly among
the most compelling arguments raised by Mr. Dockrill. He is in poor health, having
a serious heart condition and thyroid problems, as well as mental health issues,
including depression. Mr. Dockrill has no partner. He loves his children. He was
especially close with his son, Jason Dockrill, the child he killed. He is so remorseful
and emotionally crushed by the incident that he suffers from severe mental distress
years later. A parent inadvertently killing their own child is possibly the very worst
tragedy imaginable.
[127] Mr. Dockrill has one very dated unrelated criminal conviction. I essentially
treat him as a first-time offender. A Pre-sentence Report was prepared and states
variously:
They have three children together, Steve Dockrill, 30; Jasmine Dockrill, 26’ and
the late Jason Dockrill who passed away on June 12, 2011 at 20 years of age. The
subject advised he and his wife eventually grew apart and separated in 2005. The
children chose to remain in his care and the two sons chose to have no further
contact with their mother while their daughter has had limited contact with her
mother who now resides in Winnipeg, Manitoba. Mr. Dockrill advised he has
“really good” relationships with his children noting his son Jason was the only child
living at home at the time of his death; however, the two older children have since
returned to live in the family home. The subject advised he has not entered into a
new relationship since his martial separation.
…
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Mr. Stephen Dockrill advised the subject was [a] single father following the marital
separation, he was very focused on his children, and has been significantly
impacted by this incident and the loss of his youngest son. The source related there
are days the subject struggles to get out of bed, he carries the grief and guilt with
him daily, and the stress of this situation has greatly impacted his health. The
family has remained very supportive of the subject and despite encouragement to
seek counselling to help deal with the stress of this tragic event, he is not presently
connected with any support services. Mr. Stephen Dockrill described his brother
as the “salt of the earth type of fellah” who is a very giving individual and always
ready to lend a hand. He related this was a tragic accident the subject regrets and
constantly carries the guilt of what happened.
…
Mr. Dockrill reported he obtained a grade nine level of education… He advised he
had started using drugs and alcohol during that time and did not enjoy attending
school…
…
Mr. Dockrill reported he is not presently employed and has been in receipt of
disability benefits since October 2014. He informed he is a member of the Sheet
Metal Workers Union, Local 409, and had always maintained steady employment
throughout his working career. Following the index offence in 2011, the subject
indicated he had found it difficult to work in the Halifax area as his late son had
always worked with him and he found it difficult to go to work without him.
Therefore, he began accepting jobs in Newfoundland; however, was laid off in
2012. While he accepted other positions in Labrador City, he found this to be too
stressful and was unable to continue.
…
Mr. Dockrill reported he is in poor physical health as he has suffered three heart
attacks, two between July and August 2011. He informed he has had surgery on
two occasions to have stints inserted in his arteries and is on medication to manage
his heart condition. The subject also informed he is on medication for a Thyroid
disorder and high blood pressure.
Page 71
Mr. Dockrill advised he has suffered with anxiety since approximately 2004 and
has been prescribed Citalopram and Lorazepam by his family physician, Dr. Peter
Petropolis, to manage these symptoms.
Written correspondence received from Dr. Peter Petropolis confirmed the subject
has been a patient since 1989 and “has features of Depression/Anxiety dating back
to 2003 according to my personal notes.” Dr. Petropolis also noted Mr. Dockrill
has “significant Coronary Heart Disease, Hypothyroidism, and COPD (lung
disease)” and while he “has been counselled many times over many years about
taking action to improve his health through “life style” changes these efforts have
been unsuccessful.
Dr. Petropolis further advised Mr. Dockrill was placed on medical leave and was
referred to Community Mental Health for counselling in relation to Post Traumatic
Stress Disorder, Depression/Anxiety, Panic Attacks, and Insomnia on December
22, 2014. Unfortunately, Dr. Petropolis noted Mr. Dockrill has indicated he does
not have time to attend counselling, at this time; however, he will again strongly
encourage him to follow through with this service.
…
In relation to the index offences, Mr. Dockrill recalled the details of the incident to
the best of his ability, which he maintains was accidental. He informed he does not
typically keep weapons in his home, which he stated was left by his late son, and
did not know the gun was loaded. During the course of the incident Mr. Dockrill
advised he does not specifically recall grabbing the gun or discharging the weapon.
