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PETER A. ALLARD SCHOOL OF LAW

THE UNIVERSITY OF BRITISH COLUMBIA

FINAL EXAMINATION - April 18, 2018

LAW 406C

Topics in Criminal Justice: Principles of Sentencing

Section 1

Professor Grant

TOTAL MARKS: 100

TOTAL TIME ALLOWED:
3 hours +
20 minutes reading time

NOTES:

1. This is a closed book exam. Students may bring in an unannotated pocket Criminal
Code and two pieces of paper with your notes on both sides (8½ x 11). Students must
use a pocket Criminal Code with no annotations. Students may bring an English
dictionary to the exam. No legal dictionaries are permitted and the English dictionary
must not be annotated in any way. No other papers or books are allowed.

2. There are two parts to this exam. Part A contains one fact pattern with two questions
worth a total of 75 marks. All students must complete both questions. The first question
of Part A is worth 55 marks, and the second question is worth 20 marks. Part B consists
of essay questions. Each student must answer of two essay questions, worth 25
marks.

3. Students may cite cases by reference to the name only (e.g., Summers). Students should
be sure to cite to relevant sections of the Criminal Code. You can assume that if you
refer to a relevant Code section accurately, there is no need to write out the contents of
the section in full.

THIS EXAMINATION CONSISTS OF 6 PAGES

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Law 406C, Section 1

PART A: Students must each answer both Questions 1 and 2 of Part A.

Question 1 is worth 55 marks (99 minutes), and Question 2 is worth 20 marks (36 minutes).

Background of the Proceedings:

On March 1, 2018, the trial judge, sitting alone, convicted Jason Parker two counts of arson. Parker
then entered guilty pleas to one count of assault causing bodily harm and one count of aggravated
assault. Parker is to be sentenced today, on April 18, 2018. You should assume the current law
applies and that the law in force today is the same as the law that applied on the date ofthe offences.

Circumstances of the Offences:

Two business properties in the same Vancouver neighbourhood were destroyed in flames at
approximately 5:00 and 5:30 AM on January 23, 2017. Firefighters found gasoline-soaked rags in
the rubble at each site, and the Vancouver Police Department began a complex investigation. Jason
Parker, who was known to police through his past criminal involvement and gang affiliation, was
identified on surveillance footage around the properties at the time. Police discovered that Parker
had been paid $5000 to set the fires for a local gang called the Hawkmoths, which paid him to
destroy the properties of a prominent local business owner, Bill Campbell. Campbell, after losing
his teenage son to gang violence, had been speaking publicly about the importance of removing
the Hawkmoths from the local community, and he contributed large sums of money to support
youths who were trying to leave gangs.

Meanwhile, Jason Parker’s personal life was chaotic. He had been in an off-again, on-again
relationship with Catherine Jones for a number of years. Jones had lived with her mother and her
two children Christian (age 8) and Eliza (age 10) while dating Parker. The relationship had been a
difficult one, and ended in May, 2017 when Jones announced that she was returning, with her two
children, to the home of her former husband Mark Lister (the father of the children). On June 18,
2017, she asked Parker to bring her remaining belongings to Lister’s home. When Parker arrived,
he clearly had been drinking and was not happy about the fact that Jones had returned to her former
partner. Her son Christian was with her, but her daughter Eliza was visiting friends. Jones and
Parker got into a screaming match and Jones decided to leave the home with her son. Parker
blocked the doorway so that they were unable to leave. He grabbed Jones by the neck and pushed
her up against the wall, and hit her hard in the face three times. At this moment Mr. Lister returned
to the home unexpectedly. Parker grabbed a large cast-iron saucepan and swung it at him, hitting
him hard on side of the head with the saucepan. Lister fell to the ground unconscious. While this
was happening, Christian managed to run to a neighbour’s house and call 911. Parker fled the
scene, was arrested a few hours later, and then detained in custody on June 18, 2017. He was
denied bail on the basis of his criminal record and the record was endorsed under s. 515(9.1) of
the Criminal Code.

Charges:

Parker has been charged with the following offences:

2 counts of arson causing damage to property, pursuant to s. 434 of the Criminal Code;
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Law 406C, Section 1

1 count of assault causing bodily harm against Catherine Jones, pursuant to s. 267(b) of
the Criminal Code;

1 count of aggravated assault against Mark Lister, pursuant to s. 268(2) of the Criminal
Code;

Your research has revealed the following sentencing ranges:

i) Arson, damage to property has a wide range of from 6 months to 12 years.

ii) Assault causing bodily harm has a range of 9 months to 2 years.
iii) Aggravated assault has a range of 16 months to 6 years.

