Manslaughter with a firearm
R. v. Penner
- No jail for a violent offence
Sentence and the Crown's position
A conditional sentence is served in the community, usually under house arrest. It counts as no custody here.
What the law allows
Kayne Sabbe Penner was convicted by a jury of manslaughter with a firearm after a rifle he was handling carelessly in a Vanderhoof trailer in 2012 discharged and killed his intimate partner. Justice Schultes had earlier found the four-year mandatory minimum unconstitutional; the Crown opposed a conditional sentence and the defence sought a conditional sentence of two years less a day. Justice Schultes imposed a 23-month conditional sentence after 26 days' credit for pre-sentence custody, concluding that a properly structured conditional sentence with restrictive and punitive conditions could give sufficient weight to denunciation and deterrence.
In the judge's words
1Given Mr. Penner's particular circumstances, including the length of time that the matter has been outstanding, and the likely effect of a conditional sentence on those who might be susceptible to placing themselves in the same position when handling a firearm, I conclude that a properly structured conditional sentence, of significant length and containing restrictive and punitive conditions, is capable of giving sufficient weight to those principles.
The record
- Convicted of
- Manslaughter with a firearm (CC 236(a))
- Prior convictions
- 0 prior convictions1
- At the time of the offence
- Not stated1
- Defence asked for
- 2 years less a day conditional sentence1
- Mandatory minimum
- Found unconstitutional or not applied under a binding ruling1
- Appeal
- Not yet checked
- Counsel
- Crown: M.T. Ainslie, Q.C., M.B. Rankin and R.W. Robinson
Defence: C.B. Hutchinson
Sources
- R. v. Penner, 2022 BCSC 1859 Court decision, CanLII, July 6, 2022
[25] Mr. Penner's counsel submitted that a sentence of two years less a day, which he ultimately sought to see imposed in the form of a conditional sentence, was in fact the appropriate one.
[2] On January 14 of this year, as part of this sentencing process, I found that the four‑year minimum sentence for manslaughter with a firearm offended against s. 12 of the Charter (the guarantee of protection against cruel and unusual punishment), and was not saved by s. 1.
[1] On March 6, 2021, Mr. Penner was convicted by a jury of manslaughter with a firearm
[102] He had no adult criminal record at the time of the offence.
[46] Given Mr. Penner's particular circumstances, including the length of time that the matter has been outstanding, and the likely effect of a conditional sentence on those who might be susceptible to placing themselves in the same position when handling a firearm, I conclude that a properly structured conditional sentence, of significant length and containing restrictive and punitive conditions, is capable of giving sufficient weight to those principles.
[106] I am satisfied that a sentence of less than two years is appropriate, even before his 26 days' credit for pre-sentence custody is applied. The sentence will be as follows: After granting a credit for 26 days of pre-sentence custody, Mr. Penner will receive a conditional sentence for 23 months.
- R. v. Penner, 2022 BCSC 1859 Court decision, Courts of British Columbia