He related the entire incident is somewhat of a blur although he recalls the fear for
the safety of himself and his son when he realized there were intruders in his home.
Mr. Dockrill reported he immediately called 911 for assistance and was performing
CPR on his son when the police arrived.
…
Mr. Dockrill related he has some concern that his “mind may snap at some point”
and he might be a harm to himself as he has never really had the opportunity to deal
with the grief and stress of what happened as he was arrested and has been dealing
with the Court process since that time. Mr. Dockrill stated this was an “accident
that should never have happened” and “all my life I’ve tried to do the right thing.”
The subject related he is in need of counselling but has been unable to access the
necessary services; however, the information received from his family physician,
Dr. Peter Petropolis, indicates he was referred to Community Mental Health in
December 2014 and has failed to contact the clinic to obtain an appointment.
Page 72
[128] The defence also submitted a report from Dr. Brad Kelln, a Clinical
Psychologist, who writes:
During the previous consult (consult dated June 12, 2014) the following conclusion
was offered:
One of the most striking findings is the continued psychological effects of
the evening on Mr. Dockrill. He continues to describe debilitating anxiety
and panic symptoms that have persisted for three years. There is very little
doubt that he is diagnosable with Post-traumatic Stress Disorder (DSM-5,
309.81). He certainly experienced a traumatic event and was present to see
his son die of a gunshot wound. He continues to experience intrusive
thoughts/emotions related to the event and he attempts to avoid memories
of the event as much as possible. In addition, he reports significant
disturbances in sleep and general loss of motivation and energy combined
with persistent negative emotional states. His description of the events of
June 12, 2011 continues to carry a significant amount of emotion including
fear and panic.
In the current interview he continued to describe very similar symptoms. He
described difficulty in sleep, anxiety, difficulty in concentration and focus,
nightmares, and panic among other things. To help clarify his clinical presentation,
Mr. Dockrill completed a number of psychological tests. On the Beck Depression
Inventory – Second Edition he scored in the severe range of pathology indicating
significant depressive symptoms. Similarly, he scored in the severe range on the
Beck Anxiety Inventory indicating a large number of physical (e.g., trembling
hands, face flushed, shaky) and mental (e.g., nervous, fear of losing control) signs
of ongoing anxiety. Finally, the Psychiatric Diagnostic Screening Questionnaire
measures various indications of pathology across a variety of diagnoses. Mr.
Dockrill’s responses strongly suggested the presence of Major Depression, PostTraumatic Stress, Panic, along with Generalized Anxiety. His overall endorsement
of psychiatric symptoms places him near the 90th percentile such that only 10% of
other respondents would score higher.
In discussing the traumatic loss of his son Mr. Dockrill brought out a picture he
carries with him. It was a picture of himself posing with Jason and he immediately
became emotional to the point of being unable to carry on in the clinical interview
until the picture was put away.
Further exploration of his sleep difficulties resulted in him also discussing a
previous diagnosis of sleep apnea for which he has a CPAP machine. He said that
he found the machine uncomfortable and did not use with any regularity. He was
strongly encouraged to investigate this further and he said he was attending an
appointment September 1, 2015 with the sleep clinic. We also briefly discussed his
history of medical problems that include multiple cardiac events and a diagnosis of
Chronic Obstructive Pulmonary Disease (COPD).
Page 73
Summary & Conclusion
Mr. Dockrill is a 56-year old man who is facing sentencing on charges of criminal
negligence causing death (CC 220(A)) and careless use of a firearm (CC 86(1)).
The offences arose from a shooting that occurred in his residence and ultimately
resulted in the death of his 20-year-old son, Jason. This update to my June 12, 2014
consult on Mr. Dockrill provides additional information about his current mental
state and treatment needs.
There is ample evidence that he remains negatively impacted by the events of 2011.
Diagnostically, his issues predominately relate to PTSD and fit the diagnostic
system as follows:
DSM-5
309.81 Posttraumatic Stress Disorder
V62.5 Conviction in Civil or Criminal Proceedings Without Imprisonment
Other symptoms of anxiety and depression are best thought of as sequela of the
PTSD although ultimately might require intervention in and of their own right. In
addition, Mr. Dockrill has other medical problems that complicate his ongoing care
and wellness including sleep apnea and COPD along with a history of cardiac
trouble and surgeries.
