IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Van Buskirk, |
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2007 BCSC 1924 |
Date: 20071130
Docket: 3517
Registry: Victoria
Regina
v.
Brent William Van Buskirk
Before: The Honourable Mr. Justice Groberman
Oral Reasons for Sentence
November 30, 2007
| Crown Counsel |
P. Weir
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| Counsel for the Accused |
J. Heller
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Date and Place of Trial |
October 15-19, 22-26, 29-31 |
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[1] THE COURT: The accused has pled guilty to first degree murder under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1. He admits that on August 29, 2004, shortly before 1:30 a.m., he shot and killed Manjinder Singh Nutt, generally known of as Ravi Nutt. Mr. Van Buskirk was only days away from his eighteenth birthday when the murder occurred and, accordingly, he is a young person for the purposes of the Youth Criminal Justice Act.
[2] He applied under s. 63 of that Act to have a youth sentence imposed. Under s. 63(2), the Attorney General filed notice that he did not oppose the application and the court must, therefore, impose a youth sentence in this case.
[3] Pursuant to s. 42(2)(q)(i) of the Youth Criminal Justice Act, the maximum youth sentence for first degree murder is 10 years, consisting of up to six years in custody and the balance, under conditional supervision, to be served in the community in accordance with s. 105 of the Youth Criminal Justice Act.
[4] I mention that this maximum sentence is in sharp contrast to those under the Criminal Code. An adult convicted of first degree murder is subject to a life sentence, with a minimum period of 25 years without parole eligibility. A 17‑year‑old sentenced as an adult - and I note that the Youth Criminal Justice Act makes first degree murder an offence for which a young person is presumptively sentenced as an adult - receives a life sentence, without eligibility for parole for 10 years.
[5] I point these other sentences out not because they play a role in my disposition of this matter, but only to impress upon you, Mr. Van Buskirk, that had this offence between committed when you were a few days older, or had the presumptive adult sentence been imposed, you would indeed be facing a much bleaker picture than you do today.
[6] There are very few issues on this sentencing. Both Crown and defence agree that the crime is one for which the maximum youth sentence should be imposed. Two issues do arise, however, and those are whether credit should be given for pretrial custody, and whether the sentence should be concurrent or consecutive to an adult sentence for contempt of court that Mr. Van Buskirk is currently serving.
[7] I will deal first with the issue of whether this case is indeed one in which the maximum youth sentence should be imposed. At the time of the murder Mr. Van Buskirk was hiding in a treed area behind a chain-link fence adjacent to Mr. Nutt's residence in a residential area of Saanich, which is part of Greater Victoria. He was armed with a .45 calibre handgun and shot Mr. Nutt once in the back of the head. It appears that Mr. Nutt died instantaneously. It is apparent that the murder was well planned. Mr. Van Buskirk was able to get away from the scene of the crime without being detected, and it was only months later, after obtaining a wiretap authorization in respect of another suspect, that suspicion began to focus on Mr. Van Buskirk.
[8] While I have been given few details of the crime, it is fairly clear that Mr. Van Buskirk was a hired gun. His only motives for the murder, as far as I can determine, were remuneration and the opportunity to launch himself on a career as a professional hit-man.
[9] Mr. Van Buskirk was just short of his eighteenth birthday at the time of the crime. I should say, however, lest there be any implication to the contrary, that there is no indication that the lesser penalties under the Youth Criminal Justice Act played any role in his decision to commit the murder. Indeed, the wiretap evidence entered on this hearing demonstrates that he believed when he was charged that he was subject to the full adult penalty for first degree murder.
[10] I have very little information about Mr. Van Buskirk's background other than what can be gleaned from the letters of support that have been put into evidence from his father, his father's wife, his mother and his grandmother, and his own statement on sentencing. The picture that emerges, however, is of a youth who has not suffered a deprived upbringing, and who has had solid support from his family throughout his life. This does not seem to be a crime borne of desperation or poverty.
[11] It is apparent from the evidence presented in a lengthy voir dire that the deceased was involved in the drug trade, and also apparent that he had many enemies. That said, there is nothing before me in the evidence that suggests that Mr. Van Buskirk himself was an enemy of Mr. Nutt. He appears to have been acting for another person or persons, his motives being profit and advancement in a career as a professional killer.
