Page 1

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Case Name:

R. v. Brisson
Between
Regina, and
Mitchell Ryan Brisson
[2009] B.C.J. No. 2322
2009 BCSC 1606
Docket: 53288-3
Registry: Chilliwack
British Columbia Supreme Court
Chilliwack, British Columbia
B.M. Joyce J.
Heard: September 15, 24, October 1 and 15, 2009.
Oral judgment: October 15, 2009.
(101 paras.)
Criminal law -- Sentencing -- Criminal Code offences -- Offences against person and reputation -Homicide -- Manslaughter -- Assaults -- Assault -- Sentencing considerations -- Aggravating
factors -- Mitigating factors -- Deterrence -- General deterrence -- Retribution -- Denunciation -No criminal record -- Remorse -- Seriousness of offence -- Sentencing of accused, convicted of
manslaughter and assault -- Accused sentenced to 58 1/2 months imprisonment -- Accused had
consumed powdered and crack cocaine with strangers when he discovered money missing -Accused asked two victims for money and drugs -- Victims refused and accused pushed one, causing
her to fall and hit head -- Other victim wielded baseball bat so accused stabbed him to death -Accused had no criminal record and was remorseful but had to pay debt to society for frenzy of
violence -- Imprisonment necessary to meet principles of general deterrence, retribution and
denunciation.
Sentencing of the accused, who was convicted of assault and manslaughter. The jury had found
the accused lacking the intent required for a second degree murder conviction, but also rejected his
self defence claim. On the night in question, the applicant picked up a hitchhiker and went back to

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the trailer park/motel where she lived, spending the rest of the night consuming powder and crack
cocaine with the hitchhiker and others who lived at the motel. The accused drove three women
downtown, paying for sexual favours from one, then returned to his truck to find his money had
been taken. The accused returned to the motel to try to get his money back. The accused entered the
motel room of the two victims and asked for money and drugs. The victims refused. The accused
pushed one of the victims, causing her to fall and strike her head. That victim lost consciousness
briefly, though her injuries were minor. The other victim then picked up a baseball bat and
approached the accused with it. The accused picked up a nearby knife and stabbed the victim 13
times, causing him to bleed to death. The accused pled self-defence, but the jury found he had used
excessive force. The Crown sought a sentence of six to seven years' imprisonment. The defence
argued that the victim's death was nearly self defence or an accident, so a conditional sentence was
appropriate.
HELD: Accused sentenced to 58 1/2 months' imprisonment. The accused was only 19 years' old at
the time of the offence, was employed and had a very supportive family. The accused was truly
remorseful and the offence was out of character for him. However, the fact that he had committed
the offence while on illegal drugs, the unprovoked assault on the female victim and the violence of
the stabbing of the deceased victim were aggravating factors. The accused was not a threat to
society and the incident had some elements of self defence, but this was not a near-accident or nearcase of self defence. The accused had to pay his debt to society for killing another human being.
The accused had overreacted to the threat of the baseball bat that resulted from him attacking the
female, and had stabbed the deceased in a frenzy of violence. A conditional sentence was not
sufficient to meet the principles of retribution, general deterrence and denunciation. The accused
was sentenced to five years imprisonment for the manslaughter and one day imprisonment for the
assault, served concurrently, but was credited with six weeks for time already served. Sentence: 58
1/2 months' imprisonment; DNA order; 10-year weapons' prohibition; lifetime firearms' prohibition.
Statutes, Regulations and Rules Cited:
Criminal Code, R.S.C. 1985, c. C-46, s. 34(2), s. 109(2), s. 487.051(1), s. 718, s. 718.1, s. 718.2, s.
719(3)
Counsel:
Counsel for Crown: G.R. Lindsey.
Counsel for Accused: J.W. Hogan.

Oral Reasons for Judgment

1

B.M. JOYCE J. (orally):--

INTRODUCTION
1 On May 26, 2009, a jury found Mr. Brisson not guilty of the second degree murder of Mr. Drew
Wagar, but guilty of the lesser offence of manslaughter. The jury also found Mr. Brisson guilty of

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assault upon Bonnie Schaeffer. I now have to impose sentences for these offences.
2 Mr. Wagar died as a result of multiple stab wounds inflicted by Mr. Brisson in the early
morning of April 16, 2007, during an encounter in Mr. Wagar's motel unit. Ms. Schaeffer was in the
same motel unit at the time of the homicide. Immediately before the altercation with Mr. Wagar, Mr.
Brisson assaulted Ms. Schaeffer.
3 Sentencing in manslaughter cases can be difficult because the range of sentence for this
offence is very wide. What is an appropriate sentence in any particular case will depend upon the
circumstances of the offence and the background of the offender. In R. v. Green, 2001 BCCA 672
[Green], it was said that most cases fall within the period of four to 15 years, and that a sentence
below or above that range is imposed only in a case involving special circumstances.
CIRCUMSTANCES OF THE OFFENCES
4 The task of sentencing is made more difficult in this case in that a jury is not required to give
reasons for its decisions or set out the facts that it found in arriving at those decisions. It is therefore
necessary for me to determine the facts that are relevant to sentencing.
5 With regard to the process for finding facts in a case following a jury trial, I distil the following
principles from R. v. Ferguson, [2008] 1 S.C.R. 96:
1.
1.
1.
1.

1.
1.