Mr. Dockrill will require consultation and follow-up with psychiatry in addition to
psychotherapy to address the trauma, anxiety, and stress. His issues with sleep
apnea and ability to benefit from the CPAP unit will also be an important part of
his recovery as sleep deprivation can contribute to overall psychological problems.
In addition, he remains an individual who struggles with multiple other health
problems (e.g., COPD and heart disease) which contributes to the overall
complexity of his situation. His case is complex and the degree of psychological
impairment is very high.
He is an individual in significant need of
psychological/psychiatric intervention.
[129] The defence suggested that Mr. Dockrill would be seeing a psychiatrist or
other mental health professional many times since his conviction. This does not
appear to have ever occurred.
[130] Michael Dockrill argues that the four-year mandatory minimum sentence is
grossly disproportionate based on the circumstances of his case, including his own
personal circumstances. In order to have been convicted of criminal negligence
causing death the jury had to be convinced of proof of harm leading to the most
grave consequences. As McLachlin C.J. stated at para. 83 in Nur : “Firearms are
inherently dangerous and the state is entitled to use sanctions to signal its disapproval
of careless practices and to discourage gun owners from making mistakes, to be
sure.”
Page 74
[131] Michael Dockrill was not by nature an outlaw who would carry a firearm as a
tool of his criminal trade. Michael Dockrill did not have a criminal trade. He was
not the type of person generally engaged in criminal conduct posing a real threat to
the general public. However, during the time he had possession of the 30-30 rifle
while waiting for his son and his home to be “jacked up” Michael Dockrill was acting
as an outlaw. Instead of contacting the authorities to deal with the possible home
invasion, Jason Dockrill and Michael Dockrill loaded up for an armed vigilante
conflict. Jason Dockrill was a drug dealer. The gun was there to protect them from
being “jacked up”. Michael Dockrill’s love for his son blinded him to the difference
between right and wrong.
[132] In Ferguson and Morrisey the Supreme Court of Canada discussed the
appropriate range of sentence for shooting related deaths in relation to convictions
for manslaughter and criminal negligence causing death. The Supreme Court of
Canada has consistently confirmed the appropriateness of penitentiary sentences in
such cases, starting at in inflationary floor of four-years custody. In considering
moral blameworthiness, the careless but purposeful aspect of the shooting in Mr.
Dockrill’s case is worse than the various unintentional killings described in
Morrisey. However, the personal circumstances of Mr. Dockrill are very
sympathetic.
[133] In R. v. McMath, 2015 BCSC 440, 2015 CarswellBC 1406, Ross J. had to
determine the constitutionality of the mandatory minimum sentence of four years for
manslaughter when a firearm is involved. The court reviewed the facts and stated:
Circumstances of the Offence
[12]
Dealing first with the circumstances of the offence, during the course of
their marriage, the McMaths resided at a farm property located at 5077 McMath
Street in Abbotsford, British Columbia. Mr. McMath’s grandparents had purchased
the main farm property. That property was passed through the generations in his
family coming first to his father and mother. After his father’s death, the property
was registered in his name and his mother’s, and when his mother died in 2003,
Mr. McMath became the sole registered owner of the main farm property. During
the course of his married life, Mr. McMath added additional parcels to the main
farm holding.
[13]
Mr. McMath had acquired the rifle used in the shooting years ago. He did
not have a licence for the firearm and had never taken any courses in the safe use
of firearms. The gun had been stored away and had only been fired once before, a
week or so before the fatal shooting to test-fire the weapon.
Page 75
[14]
Mr. McMath was having trouble with coyotes taking his chickens. On the
day of the shooting, Mr. McMath took the rifle out from where he stored it in a
room in the house, loaded it with three cartridges, one in the chamber, two in the
magazine. The safety was not engaged. He left the weapon out near the barn.
