COURT OF APPEAL FOR ONTARIO
Simmons, Brown and Favreau JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Austin Wesley
Appellant
Delmar Doucette, for the appellant
Andrew Hotke and Manasvin Goswami, for the respondent
Jonathan Rudin and Maxwell Hill, for the intervener, Aboriginal Legal Services
Heard: September 16-17, 2024
On appeal from the conviction entered by Justice W. Danial Newton of the Superior Court of Justice on November 9, 2021, with reasons reported at 2021 ONSC 7264, and from the sentence imposed on May 17, 2022, with reasons reported at 2022 ONSC 2974.
A. INTRODUCTION
1The issues on appeal arise from tragic events that occurred on December 6, 2017, at a family home on Cat Lake First Nation (“Cat Lake”) in northwestern Ontario.
2After several hours of drinking, 18-year-old Austin Wesley (the “appellant”) shot and killed his father, Isaac Gray. The appellant then followed, and shot and killed, his best friend, Tyrese Shakakeesic, with whom he had been drinking, as Mr. Shakakeesic tried to flee out the front door. Still armed, the appellant called out to his father’s longtime girlfriend, Kirsten Amy Keesickquayash, who was also in the house, and threatened to “blast” her “too”. Fortunately, a police officer arrived on scene and the appellant surrendered to the officer.
3The appellant was charged with two counts of first degree murder, one count of attempted murder, and one count of assault arising from a physical interaction with his grandmother that preceded the shootings.
4Although he had no memory of the shootings, the appellant testified at trial, which proceeded by judge alone. He said he did not want to shoot any of the victims and that he had never before been as drunk as he was that day.
5At the conclusion of the case, the Crown conceded that the evidence did not establish that the killings were planned and deliberate and that the appellant’s interaction with his grandmother could have been accidental. The appellant conceded he was guilty of two counts of manslaughter. The trial judge convicted the appellant of two counts of second degree murder and one count of attempted murder but acquitted him of assault. The Crown and defence counsel at trial joined in recommending a sentence of life imprisonment with an 18-year parole ineligibility period on the murder convictions and a 10-year concurrent sentence of imprisonment for attempted murder. The trial judge accepted counsel’s recommendations.
6The appellant appeals his convictions and seeks leave to appeal sentence. He raises two issues on his conviction appeal. First, he submits that the trial judge erred by failing to give himself, and apply, a “rolled-up instruction” on the combined effects of advanced intoxication, provocation and the appellant’s experience as a hunter, which, in combination, could have led the appellant to act instinctively and without the requisite intent for murder. Second, he submits that the trial judge erred by failing to consider whether the reliability of Ms. Keesickquayash’s evidence concerning the attempted murder charge was affected by the events she witnessed and morphine consumption.
7Concerning sentence, the appellant submits: i) the trial erred by accepting the joint recommendation of counsel and imposing a parole ineligibility period greater than 10 years; and ii) the mandatory minimum 10-year parole ineligibility period is unconstitutional for Indigenous offenders and/or offenders under the age of 25 years. The proper period of parole ineligibility was seven years.
8For the reasons that follow, I would dismiss the conviction appeal but allow the sentence appeal, set aside the 18-year parole ineligibility period and substitute a parole ineligibility period of 13 years. As the appellant did not raise the constitutional issue at trial, I would not entertain it on appeal.
B. BACKGROUND
9The appellant was exactly three months past his 18th birthday on December 6, 2017, when the events took place. An Ojibway, he lived with his father and his three brothers in a bungalow on Cat Lake.
10Cat Lake is a small community of about 700 people, located approximately 200 km northwest of Sioux Lookout. There is some winter road access, but the community is otherwise accessible only by air.
11The appellant testified that he did not like school and stopped going around grade six or seven. As of December 2017, he was not employed but would sometimes help his brother with woodcutting. He preferred to spend his time in the bush and was an experienced hunter, having first been exposed to guns at around age 10 or 11. He would give the meat he obtained by hunting to his family or sell it for income. He owned four firearms, including his main moose-hunting gun, a pump action .308 Remington rifle with a four-bullet clip that he used during the shootings.
12On the day before the shootings, the appellant went moose hunting. His snowmobile broke down and he had to get a ride home with another hunter. He planned to retrieve his snowmobile and go hunting again the next day. Although guns were generally stored in a crawlspace under the house, as on some other occasions when he planned to hunt again the following day, he kept the .308 Remington in his bedroom. After the appellant got home from hunting, his father and Ms. Keesickquayash switched rooms with him, moving his belongings to a smaller room. The gun was left, unloaded, standing in the corner of his new room and the clip, containing four bullets, was left on the bed.
13The appellant did not go out to retrieve his snowmobile on December 6, 2017, as he had planned. It was snowing heavily and no one with a snowmobile was available to assist him. Instead, he occupied himself playing video games.
14Some time between 3 and 4 p.m., the appellant’s best friend, Mr. Shakakeesic, came to the appellant’s house. He brought a 26-ounce bottle of vodka and two mickeys of rye, hoping to celebrate his 18th birthday, which had been two days earlier. The appellant testified that he was not a regular drinker, drinking at most once or twice a month. But he and Mr. Shakakeesic began drinking that afternoon and then, at Mr. Gray’s request, ran a couple of errands.
