COURT OF APPEAL FOR ONTARIO
Juriansz, Rouleau and Watt JJ.A.
BETWEEN
Her Majesty The Queen
Appellant
and
Daniel Lee Thompson
Respondent
Alexander Alvaro, for the appellant
Timothy E. Breen and Diana Lumba, for the respondent
Heard: April 1, 2010
On appeal from the judgment of Justice Robert F. Scott of the Superior Court of Justice dated September 8, 2009.
1The respondent, Daniel Lee Thompson, was charged with murder in the death of Kevin Monroe. The respondent offered to plead guilty to manslaughter, and, following a preliminary inquiry, the Crown consented to entry of the plea. During the sentencing proceedings, the parties did not present a joint submission on sentence. However, due to what was essentially a mathematical error involving credit for pre-trial custody, the sentencing judge appeared to believe that the effective difference between the low end of the Crown’s range and high end of the defence’s range was only one day. The sentencing judge considered that a sentence of four years less a day was appropriate. Given that the respondent had spent one year in pre-trial custody, the judge sentenced the respondent to two years less a day in a provincial reformatory, followed by three years probation.
2The Crown now seeks leave to appeal from the sentence imposed. It raises three issues on this appeal: whether supplementary reasons released by the sentencing judge can be considered on this appeal; whether the sentencing judge erred in principle in rendering his sentence; and whether the sentence imposed was demonstrably unfit. While I agree with the appellant that the supplementary reasons provided by the trial judge in this case cannot be considered on appeal, for the reasons that follow, I would dismiss the appeal.
Facts
3After attending a party on the evening of September 19, 2008, the respondent and several of his friends went to the apartment of Alan Clark. The victim, Kevin Monroe, was living in Mr. Clark’s apartment at the time, and was asleep on a couch in the living room when the partygoers arrived. Mr. Monroe was described as being muscular, had a criminal record including crimes of violence, and had the reputation of being “the craziest guy in Picton”.
4After the crowd arrived at the apartment, some of the partygoers started to go through Mr. Monroe’s belongings looking for cigarettes. Mr. Monroe awoke and, upset, pushed several of the partygoers around, including the respondent’s former girlfriend. The group responded by ganging up on Mr. Monroe and inflicting 27 blunt force injuries, and 3 stab wounds. Two of the stab wounds penetrated Mr. Monroe’s lung, one of which also severed an artery. Expert evidence established that these two wounds caused or contributed to the victim’s death. A third knife wound injured Mr. Monroe’s liver but, according to the pathologist, did not cause or contribute to Mr. Monroe’s death.
5The respondent initially denied any involvement in the homicide but later confessed to being present. He explained that when he entered the apartment, the initial physical confrontation between Monroe and the others had already begun. He saw his ex-girlfriend lying on the ground, having already been attacked by the victim. He then saw everyone start kicking the victim. He admitted that he then picked up a knife from a nearby table and stabbed the victim once as the victim was lying on the ground.
6The respondent was genuinely remorseful and, soon after his arrest, wrote a letter of apology to the relatives of the victim.
7The respondent pled guilty to manslaughter and a sentencing hearing proceeded on the basis of an agreed statement of facts. The agreed statement was the product of various witnesses’ statements and testimony given at the preliminary inquiry as well as expert reports. In several respects, the agreed statement of facts was internally inconsistent. Where there were inconsistencies, the sentencing judge adopted the facts most favourable to the respondent. As a result, the sentencing judge proceeded on the basis that the respondent inflicted the non-fatal stab wound. He also accepted that provocation, based upon the respondent’s reaction to the victim’s assault on his ex-girlfriend, would have been a live issue at the trial.
Position of the parties at the sentencing hearing
8The Crown and defence did not make a joint submission on sentence. The respondent has been detained for approximately 1 year prior to his guilty plea, and all parties agreed that this time ought to be credited at a rate of two for one. The Crown was seeking a sentence of six to eight years, less credit for pre-trial custody. The defence sought a sentence of two years less a day after pre-trial detention was taken into account.
9The sentencing hearing proceeded for approximately 1 ½ days and, in the course of it, defence counsel made the following comment:
My friends are at six to eight years less time served so the divergence between our respective submissions only occurs at the high end of that range Your Honour. If you apply Mr. Thompson’s pre-trial custody to the low end of the range suggested by my friend, we’re at the same amount time – four years.