[15]
That evening, Ms. McMath came over to the farm for a visit. Although the
two were separated and litigation to end the marriage had reached the eve of trial,
relations remained cordial between the two and Ms. McMath was a frequent visitor
at the farm. The two shared a bottle of wine and talked.
[16]
Later that evening, the two went out to the area near the barn and shared
the remaining wine. When it came time to head in for the evening, Mr. McMath
went to deal with the firearm. He picked the firearm up and started to unload it. Ms.
McMath was standing nearby. The safety was still not engaged and a shell was still
in the chamber. Mr. McMath was holding the firearm with his left hand on the slide
of the weapon and his right hand on the stock with his fingers over the trigger area.
He stumbled and the firearm discharged twice. Both shots hit Ms. McMath.
[17]
Mr. McMath called 9-1-1 and provided care to Ms. McMath at the scene.
Police, fire and ambulance personnel attended. Mr. McMath was cooperative with
the responding authorities at the scene. Ms. McMath received first aid at the scene
and was transported to hospital where she received surgery. However, she died of
her wounds.
Circumstances of the Offender
[18]
With respect to the circumstances of the offender, Mr. McMath was born
in 1944. He has lived on the farm since 1969. He has a strong work history both as
a farmer and a longshoreman. He lost his position as a longshoreman as a result of
the charges in this matter.
[19]
Mr. McMath and his wife had commenced a relationship in the 1970s and
were married in 1981. They had five children together: sons Cameron, Matthew,
Alden, Patrick and Michael, who were born between 1979 and 1985. They
separated in 2003 and as noted, divorce proceedings were underway and the matter
was set to go to trial on June 4, 2008.
[20]
Despite the divorce proceedings, the couple maintained a cordial
relationship. Their youngest son, Michael, was diagnosed with schizophrenia at the
age of 16 or 17. He was hospitalized for a period, coming home for visits on
weekends and then eventually released to a series of care homes. Both his parents
were actively involved in his care and that remained the situation at the time the
incident occurred.
[21]
At the time of the shooting, Patrick and Cameron were living at the
McMath farm with their father. Ms. McMath would visit the farm, attending
birthdays, dinners, and family celebrations. She would drop in for coffee or to share
a glass of wine with Mr. McMath and to visit their sons.
Page 76
[22]
Mr. McMath has the support of his family and friends. He remains very
involved in the care of his son Michael. In addition, he has become a primary
caregiver for his granddaughter Keris. Keris’s father Matthew lives on the farm.
Keris lives with him. Matthew works as an independent contractor; his work
frequently takes him out of town. Mr. McMath has been caring for Keris – taking
her to and from school each day and to after school activities in addition to looking
after her full time when Matthew is out of town. Matthew writes that he would not
be able to have the ability to run his company or have any sort of social life without
the care that Mr. McMath has been providing.
[23]
I have reviewed the letters of support provided by counsel. It is clear that
Mr. McMath has been a productive member of the community, a good friend and
father. It is clear that his children support him in the aftermath of this family tragedy
and that his incarceration will cause them additional pain.
[24]
Mr. McMath has no criminal record. He has been on interim release and
there is no suggestion of any problems. I am satisfied that Mr. McMath is very
remorseful and that he has taken responsibility for his actions.
[25]
Mr. McMath was taken into custody on May 28, 2008 and released on
conditions of recognizance on June 17, 2008, for a total of 21 days of pre-sentence
custody. The Crown concedes that pursuant to the sentencing regime in effect at
the time, he is to be given credit for a two-to-one ratio. Thus, he should be given
credit for 42 days’ time served in pre-trial custody in relation to the imposition of
any term of incarceration.
[134] Justice Ross determined in McMath that a four-year sentence was not grossly
disproportionate and that it fell within the range of sentences that would be
appropriate in the circumstances of that case, “having regard to considering the
gravity of the offence, the circumstances of the offence and the offender, and the
principles and goals of sentencing.”
[135] In R. v. Roberts, (1998), 199 N.B.R. (2d) 387, 1998 CarswellNB 157 (C.A.),
Drapeau J.A. determined that the mandatory minimum of four years for intentionally
endangering life as prohibited by s.244(b) of the Criminal Code of Criminal was not
grossly disproportionate, on the following facts:
3 The charge arose as a result of a feud on the St. Mary’s Indian Reserve, located
within the City of Fredericton, between the Polchies family and the Brooks family.