[12] The crime has obviously had a serious impact on the family of Mr. Nutt, as indicated by the victim impact statement of his sister, which was read into court. It also no doubt shocked the residential community in Saanich where it occurred. Deliberate, planned homicide is obviously the most serious of crimes. Even within that category, a murder motivated only by money and perhaps self‑aggrandizement is particularly heinous. I am satisfied that counsel for the Crown and counsel for the defence are correct in suggesting that the court should impose the maximum permissible sentence here, which is 10 years, with a maximum of six years to be spent in custody.
[13] I am satisfied that such a sentence is required in order to serve the intentions of the Youth Criminal Justice Act as set out in s. 3 of that Act, and in particular s. 3(a)(ii), which provides that:
The youth criminal justice system is intended to
...
(ii) rehabilitate young persons who commit offences and reintegrate them into society; and
(iii) ensure that a young person is subject to meaningful consequences for his or her offence.
[14] I am also satisfied that no other sentence would be appropriate and, in particular, that the sentence is consistent with the principles of youth sentencing set out in s. 38(2) of the Act, and particularly s. 38(2)(c), (d) and (e); that is:
(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence
(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons.
There is no suggestion that Mr. Van Buskirk is aboriginal. I am also satisfied that no sentence short of a custodial sentence, and a lengthy custodial sentence, would be appropriate given the nature of the crime and the background. And finally:
(e) subject to paragraph (c), the sentence must
(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1). [i.e. to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long‑term protection of the public];
(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society; and
(iii) promote a sense of responsibility in the young person and an acknowledgment of the harm done to the victim and the community.
[15] I am satisfied that the lengthiest sentence provided for under the youth sentence provision is absolutely necessary in order to accomplish those various purposes.
[16] The two remaining issues, then, and the only two issues on which counsel disagree, are credit for pretrial custody and whether the sentence should be concurrent or consecutive to a sentence currently being served for contempt of court. That contempt arose when the accused failed to testify at the trial of a person accused of hiring Mr. Van Buskirk to commit the murder. The reasons for sentencing for Mr. Van Buskirk on the contempt are at 2006 BCSC 1981, and the reasons at trial for acquittal of the other accused are at 2006 BCSC 1367.
[17] The accused has been in custody for two years and nine months. Of that period, 11 months has been serving the two‑year sentence imposed by Grist J. for contempt of court in December of 2006. It is apparent to me that the 11‑month period during which he has been serving his sentence for contempt of court should not be treated as pretrial custody as it is being served in respect of another offence.
[18] The remaining period of one year and 10 months, however, was served as pretrial custody both in respect of this matter and in respect of two other adult matters on which the accused is to be sentenced following this hearing.
[19] The Crown takes the position that credit for pretrial custody is not mandatory, and says that particularly in light of the limited sentences available under the youth sentencing regime, the credit should not be allowed. The Crown cites the case of R. v. K.(M.) (1996), 28 O.R. (3d) 593, 107 C.C.C. (3rd) 149, a decision of the Ontario Court of Appeal.
[20] The accused cites the more recent decision of the Ontario Court of Appeal in R. v. B.(T.) (2006), 206 C.C.C. (3rd) 405, in which the court indicated that credit for time in custody should normally be given pursuant to s. 38(3) of the Youth Criminal Justice Act, and particularly 38(3)(d) which says:
(3) In determining a youth sentence, the youth justice court shall take into account
...
(d) the time spent in detention by the young person as a result of the offence.
[21] The B.(T.) case was subsequently considered in an endorsement decision of the Ontario Court of Appeal in R. v. L.(E.), [2006] O.J. No. 1517, 210 O.A.C. 124. In that case, which was a case of first degree murder, the court said, at paragraph 8:
8. Second, the appellant contends that the sentencing judge erred by failing to give the appellant credit for the balance of the pre-sentence custody, which he calculates as 16 months. In that regard, the appellant submits that the youth court judge contravened the mandatory provisions of s. 38(3)(d) of the YCJA and this court's interpretation of that provision in R. v. B.T., [2006] O.J. No. 584.
