IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150930

Dockets: X077557-2; X078497-2

Registry:
New Westminster

Regina

v.

Sarbjit
Bains

Before:
The Honourable Madam Justice Maisonville

Oral Reasons for Sentence

introduction

[1]
On April 2nd, 2015, Sarbjit Bains pleaded guilty to the
manslaughter of Amritpal Saran, contrary to s. 236(b) of the Criminal
Code, R.S.C. 1985, c. C-46.  He also pleaded guilty on a separate
indictment to Count 1, to the second degree murder of Jill Lyons, contrary to
s. 235(1) of the Criminal Code, and in Count 2, he pleaded guilty to
the second degree murder of Karen Nabors, contrary to s. 235(1) of the Criminal
Code.

[2]
Crown counsel and defence counsel submit in the circumstances of this
case denunciation and deterrence are the overriding factors.

[3]
This is a joint submission and the Court has been told that the public
interest will be served by a sentence of 10 years’ imprisonment in respect of
the manslaughter charge that Mr. Bains pleads guilty to, and life
sentences in respect of the second degree murder charges.  Counsel jointly
submit that an 18 year period before parole eligibility with respect to Count 2
second degree murder concurrent to the Count 1 second degree murder will serve
the public interest and address the principles of sentencing.

[4]
Extensive and comprehensive written and oral submissions were made by
Crown counsel and by defence counsel.  The Agreed Statement of Facts was read
into Court in detail.  Victim Impact Statements were read in Court as well. I will
here outline the key factual points made on sentencing.

background

Manslaughter of Amritpal Saran

[5]
In February 2013, Mr. Bains was living with Evelina Urbaniak
in an apartment in Surrey, B.C.  The victim, Mr. Saran, was known to Mr. Bains
and Ms. Urbaniak.  Unfortunately, Mr. Saran had a drug and alcohol
addiction.

[6]
Mr. Saran had spent the day with Mr. Bains and Ms. Urbaniak
on February 22, 2013.  He left at some time that evening.  After Mr. Bains
and Ms. Urbaniak ran out of drugs to consume, Mr. Saran was called back
to bring more drugs to their apartment.  He arrived on Saturday, February 23,
2013, in the early morning hours.  At some point, Ms. Urbaniak became
tired and went to sleep.  Mr. Bains and Mr. Saran, however, continued
to drink alcohol and use cocaine.

[7]
Mr. Bains was in the living room with Mr. Saran.  At some
point, Mr. Bains went to the bathroom leaving Mr. Saran alone.  When Mr. Bains
returned, he could not find Mr. Saran, but noticed that his shoes were
still in the apartment and that the door to the bedroom was ajar.  Entering the
bedroom, he found Mr. Saran, by then naked, entering the bed where Ms. Urbaniak
was sleeping.

[8]
In a statement that Mr. Bains gave to police following his arrest
in January 2014, Mr. Bains indicated that something just snapped and
he placed Mr. Saran in a chokehold to drag him out of the bedroom, but
believes that he used too much force.  He could not remember how long he used
the chokehold for.

[9]
When he released Mr. Saran, he went into the bedroom and told Ms. Urbaniak
that something was wrong, and Mr. Saran was dead on the floor of the
apartment at this time.  Ms. Urbaniak’s reaction on learning of Mr. Saran’s
death was that she wanted Mr. Bains to call the police.  Mr. Bains
told her, however, that they were not going to call the police, they were, instead,
were going to take care of Mr. Saran.  A decision was made to go to the
nearby Walmart store to buy supplies and dispose of Mr. Saran’s body.

[10]
Mr. Bains and Ms. Urbaniak left the apartment at 8:10 p.m. and
drove to Walmart in Ms. Urbaniak’s car.  They were captured on
surveillance entering the store where they purchased large blue plastic bins.
The next stop was a gas station where five litres of gas was purchased.  The
surveillance footage of the apartment disclosed that Ms. Urbaniak and Mr. Bains
returned at 10:39 p.m.

[11]
Ultimately, Mr. Saran was put into a bin, with another over the
other.  Duct tape was used to tape the bins together.

[12]
At 12:31 a.m. on February 24, 2013, apartment building surveillance
footage shows Mr. Bains and Ms. Urbaniak pushing the blue bins into
the elevator and then pushing them through the underground parking garage.  The
bins were then loaded, with Mr. Saran’s body inside, into Ms. Urbaniak’s
car.  They drove to Colebrook Road, west of 124A Street in Surrey, B.C., at a
secluded area with no street lighting and no houses nearby.

