Case Name:

 

R. v. [REDACTED], [2017] O.J. No. [REDACTED]

 

Ontario Superior Court of Justice

 

Heard: January 27, 2017.

 

Oral judgment: January 27, 2017.

 

[2017] O.J. No. [REDACTED]

 

Between Her Majesty the Queen, and [REDACTED], Accused

 

(20 paras.)

 

 

Counsel

 

Mr. [REDACTED], Mr. [REDACTED], Crown Counsel.

 

Mr. [REDACTED], Counsel for Mr. [REDACTED].

 

Reasons For Sentence

 

[REDACTED] J. (orally)

 

1 Perhaps I'll deal with the ancillary orders at the outset. Manslaughter falls under paragraph A of the definition of Primary Designated Offence in s. 487.04 of the . And, accordingly, a DNA order is mandatory and, therefore, I order that Mr. [REDACTED] shall provide a bodily sample for the purpose of forensic DNA analysis.

 

2 Manslaughter is punishable by life imprisonment and, therefore, it falls within s.109(1)(a) of the Criminal Code. And, again, accordingly, a prohibition order under that section is mandatory. Pursuant to S. 109(2), I direct that Mr. [REDACTED] be prohibited from possessing any firearm, other than a a prohibited firearm, or restricted firearm, or any

crossbow, restricted weapon, ammunition and explosive substance for a period of 20 years; and that he be prohibited for life from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited devise and prohibited ammunition. Finally, pursuant to, I believe, it's section 743.21 of the Criminal Code, I direct that Mr. [REDACTED] shall have no contact or communication -- is this with the people named in the first paragraph of the -- yes -- with [REDACTED], [REDACTED], [REDACTED]and [REDACTED] during the custodial portion of the sentence. I believe those are the words of the Code. These are the ancillary orders.

3 On the evening of September 5th, 2015, [REDACTED] was stabbed to death in the course of an altercation with two males in a park situated at [REDACTED] in Toronto. In the investigation that followed, the police came to believe that the two males who had accosted Mr. [REDACTED] were the defendant, [REDACTED] and [REDACTED]. On September 9th, [REDACTED] turned himself in to the police and was charged with second degree murder.

 

4A preliminary inquiry was held over the course of 9 days in June 2016, and Mr. [REDACTED] was committed for trial on the charge of murder. Between August and October 2016, the case was the subject of a judicial pretrial on three occasions. Arising from those proceedings, the Crown agreed to accept a plea of not guilty to the charge of murder but guilty of the included offence of manslaughter. Mr. [REDACTED] entered that plea of guilty this morning and he is before the court at this time for sentencing.

 

5 The circumstances surrounding the offence are set forth in an agreed statement of fact which has been filed in these proceedings. In brief, on the evening of September the 5th, [REDACTED], who was [REDACTED] years old at the time, [REDACTED], and three of their friends were at the [REDACTED] Park at -- on [REDACTED] road. They were drinking and socializing. At approximately midnight, they became involved in an altercation with the -- with two males who were walking through the park. Those males were [REDACTED] and Mr. [REDACTED]. The situation became heated as the two groups exchanged insults and threats. During the verbal altercation, [REDACTED] recognized Mr. [REDACTED] and [REDACTED] as classmates from high school and told them so. In response, [REDACTED] told Ms. [REDACTED] to fuck off. This angered Mr. [REDACTED]and he exchanged further words with the two males. One of the group, Mr. [REDACTED], encouraged [REDACTED] and [REDACTED] to leave the area. As they walked away, [REDACTED] and [REDACTED] both warned the deceased that they'd be back. About five minutes later, [REDACTED] and [REDACTED] returned to the park. Mr. [REDACTED] and the deceased quickly approached each other and Mr. [REDACTED] yelled, 'What now; what now?'. As Mr. [REDACTED] and [REDACTED]l came face to face, Mr. [REDACTED] said, 'Poke him', to [REDACTED], with the intention that [REDACTED] stab the deceased. Mr. [REDACTED] grabbed the deceased, punched him in the head, as [REDACTED] thrust a sharp weapon into the deceased's upper abdomen. The deceased immediately fell to the ground and screamed in pain. [REDACTED] and [REDACTED] immediately fled from the scene.