Shortly before 10:00 p.m. on December 24, 1996, Mr. Roberts, while accompanied
by Peter Polchies and Jeff Polchies, was involved in a confrontation with Andrew
Brooks on Maliseet Drive. As a result, Mr. Brooks retreated to his brother's
residence on the same street. The Polchies and Mr. Roberts followed him to that
location. Once there, Mr. Brooks obtained a baseball bat. As Mr. Brooks was
running towards Peter Polchies, Mr. Roberts was observed with a gun in his hand.
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Witnesses testified to hearing a shot fired from this gun. One witness saw a flash
from the end of the barrel. The victim testified to hearing a "whiz" consistent with
a projectile travelling just over his head. The gun did not become an exhibit at trial.
The accused testified and denied having had a firearm of any sort in his possession.
[136] In upholding the mandatory minimum, Drapeau J.A. noted:
14 The act prohibited by s. 244(b) of the Code is an act of violence involving the
discharge of a firearm at a person. The intent which must accompany the act to
constitute the crime is an intent to endanger life. In my view, both the actus reus
and the mens rea required show that s. 244(b) creates a very serious crime which
justifies severe punishment. Indeed, the seriousness of this crime must weigh
heavily in the balance.
[137] The defence relies on R. v. Lam, (2003), 180 C.C.C. (2d) 127, [2003] 178
O.A.C. 275 (Ont. C.A.), where the accused was found guilty of criminal negligence
causing death and manslaughter as the result of a motor vehicle accident. In that
case, the unanimous Court of Appeal upheld a two year sentence for criminal
negligence causing death. The manslaughter charge was stayed. The facts in Lam
included:
[2]
The accident occurred on a busy six-lane highway in a built up commercial
area at one of the busiest times of day. Prior to the collision, the respondent was
engaged in a “show of speed” with another automobile which lasted less than one
minute. He had modified his vehicle for both the appearance and ability to attain
high speeds. At the time of the collision, the respondent was travelling at an
estimated speed of 170 km/h in a 70 km/h zone. As a result of the collision, the
respondent suffered a brain haemorrhage and retrograde amnesia. He cannot recall
the events leading to the collision, nor the collision itself.
The victim was a 29-year old married woman and mother of two young
[3]
children aged 5 and 3. She was described as a fine person who loved life and who
was close to her sons. The collision and resulting death had serious impact on the
family and friends of the victim and witnesses to the horrific crash. Her sons, in
particular, continue to struggle with the loss of their mother.
[4]
The respondent was sent to Canada from Hong Kong at the age of 16. At
trial, he was described as a loner with an apparent stoic disposition, and there was
evidence that his emotional development may have been hampered as a result of
being sent to a new country at a young age without immediate family support. At
the time of the accident, the respondent was 26 years old and single, with no
criminal record and no pattern of alcohol or drug use. His driving record consisted
of a single speeding violation. He was employed as a sales representative selling
computer equipment and was also a part-time student at Ryerson University where
he achieved high marks while studying for a degree in computer science software
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engineering. He is generally known as being a reliable and punctual person with
no known history of violence or aggression. The pre-sentence report, generally
positive, described the respondent as a suitable candidate for community based
supervision since he had no criminogenic factors that might suggest a risk of reoffending.
[138] The Ontario Court of Appeal determined that a two year less one day custodial
sentence followed by three years’ probation and 240 community service hours was
not unfit. In doing so, Labrosse J.A. stated that “While the sentence imposed could
have been more substantial, the case law does not support a conclusion that the
sentence imposed is demonstrably unfit” (para. 14).
[139] The Court of Appeal considered Mr. Lam’s sentence in the context of a
driving situation. In examining the aggravating and mitigating factors Labrosse J.A.
found:
[10] However, while the court in Linden stated that there is no set range for the
criminal negligence causing death offence, it recognized that driving offences
involving reckless conduct and the consumption of alcohol are generally subject to
more severe sentences. In addition to the consumption of alcohol or drugs, courts
have also treated multiple deaths, racing, reckless driving for a lengthy period of
time, a lengthy criminal record, a bad driving record, flight from the police, and
leaving the scene of the accident as aggravating circumstances.
