...

[51]  Mr Edgett submits that the circumstances here are such that the accused was a victim throughout the incident. Throughout the incident he was being robbed by a larger person.

[52]  Toward the end of the incident he was being wrestled into traffic by the deceased.

...

[59]  Mr. Edgett submits that if we accept the statements made by his client in the interview with Detective Bekkering that he never intentionally stabbed the deceased, then an air of reality exists, and the Court is entitled to draw the inference that s. 34(1) has been made out.

[60]  Mr. Edgett then reviews the nine factors under s. 34(2).

[61]  He also submits that the Court in Cormier (supra) at paragraph 51, supports the position of his client – what started as a defence of property escalated into a self-defence situation – and the two can co-exist.

.

−  The accused stabbed the deceased;

−  I accept the version of the incident provided by the accused to Detective Bekkering;

−  I accept the accused’s description of his state of mind as the incident developed;

−  The accused has reasonable grounds to believe that the deceased was using significant force against both himself and his property;

−  The force being used against him and his property by the deceased was imminent and ongoing, and life-threatening;

−  The accused was the victim throughout, and the deceased was the aggressor;

−  The deceased was much larger than the accused;

−  The deceased had no prior relationship with the accused;

−  The stabbing was accidental, and the knife produced by the accused was meant by the accused to intimidate the deceased to release the property to the accused;

−  The accused’s response was to an unlawful act by the deceased.

[62]  In the circumstances that I have found to have existed at the time of the incident, I am satisfied that the response by the accused to the life-threatening violence he was facing by the conduct of the deceased was proportionate.

[63]  The accused is Not Guilty.

The crown prosecutor sought a sentence of 8-9 years on a guilty plea to manslaughter.  Jim Edgett successfully obtained a sentence of 6 years citing the lower moral blameworthiness of Mr. Schau due to his lesser involvement in the offence and his struggles with mental health issues.

[67]  The Crown has submitted that an 8-9 year prison term is appropriate. The Defence submits a sentence of three years six months (3 ½ years) is appropriate.

[68]  The sentence range suggested by the Crown overemphasizes the moral blameworthiness of the Accused and underemphasizes the mitigating circumstances. A reduction is appropriate to reflect the personal circumstances of the Accused including his mental health issues and his conduct since the offense.  The sentence suggested by the defence fails to account for the Accused’s relatively high level of moral blameworthiness and overemphasizes the mitigating factors.

[69]  Taking into account the Accused’s level of moral blameworthiness, the aggravating and mitigating circumstances and the relevant case law, I find that an appropriate sentence to be higher than 5 years but lower than the 8-9 years proposed by the Crown.

[70]  I find that a fit and proper sentence is six years (6) years imprisonment.

After a contentious trial and a thorough cross examination Brown J. held: 

The Seriousness of the Breach

[20]  The breach is extremely serious. In reaching this conclusion, I consider what was aptly described by Defence Counsel as Cst. Reuser’s cavalier attitude to his duties while dealing with Mr. Beresaw:  In the midst of a pandemic, Cst. Reuser was not wearing a mask while in almost continuous close contact with Mr. Beresaw; in fact, not one of the officers involved wore a mask.  Cst. Reuser commanded Mr. Beresaw to stop backing up and, several times, to remove his mask, despite being almost always within 2 metres of Mr. Beresaw and mainly in the confined space of the police van or indoors at the district office.

During the transport to the district office, Cst. Reuser removed both hands from the steering wheel, immediately after passing a 70 kmh speed limit sign, to type for an alarming 36 seconds on the on-board computer keyboard, apparently relying on his knees to steer the van. He repeated this dangerous behaviour for an additional four seconds, following a stop at a red light.  The ignoring of pandemic precautions and hands-free driving manoeuvres are factors additional to the wasted time spent chit-chatting and bragging about how he had apprehended Mr. Beresaw that establish Cst. Reuser’s casual treatment of Mr. Beresaw’s rights.

[21]  When a police officer is relying on a constitutionally permissible incursion on a person’s right to be free of arbitrary detention by a state agent, in service of the greater good of preventing impaired driving, he is under a duty to deal with the person swiftly and not display the type of cavalier attitude shown in this case.

[22]  Cst. Reuser is an experienced officer; he should know better; it was a serious breach and is not saved by reliance on good faith.