Excerpt from Presentence Report

Mr. Parker is 30 years old. He was born in 1988 in Edmonton Alberta, lived for a short time in
Saskatoon, and moved to Abbotsford when his parents got divorced in 1999. He is the youngest
of four boys. His father was a long-distance trucker who was away from home regularly. When
Mr. Parker was young, his mother stayed home while her husband was away. After the couple
divorced, his mother cleaned houses for people in the Abbotsford community and worked at a
local diner on weekends to make ends meet.

Mr. Parker had significant involvement in sports as a young child and was a very talented soccer
player. He played in local soccer tournaments and, while his parents were together, would travel
to tournaments outside of Alberta. When his mother was on her own, travelling to out-of-town
tournaments was no longer possible for financial reasons. Because his mother had to manage two
jobs, and was raising four boys, she was not home very much and Mr. Parker was very influenced
by his older brothers. As a result, he tended to spend time with kids who were older than him.

Mr. Parker’s life changed dramatically at the age of 16. He had been dating a 16-year-old neighbor
for approximately 12 months and they had become very close. In 2004, she died in a tragic car
accident which also took the lives of two of her friends. Mr. Parker had an extremely strong
reaction to this tragedy. He became withdrawn and depressed and he quit playing sports.
Organized sports had provided much-needed structure to his life and he lost that when he quit
soccer. He started skipping school and spending time with an older crowd. This caused a great deal
of conflict within his family, as his mother saw excelling in school as his best chance to succeed
in life.

His involvement with the criminal justice system began shortly after the death of his girlfriend at
age 16 when he was charged with robbery with violence for stealing a bike from a young person
and pushing the child to the ground in the process of the robbery. He had been encouraged to
commit the offence by some older teenagers who knew that he would do what they told him in
order to win their approval. He was sentenced to 12 months probation and given a 2 year weapons
prohibition. After completing his probation, he quit school and moved out of his home and stayed
at the Salvation Army or on the street when he couldn’t find another place to stay.
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Law 406C, Section 1

Mr. Parker was eventually introduced to the Hawksmoths gang, and he entered into a criminal
lifestyle. At the age of 18, he was involved in an incident where gunshots were fired from a vehicle
within the city of Surrey, BC. Mr. Parker was charged with unauthorized possession of a firearm
and possession of a firearm contrary to his prohibition order. He pled guilty and served a six-month
sentence and received another weapons prohibition. At the age of 23, while intoxicated, he
assaulted a local convenience store clerk when he was told to stop eating a sandwich because he
had not yet paid for it. He told the clerk that he should have stabbed her. He was convicted of
uttering threats. He received 90 days to be served intermittently.

At the age of 25, Mr. Parker was involved in a much more serious offence. By this time he had
become more deeply involved with the gang and had begun experimenting with serious drugs such
as cocaine and methamphetamine. He went to a house party with other gang members. At that
party, a young man was viciously beaten by other gang members. The victim ultimately died of
his injuries and Mr. Parker was convicted as a party (accomplice) to manslaughter for his
involvement in the offence, which included deliberately blocking the entranceway to prevent the
victim from escaping. He was sentenced to 3 years with a 10 year weapons prohibition after credit
for pretrial custody was given. He was released after serving two thirds of his sentence in June
2016.

Mr. Parker has not been a model prisoner while detained prior to trial. He has two disciplinary
infractions for alcohol consumption and has been involved in two fights with other inmates.

Mr. Parker has a long history of alcohol abuse which has evolved into a drug problem since his
last incarceration. He admits to regularly consuming alcohol and taking a variety of drugs
including cocaine and methamphetamines. He admits to being impaired at the time of the assaults
on Mr. Lister and Ms. Jones. Mr. Parker has been diagnosed with polysubstance abuse disorder
and some traits of antisocial behaviour personality disorder. He continues to deny that he had
anything to do with the arsons despite having been convicted of those crimes. Additionally, he is
completely lacking in insight about the impact of his crimes on others. He has a lot of resentment
towards his parents for divorcing and for how the divorce changed his life. He finds companionship
and financial support from his gang membership and is resistant to withdrawing from those
relationships. He describes them as his “only friends” now that he and Ms. Jones are estranged.
The gang is also an easy source of drugs.

Mr. Parker has received very little treatment for his substance abuse problems. During his
incarceration for manslaughter he was not offered any treatment programs, although he did
complete his high school education while he was incarcerated. It is this writer’s opinion that a
significant penitentiary sentence would be the most appropriate option for this accused because it
would give him access to more extensive programming for his drug and alcohol problems and a
chance to remove himself from his gang lifestyle.
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Law 406C, Section 1

Excerpt from Victim Impact Statements: Bill Campbell

I was the owner of the two buildings destroyed by fire. The image of the blaze, and how helpless
I felt, keeps replaying in my mind. My pub, in particular, was a source of pride, as it was first
opened by my father, and I had planned to pass it down to my own son and daughter. Between the
two businesses, 17 people have now lost full-time employment. I cannot forgive any of this. These
crimes have left my whole family terrified for their lives. I frequently feel overwhelmed with fear
and anxiety. I cannot sleep, thinking about what the gang will do next. I am too scared to continue
my activism and charity work supporting youth to leave gangs. I need Parker’s sentence to reflect
the deep losses we feel for our family’s livelihood and sense of security. They may have caught
Parker, but the rest of the Hawksmoths are still out there. I need this court to send them a very
strong message.