The sentencing judge must determine the facts necessary for sentencing
from the issues before the jury and from the jury's verdict.
The sentencing judge is bound by the express and implied factual
implications of the jury's verdict, and must accept as proven all facts
express or implied that are essential to the jury's verdict.
The sentencing judge must not accept as fact any evidence consistent only
with a verdict rejected by the jury.
When the factual implications of the jury's verdict are ambiguous, the
sentencing judge should not attempt to follow the logical processes of the
jury, but should come to his or her own independent determination of the
relevant facts.
Aggravating facts must be established beyond a reasonable doubt. Other
facts must be established on a balance of probabilities.
The sentencing judge should therefore 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 In this case, the defence relied on was self-defence. The evidence that emerged during the trial
required me to instruct the jury on the issues of self-defence under s. 34(2) of the Criminal Code,
R.S.C. 1985, c. C-46, intoxication, and the intention required for murder.
7 In finding Mr. Brisson not guilty of second degree murder, it is obvious that the jury was not
satisfied that the Crown had proven the specific intent for murder: either that he intended to kill Mr.
Wagar, or that he intended to cause him bodily harm which he knew was likely to cause death and
was reckless whether death ensued or not.
8

In finding Mr. Brisson guilty of the included offence of manslaughter, it is apparent that the

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jury was satisfied beyond a reasonable doubt that one or more of the elements of self-defence under
s. 34(2) was not present, but it is not possible to tell from the verdict alone which element or
elements of self-defence the jury thought was lacking.
9 Since the verdict itself leaves ambiguity with regard to which element or elements of selfdefence was or were not present, and the circumstances surrounding the offence are relevant in
assessing Mr. Brisson's moral culpability, it is my view that it is necessary for me to make those
findings of fact.
10

I find the circumstances, insofar as they are relevant to sentencing, to be as follows.

11 On the evening of April 15, 2007, Mr. Brisson went out with a friend to celebrate the friend's
birthday. They had a few drinks at a local restaurant, then bought a bottle of rum and returned to the
friend's house where they consumed some more alcohol. Shortly before midnight, Mr. Brisson
decided to call it a night and go home. While he had consumed alcohol, he was not drunk.
12 On the way to his home, Mr. Brisson encountered a young woman hitchhiker named "Nicole".
Mr. Brisson concluded she was probably a prostitute and decided to pick her up. At that time in his
life, Mr. Brisson was suffering from severe acne, had recently broken up with his girlfriend, and
thought that an encounter with a prostitute might make him feel better. Nicole asked Mr. Brisson to
take her to Tim Horton's and he complied. At Tim Horton's, Mr. Brisson asked Nicole if she had a
"joint" and she gave him a puff from a pipe. Mr. Brisson realized that the drug was not marihuana,
as he had expected. He said it made him feel "weird" and "shaky". Nicole bought some food, and
then asked Mr. Brisson to take her to the place where she was living, which was the Stormwynn
Trailer Park in Chilliwack ("Stormwynn"). Again, he complied. It is unclear whether he thought that
Nicole would provide sexual services at her residence.
13 Stormwynn was a trailer park and motel located on the outskirts of Chilliwack and was the
residence of a number of drug addicts and prostitutes. It was a place where drugs were purchased
and used, although Mr. Brisson had never been there before.
14 Mr. Brisson spent the next few hours at Stormwynn in the company of Nicole and a number of
other people whom he had never met before. Mr. Brisson never did receive any sexual services from
Nicole.
15 During the next few hours, Mr. Brisson consumed cocaine at least three times, including
smoking crack cocaine, which he had never done before. He had occasionally snorted powdered
cocaine. Mr. Brisson testified the crack cocaine made him feel high like he had never been before.
He said it made him feel "way out of whack."
16 At one point during the night, Mr. Brisson drove three other women, including Kim Schaeffer,
to the downtown area of Chilliwack. He then went on a "date" with Kim Schaeffer, that is, had a
sexual encounter with her for money.
17 Sometime later, after returning to Stormwynn, Mr. Brisson agreed to drive another woman
who lived there to the store in order to buy cigarettes. Shortly after returning from the store, Mr.
Brisson discovered that money had been stolen from the console of his truck.
18 The theft of his money upset Mr. Brisson and he pleaded with a number of people at
Stormwynn, without success, in an attempt to get back his money, or at least some of it.
19

Not long before 5:00 a.m., Mr. Brisson left Stormwynn in his truck. He drove around for a