 

6In the course of the proceedings this morning, [REDACTED], the uncle of the victim, prepared or provided the court with the Victim Impact Statement that he had prepared on behalf of the victim's family. The statement speaks eloquently to the overwhelming devastation that the family has endured and continues to endure as a result of the senseless loss of a beloved young man who had his whole life ahead of him. To this day, [REDACTED]'s parents and siblings are unable to put pen to paper to describe their profound grief.

 

7 Mr. [REDACTED] was 21 years of age at the time of the offence. He's now 22. He has no prior criminal record. At the time of the offence, he was in second year at [REDACTED] College. Mr. [REDACTED] has filed seven letters offering opinions with respect to Mr. [REDACTED]'s character. Those letters describe Mr. [REDACTED] as a kind-hearted and caring individual, always willing to help his friends and family, often volunteering to mentor younger persons, helping to coach basketball which was a passion of Mr. [REDACTED]. It's difficult to square that picture of Mr. [REDACTED] with his conduct on the night that [REDACTED] was killed. There was nothing kind hearted or caring about how Mr. [REDACTED] behaved that night. The inference I would draw, however, is that notwithstanding how reprehensible his conduct was it appears to have been out of character.

 

8Mr. [REDACTED] has been in custody since the date of his arrest, a period of almost sixteen-and-a half months. He was first held in the [REDACTED] Detention Centre and then in the [REDACTED] Detention Centre. To his credit, there has been no -- there have been no misconducts while he has been in custody. As Mr. [REDACTED] put it, Mr. [REDACTED] has kept his head down while detained.

 

9 In the course of the sentencing hearing, Mr. [REDACTED] was asked, pursuant to S. 726 of the Criminal Code, whether he had anything to say. He apologized to the family of the victim and to his own family for what he had done.

 

10On behalf of the Crown, Mr. [REDACTED] submitted that the appropriate sentence is a term of imprisonment of between 7 and 9 years, less credit for pre-trial custody. On behalf of Mr. [REDACTED] , Mr. [REDACTED] acknowledged that in many cases with similarities to this one, sentences in the range recommended by the Crown have been imposed. However, he submitted that the defendant's plea of guilty in this case, because of the circumstances surrounding it, is a very significant mitigating circumstance, justifying a departure from the usual range. He submitted that a sentence of 5 years imprisonment less pretrial custody would be appropriate.

 

11The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of six objectives. Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation and a promotion of a sense of responsibility. Whatever saction is imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, a court that imposes a sentence must take into account the principle of parity; that is a sentencing court must bear in mind that a sentence imposed on any particular offender should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

 

12 The principle of parity inevitably draws a sentencing court to a consideration of sentencing precedents; that is, to a consideration of sentences imposed in analogous cases. In preparation for today's proceedings, I have reviewed a large number of sentencing decisions, most of which were brought to my attention by counsel for the parties in the course of the judicial pretrial process. While it is fair to say that those decisions demonstrate that the range of sentence for the offence of manslaughter is both wide and elastic, it is also fair to say that for factual situations similar to the present case involving offenders with roughly similar antecedents, the sentences imposed do tend to fall between 7 and 9 years imprisonment. Sentences within that range are ordinarily required because the paramount objectives of sentencing in cases of manslaughter are ordinarily denunciation of the conduct that has caused a death and the deterrence of the offender and others from engaging in unlawful behaviour likely to cause bodily harm. That is not to say that all manslaughter cases fall within that range. There are cases both above and below it, a fact that confirms that the search for an appropriate sentence is ultimately a case-specific exercise.