9. We disagree. In our view, properly read, this court's decision in B.T. confirms that s. 38(3)(d) obliges a youth justice court in all cases to take the time spent in detention by a young person as a result of the offence in issue into account in fashioning a sentence. This does not mean, however, that in taking such detention into account, the youth justice court does not have discretion to determine the appropriate credit to be given. B.T. recognizes that it is only in an exceptional case, such as this one, where a court should exercise that discretion to reduce the credit given below one to one.
10. In light of the joint submission in this case and the extensive negotiations concerning the rehabilitative needs of the appellant, we are satisfied that the youth court justice made no error and that the sentence imposed is fit. Accordingly, leave to appeal sentence is granted but the appeal is dismissed.
I note in the L.(E.) case the sentence was a carefully structured one of intensive rehabilitation, while the sentence here is a negotiated one, it is not a structured rehabilitative sentence, and has not been set up in the same manner as was the sentence in the L.(E.) case. In my view, this is not the sort of exceptional case that the L.(E.) was referring to.
[22] I note, however, that the Nova Scotia Court of Appeal and Saskatchewan Court of Appeal have each taken a somewhat different approach to pretrial custody time. In R. v. L.(J.R.), 2007 NSCA 62; 221 C.C.C. (3rd) 278, at paragraph 46, the court said:
46. A different approach was taken by the Saskatchewan Court of Appeal in R. v. C.J.A., [2005] S.J. No. 410 (C.A.). In that case the young person spent 10 weeks on remand. The sentencing judge expressly considered the remand time noting that it had been beneficial in beginning the rehabilitation process and that it was a factor to consider in comparing the circumstances of a co-accused who did not serve significant remand time. A six month deferred custody order was approved on appeal. Richards, J.A. stated:
41 Although I appreciate the Crown's concerns on this point, I do not agree that the sentence imposed was demonstrably unfit within the meaning of R. v. C.A.M., supra. The key in this regard, and the apparent key for the sentencing judge, was that C.J.A. had spent ten weeks on remand prior to sentencing. As noted by the sentencing judge, on the standard two-for-one calculus this amounted to the equivalent of five months in custody.
42 The Crown paid little attention to the time C.J.A. spent on remand in either its written or oral submissions but that time is a significant factor in assessing the overall suitability of his sentence. In my view, the sentence here may well not have been fit in the absence of the remand time. However, the reality is that C.J.A. did spend the equivalent of five months in custody and the sentencing judge, pursuant to s. 38(3)(d) of the YCJA, properly took that reality into account.
47. I prefer this approach. In my view, the time spent in pre-sentence detention can be "taken into account" without expressly giving specific credit for time served by deducting the number of days or some ratio of that number from the number of days of a custodial sentence. When the sentence imposed is not a custodial sentence to be served in an institution, taking the remand time into account does not necessarily have to result in a deduction in the length of sentence. It can be taken into account by reducing the type or severity of the sentence.
48. Although the judge in this case erred in principle because he did not specifically take the remand period into account, given the brevity of the remand, it is not an error that should necessarily cause a change of disposition if the sentence is otherwise fit. Following the reasoning of C.J.A., this oversight did not make the deferred sentence an illegal sentence. To deduct the 16 days from the six month deferred custody portion of the sentence would make little sense at this point, now that it has been completely served.
[23] In my view, the approach of the Ontario Court of Appeal is the preferred one and, in my view, this case is not an exceptional case like the L.(E.) case, in which a careful plan of rehabilitation would have been adversely affected by giving credit for pretrial custody. In principle, such custody must be taken into account, and I agree with counsel for the accused that it should in this case be taken into account by giving specific credit for time served.
[24] I am satisfied that the appropriate credit is as indicated by counsel for the accused; that is, credit should be on a one‑to‑one basis, given the situation of this accused and the circumstances of the custody, and I, therefore, am applying a one‑to‑one credit for a period of one year and two months spent in pretrial custody. That makes the sentence in this case, then, one of four years and two months of custody, followed by an additional period of four years community supervision as provided for in s. 42(2)(q) of the Youth Criminal Justice Act.
[25] The additional question is whether the sentence should be served concurrently or consecutively to the sentence currently being served for contempt. In my view, these are completely separate transactions, and it is appropriate that the contempt sentence be fully served. It would not be appropriate for that sentence to be cut in any way by the sentence for the first degree murder, nor is it appropriate that there be credit given in respect of the first degree murder conviction. I am satisfied that this is a case in which a consecutive sentence is appropriate, and so the sentence for first degree murder will commence upon the conclusion of the sentence for contempt of court.