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while, and then decided to return to see if he could persuade someone to give him some money so
that he would not be out all that had been taken.
20 Mr. Brisson returned to Unit 5, where he had spent most of his time that morning, but no one
answered the door. Mr. Brisson then went to Unit 3, which was the unit that was being occupied by
Kim Schaeffer, her daughter Bonnie, and Kim Schaeffer's partner, Drew Wagar.
21 Mr. Brisson knocked on the door to Unit 3 and Bonnie Schaeffer let him in. Kim Schaeffer
was not in the motel unit but Drew Wagar was in the bedroom lying on a mattress on the floor.
22 Mr. Brisson and Bonnie Schaeffer had a discussion about money and Mr. Brisson asked
Bonnie Schaeffer for $50.00. He also asked her for some drugs. She declined both requests.
23 Mr. Brisson then saw Mr. Wagar in the bedroom. He had not encountered Mr. Wagar
previously that night. Mr. Brisson asked Mr. Wagar if he had any money and Mr. Wagar shook his
head, "No". Bonnie Schaeffer told Mr. Brisson to quit bugging Mr. Wagar and to sit down.
24 Bonnie Schaeffer testified that she and Mr. Brisson were sitting on the couch and she then got
up to change a CD in the CD player that was on the kitchen counter. That is the last thing she
remembered before she woke up on the floor and Mr. Wagar was walking over top of her towards
the outside door of the motel unit.
25 Ms. Schaeffer sustained a superficial cut on the top of her head which bled a few drops onto
the floor. It is unknown precisely how she was cut.
26 It is apparent from the jury's verdict that they concluded that Mr. Brisson assaulted Bonnie
Schaeffer, but that decision does not, of itself, provide the reason for the assault or the mechanics of
it.
27 I conclude that, for whatever reason, Mr. Brisson pushed Bonnie Schaeffer and caused her to
fall. When Mr. Brisson was interviewed by the police, he admitted pushing Bonnie Schaeffer,
although at trial he said he could not recall having either struck or pushed her. I am satisfied that the
statement he gave to the police during the interview was true. In the course of falling, Bonnie
Schaeffer must have struck her head on some object causing the small cut to the top of her head.
She was either rendered unconscious for a brief time or the trauma caused her to suffer amnesia.
28 Mr. Wagar was in the bedroom at the time Bonnie Schaeffer was assaulted. The kitchen/living
area of the motel unit and the bedroom was separated by a wall in which there was a passageway.
The wall partially blocked the line of sight from the bedroom to the place where Bonnie Schaeffer's
blood was found.
29 I believe that while Mr. Wagar did not see what happened to Bonnie Schaeffer, he heard the
commotion, picked up an aluminium baseball bat that he had in the bedroom, and came towards Mr.
Brisson with the bat raised. I am satisfied that on seeing Mr. Wagar approaching with the raised bat
Mr. Brisson feared for his safety. He saw a knife that was sitting on the kitchen counter nearby and
grabbed it to defend himself.
30 I am satisfied that Mr. Brisson and Mr. Wagar met at or near the doorway and engaged in a
struggle. Mr. Brisson pushed Mr. Wagar back into the bedroom towards the mattress where the
encounter continued with the two men on top of, or very near to, the mattress. Mr. Brisson, who was
the younger and likely the fitter of the two, stabbed Mr. Wagar repeatedly within a very short period
of time. Mr. Brisson inflicted a total of 13 stab wounds to Mr. Wagar's chest, back, neck, face and

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left arm as well as a number of cuts to Mr. Wagar's face, chest and arm. Mr. Brisson was not injured.
31 Mr. Brisson then disengaged himself from Mr. Wagar and fled. Mr. Wagar followed, but
collapsed, with the baseball bat at his side, at the outer doorway of the unit where he bled to death.
32 I believe that Mr. Brisson was assaulted by Mr. Wagar and that he was under a reasonable
apprehension of grievous bodily harm when Mr. Wagar approached him with the raised baseball bat.
In my view, however, Mr. Brisson did not act in self-defence because he did not believe on
reasonable grounds that he could not preserve himself from death or grievous bodily harm other
than by taking the actions that he did. In my view, it is on this element that the defence of selfdefence failed.
33 In my view, Mr. Brisson over-reacted in an explosive and extremely violent manner. His
excessive response to the initial attack, by lashing out with the knife numerous times with lethal
effect, may have been prompted by an instinctive reaction to the immediate situation or by impaired
judgment due to his use of alcohol and cocaine in the hours preceding the incident, or a combination
of the two. In any event, his actions went beyond that which would be justified as self-defence.
PARTIES' POSITIONS REGARDING SENTENCE
34 Crown counsel submits that an appropriate range of sentence is between five and eight years,
and submits that a sentence of six or seven years should be imposed. Crown counsel also seeks a
DNA order and a lifetime firearms prohibition.
35 Defence counsel submits that this case should properly be viewed as one of near self-defence
and that a sentence of less than two years should be considered. He submits further, that if I accept
his submission as to the appropriate length of sentence, I should impose a conditional sentence.
Defence counsel made no submissions regarding the ancillary orders sought by Crown.
CIRCUMSTANCES OF THE OFFENDER
36 Mr. Brisson was 19 years old when he committed the offences and is now 22 years old. He
was born in Alberta, but moved with his family to Chilliwack in 1996, when he was nine. Mr.
Brisson lives with his parents and younger sister. His family remains very supportive of him. Mr.
Brisson graduated from high school with average marks. He was active in sports and played hockey
and lacrosse. He remains active as a referee for minor hockey. Mr. Brisson began working with a
local construction company in February 2006 and continues to work for that company as a framer.
He is a valued employee. Mr. Brisson has no prior involvement with the law.
37 When interviewed by the probation officer who prepared the pre-sentence report, Mr. Brisson
denied any problems with anger management. However, he was involved in some fights when he
was a student and his parents obtained some counselling for him when he was in high school to deal
with his anger issues.
38 Prior to this incident, Mr. Brisson drank alcohol and, at times, used marihuana and cocaine
with friends in social situations. There was no indication that his use of alcohol or drugs caused a
problem with his maintaining a normal, productive life. I note, however, that his mother testified
that she believes her son would benefit from some drug and alcohol counselling.
39 During the sentencing hearing, I heard from a number of members of Mr. Brisson's family
and from Mr. Brisson himself. In addition, I was provided with and have read a number of letters
from Mr. Brisson's family and friends. They were understandably shocked and dismayed by this