10The Crown made no comment in response to this submission. However, it was clearly wrong: the Crown was seeking a four-year sentence after having taken pre-trial custody into account. The defence, on the other hand, was seeking four years less a day before credit for pre-trial custody had been applied.
Reasons of the sentencing judge
11At the outset of his reasons, the sentencing judge referenced the submission made by defence counsel concerning the purported overlap of the Crown and defence positions. The sentencing judge then carefully reviewed the law and the submissions of counsel. He then listed the aggravating and mitigating circumstances as follows:
(a) Aggravating circumstances
The respondent had a youth record, though not for this sort of conduct;
The respondent’s family had urged him to stay away from Mr. Clark’s apartment on prior occasions;
The respondent used a knife in the attack, though it was one obtained without much planning;
The respondent stabbed the deceased, who was his friend, while he was being attacked by a group of others;
The deceased had been sleeping when the group encountered him;
The respondent used a knife when there was no apparent need to do so;
Following the attack, the respondent fled the scene;
The respondent never attempted to act as a peacemaker during the attack on the deceased;
The respondent did not call 911 following the attack;
The respondent initially denied involvement;
The deceased was vulnerable when the respondent stabbed him;
The death of the victim caused a significant loss to his family and close friends; and
The respondent, who considered the deceased to be a friend, might have been expected to act differently towards him.
(b) Mitigating circumstances
The respondent was only 19 at the time of the attack, nearly a young offender;
The respondent suffers from an ill-defined mental illness, though not one that influenced his actions in the attack;
The respondent was under the influence of alcohol and possibly illegal drugs;
The respondent had recently broken up with his girlfriend;
The respondent’s plea saved Mr. Monroe’s family and friends the need to experience a trial;
The respondent offered a guilty plea at a very early stage, prior to the preliminary inquiry;
The respondent’s conduct might have been influenced by Monroe’s attack against his former girlfriend. Although this would not likely have given rise to a viable self-defence claim during a trial, it might have approached provocation;
The respondent did not intend for Mr. Monroe to die, but rather sought to “give him stitches”; and
The respondent has few real skills and a limited education.
12The sentencing judge then instructed himself on the principles of sentencing in the Criminal Code. Before concluding, he again referenced defence counsel’s understanding of the overlap on sentencing as follows:
As I indicated to you earlier the lower end of the Crown’s submission and the Defence submission are almost identical and for the matter of one day, I am prepared to sentence accordingly given all of the circumstances, a non-penitentiary term of imprisonment would satisfy the principles of sentencing set out in The Criminal Code.
13Here again, neither counsel commented on the error.
14The sentencing judge then sentenced the respondent to two years less a day after crediting him for the equivalent of two years for pre-trial custody. To this he added three years probation explaining that:
If you were to go to the penitentiary, I would not be able to put you on probation but because your sentence is confined to a reformatory situation; that is, two years less one day, you will be sentenced to three years probation.
15The sentencing judge then added that he recommended that the respondent be admitted to the St. Lawrence Valley Treatment Centre in Brockville so that he might be treated for the psychological disorder he is suspected to suffer from.
16After counsel and the respondent had left the courthouse the sentencing judge realized that he had made a mathematical error in concluding that the Crown and defence had both suggested that four years was an appropriate sentence. He spoke to the court reporter and advised her that he would be providing expanded reasons shortly. These were incorporated in the transcript and explained that, after leaving the courtroom, he had realized the obvious error he had made in accepting defence counsel’s calculation. He noted that neither counsel had commented on the error and went on to explain as follows:
Given this obvious error on my part, I felt obligated to write this footnote.
Firstly, I do not believe that Counsel intentionally misled me and, for reasons which are otherwise contained in my Judgment, I would have arrived at the same conclusion as to the appropriate and fair sentence in this case.
Secondly, I apologize for the inconvenience which I have caused to the justice system.
17The Crown seeks leave to appeal sentence and, if leave is granted, that the sentence be increased to one of four years in addition to pre-trial custody.
Issues
18There are three issues raised on this appeal:
Can this court consider the sentencing judge’s expanded reasons for sentence?
Did the sentencing judge commit an error in principle?
Was the sentence demonstrably unfit?
Discussion
1) Can this court consider the sentencing judge’s expanded reasons for sentence?
19The Crown argues that this court cannot rely on the sentencing judge’s additional reasons because he was functus officio when they were given. The respondent submits that the addendum is either the simple correction of an error or, in the alternative, a clarification of the reasons rendered at the sentencing hearing: see R. v. Malicia (2006), 2006 31804 (ON CA), 211 C.C.C. (3d) 449 (Ont. C.A.). As I will explain below, in my view the doctrine of functus officio is not the correct tool to use in analyzing this issue.