[11]
In the present case, the modifications that the respondent made to his
automobile and the show of speed, as found by the trial judge, are aggravating
circumstances. However, unlike many cases of the “worst offence” nature, there
was no alcohol or drug use, no street racing, no reckless driving for a lengthy period
of time, no attempt to evade the police or leave the scene of the accident, and no
criminal or significant driving record. Moreover, the respondent was of impeccable
background and prior good character, and had respected and obeyed his strict bail
conditions for over 29 months, leading up to the imposition of the sentence.
[140] Speeding in a vehicle and losing control is markedly different than the
criminal use of a loaded firearm. Making the decision to keep a gun by your bedside,
loaded and ready for action, in preparation for protecting a traffickers’ drug stash
from rival criminals, whether the trafficker is your son or not, and then shooting and
killing someone during the melee of the anticipated home invasion is a far cry from
an offender/driver losing control of a vehicle and killing an innocent bystander, even
if racing is involved.
[141] General deterrence is one of the paramount considerations in this type of case.
How can we prevent senseless gun-related deaths and discourage people from taking
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the law into their own hands? Mr. Dockrill appears to be a nice man who loved his
son but made an unfortunate series of decisions leading to Jason’s death that must
be denounced. Canadian society does not tolerate the criminally negligent use of a
firearm that leads to the death of another human being. Retribution is also an
important consideration in determining the appropriate sentence.
[142] Michael Dockrill was not a criminal prior to this horrible incident. Therefore,
specific deterrence, rehabilitation and reformation are not significant considerations.
Mr. Dockrill is urged to avail himself of mental health counselling.
[143] Keeping in mind the repeated comments of the Supreme Court of Canada, a
sentence in the range of four years is appropriate considering all of the circumstances
of Michael Dockrill’s case. A four-year prison sentence for the shooting death of
Jason Dockrill might be somewhat disproportionate considering the personal
circumstances of Michael Dockrill, but is not grossly disproportionate. This tragedy
is precisely why Canada has such stringent gun laws. The criminal justice system
wants to prevent senseless firearms related catastrophes such as occurred in this case.
This was not an accidental discharge or a hunting accident where Mr. Dockrill was
shooting at a deer and mistakenly killed another hunter. Even in those unintentional
circumstances the Supreme Court of Canada has ruled that the four-year mandatory
minimum does not offend s.12. In this case, Michael Dockrill fired an instrument
designed specifically for killing and generally achieved what any reasonable person
would expect in these circumstances: the death of another human being. His regret
is that in shooting blindly, he killed his son and not the unknown person he thought
he was shooting toward.
[144] Mr. Dockrill has not presented me with any hypotheticals or other reasonably
foreseeable situations to consider. Therefore, the analysis in this case is restricted
solely to Mr. Dockrill’s facts. Does the mandatory minimum penalty of four years
in prison result in a sentence that is grossly disproportionate in relation to the
individual before the court? The four-year mandatory minimum is not grossly
disproportionate in Michael Dockrill’s case.
[145] A s. 1 Charter analysis is not required since there is no constitutional
violation.
Conclusion
[146] The constitutional challenge is dismissed. The mandatory minimum sentence
imposed by s. 220 is consistent with s. 12 of the Charter in this case.
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[147] A sentence of five to seven years as proposed by the Crown is neither
necessary nor appropriate.
[148] A sentence of four years will be imposed for the s. 220 offence. A sentence
of six months concurrent will be imposed for the s. 86 offence.
[149] The DNA Order and Firearms Prohibition as proposed by the Crown and
consented to by Michael Dockrill are granted.
[150] Mr. Dockrill, you changed your world forever on June 12, 2011, when you
fired that shot. Hopefully, in the future drug dealers, and the families with whom
they live, will be less likely to take the law into their own hands and arm themselves
with guns to prevent being “jacked up”. A jury of your peers found that firing a gun
blindly at unknown persons while innocent parties were in your house was
criminally negligent. Canadian society does not tolerate this type of activity.
[151] I truly hope you are able to find a way to make some sort of peace with
yourself.
Arnold, J.