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event. They view Mr. Brisson's actions in this incident as completely out of character. They believe
that Mr. Brisson is very remorseful and regrets every day what happened, not just because of the
impact upon himself and his family, but also for having taken another person's life. They consider
that the time that Mr. Brisson has spent on bail pending the resolution of this matter has been
difficult and that he has already paid a significant price for what he has done. They are
understandably concerned that if Mr. Brisson is sentenced to prison, it will only do him more harm
without benefit to anyone. They believe that Mr. Brisson is not a threat to anyone and that he need
not be incarcerated to protect society.
40 Mr. Brisson recognizes that he made a number of bad decisions that culminated in the death of
Mr. Wagar. I accept that he is truly remorseful. I accept, as well, that he would like to be able to
begin making positive plans for himself. Mr. Brisson has worked steadily while he has been on bail.
He has also volunteered by refereeing minor hockey games. He believes that if he has the
opportunity to serve a sentence in the community, he can move forward with his life.
41 I am somewhat troubled by the fact that Mr. Brisson does not believe that he would benefit
from counselling when others, including members of his family, have expressed the view that they
believe he should receive counselling to deal with drug and alcohol issues as well as anger
management.
PRINCIPLES OF SENTENCING
42 Before discussing the authorities to which counsel have referred, I want to refer to some
principles of sentencing that are codified in the Criminal Code.
43

Section 718 of the Criminal Code provides as follows:

18.

The fundamental purpose of sentencing is 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;

1b)
1c)
1d)
1e)
1f)

44

Section 718.1 provides:

3

45

to deter the offender and other persons from committing offences;

to separate offenders from society, where necessary;
to assist in rehabilitating offenders;
to provide reparations for harm done to victims or to the community; and
to promote a sense of responsibility in offenders, and acknowledgment of
the harm done to victims and to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the
degree of responsibility of the offender.

Section 718.2 sets out a number of other principles of sentencing including:

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1a)
1b)

a sentence should be increased or reduced to account for any relevant

aggravating or mitigating circumstances relating to the offence or the offender,
and, ...
a sentence should be similar to sentences imposed on similar offenders for
similar offences committed in similar circumstances; ....

46 Another principle that emerges from the authorities is that of restraint, which has been stated
as follows in R. v. Vandale (1974), 21 C.C.C. (2d) 250, which was referred to in R. v. Ansari, 2008
BCSC 1709 [Ansari], affirmed at 2009 BCCA 381:
4

A first sentence of imprisonment especially for a first offender should be as short

as possible and tailored to the individual circumstances of the accused rather than
solely for the purpose of general deterrence.

DISCUSSION AND ANALYSIS

47 I do not believe that there is a need to deter Mr. Brisson from future criminal conduct or that
rehabilitation is a major consideration in this case. I am satisfied that Mr. Brisson's conduct in this
instance was out of character for him and occurred in circumstances that will not be repeated. Mr.
Brisson is aware of the harm that he has caused everyone.
48 In my view, the principles of sentencing that must receive primary consideration in this case
are retribution, denunciation and general deterrence.
49 When I speak of retribution, I do not do so as vengeance, but as that term is understood in the
context of criminal law. In R. v. C.A.M., [1996] 1 S.C.R. 500, at para. 80, retribution is stated to be:
5

80 ... an objective, reasoned and measured determination of an appropriate

punishment which properly reflects the moral culpability of the offender. ...
[U]nlike vengeance, retribution incorporates a principle of restraint; retribution
requires the imposition of a just and appropriate punishment, and nothing more.

50 In that same case, at para. 81, the Chief Justice of Canada described denunciation in these
terms:
6

81 ... The objective of denunciation mandates that a sentence should also

communicate society's condemnation of that particular offender's conduct. In
short, a sentence with a denunciatory element represents a symbolic, collective
statement that the offender's conduct should be punished for encroaching on our
society's basic code of values as enshrined within our substantive criminal law.

51 In the present case, Crown counsel submits that there are several aggravating circumstances
that justify a sentence in the range that he suggests:
1a)
2b)

the fact that the incident was preceded by, and likely precipitated by, an
unprovoked assault upon Bonnie Schaeffer;
the extreme amount of violence, as demonstrated by the multiple stab
wounds, particularly considering the lack of endangerment on the part of
Mr. Brisson; and

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2c)

the fact that Mr. Brisson was engaged in unlawful conduct in using illegal
drugs prior to this incident.

52 The defence relies on a number of mitigating factors in submitting that this is a case that
should be placed on the low end of the spectrum of sentences for manslaughter, including:
2a)
2b)
1c)
1d)
1e)

Mr. Brisson's young age;

the lack of any criminal record;
the lack of any premeditation, as demonstrated by the fact that Mr. Brisson did
not return to the motel with a weapon and only seized the knife when Mr. Wagar
approached with the baseball bat;
even if it cannot be said this was a case of near accident, such as a knock upon
the head that results in unexpected death, there are significant aspects of selfdefence; and
Mr. Brisson's remorse.