20In R. v. Malicia, this court affirmed that “[i]n judge alone cases, the point of no return is after the trial judge endorses the indictment.” Once the indictment is endorsed, the trial judge is functus officio, and normally may not alter his or her order. Malicia allows only that in limited circumstances a judge can correct errors made in recording his or her manifest intent, or otherwise confirm or clarify the substance of the decision made, so long as it does not involve a reconsideration of the decision.
21In the present case, the sentence imposed was clear and manifest. There was no need for clarification. Indeed, in the addendum, the sentencing judge neither altered nor clarified the sentence that he imposed. His added comments were directed towards correcting an error in his reasons for sentence, and not towards the sentence itself. He sought to clarify not what he decided, but why he decided it. The doctrine of functus officio is concerned with what a given decision was, not why the decision was made.
22As a result, I do not view the functus officio analysis as being of assistance in this matter.
23The present case is more in the nature of the issuance of supplementary reasons and is therefore guided by different principles: see R. v. R.(J.) (2008), 2008 ONCA 200, 59 C.R. (6th) 158, (Ont. C.A.) at para. 15.
24In R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267 the Supreme Court of Canada held that reasons delivered after judgment could be considered by an appellate court, unless there was a reasonable apprehension that the reasons were, in reality, an after-the-fact justification for the decision, and not a bona fide expression of the reasons that led the court to reach its verdict.
25Applied to this case, it is apparent from the words used by the sentencing judge in his addendum that the addendum is in the nature of after-the-fact reasons, which cannot be considered on appeal. In the addendum the sentencing judge clearly acknowledges the mistake he made in his reasons for sentence. He then goes on to explain what he “would have” done had he not made the mistake. It is clear therefore, that he was not expanding on the reasons for the decision he did in fact make, but rather, providing reasons for the decision he would have made but for the error.
26As a result, I am of the view that the addendum cannot be considered on the merits of the appeal. However, this is not determinative of the appeal. Rather, this court must consider the original reasons for sentence, and determine whether they reveal an error in principle, or resulted in a sentence that was demonstrably unfit.
2) Did the sentencing judge commit an error in principle?
27The Crown alleges an error in principle based on the judge’s misapprehension of the positions of the parties. It claims that the judge approached sentencing as if the parties had presented a joint submission of four years less credit for pre-trial custody. The respondent concedes that the sentencing judge misapprehended the positions of counsel but argues that, to succeed, the Crown must show that the misapprehension is sufficiently material so as to warrant appellate intervention.
28It is not disputed that the trial judge misapprehended a fact, that being that the low end of the Crown’s position on sentencing and the high end of the respondent’s position were only one day apart. If, as the Crown suggests, this means that the sentencing judge then approached the sentencing as if there had been a joint submission, this would constitute an error in principle.
29Where a judge considers a joint submission, he or she considers whether the proposed sentence would be against public policy, or otherwise bring the administration of justice into disrepute: see R. v. Dorsey (1999), 1999 3759 (ON CA), 123 O.A.C. 342 (C.A.), at para. 11.
30From the submissions of counsel and the reasons of the sentencing judge, it is clear that the judge did not believe there was a joint submission. He understood that the parties disputed what the proper sentence should be. Rather than consider whether a reformatory sentence would be against public policy or bring the administration of justice into disrepute, he considered the aggravating and mitigating factors present in the case, examined relevant case law, and ultimately settled on a sentence he viewed as fit. Even with the mathematical error, the sentencing judge was aware that the Crown was seeking penitentiary time, while the defence was advocating for a high reformatory sentence.
31The question therefore is whether, in the circumstances of this case, the sentencing judge’s misapprehension of a fact rises to the level of an error in principle. Put another way, I need to consider what impact, if any, the error on overlap had on the sentencing judge’s reasoning process.
32In order to assess the impact of the error, the reasons need to be read as a whole and in context. That context includes the contents of the agreed statement of fact and the submissions of the parties.
33The submissions make it clear that the Crown and respondent were advancing different positions on sentence. The respective positions of the parties were correctly set out in the sentencing judge’s reasons. While he may have started and ended his reasons by stating the mathematical error, the balance of the sentencing judge’s reasons standing alone were complete and thorough. The judge canvassed the aggravating and mitigating circumstances as well as the circumstances of the offence and the offender. He was fully aware of his ultimate duty to impose a sentence on the respondent that was fit. After his analysis, the sentencing judge concluded that a non-penitentiary term of imprisonment satisfied the principles of sentencing set out in the Criminal Code, and sentenced the respondent accordingly.
