R. v. Anthony-Cook (M.J.), 2015 BCCA 22

• Judge: Neilson, Bennett and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 19, 2015
• Jurisdiction: British Columbia
• Citations: 2015 BCCA 22;(2015), 367 B.C.A.C. 96 (CA)

R. v. Anthony-Cook (M.J.) (2015), 367 B.C.A.C. 96 (CA);

    631 W.A.C. 96

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JA.058

Regina (respondent) v. Matthew John Anthony-Cook (appellant)

(CA042018; 2015 BCCA 22)

Indexed As: R. v. Anthony-Cook (M.J.)

British Columbia Court of Appeal

Neilson, Bennett and Garson, JJ.A.

January 19, 2015.

Summary:

The 29 year old accused had a long-standing mental health disorder (psychotic) and substance abuse issues. The accused was asked to leave a drop-in centre due to his anger and difficult behaviour. Outside the centre, a volunteer yelled at the accused to "smarten up". He pursued the accused and grabbed him by the shoulders. The accused responded by throwing punches to his head and neck. The volunteer was knocked out. He fell, hit his head on the pavement, and died. The accused pleaded guilty to manslaughter. He had a criminal record of 20 prior convictions since 2007 (break and enters, theft, mischief and assault). He was on probation at the time of the manslaughter. The accused and Crown jointly recommended a sentence of 18 months' imprisonment (with no probation), in addition to pre-trial custody spent in jail and in hospital.

The British Columbia Supreme Court, in a judgment reported [2014] B.C.T.C. Uned. 1503, rejected the joint submission as failing to give adequate weight to the principles of denunciation, deterrence and protection of the public. The court held that an appropriate sentence was three years' imprisonment, less 366 days' credit for pre-trial custody in jail, for a net sentence of imprisonment for two years less a day. The court also imposed three years' probation. The accused appealed.

The British Columbia Court of Appeal dismissed the appeal. The sentencing judge gave the parties notice that he would possibly not accept the joint submission and gave them an opportunity to make further submissions. The judge's detailed reasons for rejecting the joint submission showed that he gave it careful consideration before rejecting it. The trial judge did not err in fixing the appropriate range of sentence at 3-5 years, in giving credit for pre-trial custody, or in imposing three years' probation, including a condition precluding consumption of illegal drugs. The additional six months' imprisonment plus three years' probation was not a significant departure from the jointly recommended sentence.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - See paragraphs 1 to 44.

Criminal Law - Topic 5882

Sentence - Manslaughter - See paragraphs 1 to 44.

Cases Noticed:

R. v. Huth (B.C.), [2014] B.C.T.C. Uned. 570; 2014 BCSC 570, refd to. [para. 14].

R. v. McGoran (B.P.), [2004] B.C.T.C. 1737; 2004 BCSC 1737, refd to. [para. 14].

R. v. Braune, 2006 ONCJ 50, refd to. [para. 14].

R. v. Isenor (B.) (2007), 263 N.S.R.(2d) 22; 843 A.P.R. 22; 2007 NSPC 70, refd to. [para. 14].

R. v. Tabbara (M.J.), [2009] O.T.C. Uned. P41 (Sup. Ct.), refd to. [para. 14].

R. v. Henry (T.A.) (2002), 203 N.S.R.(2d) 40; 635 A.P.R. 40; 2002 NSCA 33, refd to. [para. 14].

R. v. Roadhouse (D.A.) (2012), 330 B.C.A.C. 303; 562 W.A.C. 303; 2012 BCCA 495, refd to. [para. 20].

R. v. Nome (T.M.) (2002), 172 B.C.A.C. 183; 282 W.A.C. 183; 2002 BCCA 468, refd to. [para. 21].

R. v. Peters (D.W.A.) (2008), 262 B.C.A.C. 57; 441 W.A.C. 57; 2008 BCCA 446, refd to. [para. 21].

R. v. Dorsey (C.) (1999), 123 O.A.C. 342 (C.A.), refd to. [para. 21].

R. v. Bezdan (J.G.) (2001), 154 B.C.A.C. 122; 252 W.A.C. 122; 2001 BCCA 215, refd to. [para. 22].

R. v. Ayorech (C.D.) (2012), 522 A.R. 306; 544 W.A.C. 306; 2012 ABCA 82, refd to. [para. 31].

R. v. Ellis (S.) (2013), 312 O.A.C. 328; 2013 ONCA 739, refd to. [para. 31].

R. v. B.B. (2009), 247 O.A.C. 37; 2009 ONCA 114, refd to. [para. 31].

R. v. Batisse - see R. v. B.B.

R. v. Nghiem (H.B.), [2009] B.C.A.C. Uned. 31; 2009 BCCA 170, refd to. [para. 35].

R. v. Bourque (K.A.N.) (2013), 344 B.C.A.C. 197; 587 W.A.C. 197; 2013 BCCA 447, refd to. [para. 40].

Counsel:

R.A. Ross, for the appellant;

M.T. Ainslie, Q.C., and L. Drake (A/S), for the respondent.

This appeal was heard on December 2, 2014, at Vancouver, B.C., before Neilson, Bennett and Garson, JJ.A., of the British Columbia Court of Appeal.

On January 19, 2015, Garson, J.A., delivered the following judgment for the Court of Appeal.