53 Crown counsel referred to a number of cases which he submits have factual similarities to the
case before me.
54 In R. v. A.B., 2003 BCSC 982 [A.B.] the accused, who was a crack cocaine addict, went to the
home of his dealer in an attempt to obtain the return of some goods that he had stolen from his
parents and pawned to the dealer. During the course of "negotiations" the dealer became angry,
backed A.B. into a corner, then demanded that he leave and punched him. A.B. grabbed a knife and
stabbed the dealer 20 times. When the dealer's female partner got involved, she was stabbed 33
times. Both victims died. A.B. was charged with two counts of second degree murder and, following
a trial, was convicted of two counts of manslaughter.
55 In sentencing the accused to two concurrent terms of imprisonment of eight-and-one-half
years, in addition to the 16 months of pre-trial custody, which was an effective global sentence of 11
years, D. Smith J. (as she then was) noted that denunciation and deterrence are the most important
of the sentencing objectives in this kind of case. She referred to the brutality and savageness of
what she described as "overkill" and A.B.'s voluntary consumption of drugs as aggravating
circumstances. Further, she noted the fact that the female victim was an innocent bystander who was
caught in the middle of A.B.'s explosive reaction.
56 There were mitigating factors in the case, including A.B.'s age of 26 years, his lack of
criminal record for violence, his lack of premeditation, his remorse, and his admission of guilt for
two counts of manslaughter at the outset of the trial.
57 Madam Justice Smith concluded that A.B.'s cocaine intoxication as well as provocation from
the male victim, self-defence aspects of the altercation between A.B. and the dealer, and A.B.'s
fixation on the return of his parents' goods combined to cause what she described as the "unintended
lethal frenzy of violence."
58 Madam Justice Smith referred to two decisions of our Court of Appeal that concerned
manslaughter committed by persons while in a cocaine-induced psychotic state.
59 In R. v. Hicks, [1995] B.C.J. No. 545 (C.A.) [Hicks], the accused brutally stabbed two female
victims for no apparent reason. The accused had a record of steady employment and a reasonably
good family situation. Deterrence of others and denunciation were the primary factors in imposing

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an effective sentence of approximately 12 years which was upheld on appeal.

60 In Green, supra, the accused killed his victim while in a drug-induced psychotic state. He
stabbed his female friend, who was not his partner, 37 times with a knife, then eviscerated her with
a shard of glass. The accused was 33 years old and had no prior record. He remembered nothing of
the killing. He expressed great remorse. The judge imposed a sentence of seven years after taking
into account the fact that he had spent 21 months in custody, effectively a sentence of about ten-andone-half years. In upholding this sentence, Mr. Justice Low concluded the sentencing judge, [2001]
B.C.J. No. 661, had committed no error. He stated at para. 13:
7

13 ... [T]he judge discussed and emphasized the sentencing principles of

denunciation and general deterrence. He concluded that this case was closer to
murder than to accident because the voluntary consumption of crack cocaine led
directly to the disturbed state of mind that resulted in this brutal killing. He said
that the range of sentence suggested by the defence [I note an effective sentence
of between six to seven-and-a-half years] "would not ... reflect the nature of the
crime, the circumstances of the offender or society's values".

61 Mr. Justice Low concluded the trial judge had correctly balanced the aggravating factors
(wholesale use of a dangerous substance) and an extremely brutal killing of a defenceless victim
with the mitigating factors (remorse, no criminal record, no history of violence and a guilty plea).
In para. 16 he said:
8

16 ... The appellant went on a reckless binge. He used a mind-altering substance

known to be capable of bringing about uncontrolled, violent conduct. In that
state, he attacked the victim. He is criminally responsible for the degree of
violence that caused the death of the victim and for the post-mortem indignity to
the body of the victim. Those circumstances weigh heavily in this case in
considering denunciation and deterrence. In my opinion, the sentencing judge
properly considered the aggravating and the mitigating factors in relation to each
other.

62 A case that bears certain similarities to the present is Ansari. Mr. Ansari killed a former friend
or associate by stabbing him a number of times. It was not clear what prompted the attack although
it appeared to relate to some financial dealings between the two individuals. Mr. Ansari was charged
with murder. The principal defence was automatism, but the jury also had to be instructed on mental
disorder, self-defence, the intention required for murder and provocation. The jury returned a
verdict of manslaughter. At para. 13 of his reasons, Mr. Justice McEwan discussed the findings of
the jury and the circumstances of the killing. He said:
9

13 In finding Mr. Ansari guilty of manslaughter, the members of the jury found
either that Mr. Ansari lacked the intention required for murder or that the
requisite intention was mitigated by provocation. While the jury did not find Mr.
Ansari's behaviour justified as an act of self-defence, it is implicit in the verdict
that they accepted that it was either reflexive, or specifically reactive to some act
or comment offered by Mr. Goos. The nature of the killing itself conforms, as the
psychiatric and psychological experts testified, to the phenomenon of "overkill",