 

13The particular circumstances of this case mark it as a serious example of an inherently serious offence. At the same time, it must be borne in mind that the charge that Mr. [REDACTED] has pleaded guilty to, with the consent of the Crown, is manslaughter, not murder. By pleading guilty to manslaughter, Mr. [REDACTED] is admitting that he was a party to an assault and that a reasonable person would appreciate the risk of bodily harm to the victim of the assault, but it is not alleged that he meant for [REDACTED] to die or to suffer bodily harm likely to kill him. If he meant for Mr. [REDACTED] to die or to suffer bodily harm likely to kill him, he would be guilty of murder, not manslaughter. Murder is no longer the allegation against Mr. [REDACTED]. It is important to bear that in mind in deciding on the sentence to be imposed.

 

14 There are a number of aggravating features of the offence of manslaughter in this case. The fatal confrontation was not something that suddenly flared up but rather was the product of some premeditation. While Mr. [REDACTED] was not the person who actually stabbed the victim, he did encourage the stabber to assault the victim and to stab him, and in the circumstances it matters little which one of the two actually did the stabbing. Both Mr. [REDACTED] and [REDACTED] fled from the scene without attempting to get assistance for the victim. The fatal confrontation was unprovoked in any meaningful sense. And apart from hurt pride there was no hint of justification to what happened. In the absence of a significant mitigating circumstance, those considerations would justify a sentence in the range suggested by the Crown.

 

15 The defendant has pleaded guilty. A plea of guilty is a mitigating circumstance but by itself it would be insufficient to distinguish this case from many of those that have attracted sentences of between 7 and 9 years; nor would the fact that he has expressed remorse for what he did. However, it is frankly and fairly acknowledged by the Crown that the plea of guilty in this case has an enhanced mitigating effect. The Crown acknowledges that there are frailties in the evidence that the Crown would have been able to call to identify Mr. [REDACTED] as one of the two persons who confronted the victim. I have been advised that by the end of the preliminary inquiry a key Crown witness on the issue of identification acknowledged that she could no longer say that Mr. [REDACTED] was one of the two men who assaulted the victim. It was very much an open question whether the evidence that the Crown is left with would have been sufficient to persuade a jury that Mr. [REDACTED] was involved. Mr. [REDACTED] was aware of the difficulties that the Crown was facing, but notwithstanding that he agreed to admit that he was involved; that he was one of the two men who confronted Mr. [REDACTED]; and that he did encourage [REDACTED] to stab the victim. He agreed to plead guilty to a serious criminal offence arising out of that, manslaughter, and to accept a multi-year sentence of imprisonment in a

penitentiary.

 

16 In the circumstances, the plea of guilty, which reflects an acknowledgement of responsibility for what happened to the victim and does demonstrate remorse is an especially mitigating circumstance, and, in my opinion, it justifies a sentence below the range that would otherwise have been considered appropriate.

 

17The death of [REDACTED] was a senseless waste of human life. The loss of his life been devastating for those who loved him. No sentence of this court can make that loss any less painful or easier to bear. No punishment that this court can impose can ever be seen as balancing the books. Mr. [REDACTED], after he serves his sentence, will go on with his life. [REDACTED] will not.

 

18 Giving the matter my best consideration, I am of the view that the appropriate sentence but for credit for the portion of the sentence that has already been served is one of 5 years imprisonment. In accordance with the usual practice, the sixteen-and-a-half months of presentence imprisonment will be credited as 25 months. In other words, the balance of the 5 years of imprisonment that remains to be served is 35 months in the penitentiary.

 

19 Thank you. I think that concludes all the matters before the court. Thank you, very much.

 

20 Court is adjourned at 12:40 p.m.

Our Commitment

Caramanna, Friedberg LLP is a criminal defence law firm located in Toronto, Ontario. The firm provides expert legal advice and protects the rights of individuals facing criminal charges.

Latest Tweets

Address

Get In Touch