[13]
Mr. Bains exited the vehicle and pulled the bins out.  He took Mr. Saran’s
body out of the bins and left him on his back near the side of the road.  Mr. Saran’s
body was naked.  Mr. Bains poured gasoline over Mr. Saran and lit him on
fire.  Mr. Bains then returned to the vehicle and drove back to the apartment.
The bins and Mr. Saran’s cell phone were thrown away later in the day at a
different location.

[14]
Mr. Saran’s body was not found until February 24, 2013 at
12:00 p.m. when a grandmother and her grandson, who was learning driving,
observed Mr. Saran’s burnt body at the side of the road.  They called
police and an investigation commenced.

[15]
The autopsy conducted was unable to determine the cause of death.  Mr. Saran’s
body was extensively and diffusely burnt.  However, it was evident that he had
been dead before he was set on fire.  A toxicology test disclosed a low alcohol
concentration but a high concentration of cocaine in his body, one consistent
with both drug overdose fatalities as well as chronic high dose use.  Mr. Saran
was only 29 years of age when he died.

[16]
Ms. Urbaniak pleaded guilty to improperly and indecently
interfering with, or offering indignity to Mr. Saran’s body and was
sentenced to two years less one day conditional sentence order followed by
three years’ probation on February 6, 2015.

Second Degree Murders of Jill
Lyons and Karen Nabors

[17]
Ms. Lyons was murdered on August 9, 2013 by Mr. Bains
when she was choked by him in her own home located in New Westminster, B.C.

[18]
Only two weeks later, on August 25, 2013, Mr. Bains murdered
Karen Nabors by choking her in her own home in the very same apartment building
where the murder of Ms. Lyons occurred.

[19]
Both women worked as escorts.  Based on the clothes they were wearing at
the time of their death, and from witnesses who knew each victim, they were
preparing to meet clients when they were killed.

[20]
A post-mortem examination was performed on Ms. Lyons.  The
pathologist found dried blood on her face and neck as well as on her nose,
mouth and ears, likely caused by bleeding from the broken nose and cuts to the
inner surface of her lower lip.  Other injuries were noted to her head and
neck.  There were also bruises around her eyes and bleeding into the whites of
her eyes.  Pinpoint size hemorrhages were found on the inner surfaces of her
eyelids as well as relatively minor skin injuries to her face, chin, and right
ear.

[21]
Additionally, there were bruises to Ms. Lyons’ scalp and the back of her
head, which could have resulted in a loss of consciousness and inability for Ms. Lyons
to protect herself.  There were at least three blunt force impacts to the head
of Ms. Lyons.  There were a number of internal injuries to her brain,
including swelling and hemorrhaging as well as injuries to the large muscles in
the neck which were consistent with a wide variety of causes, including blunt
force head injury and pressure applied to Ms. Lyons’ neck and face.

[22]
Toxicology testing revealed the presence of drugs derived from heroin or
its metabolites, particularly morphine, in Ms. Lyon’s blood.  The amount of
morphine in her blood would be expected to pose a significant threat to life,
and more particularly would have adversely affected her ability to resist any
force applied to her head and neck.  There was no evidence of sexual assault.

[23]
All of the injuries and the drugs in her system caused life-threatening
interference with her normal breathing, leading to her death.  According to Dr. Litwin,
she died as a result of blunt force injuries to her head and neck, and the
subsequent lack of oxygen to her brain.

[24]
The body of Karen Nabors was similarly subjected to an autopsy
which revealed injuries on her head and neck.  In particular, her face was
swollen.  She had a broken nose, and there were lacerations on the inner side
of the surface of her mouth.  As well, the pathologist found skin bruises on
the right side of Ms. Nabor’s face and neck associated with bleeding into
the muscles in her neck.

[25]
The pathologist concluded a blunt force impact had occurred to the head
of Ms. Nabors.  There were minor injuries to her right arm, left forearm,
back, left shoulder and knees.  Internal examination revealed a defect in the
brain structure of Ms. Nabors, although Dr. Litwin was unable to
attribute the cause as there had been post-mortem deterioration.

[26]
Toxicology tests disclosed that Ms. Nabors had ingested methadone,
venlafaxine, which is an anti-depressant, and diphenhydramine, which is used
for allergies or insomnia.  These were taken before her death.

[27]
Taken in combination, the potential threat to life was increased due to
enhanced drug toxicity.  There was no evidence of sexual assault.  Dr. Litwin
was unable to conclusively determine the cause of death of Ms. Nabors.  However,
the results of the autopsy did not rule out that some type of mechanical
asphyxia, such as smothering or other interference with breathing played a role
in Ms. Nabors’ death.

[28]
There was evidence of robbery in respect of Ms. Lyons’ home.  Her
apartment had in fact been ransacked.  The door was closed but not locked.  Her
dog was barking non-stop.  Her credit cards, bank cards, and cellular telephone
had been stolen.  Two wallets were found, both of which were empty.  A drawer
for her dresser was found and many cupboards were open.  It was an apartment in
disarray, which is not normal for her.

