R. v. Ansari (S.), (2009) 275 B.C.A.C. 157 (CA)

• Judge: Chiasson, Frankel and Bauman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 03, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 275 B.C.A.C. 157 (CA);2009 BCCA 381

R. v. Ansari (S.) (2009), 275 B.C.A.C. 157 (CA);

    465 W.A.C. 157

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. SE.018

Regina (appellant) v. Sasan Ansari (respondent)

(CA036739; 2009 BCCA 381)

Indexed As: R. v. Ansari (S.)

British Columbia Court of Appeal

Chiasson, Frankel and Bauman, JJ.A.

September 3, 2009.

Summary:

The accused was charged with second degree murder in the stabbing death of an acquaintance, but convicted by a jury of the lesser included offence of manslaughter. The defence of automatism was rejected. The Crown sought a sentence of 12 years' imprisonment. The accused submitted that four years' imprisonment would be appropriate. The trial judge sentenced the accused to five years' imprisonment. The Crown appealed the sentence on the ground that it was demonstrably unfit, seeking an increase to eight years' imprisonment.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 5848

Sentencing - Considerations on imposing sentence - Provocation - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5882

Sentence - Manslaughter - The accused was charged with second degree murder in the stabbing death of the victim - The victim, allegedly owed money, threatened the accused - They met in a parking lot - The accused brought a knife - The struggle in the victim's vehicle was captured by a surveillance camera - The accused's defence of automatism was rejected - The jury acquitted him of murder, but found him guilty of manslaughter - The accused had no prior criminal record and completed his first two years of law school while on judicial interim release - The trial judge was satisfied that the offence was an aberration in behaviour - The Crown sought 12 years' imprisonment - The trial judge, after credit for five weeks' custody following the verdict, sentenced the accused to five years' imprisonment - The Crown appealed on the ground that the sentence was demonstrably unfit, seeking an increase to eight years' imprisonment - The Crown submitted that the trial judge gave insufficient weight to the gravity of the offence and the accused's moral blameworthiness, too much weight to mitigating factors, and erred in considering the accused's two years on restrictive judicial interim release as a mitigating factor - The British Columbia Court of Appeal dismissed the appeal - The trial judge properly considered the gravity of the offence and did not err in finding that his responsibility was mitigated by circumstances to which the victim contributed - There was no error in accepting expert evidence that the accused was a person otherwise disposed to avoid conflict, but over-reacted during a period of duress - The court rejected the Crown's submission that the accused was getting a "double benefit" for something that had already resulted in murder being reduced to manslaughter - Considering provocation in determining moral culpability did not result in a "double benefit" - There was no error in considering the restrictive conditions of bail to be a mitigating factor.

Cases Noticed:

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 19].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 231 C.C.C.(3d) 310; 2008 SCC 31, refd to. [para. 26].

R. v. I.J.W.C. (2008), 259 B.C.A.C. 283; 436 W.A.C. 283; 2008 BCAC 373, refd to. [para. 26].

R. v. B.F.L. (2002), 163 B.C.A.C. 290; 267 W.A.C. 290; 2002 BCCA 118, refd to. [para. 26].

R. v. Hornby (P.A.) (2003), 192 B.C.A.C. 70; 315 W.A.C. 70; 181 C.C.C.(3d) 48; 2003 BCCA 635, refd to. [para. 27].

R. v. Hamilton (M.A.) and Mason (D.R.) (2004), 189 O.A.C. 90; 186 C.C.C.(3d) 129 (C.A.), refd to. [para. 28].

R. v. Chapman (N.T.) (2000), 135 B.C.A.C. 147; 221 W.A.C. 147; 2000 BCCA 152, refd to. [para. 28].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321; 83 C.C.C.(3d) 346, refd to. [para. 32].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1; 134 C.C.C.(3d) 353, refd to. [para. 32].

R. v. Laberge (K.K.) (1995), 165 A.R. 375; 89 W.A.C. 375 (C.A.), refd to. [para. 32].

R. v. Cairns (R.S.) (2004), 197 B.C.A.C. 252; 323 W.A.C. 252; 2004 BCCA 219, refd to. [para. 32].

R. v. Gillies (A.J.) (1998), 107 B.C.A.C. 157; 174 W.A.C. 157 (C.A.), refd to. [para. 42].

R. v. Green (O.R.) (2001), 160 B.C.A.C. 121; 261 W.A.C. 121; 2001 BCCA 672, refd to. [para. 42].

R. v. Henderson (E.) et al. (2005), 207 B.C.A.C. 14; 341 W.A.C. 14; 192 C.C.C.(3d) 366; 2005 BCCA 3, refd to. [para. 42].

R. v. Richer - see R. v. Henderson (E.) et al.

Counsel:

B.A. MacLean and J. Duncan, for the appellant;

R.C.C. Peck, Q.C., and E.V. Gottardi, for the respondent.

This appeal was heard on June 17, 2009, at Vancouver, B.C., before Chiasson, Frankel and Bauman, JJ.A., of the British Columbia Court of Appeal.

On September 3, 2009, Bauman, J.A., delivered the following judgment for the Court of Appeal.