The adult suspect in the May 12, 2012 assault on Hupacasath member Bert McCarthy will not serve any time in custody.
Matthew Labadie, 21, appeared for sentencing in Port Alberni provincial court on March 19 on one count of assault.
Judge Parker McCarthy (no relation to the victim) sentenced Labadie to one year’s probation with terms including a no-contact order and 40 hours of community service.
Bert McCarthy said he was surprised that the sentence had been proposed in a joint submission from Labadie’s defence counsel Chris Churchill and Crown prosecutor Christina Proteau.
“You don’t usually get any jail if it’s a first offence. But it was his second offence. He had a drunk driving conviction in 2010 [in another jurisdiction], but he had no assault convictions, so I guess the judge took that into consideration,” he said.
Labadie originally pleaded not guilty on a charge of assault causing bodily harm, but the Crown accepted a guilty plea on the lesser offence.
Proteau said two juvenile co-accused received identical sentences in separate sentencing hearings before different judges.
“All three were charged with assault causing bodily harm, on three different charges,” Proteau explained. “There were three different trial dates set. That’s why there were three sentencing hearings.”
The assault took place in the parking lot of the PetroCanada station on River Road across from Clutesi Haven Marina. All parties agree that the victim and the three accused arrived at the station after spending a day on the water.
According to the victim, the three men insulted him with racial epithets and assaulted him after he asked if they had passed near his boat on jet skis earlier in the day.
According to the defence, McCarthy confronted the men angrily and sparked a fight with Labadie. In the ensuing melee, McCarthy received head injuries and a badly broken leg.
Proteau said a judge is not bound by a joint sentencing submission.
“Sentencing is an art form. It depends on the specific facts of the case and the specifics of the offender,” she said.
McCarthy said in comparison with the previous sentencing hearings, he felt Judge McCarthy was too swayed by the defendant’s version of events and didn’t fully acknowledge the violence of the attack.
“This judge seemed to believe the [defence] version that me and the adult were fighting and the juveniles jumped in to save him because he was getting beat,” he said.
Bert McCarthy himself has previous convictions for assault. Proteau said that, by law, a judge cannot take into consideration any criminal history of the victim when deliberating a sentence. McCarthy is skeptical.
“There’s no place for an aboriginal guy in the court system,” he said
As a result of his injuries, McCarthy was unable to take part in the aboriginal fishery last season, but he will be back on the river this year, despite some nagging pain in his leg. He currently works in Errington.
“I’m still living. I’m back to work. I’m still taking ibuprofen,” he quipped. “My boss will give me time off to go fishing.”
Proteau noted that while Labadie did not go to jail, he will still be under the supervision of the court.
“If he violates the terms of his probation, the judge has the option of incarcerating him,” she said.