[29]
Ms. Nabors’ apartment similarly disclosed that the bottom drawers
had been pulled out, clothes were on the floor and bed.  In the living room,
there were numerous silver coins scattered across the floor, and there was
evidence of a struggle in the bedroom were Ms. Nabor’s body was
discovered.  A wallet was found on the bed with some of its contents taken
out.  A credit card, a bank card, and a BlackBerry cellular phone were stolen.

[30]
On August 9, 2013, at 2155 hours following the murder of Ms. Lyons,
her credit card was used to purchase a skytrain ticket at the New Westminster skytrain
station.  It was attempted to be used in the liquor store in New Westminster
two minutes later.  There was a failed attempt to use the same credit card to
purchase another skytrain ticket on August 13, 2013.

[31]
On August 24, 2013, at 1815 hours after the murder of Ms. Nabors,
her credit card was used at the New Westminster skytrain station.  Mr. Bains
was observed on surveillance video making this transaction.  That credit card
was also used to purchase food at 1832 hours on the same day.

[32]
On August 26, 2013, at 0824 hours, the same credit card was again
used to purchase food.

[33]
On August 28, 2013, Ms. Nabors’ stolen card was used two times
at 1612 hours for a purchase at an all-day/all-night store located in Surrey, B.C.,
and again at 1625 hours when an authorization was denied at a Safeway located
on King George Boulevard in Surrey, B.C.  On both of these occasions, Mr. Bains
was observed on surveillance making the transactions.

[34]
The final use of Ms. Nabors’ card was on August 29, 2013 at
1006 hours at a TransLink skytrain station.

[35]
A cellular telephone which belonged to Mr. Bains had a deleted
contact by the name “Jenn” and a number of that phone.  Ms. Lyons
advertised her escort services using that name under that same contact
telephone number.

[36]
Seven days before her death, Ms. Lyons’ work number had received two calls
from a land line registered to Mr. Bains.  On the same day as the murder
of Ms. Lyons, two further calls were received from the land line
registered to Mr. Bains, the first at 1429 hours, the second at 1753
hours.  At the time, the accused was under surveillance alone in his
apartment.

[37]
Between August 2, 2013 and August 23, 2013, five calls were
received by the work line of Ms. Nabors from the land line registered to Mr. Bains.

[38]
There was other evidence linking Mr. Bains to the murders.  Mr. Bains
was observed leaving his apartment on August 9, 2013, the day of the
murder of Ms. Lyons with nothing in his hand, but when he returned at 2224
hours, he was carrying a bag in his left hand.  During a search of his home,
the police discovered a pair of black running shoes which had the blood of Ms. Lyons
at several locations on each shoe.  The blood was identified through DNA
analysis and the tread on the shoes recovered was consistent with the tread
pattern found on a stain of Ms. Lyons’ blood located in her apartment.

[39]
As well, surveillance video showed Mr. Bains left the building on August 24,
2013, the day of the murder of Ms. Nabors, at 1625 hours.  He was wearing
a Canucks baseball cap, a long-sleeved sweater, blue jeans, black running shoes
and white soles.  He was carrying a black and red backpack.  Later,
surveillance video from TransLink showed him wearing the same clothes.

[40]
He was next seen on surveillance video at 1814 hours wearing the same
baseball cap.  At that time, he was seen wearing a brown, long-sleeved shirt
and gray sweatpants, different clothing than he was wearing at 1704 hours.  The
backpack appeared to be fuller at 1814 hours than earlier.  The apartment
building where both Ms. Lyons and Ms. Nabors lived was only a short
walk from the New Westminster skytrain station.

[41]
During a search of the residence of Mr. Bains on September 6,
2013, a red and black backpack similar to the one seen on the skytrain video
from August 24, 2013 was seized.  Inside the backpack was Ms. Lyons’ bank
card and iPhone, Ms. Nabors’ Visa card and debit card, and identification
belonging to the accused.

[42]
A swab was taken from the stains inside the backpack and that matched
the DNA of Ms. Nabors.  The DNA of Mr. Bains was found under the
fingernails of Ms. Nabors.

[43]
An authorization to intercept the private communications was obtained
and a conversation was intercepted between Ms. Urbaniak and Mr. Bains,
in which he related that none of his blood was on either victim when “he choked
them”.  He made reference to wearing a long-sleeved shirt.

[44]
Mr. Bains was arrested on January 3, 2014.  He gave an
interview and stated that he obtained the telephone numbers for Ms. Lyons
and Ms. Nabors from a street newspaper.  He called each of them under the
pretense of setting up a date with the intention of robbing them.