Excerpt from Victim Impact Statement: Given by Catherine Jones on behalf of her and Mark
Lister (Students may assume doing so is permissible)

Jason has ruined our lives with his actions. I still having daily headaches and problems with my
hearing as a result of his attack. Mark suffered a serious brain injury from the assault and hasn’t
been the same since. He has lost his job and is living on a disability pension. He spends much of
his time in physiotherapy, having to releam activities that were second nature to him before. He is
profoundly depressed as a result. His injury also causes him to lose his temper which has been
difficult for me and the kids. I know Jason’s actions were not my fault, but I lie awake at night
feeling guilty about what happened to Mark because I let Jason into Mark’s home. Jason assaulted
me multiple times when we were together, but I never thought that he would go after Mark.

Part A: Question 1 (55 marks 99 minutes):

Jason Parker was convicted at trial on both counts of arson and then entered guilty pleas to the
assault causing bodily harm and the aggravated assault charges. You are clerking for the trial judge
who has asked you to write a first draft of her reasons for sentence. She wants you to deal with all
four offences in your draft judgment, and to be comprehensive covering all sentencing issues that
may arise. [Please assume that all the elements of the offences have been proven beyond a
reasonable doubt.]

Part A: Question 2 (20 marks. 36 minutes):

Justin Templeton:

Through surveillance, Justin Templeton was identified as the person who drove Jason Parker to
the site of both fires and acted as a lookout. Templeton is 19 years old. He has no previous
involvement in the criminal justice system, and no criminal record. He recently completed high
school, and is currently working a construction job, hoping to become a supervisor. Templeton
lives with his parents and helps to care for his mother who has been diagnosed with a serious
illness. Templeton admits to minor involvement with the Hawksmoths, but only performing tasks
such as delivering messages and purchasing untraceable, disposable phones for them to use. He
explains having felt pressure to participate, as a few of his construction co-workers are connected
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Law 406C, Section 1

to the gang, and he wanted to maintain positive relationships with them. However, he feels
increasing anxiety about his involvement because he has perceived that those higher up in the
Hawksmoths want him to begin to take on larger tasks. Being asked to drive Parker was the first
dangerous activity Templeton was involved in. He claims he did not know beforehand exactly
what Parker was going to do, but he admits that he knew that it was something dangerous.

Templeton has agreed to cooperate by providing information about the Hawksmoths and by
testifying against Parker. In return, the Crown has agreed to drop the arson charges against
Templeton and allow him to plead guilty to one count of mischief to property under s. 430(3)(a)
of the Criminal Code. His family plans to move after he has served his sentence to get away from
the gang.

You are defence counsel for Templeton and are in negotiations with the Crown around a joint
submission based on the above agreement. You have been unable to determine a typical range of
sentences to which Templeton may be subject. What sentence will you be suggesting to Crown
counsel on behalf of the defence and why?

PART B: Essay Questions (25 marks, 45 minutes). Students must choose and answer one of
the following two essay questions.

1. Section 718.2(e) requires courts to consider all available sanctions, other than imprisonment,
that are reasonable in the circumstances and consistent with the harm done to victims and the
community, particularly for Indigenous offenders. Clarifying R v Gladue, [1999] 1 SCR 688, the
Supreme Court of Canada emphasized in R v Ipeelee, 2012 SCC 13 that this section must apply to
all offences, however serious. Yet the Harper government’s “tough on crime” legislative agenda
has created barriers for courts wanting to give full effect to s.7 18.2(e). Write an essay discussing
the barriers courts face in giving full force to this instruction and what steps might be taken to
remove those barriers. Your answer should include at least two specific examples of legislative
reforms discussed in the course this term that have limited the ability of courts to apply s.71 8.2(e)
rigorously.

-OR-

2. In R v Safarzadeh-Markhali, 2016 SCC 14, the Supreme Court of Canada describes

proportionality as “grounded in elemental notions of justice and fairness, and... indispensable to
the public’s confidence in the justice system.” Yet the Court went on to hold that proportionality
is not a principle of fundamental justice under s. 7 of the Charter.

Write an essay on whether proportionality should be a principle of fundamental justice. Why do

you think the Court was hesitant to give this principle constitutional status? Your answer should
include a discussion of two areas of sentencing drawn from the course this term that might be open
to Charter challenge if proportionality were a principle of fundamental justice.

END OF EXAMINATION