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the intense reaction of a person otherwise disposed to avoid conflict in the face of
extraordinary stress.
63 The personal circumstances of Mr. Ansari bore some similarity to those of Mr. Brisson. He
was a young man with no criminal record, was a highly-motivated student, and had an impressive
record of service to other people as a coach, and as a tutor and mentor to learning-disabled and other
students. Nothing in Mr. Ansari's circumstances suggested that the events on the day of the killing
were anything but an aberration.
64 Mr. Justice McEwan noted that Mr. Ansari had an impressive number of friends who were
prepared to offer support publicly, notwithstanding the enormity of the crime that he had committed.
65 Mr. Justice McEwan expressed his opinion that specific deterrence, rehabilitation, and the
protection of society were not really relevant because he was satisfied the event was an aberration.
Mr. Ansari was genuinely remorseful and aware of the harm he had caused. The principles at play,
as in the present case, were retribution, denunciation and general deterrence. At paras. 31 and 32,
Mr. Justice McEwan concluded:

66

10

31 This was a culpable homicide with a weapon committed in circumstances of

significant duress. The poor judgment manifest in the presence of the knife and in
Mr. Ansari's participation in the series of events leading up to the stabbing is
inexplicable in terms of everything else that is known about him. Obviously, no
sentence will make up for Mr. Goos' death. On the other hand, very little purpose
will be served by a period of incarceration beyond what is necessary to
acknowledge the gravity of the offence.

11

32 The guidance offered by the Court of Appeal, while not prescriptive, is that a
range of four to six years is applicable to most cases of manslaughter; see R. v.
Gillies, [1998] B.C.J. No. 1153, per McEachern C.J.B.C. In this case, the range
of possible findings of fact required the jury to be instructed on self-defence, a
finding of which would have resulted in an acquittal. In finding that Mr. Ansari's
actions were not justified, on the one hand, and did not amount to murder on the
other, the jury found facts that did not relieve Mr. Ansari of responsibility, but
that significantly mitigated the event, despite its disturbing appearance. I do not
think it can be said that the circumstances suggest that this case was on the "high
end" or "close to murder" with any more accuracy than it can be said that it was
"close to self-defence". It strikes me, then, that as between those poles of
culpability the proper sentence falls within the four to six-year range.

He imposed a sentence of five years which was upheld on appeal.

67 The Crown also refers to R. v. Eliason, 2003 BCSC 1808 [Eliason], in which the offender
inflicted a fatal beating upon a prostitute he had picked up. He became angry and instigated a fight
out of rage when he discovered the prostitute was a person who had undergone a partial sex change.
At some point, the prostitute pulled a knife but the court found that the accused's final blow was
delivered when the prostitute was no longer a threat to him and the accused's claim of self-defence
was rejected. The court found that the accused reacted with violence that was out of proportion to
the attack upon him. He was sentenced to seven years' imprisonment. The accused in that case had a
criminal record that included a prior assault.

Page 13

68 Defence there sought a conditional sentence but the sentencing judge concluded that there
were no available sanctions other than imprisonment that were reasonable in the circumstances. The
case was not at the near accident end of the spectrum and the accused had failed to take any steps
toward his rehabilitation. The offender received a sentence of seven years.
69 A case in which clearly there were aspects of self-defence is R. v. Andrew, 2008 BCCA 141
[Andrew]. Mr. Andrew and a number of other individuals had spent the day drinking and smoking
marihuana at a site near the Fraser River. On the way home, Mr. Andrew and his victim were in the
back seat of a vehicle. An altercation between the two developed and the victim punched Mr.
Andrew. The driver of the vehicle stopped and Mr. Andrew tried to get out, but was being held back
by the victim. When Mr. Andrew finally was able to get out of the vehicle, his victim started to get
out, to follow him. Mr. Andrew pulled out a fishing knife and stabbed his victim twice in the chest.
One of the stabs pierced the aorta and was fatal.
70 Mr. Andrew was charged with second degree murder and the jury convicted him of
manslaughter. Mr. Andrew was 23 years of age at the time of the offence; had a minor criminal
record that did not include any offences of violence; was remorseful; had stopped drinking alcohol
and using drugs; and had worked steadily in the two years preceding sentencing.
71 The Crown submitted the appropriate range of sentence was three to six years, while the
defence sought a sentence of two years less a day. The sentencing judge concluded that an
appropriate sentence would have been three years, but took pre-sentencing custody into account
and imposed a conditional sentence of two years less a day.
72 On appeal, it was conceded on the basis of R. v. Fice, [2005] 1 S.C.R. 742 that the trial judge
had erred in imposing a conditional sentence given that he had concluded a fit sentence would have
been three years. In substituting a custodial sentence of two years and five months after taking into
account time spent in pre-trial custody and the time served on the conditional sentence, Mr. Justice
Tysoe stated at paras. 18 and 19:

73

12

18 In addition to R. v. Gillies, supra, Crown counsel has referred us to the

decisions by this Court in R. v. Green, [2001] B.C.J. No. 2434, 2001 BCCA 672;
R. v. Dhanda, [2005] B.C.J. No. 2328, 2005 BCCA 533; and R. v. Seitcher,
[2007] B.C.J. No. 1019, 2007 BCCA 255, for the propositions that denunciation
of criminal conduct causing death and deterrence are the prime considerations in
sentencing for a manslaughter offence of the nature of the offence in the
present case and that, absent unusual circumstances, the bottom end of the range
of sentences for manslaughter of this nature is four years.

13

19 In my opinion, the sentencing judge took the mitigating factors of this case
into account to their fullest possible extent in concluding that an appropriate
sentence was three years before crediting the pre-trial custody. A sentence of less
than three years would not have been a fit sentence. It is debatable whether the
mitigating factors constitute unusual circumstances such that a sentence of less
than four years can be considered appropriate, but I am not persuaded that the
conclusion of the sentencing judge in this regard should be disturbed in view of
the position taken by the Crown at the sentencing hearing.