[45]
He stated that once permitted entry into Ms. Lyons’ apartment, he
tried to intimidate her but she began to scream and he placed her into a
chokehold until she stopped screaming and then he kicked her.  He then went
through the cabinet drawers looking for money.  The accused said he stole
money, credit cards, debit cards, and an iPhone.  He claimed he did not know
that he had killed Ms. Lyons at the time.

[46]
Respecting Ms. Nabors, he said that he went to her apartment, also
with the intention of robbing her.  When he got to the apartment, he was
surprised when he realized it was the same building.

[47]
After gaining entry into Ms. Nabors’ apartment, he similarly tried
to intimidate her and she also began to scream.  Much like he did with Ms. Lyons,
he said that he choked Ms. Nabors until she passed out and then he kicked
her.  He then searched the apartment and stole the credit and debit cards, $300
cash, a BlackBerry cellular phone which he used for a few days, and some coins
from a water cooler.  He had brought a change of clothes with him to Ms. Nabors’
apartment and he said that he changed his clothes in the washroom.  He said he
later disposed of the BlackBerry cellular phone he stole from Ms. Nabors
in a trash can at one of the skytrain stations.

[48]
He denied having sex with either Ms. Lyons or Ms. Nabors, and
indicated that he choked both of them in the same way that he choked Mr. Saran.

victim impact statements

[49]
There were a number of victim impact statements heard by the Court and
involved each separate victim.  The accounts were in each instance moving and
emotional.

[50]
The Court heard first from the Saran family.  Numerous victims had
written moving and eloquent letters in respect of him.

[51]
Amritpal Saran was nearing his 30th birthday when he was killed by Mr. Bains.
He was the older brother to three younger siblings and who all attended Court.

[52]
The mother of Amritpal Saran noted how this event his disrupted her
whole family.  Her life has completely changed and while she continues to try
to be the best mother that she can for her other children, part of her is gone
without her son.  She read a poem for her son which was very moving to all
individuals in the court, describing how a huge part of her went with him
stating: “but you did not go alone, a huge part of me went with you, my son,
the day some stranger took you so far, far away.”  Her family was in support of
her and she was very brave.

[53]
Turning to Ms. Lyons.  She was the mother of two young sons.  She
had a family who loved her and friends who miss her deeply.  She was only 45
years of age when she was killed.

[54]
Cheryl Hickman, Ms. Lyons’ adopted mother, read her victim impact
statement to the Court.  Ms. Hickman described how on the day of her adoption of
Ms. Lyons that it was love at first sight for the beautiful red-haired,
brown-eyed bundle.  Ms. Hickman said that she was there for the birth of Ms. Lyons’
two sons in 1988 and 1999, and knew how determined Ms. Lyons was to be a
good mother to her sons.  Her sons were deeply hurt to the point of being
unable to articulate how deeply they were hurt to the Court.  Ms. Lyons’ birth
mother also wrote eloquently that she will never be the same.

[55]
Ms. Nabors was only 48 years of age when she was murdered by Mr. Bains.
Her brother has lost his sister.  The impact the murder has had on him is
severe.  He writes further, “The word severe does not begin to make sense of
the senseless.”

[56]
Ms. Nabors was a mother to two sons.  Ms. Nabors’ parents wrote of their
love for her and her joyous reunion with her birth mother only years before
when she learned she was a ninth generation Canadian and that her birth mother
and many aunts were professional nurses and caregivers.  Her son also wrote of
her struggle as a single mother to raise them to be grown young men with
futures.  Ms. Nabors was a friend to so many.

[57]
Many wrote moving letters to the Court, that include Ms. Craig, a
fellow dog lover, and Andrea Andrews as well.

[58]
Ms. Katrina Cotton, a close friend of Ms. Nabors gave a very
moving, impassioned, thoughtful and compassionate victim impact statement to
the Court.  She noted that the passing of Ms. Nabors has left a hole in
everyone’s heart, from her family to her friends.  Ms. Cotton wrote that she has
lost a confidante, a friend, a sister, and a mother figure.  A number of her
friends came forward to support her.

the circumstances of the accused

[59]
Mr. Bains is 33 years of age and was born December 5, 1981.
He is the eldest of three children raised in Delta, B.C. by his parents, who
were an immigrant family of modest means.  Mr. Bains’ father worked as a
taxi driver before becoming a truck driver.  His mother, after the children
became older, started working as an employee of a catering company.

[60]
Mr. Bains attended public school and graduated in 2000.  His
counsel described difficulties at home, including difficulties arising from his
father’s alcoholism and spousal abuse of his mother, and the excessive corporal
punishment Mr. Bains endured.  The difficulties at home had led to his early
substance abuse, including commencing drinking at the age of 13 and marihuana use
at 15.