[26] There are certain ancillary matters that must be dealt with. First of all, with respect to s. 42(9) of the Youth Criminal Justice Act, I am declaring this to have been a serious violent offence. As I understand it, neither side suggests that any other disposition would be appropriate.
[27] There is to be a lifetime firearms prohibition under s. 51 of the Youth Criminal Justice Act. Mr. Van Buskirk, the law requires me to give you time in which to dispose of any weapons that you currently have. Do you currently own any or have possession of any weapons? [Accused indicates that he does not] The law, nonetheless, requires me to make an order for surrender up of any weapons that you may have, and I am providing that the surrender up shall be within 24 hours, and that surrender will be to the warden of the prison where you reside.
[28] I have not heard anything suggesting that a DNA order is inappropriate in this case or that the DNA sampling should be by any method other than that provided in the Code. I am therefore making the order under s. 487.051(1)(a) of the Criminal Code for provision of a DNA sample.
THE COURT: Counsel, anything else?
MR. FUDGE: The matter of the publication ban.
[29] THE COURT: I am, for the moment, reserving the question of whether an order shall be made under s. 75(3) of the Youth Criminal Justice Act until such time as I have heard further submissions with respect to the adult matters. For now, I am extending an interim publication ban until further order of this court.
(SUBMISSIONS ON MANDATORY VICTIM SURCHARGE).
[30] THE COURT: I have to give reasons for waiving the victim surcharge. I am satisfied that Mr. Van Buskirk does not have the wherewithal to pay the victim surcharge and, therefore, it is waived.
(SUBMISSIONS RESPECTING PUBLICATION BAN)
[31] THE COURT: I am not convinced there is any basis upon which an interim order ought to be made in the adult matters. I am not going to ban publication of his name in respect of the adult matters.
[32] With respect to the youth matter, it seems to me at this stage that the ban becomes an academic one. The media is free to report on the adult matters, and such reporting will not be reasonably possible without reference to these youth proceedings. It would become a trap for anyone attempting to report on the proceedings. I am, therefore, lifting the ban under s. 75(3) of the Youth Criminal Justice Act in respect of the youth matter. I am not at all convinced that there is any basis any longer for a publication ban in relation to the Youth Criminal Justice Act matter.
(FURTHER SUBMISSIONS)
[33] THE COURT: Thank you. Your submissions, while eloquent, are really a repetition to have those that you put before. I am not convinced that publication bans are harmless. In my view, there is significant harm to society whenever court hearings are secret. In general, we must allow publication to shed light and open up what happens in the courts.
[34] The Youth Criminal Justice Act does contain provisions that allow publication bans with respect to the names of young persons convicted of offences for specific rehabilitative purposes. Section 75(3) deals with how those names are to be dealt with. In terms, it requires proof that publication would be harmful, although I acknowledge that some appeal courts in Canada have stated that that onus is inappropriate under s. 7 of the Charter.
[35] The application today does not turn on onus; the question is whether there is a valid reason at all for a publication ban in respect of Mr. Van Buskirk's name; that is, is there a reason that the public should not know who it is that has committed this murder. I am not convinced that there is any rehabilitative object here to be considered, in light of the accused’s guilty plea to two adult offences of conspiracy to commit murder. I am not convinced that there is authority for a publication ban in respect of those matters, and I am not convinced that, if those matters will be the subject of publication, that there is any purpose to issuing a publication ban in this matter.
[36] It would be extraordinarily difficult for the media to abide by a publication ban dealing with the name of the person convicted in the murder without having a publication on the name of the person convicted in the conspiracies. At the very least it would distort the public perception of what is happening in the court. For that reason, I agree with what all sides argued earlier: that a publication ban would stand or fall on whether it can be made in all three cases. In my view, it cannot be made in respect of the adult cases. There is limited, if any, reason to have the publication ban in respect of the Youth Criminal Justice Act matter, quite apart from the conspiracy charges, and therefore, in my view, the publication ban should be lifted.
The Honourable Mr. Justice H. M. Groberman