34Although not specifically addressed in his reasons, it is apparent that the sentencing judge considered a sentence of two years less a day to better meet the sentencing goal of rehabilitation than the lengthier penitentiary term the Crown asked him to consider. It permitted him to impose a three-year term of probation on this youthful offender. As well, a reformatory sentence allowed the respondent to be referred to the St. Lawrence Valley Correction and Treatment Center, a facility that accepts referrals from inmates serving time in the Provincial system only. With respect to this latter point, respondent’s counsel on appeal advised that the respondent had been approved to go to the St. Lawrence facility for treatment with the expectation that his admission would be in May 2010.
35As a result, when viewed in the context of the evidence as a whole, I am persuaded that the mistaken understanding as to the relative positions taken by the Crown and the respondent did not play a significant role in the sentencing judge’s reasoning. It is apparent that, even absent the error, he would not have imposed a penitentiary sentence. In his view, a reformatory sentence would be most appropriate in this case, and he imposed the longest reformatory sentence available in law. I conclude, therefore, that the mistake is not sufficient in and of itself to constitute an error in principle entitling this court to interfere with the sentence.
3) Is the sentence demonstrably unfit?
36The search for a fit sentence in cases of manslaughter is a difficult one given the wide range of circumstances in which the offence can be committed, and the wide range of sentences available under the Code. This court has acknowledged the existence of a broad discretion in this area in R. v. Turcotte (2000), 2000 14721 (ON CA), 48 O.R. (3d) 97 wherein the court stated, at para. 19, that “while many, if not most, sentences for manslaughter are in the penitentiary range, maximum reformatory sentences are not unknown and are clearly within the acceptable range.”
37Although this case exhibits many aggravating factors, the facts in several of the cases relied on by the Crown for a sentence in the six to eight year range are clearly more egregious than those in this case. Cases such as R. v. Cleyndert, 2006 33851 (Ont. C.A.) and R. v. Clarke (2003), 2003 28199 (ON CA), 172 O.A.C. 133 (C.A.) did not involve a guilty plea, and in both cases, the accused carried a knife on his person, used it multiple times, and actually caused the death of the victim. Further, in Cleyndert, there was a specific finding as to the lack of remorse on the part of the accused.
38Other cases relied on by the Crown such as R. v. Mohammed, 2008 60979 (ON S.C.), aff’d 2009 ONCA 586 and R. v. Hermiz, 2007 13933 (ON S.C.) establish that high single digit sentences are within the range of appropriate sentences for offenders similar to the respondent. However, it does not necessarily follow that because a higher sentence may have also been fit, the four-year sentence imposed in this case was unfit.
39The respondent provided cases where the sentence imposed was in the two to four year range: see R. v. Ryczak (2009), 2009 ONCA 311, 247 O.A.C. 238 (C.A.) and R. v. Simcoe (2002), 2002 5352 (ON CA), 156 O.A.C. 190 (C.A.). I do not view these cases to be of assistance as they both involved exceptional circumstances that are not present in the instant appeal. The case of R. v. Brizard, 2006 5444 (ON C.A.) is, however, closer to the circumstances in the present case.
40In Brizard, this court reduced the sentence for manslaughter from eight years to five years on the basis that, despite it being a very grave offence, the offender was a member of an aboriginal community, was heavily intoxicated at the time of the offence, was a party rather than a principal to the offence and did not factually cause the victim’s death. Although the offender had a criminal record, he had no prior record for crimes of violence.
41In the present case, the respondent was nineteen at the time of the offence and was clearly very remorseful. The respondent had a relatively limited role in the homicide in that he appears to have joined an ongoing assault of the victim by others. Because the trial judge deemed the respondent to have inflicted the stab wound that neither caused nor contributed to the death of the victim, he can be considered a party rather than a principal in the offence. When comparison is made with Brizard, the two are fairly similar. In the circumstances of this case, while the four year sentence imposed is at the low end of the range, it is not, in my view, demonstrably unfit.
Conclusion
42In conclusion, therefore, I would grant leave to appeal sentence but would dismiss the appeal.
“Paul Rouleau J.A.”
“I agree R.G. Juriansz J.A.”
“I agree David Watt J.A.”
RELEASED: June 21, 2010