[61]
These facts were noted in the pre-sentence report.  His counsel,
however, pointed out that these events are only meant to explain Mr. Bains’
background and in no way provide an excuse in any manner for what has
occurred.

[62]
Mr. Bains began work as a teenager in high school as a gas station
attendant.  Following his graduating from high school, he worked at a furniture
design store for some seven years before leaving for Neptune Food Services.  He
was then laid off and after his layoff, he began selling drugs to support
himself.  He had some work briefly in 2010 for Atlas Logistics in Surrey, B.C.,
but was fired after injuring his back at work and failing to report his
injuries to WorkSafe BC.  He struggled financially, relying upon his mother and
earnings from drug dealing and other low level crime to support himself
financially.

[63]
By the age of 19, Mr. Bains had begun daily drinking, starting in
the morning consuming up to 26 ounces of alcohol a day.  In 2005, at the age of
24, he began to use cocaine and this was after he had started to traffic in
cocaine.

[64]
Mr. Bains indicates that on the night of Mr. Saran’s death, he
had been drinking heavily and using cocaine.  He indicates at the time of both Ms. Lyons’
and Ms. Nabors’ death, he was unemployed, drinking heavily, and using
cocaine regularly.

[65]
He indicates it was likely that a confrontation was going to arise given
the circumstances of his encountering Mr. Saran who was going to sleep
where Mr. Bains’ girlfriend was.  In respect of Jill Lyons’ and Karen
Nabors’ death, he indicates that they were targeted for robberies and they too
died by having chokeholds applied to them.

the mitigating factors argued

[66]
Mr. Bains’ counsel argued that these guilty pleas were in fact
entered at the earliest possible time given the amount of disclosure that the
Crown had to effect.  Crown counsel agrees.

[67]
Mr. Bains prepared and read into Court a lengthy statement to the
victims expressing his remorse and regret.  He indicated he is aware of the
pain that he has caused and knows he will have to live with his actions for the
rest of his life.  He offers his apologies, seeks forgiveness, but says that he
neither expects nor deserves it.  He is willing to meet with any of the victims’
families and if there were restorative justice programs in the federal
corrections system, he confirms his willingness to participate and meet with
members of the victims’ families.  He indicates that he has been clean and
sober since his arrest in January 2014, despite having opportunities in
custody to use alcohol and drugs.

[68]
The position of the Crown and the position of the defence as noted is
that this case is appropriate for a joint submission.

[69]
Mr. Bains has been in custody for 21 months.  While there are a
number of aggravating features, including the use of crack cocaine and the fact
that he knew chokeholds could kill, there are a number of matters that weigh
heavily in favour of the joint submission being the appropriate disposition in
this case.

[70]
As well, there are mitigating factors which loom large, submit
experienced counsel for the Crown, and include the fact that the plea, as
noted, reflects the earliest possible plea that could have been made given the
disclosure here, as well as the remorse, and certain considerations were placed
before the Court which lead the Court to conclude that Mr. Bains has made
material concessions in this matter.

[71]
Specifically, the Crown asked for a 10-years imprisonment in respect of
the manslaughter of Amritpal Saran on February 23, 2013, a life
imprisonment in respect of the second-degree murder of Jill Lyons on August 9,
2013 with eligibility for parole after 18 years, and life imprisonment with
respect to the second-degree murder of Karen Nabors on August 24, 2013
with eligibility for parole after 18 years.  Crown and defence counsel submit
that the eligibility for parole periods in respect of the second degree murders
of Jill Lyons and Karen Nabors are to be concurrent.

[72]
It is submitted by both Mr. McPherson and Mr. Pike, on behalf
of the Crown, and Mr. Preovolos and Ms. Michaels, on behalf of Mr. Bains,
that the joint submission was the product of carefully negotiated plea
agreements, and that after considering all of the outcomes that the parole
ineligibility of 18 years together with 10 years on the manslaughter, all to be
served concurrently, is appropriate.

[73]
The Crown noted that, in respect of these deaths, some time had passed
between the homicides and the discovery of the victims, rendering determining
the cause of death through pathology increased in difficulty.  Additionally, in
all the circumstances the agreed plea, it was submitted, would not bring the
administration of justice into disrepute and is worthy of deference.  Further,
it is argued that the sentence proposed is a fit one.

joint submissions

[74]
Our Court of Appeal has outlined two important but different sets of
considerations in considering whether a court should accept a joint submission
of counsel on a plea.

[75]
Firstly, a joint submission should be departed from only where a trial
judge considers it would be contrary to public interest, and secondly, it would
bring the administration of justice into disrepute, and I will rely upon
the known decision for that and the reasoning of R. v. Bezdan, 2001
BCCA 215 that a trial judge should give joint submissions substantial
weight but may reject the proposed sentence in the court’s eyes if it is not
fit.

