Manslaughter with a firearm

R. v. Penner

  • No jail for a violent offence

Sentence and the Crown's position

Crown askedNot recorded
Judge imposed23 months conditional sentence (after 26 days' presentence credit), with house arrest and 120 hours community service; lifetime s. 109 prohibition, DNA1

A conditional sentence is served in the community, usually under house arrest. It counts as no custody here.

What the law allows

MaximumLife imprisonment
Judge imposed23 months conditional sentence
Defence asked2 years less a day conditional sentence
Minimum4 years struck down
For manslaughter with a firearm (CC 236(a)), the Criminal Code currently allows up to life imprisonment, with a mandatory minimum of 4 years that courts have struck down as unconstitutional. Life is drawn at 25 years for scale. Read the section.

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

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.

1

The record

Convicted of
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

  1. 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.
  2. R. v. Penner, 2022 BCSC 1859 Court decision, Courts of British Columbia

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