The only decision relied on by the defence with regard to the appropriate length of sentence

Page 14

was R. v. McGoran, [2004] B.C.J. No. 2865 [McGoran], a decision of mine. Mr. McGoran pleaded
guilty to manslaughter in the killing of another man during the course of a botched robbery. Mr.
McGoran and a friend led another person (whom they had recently met up with) into the woods
intending to rob him. When the victim made a movement of some sort towards Mr. McGoran's
friend, Mr. McGoran struck him on the back of the head once with a stick. The blow landed on a
particularly vulnerable part of the head, killing the victim. It was common ground that the offender
did not strike the blow for the purpose of furthering the robbery. Mr. McGoran was 18 years of age
at the time of the offence and had a very unfortunate upbringing.
74 There were a number of mitigating factors including the fact that Mr. McGoran had no prior
criminal record; confessed to and cooperated with the police; pleaded guilty; and was remorseful.
75 Crown sought an effective sentence of six years, while defence sought a sentence of two years
less a day followed by three years of probation. I concluded that rehabilitation should receive
significant consideration and that it would be best achieved in a provincial facility and imposed the
sentence sought by defence. However, I concluded that a conditional sentence would not be
appropriate because it would not contribute to respect for the law and the maintenance of a just,
peaceful and safe society, and would not provide sufficient denunciatory or deterrent effect.
76 As I stated earlier, it is my view that the primary considerations in sentencing Mr. Brisson
must be denunciation and general deterrence. While finding Mr. Brisson not guilty of murder, the
jury has found him guilty of a very grave offence in the manslaughter of Mr. Wagar. No sentence
can, of course, undo that tragedy. Mr. Brisson bears responsibility for Mr. Wagar's death and he
must pay his debt to society for his culpability in taking the life of a fellow human. I am satisfied
that Mr. Brisson deeply regrets his actions the night of April 15 and 16, 2007. His conduct on that
occasion was out of character and is unlikely to be repeated. He is genuinely remorseful and does
not pose a threat to society.
77 There are, as I have indicated, a number of mitigating factors that I have taken into
consideration. Mr. Brisson is a young man and has no criminal record. This is his first conviction,
though it is a conviction for a very serious offence. Mr. Brisson was employed at the time of the
offence and has remained employed while on bail. His employer thinks highly of him. He is a
person who has contributed and can contribute positively to his family and his community.
78 I do not think it would be appropriate to characterize the circumstances of this manslaughter
as near murder nor was it near accident. However, while the jury in rejecting self-defence found
that the homicide was not justified, there are significant elements of self-defence that emerge from
the evidence. Although Mr. Wagar certainly did not deserve to die, Mr. Brisson's actions were in
reaction to threatening actions of Mr. Wagar. However, Mr. Brisson over-reacted to the situation,
engaging in a "lethal frenzy of violence" (to borrow that phrase from the earlier case) in using the
knife that happened to be at hand.
79 I have also considered the aggravating circumstances. It was the action of Mr. Brisson in
assaulting Ms. Schaeffer that started the sequence of events that culminated in Mr. Wagar's death.
The amount of violence used by Mr. Brisson which (using the description found in some of the
other cases) amounted to overkill, can be viewed as an aggravating circumstance. It might also be
said in some respects that it was the excessive violence that made the homicide culpable rather than
justified.
80

Mr. Brisson's unlawful conduct in using illegal drugs in the hours leading up to the killing can

Page 15

also be seen as aggravating. On the other hand, it is my view that the circumstances in this case are
different from those in A.B., Hicks, and Green. In those cases, the offenders were cocaine addicts
who knew the effects of the drugs and voluntarily ingested large quantities of cocaine leading to a
state of cocaine-induced psychosis. Mr. Brisson had never before smoked crack cocaine. That, of
course, does not absolve him of responsibility for the offence, but I think the circumstances are less
aggravating.
81 When I weigh the relevant aggravating and mitigating factors, consider the gravity of the
offence, consider Mr. Brisson's personal circumstances, consider his degree of responsibility or
moral culpability, and have regard for the authorities that must guide me, I am satisfied that a
sentence of two years less a day as sought by the defence would not meet the principles of
sentencing and, in particular, would not satisfy the principles of denunciation and deterrence. As
one of the statutory pre-conditions to granting a conditional sentence is that a sentence of less than
two years is imposed, a conditional sentence is simply not available in this case.
82 As to what is the appropriate length of sentence, it is my view that the cases of A.B., Hicks,
and Green involved more egregious circumstances and a higher degree of culpability on the part of
the offenders. I have already referred to the fact that they are cases where the voluntary
consumption of mind-altering drugs played a prominent role. They do not have the same elements
of self-defence or provocation (in the general sense of the word provocation, not the Criminal Code
definition) that this case presents. A.B., and Hicks, in addition, involved double homicides. Green
involved particularly gruesome gratuitous violence. In Eliason, the circumstances of the offender
were less positive than in the present case.
83 Andrew appears to be a case which is perhaps as close to a near-self-defence (if that is an
appropriate term) as one might find, yet the Court of Appeal opined that a fit sentence would have
been not less than four years and imposed a lesser sentence only because of the position taken by
the Crown.
84 In my view, the circumstances in McGoran were quite different from the present case. That
case, in my opinion, can be seen as a near-accident case.
85 In my view, the case that has the greatest similarity in terms of the circumstances surrounding
the offence and the nature of the offender is Ansari. Both cases involve a spontaneous reaction to
provocative actions on the part of the victim and involved the use of violence that was out of
character for the offenders, both of whom had good backgrounds and character.
86 In this case, as I have already concluded, the victim approached Mr. Brisson with a baseball
bat, but the fact remains that the whole series of events began when Mr. Brisson committed an
unjustifiable assault on Ms. Schaeffer.
87 In the end, taking all of these circumstances into account and having regard to the case law, I
conclude that the proper effective sentence for the offence of manslaughter in this case is five
years.
88 Mr. Hogan submits that in determining the length of sentence Mr. Brisson should receive
credit for the time that he has spent while on bail during this proceeding in a manner analogous to
the credit given for pre-trial custody pursuant to s. 719(3) of the Criminal Code.
89 Our Court of Appeal has indicated that in appropriate circumstances time spent on bail under
onerous conditions can be taken into account as a mitigating factor when imposing sentence. In R.