[76]
Justice Williams of this Court in R. v. Dumas, 2015 BCSC 852
noted:

[16]      In this province, courts have recognized these two
different standards by which a joint submission will be judged.  Those were set
out by Madam Justice Ryan in R. v. Roadhouse, 2012 BCCA 495.  Writing
for the Court, at para. 42 she made reference to the test articulated by Finch C.J.B.C.
in R. v. Nome, 2002 BCCA 468:

[13]      Counsel for the appellant
stressed the position taken at trial by Crown counsel, that time served was an
adequate penalty. He suggested that the learned trial judge should have
accepted what was, in effect, a joint submission. He submitted that following
the appellant’s designation as a long-term offender under s. 753.1, the
order for 10 years supervision in the community would adequately protect the
public. He referred to a number of cases where joint submissions on sentence
had been discussed: R. v. Bezdan; R. v. Dorsey; and R. v.
G.W.C., [2000] A.J. No. 1585 [citations omitted].  In Dorsey,
the Ontario Court of Appeal said this:

[11]      It is well established
that a trial judge is not bound by a joint submission. The trial judge must, of
course, give serious consideration and respect to a joint submission. The
submission should be departed from only where the trial judge considers the
joint submission to be contrary to the public interest and a submission which,
if accepted, would bring the administration of justice into disrepute.

[Emphasis added by Finch C.J.B.C.]

[14]      That was accepted as the
correct statement of the law on joint submissions.

[17]      Ryan J.A. also referred at para. 44 an earlier
decision, R. v. Bezdan, 2001 BCCA 215, where Madam Justice Prowse, after
noting two previous decisions of the BC Court of Appeal, R. v. Innes,
2000 BCCA 429 and R. v. Grimsson (1997), 100 B.C.A.C. 253, said this:

[15]      I am in general agreement
with the sentiments expressed in the second paragraph of the passage quoted. It
is apparent that the administration of criminal justice requires cooperation
between counsel and that the court should not be too quick to look behind a
plea-bargain struck between competent counsel unless there is good reason to do
so. In those instances in which the sentencing judge is not prepared to give
effect to the proposal, I also agree that it would be appropriate for that
judge to give his or her reasons for departing from the “bargain.” I would
not go so far as to say “that a sentencing judge can only depart from the
sentence suggested in the joint submission if he or she is satisfied that the
proposal is contrary to the public interest, or that the sentence proposed
would bring the administration of justice into disrepute. It is not clear to me
that these two circumstances cover all situations in which a sentencing judge
might conclude that the sentence proposed was “unfit”.

[18]      The Court in Roadhouse declined to decide
whether one or the other of the two tests should prevail. In the result, there
are two separate standards which a sentencing judge may consider in deciding
whether to reject a joint submission on sentence:

1) A joint submission should be
departed from only where the trial judge considers it would be contrary to the
public interest and, if accepted, would bring the administration of justice
into disrepute (R. v. Nome).

2) A trial judge should give a
joint submission substantial weight, but may reject it if she concludes the
proposed sentence is not fit (R. v. Bezdan).

[19]      This apparent discrepancy has been considered and
remarked upon by other judges of this Court: see, for example, R. v. Dulay,
2013 BCSC
188; R. v. Tremblay, 2013 BCSC
2173; R. v. Earnshaw, 2013 BCSC
2272. Generally, as a practical matter, it seems that courts
frequently find the issue to be of no actual consequence, concluding that, on
either test, the outcome is the same: it was open to the sentencing judge to
reject the joint submission on either of the tests.

[20]      The matter was most recently considered in R. v.
Anthony-Cook, 2015 BCCA
22. There, in a decision concurred in by Nielsen and Bennett J.J.A.,
Madam Justice Garson, noting the “possible divergence in opinion as to
whether the standard is described as ‘not fit’ or as the more rigourous
‘contrary to the public interest and would bring the administration of justice
into disrepute'”, concluded that the facts before her were such that
either of the standards was satisfied (at paras. 23, 43). Accordingly, the
issue was unnecessary to resolve on that appeal.

[21]      Accepting that there is
no clear standard, that neither one nor the other is definitively correct,
there is, in my view, a related aspect of the matter that is important to
examine: what is the proper procedure for a sentencing judge to undertake
surrounding the practice of joint submissions? To my mind, what has been
decided on this issue may well inform the analysis as to whether a joint
submission is properly rejected.

The decision in R. v. Anthony-Cook is presently
before the Supreme Court of Canada.

