B.C. Supreme Court Justice David Masuhara has heard sentencing submissions in the Ronald Fowler case.
Fowler was convicted by a jury on March 15 for the Oct. 14, 2017 attempted murder of his neighbour George Parent.
This morning at B.C. Supreme Court in Smithers prosecutor Paul Backhouse asked for a sentence of nine to 10 years in prison. The defence is looking for the minimum sentence of four years.
The Crown based its sentencing recommendation on the range of sentences in case law for attempted murder in which the offender had a limited criminal record and no underlying criminal activity for the act.
Backhouse argued there were several aggravating factors including: that Fowler was carrying a loaded, prohibited handgun with which he shot Parent at close range with the intent to kill; that it was sheer luck Parent had not been killed because the first shot to the chest happened to hit the victim’s cell phone; that Fowler fired multiple times; that the gun was never found, nor given up, posing an ongoing threat to the public; and that the incident had caused Parent ongoing physical and emotional trauma.
The Crown admitted certain aspects of a pre-sentence report were mitigating. Backhouse said the fact Fowler’s prior criminal history was dated and that the man had the strong support of his wife demonstrated some degree of rehabilitation potential.
However, Backhouse said, that potential is muted by the fact Fowler continues to deny responsibility for the shooting and lacks empathy for the trauma caused to the victim.
The prosecutor also submitted a victim impact statement from Parent in which the victim describes continuing physical limitations to his recreational and work activities, lost income and lingering emotional effects.
The Crown said even if the judge accepts the defence position that the confrontation between the two men had been happenstance and Fowler had not formed the intent to shoot Parent until the time of the incident, evidence had been presented at trial that some degree of planning had been involved.
This included, Backhouse said, that Fowler had been, by his own testimony, carrying around a loaded snub-nosed .38 pistol and had chosen that particular weapon because it was easy to conceal and had stopping power.
Backhouse said immediately after the incident and all the way to the conclusion of the trial, Fowler had shown “callous disregard for the safety of the victim” and continues to have no remorse.
He said the primary consideration for sentencing must be denunciation and deterrence quoting the Supreme Court of Canada decision in R. v. Logan in which then-Chief Justice Antonio Lamer wrote: “The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky—the ambulance arrived early, or some other fortuitous circumstance—but he still has the same killer instinct.”
The Crown also asked for a firearms prohibition for life, mandatory DNA order, a ban on communications with George Parent and forfeiture of all the firearms confiscated by the police during the investigation.
Joseph McCarthy, Fowler’s attorney, began his presentation by highlighting his client’s personal circumstances. McCarthy said Fowler’s wife “suffers from a concatenation of serious health issues” and relies on her husband for both emotional and financial support.
The defence argued that the sentencing determination is complicated by the fact Fowler was found guilty by a jury primarily on evidence provided by only two people, the accused and the victim, who told very different stories.
In a nutshell, Parent testified Fowler snuck up on him while he was stopped to retrieve a piece of rope and without warning fired at him point blank three times.
Fowler, on the other hand, said it was Parent who snuck up and pointed a shotgun at him. He said he had been carrying the handgun because he was afraid of Parent and shot in self-defence.
McCarthy said there was no way of knowing how much of either man’s testimony the jury believed or disbelieved and, therefore, there is “a broad gradient of depravity” on Fowler’s part on which the jurors might have come to the conclusion of guilt.
He described this gradient by saying Fowler’s culpability could be anything from “extremely depraved” or that the shooting was “in cold blood” all the way up to he truly believed he was acting in self-defence, but used unreasonable force under the circumstances.
Not knowing where on the gradient the actual facts of the case lie according to the jury’s deliberations, McCarthy argued, means the judge must draw his own conclusions about the facts.
He said case law, of which he submitted several examples, makes it incumbent upon the judge to assume the jury took the most lenient path to the guilty verdict. Thus, he said, the judge must apply the criminal standard of “beyond a reasonable doubt” to any fact that discredit Fowler while treating any fact to his client’s credit with the civil standard of “on the balance of probabilities.”
Based on those principles, McCarthy said, simple logic would dictate the judge should adopt the most lenient version of the facts and suggested eight that sum up the case:
1. That Fowler and Parent had a history of animus;
2. That Parent had engaged in a campaign of abuse and harassment against Fowler;
3. That part of the campaign had been an incident in which Parent had assaulted and choked Fowler;
4. That Fowler had been impelled by this campaign and the assault to fear for his safety and start carrying a loaded firearm for protection;
5. That the meeting between the two men that led to the shooting occurred by happenstance;
6. That at the time Parent was holding a shotgun
7. That Parent had not pointed the gun at Fowler; and
8. That Fowler drew his pistol and shot Parent.
If the judge accepts the defence’s line of reasoning, McCarthy said, the appropriate sentence would be the minimum of four years.
At the end of the day, two outstanding issues remained. The first was the defence needed more time to submit further information on Fowler’s wife’s health concerns.
The second was a dispute over the forfeiture order. McCarthy said the guns are not Fowler’s to forfeit because they belong to his wife. The Crown admitted no ownership evidence was presented at trial, but argued it doesn’t matter because they are eligible for forfeiture under the Criminal Code.
Masuhara set June 10 for a continuation to resolve those two issues and to set a date for his sentencing decision.