Page 16

v. Cuthbert, [2007] B.C.J. No. 2523 [Cuthbert], the court held that a sentencing judge may treat bail
time with stringent conditions as a mitigating factor. However, the court held that the sentencing
judge in that case had not erred in failing to reduce the length of the sentence on account of the pretrial bail conditions.
90 The bail conditions in Cuthbert, which were in place for about 28 months, included a 6:00
p.m. to 6:00 a.m. curfew, an injunction to stay away from his daughter, his ex-wife and her common
law husband, and a requirement that Mr. Cuthbert remain within a 1.6 kilometre radius of his
residence. The court noted at para. 37:
14

91

37 While the appellant's terms of bail included a curfew and a significant area
restriction, they did allow him to carry on many aspects of a normal life. He was
able to carry on with his career; he was able to interact with family and friends;
subject to his area restriction he was not confined during non-curfew hours; and
there is no evidence he was ever denied a request to go outside his area
restriction. He was able to pursue interests, as he took up or resumed reading,
learned some Latin, played chess and the saxophone, pursued drawing, and
participated in health and fitness activities.

And at para. 39 the court said:

15

39 The evidence concerning the appellant's time on bail shows that his ability to
carry on a normal life, while not complete, was far removed from what he would
have experienced in custody.

92 In the present case, Mr. Brisson was arrested on April 20, 2007, was released on bail three
weeks later, on May 11, 2007, and has been on bail ever since. His recognizance of bail includes
conditions that he reside with his parents, abide by a curfew from 10:00 p.m. to 5:30 a.m. seven
days a week, subject to an exception to enable him to perform volunteer work as a hockey referee,
or with the written permission from his bail supervisor, and that he remain in British Columbia. The
latter restriction was varied on two occasions to permit Mr. Brisson to travel to Alberta for family
functions.
93 Mr. Brisson and members of his family have told me that it has been hard for Mr. Brisson, a
young man, to have to be in his residence by 10:00 p.m. each night and not able to be out with his
friends and fiance.
94 While I accept that Mr. Brisson's bail conditions have restricted his liberty to some extent, I do
not believe they are any more onerous than those in Cuthbert. Mr. Brisson has been able to work
and has been able to associate with his friends, family and fiance, essentially without restriction up
to 10:00 p.m. every day. He has been permitted to leave the jurisdiction when he requested variation
to accommodate family functions. As in Cuthbert, Mr. Brisson's ability to carry on a normal life,
while not complete, was far removed from what he would have experienced in custody. I am
therefore not persuaded to reduce Mr. Brisson's effective sentence on account of the time he spent
on bail.
95 Mr. Brisson did spend three weeks in custody prior to being released on bail. On the
authorities, I consider that I am required to give two-for-one credit for the time spent in custody.
96

Neither counsel made any submissions with regard to an appropriate sentence for the offence

Page 17

of assault, no doubt because that offence is much less serious. I have concluded that Mr. Brisson
pushed Bonnie Schaeffer, causing her to fall and hit her head on some object causing a superficial
cut.
97 In these circumstances, considering the background of Mr. Brisson, and the relatively minor
nature of the assault, I am of the opinion that a sentence of one day in jail, in addition to the time
spent in custody, would be appropriate.
98 Mr. Brisson, would you please stand. Mr. Brisson, for the offence of manslaughter, I sentence
you to a term of imprisonment of 58-and-one-half months. For the offence of assault, I sentence you
to one day in jail concurrent with the sentence for manslaughter.
99 I also impose a firearms prohibition in accordance with s. 109(2) of the Criminal Code
prohibiting you from:
3a)

3b)

possessing any firearm, other than a prohibited firearm or restricted firearm, and
any crossbow, restricted weapon, ammunition, and explosive substance during
the period that begins today and ends 10 years after your release from
imprisonment; and
possessing any prohibited firearm, restricted firearm, prohibited weapon,
prohibited device, and prohibited ammunition for life.

100 Further, I make an order under s. 487.051(1) of the Criminal Code, for the taking of DNA
samples.
101

Finally, the victim impact surcharge will be waived.

B.M. JOYCE J.

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