[77]
The issue of joint submissions was also set out in the Dumas
decision and was considered by Justice Veit of the Alberta Court of Queen’s
Bench in R. v. Stanley, 2015 ABQB 368.  He wrote as follows:

[49]      In GWC, the Alberta Court of Appeal did not
attempt to impose any particular procedure when a sentencing judge proposed not
to follow a joint submission. Since then, however, many courts have adopted the
procedure recommended by the Manitoba Court of Appeal in Sinclair:

17 Thus, the law on joint
submissions may be summarized as follows.

(1) While the
discretion ultimately lies with the Court, the proposed sentence should be
given very serious consideration.

(2) The
sentencing judge should depart from the joint submission only when there are
cogent reasons for doing so.  Cogent reasons may include, among others, where
the sentence is unfit, unreasonable, would bring the administration of justice
into disrepute or be contrary to the public interest.

(3) In
determining whether cogent reasons exist in weighing the adequacy of the
proposed joint submission, the sentencing judge must take into account all the
circumstances underlying the joint submission.  Where the case falls on the
continuum among plea bargain evidentiary considerations, systemic pressures and
joint submissions will affect, perhaps significantly, the weight given the
joint submission by the sentencing judge.

(4) The
sentencing judge should inform counsel during the sentencing hearing if the
court is considering departing from the proposed sentence in order to allow
counsel to make submissions justifying the proposal.

(5) The sentencing judge must then
provide clear and cogent reasons for departing from the joint submission.  Reasons
for departing from the proposed sentence must be more than an opinion on the
part of the sentencing judge that the sentence would not be enough.  The fact
that the crime is committed could reasonably attract a greater sentence is not
alone reason for departing from the proposed sentence.  The proposed sentence
must meet the standards described, considering all of the principles of
sentencing, such as deterrence, denunciation, aggravating and mitigating
factors, and the like.

[78]
I find the approach of the Alberta Court of Queen’s Bench to be
helpful.  It encompasses the two lines of reasoning in the Court of Appeal in
British Columbia.  This approach firstly considers if the sentence is “fit” and
secondly, would it not be contrary to the public interest and thereby brings
the administration of justice into disrepute.

principles of sentencing

[79]
Here, the most important principles are that of deterrence and
denunciation.  The principles of sentencing also applicable are set out in
s. 718 of the Criminal Code :

718. The fundamental purpose of sentencing is
to protect society and 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 and the harm
done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons
from committing offences;

(c) to separate offenders from society, where
necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to
victims or to the community; and

(f) to promote a
sense of responsibility in offenders, and acknowledgment of the harm done to
victims or to the community.

[80]
Also of import is the principle of parity of sentencing set out in
s. 718.2 which reads:

718.2 A court that imposes a sentence shall also take into
consideration the following principles:

(b)        a sentence should be similar to sentences imposed
on similar offenders for similar offences committed in similar circumstances;

[81]
Accordingly, the principle of parity must be a factor that this Court
considers.  What that means is that a sentence should be similar to other
sentences imposed on similar offenders for similar offences committed in like
circumstances.

[82]
As well, the Court must consider the personal circumstances of Mr. Bains.
Additionally, I must consider any relevant aggravating or mitigating
circumstances relating to the offender and the offence.  I have reviewed
some of those that have been in particular stressed to the Court.

[83]
The Crown and defence have put together a joint book of authorities with
respect to the appropriate range for sentence.  I have reviewed those
decisions carefully.  Before the Court were a number of cases considering
consecutive periods of parole ineligibility for two or more murders where that
offence was committed after the amendment to s. 745.51(1) of the Criminal
Code on December 2, 2011.  Those cases are R. v. Bourque, 2014
NBQB 237, R. v. Baumgartner, 2013 ABQB 761, R. v. Husbands, [2015] OJ No. 2674 (Ont. S.C.J.), R.
v. Vuozzo, 2015 PESC 14 and R. v. W.G.C., 2015 ABQB
252.

[84]
Section 745.51 of the Criminal Code allows for the Court
to consider the recommendations for parole ineligibility and to make those
parole ineligibility periods to be served consecutively where warranted:

745.51(1) At the time of the sentencing
under section 745 of an offender who is convicted of murder and who has already
been convicted of one or more other murders, the judge who presided at the
trial of the offender or, if that judge is unable to do so, any judge of the
same court may, having regard to the character of the offender, the nature of
the offence and the circumstances surrounding its commission, and the
recommendation, if any, made pursuant to section 745.21, by order, decide that
the periods without eligibility for parole for each murder conviction are to be
served consecutively.

[85]
The section describes the considerations that a court must have in
regard to considering the application of it.  Whether to impose further periods
of ineligibility of parole consecutively on the second term of life
imprisonment for second degree murder, I must consider the character of
the offender, the nature of the offence and the circumstances surrounding its
commission.

[86]
In each of the cases that I was referred to with the exception of Husbands,
I note that those were convictions for first degree murder which is an
important distinction from the case at bar.

[87]
The issue for me to determine simply is whether the period of 18 years
of parole ineligibility as jointly submitted by experienced counsel is contrary
to the principles of joint submissions which require that they not be contrary
to the public interest based on the cases to which I would refer.

[88]
I follow upon the analysis provided by the Supreme Court of Canada in R.
v. Shropshire, [1995[ 4 S.C.R. 227, where the Supreme Court held
that these factors included, though not expressed, denunciation, deterrence,
and assessments of future dangerousness.  The court noted that parole
ineligibility is part of punishment and therefore an important element of
sentencing policy.  The Court went on to note that the trial judge’s discretion
in making the determination should not be circumscribed, it is a fact-sensitive
process.

[89]
In each of the cases where the parole ineligibility period was made
consecutive though, however, there were first degree murder considerations
and/or joint submissions with the exception of Husbands. Husbands
was the notorious Eaton Centre shooting and in that case the accused was
sentenced to life imprisonment without parole eligibility for 30 years,
following two consecutive life sentences with parole ineligibility of 15 years
each.  Similarly, Husbands considered that section violated the Charter
rights.  However, it was held, given the discretion to the trial judge,
that it did not violate the Charter.

[90]
I note as well the cases that are similar to the case at bar.  I must
look to those cases as a consequence of the direction to courts that I consider
parity.

[91]
In the cases that were put before the Court, the decision of R. v.
Chang, 2008 BCSC 418 was rendered before the amendment to the Criminal
Code.  In Chang, it was two second degree murders where the accused
murdered a 45-year-old woman and her 74-year-old mother.  Similar to the case
at bar, a guilty plea was entered into two second degree murder counts and the
accused, Mr. Chang, has no criminal record.  The parole ineligibility period for
the accused was fixed at 17 years.

[92]
I also reviewed carefully the decision in R. v. McCotter, 2014 BCCA
27.  In McCotter, it involved a brutal beating by the accused of his
ex-partner and her boyfriend.  The killing was witnessed by others and the
attack continued mercilessly despite the intervention of others.  The learned
trial judge said that he could not recall a case that was more violent and vicious
than McCotter.  Unlike Mr. Bains, Mr. McCotter had been convicted by a
jury and had not entered a guilty plea.  He was set for parole eligibility at
20 years.

[93]
I also considered the case of R. v. Singh, 2010 BCSC 1747, where
a guilty plea was entered to two second degree murder counts and one count of
attempted murder.  The victims were 15 and 17 years old, stepsons of the
accused.  The victims were shot to death and the mother of the victims had her
throat slashed and the accused pleaded guilty to his attempted murder.

[94]
Mr. Bains, will you please stand.

[95]
Mr. Bains, I am told that the sentence and these pleas will
serve the public interest.  Learned and experienced counsel have come to Court
and submitted the sentence proposed will meet the principles of sentence.

[96]
While your actions defy description, I am mindful of the words of
the Court on joint submissions.  I accept the Crown’s submissions as well
that the Crown considered all the necessary factors, and in this regard the
Court was advised that must be taken into account on sentencing.

[97]
I have considered the circumstances, I have considered carefully
the victim impact statements.  I have also considered the concessions made
by you in respect of the Crown and your plea.  I note that your plea will
spare the family further trauma associated with a trial, and will give finality
to the court process.  I note that you have expressed your remorse.

[98]
Mindful of the principles of deterrence and general denunciation and the
public interest, I find that the sentence proposed is on parity with other
similar sentences on other similar offenders.  I am told you have no
criminal background and that was additionally a factor that I have taken
into account.

[99]
Given all of that, I sentence you to 10 years on the manslaughter
count.  I sentence you to two sentences of life imprisonment in respect of
each of the murders of Ms. Lyons and Ms. Nabors.  I sentence you
to be ineligible to apply for parole for a period of 18 years on each count of
murder.  This will be concurrent on each of the counts of murder.

[100]  Nothing
that you say will ever take back from what you have done.  Three lives have
been taken, however, I am mindful of the guilty pleas and that the family
will be spared the further traumas of the trial.  I sentence you
accordingly.

[101]  I sentence
you as well to ancillary orders, to submit a sample of your DNA pursuant to
s. 487.051 of the Criminal Code.  I also sentence you
to a lifetime ban of all weapons outlined in s. 109 of the Criminal
Code in both subsections of that section.

[102]  While you
have been sentenced to 18 years parole ineligibility, I am mindful that that
does not mean you will be released at 18 years.  That is a decision for the correctional
authorities to consider.

[103]  Are there
any further submissions?

[104]  MR. PIKE:
No, I think those are all the orders we were seeking.

[105]  THE COURT:
All right, thank you.

“Maisonville J.”