15When they returned to the house, the appellant and his friend continued drinking, and also smoked some marijuana in the appellant’s room. At some point, Mr. Shakakeesic picked up the appellant’s rifle and aimed and pumped it. Mr. Gray saw this and told them to stop. He did not like them handling guns while drinking. The two friends continued drinking in the appellant’s room but eventually the appellant’s father had them move to the kitchen.
16The appellant estimated that he and Mr. Shakakeesic continued drinking for a couple of hours. Mr. Gray also had a couple of drinks. The appellant thought he and his friend had finished one of the mickeys and most of the vodka when he grabbed the second mickey from the freezer. His friend urged him to “slug it down”, so he drank a large amount from the mickey. After that, he had little memory, other than limited flashbacks, of what happened during the remainder of that day. In her evidence, Ms. Keesickquayash described the appellant’s condition by the time he was chugging the rye as being “black-out, fall down drunk.”
17Ms. Keesickquayash testified that, at some point, while she was in Mr. Gray’s room, she overheard the appellant arguing with his father in the kitchen. Mr. Gray wanted the appellant to get a job and provide for himself. She described the appellant as sounding really drunk and heard him say something along the lines of “you’re never happy with what I do”. She went into the kitchen for some water and saw the appellant grab his father and throw him to the floor. She had been close with the family for about 10 years and had never seen the appellant disrespect his father like this. The appellant was drunk and could hardly stand. Mr. Shakakeesic jumped on the appellant’s back to restrain him and the two of them ended up rolling on the floor. Soon after, the appellant left the house swearing and asking to be left alone. At some point, Ms. Keesickquayash went back to Mr. Gray’s room, injected a shot of morphine and got one ready for Mr. Gray.
18Mr. Gray’s oldest son, Ronald, happened to be returning Mr. Gray’s truck to the home just after the appellant left the house. He saw the appellant walking down the road towards the appellant’s maternal grandmother’s house, which was about 250 meters away. Ronald testified that the appellant was walking almost in the middle of the road with his head down, kind of shuffling along, not even acknowledging the truck. Ronald had to drive around him. Ronald agreed that the appellant appeared to be highly intoxicated.
19The appellant’s grandmother testified that when the appellant arrived at her house, he was obviously drunk because he was swaying. She went outside and asked her son, James, to call the police because she did not want the appellant there when he was drunk. James thought the appellant was going to pass out. He took the phone into the bathroom to call the police. The appellant was gone when he came out.
20Ms. Keesickquayash testified that the appellant returned less than 10 minutes after leaving the house. He was swearing and angry when he came back in. He told his father and Mr. Shakakeesic to leave him alone and get out of his way as he stormed into his room and slammed the door. Mr. Gray was trying to tell him to calm down. Ms. Keesickquayash thought the appellant may have misunderstood what Mr. Gray was saying. She heard him say out of nowhere, “go ahead and call the cops”. Mr. Gray said no one was going to call the cops. She heard a sound like a door being kicked open and then heard the appellant say, “Who’s a fucking pussy now eh Isaac? Who’s a fucking coward now eh Isaac?”
21From the doorway of the bedroom, Ms. Keesickquayash saw Mr. Gray raise his arm and heard him say, “Austin, no". She heard a shot. Mr. Gray grabbed his chest and fell. Ms. Keesickquayash said she just yelled, “Oh, you shot your dad”, and rushed toward Mr. Gray. He died within minutes.
22During cross-examination, Ms. Keesickquayash confirmed that, when the appellant returned home, he staggered past her bedroom doorway, putting his hand on the wall for support. She also agreed with a suggestion that Mr. Gray and Mr. Shakakeesic did not leave him alone as he asked but continued yelling and arguing with him through his bedroom door, conduct she described as “just agitating him more.”
23After the appellant shot his father, Ms. Keesickquayash said she was kneeling with Mr. Gray and the appellant was just standing right there. Mr. Shakakeesic ran out the front door. The appellant kind of “jumped over” them, chased Mr. Shakakeesic and fired two shots from just outside the front door. One of the bullets grazed Mr. Shakakeesic’s lower back, the other struck the back of his upper left chest and shoulder, fatally injuring him.
24A police officer arrived on scene, heard Mr. Shakakeesic say he had been shot and saw the appellant run back into the house. Ms. Keesickquayash testified that once back in the house, the appellant “was looking for me, I guess”. He yelled out her name and said he was going to “blast” her “too”. She said he came looking for her and she just hid, moving between various rooms. He told her he knew she was in the house. She heard him say, “Fuck, where are you”, but then after a while he must have seen his dad. He was crying and apologetic. She subsequently heard him say, “Fuck it”. It went quiet in the house. She looked out the window. The appellant was on his belly and had surrendered to the police officer.
25The police officer testified that, on being arrested, the appellant said, spontaneously, “I did it. I fucking did it.”
26Other witnesses arrived on scene and assisted the police officer in transporting Mr. Shakakeesic to the nursing station and watching over the appellant in the police vehicle while the officer went into the nursing station. They agreed that the appellant was “fall-down drunk” and described hearing him crying and speaking in incomplete sentences, including words to the effect that he had killed his father, he did not know what he had done would kill his father, and he was sorry. One of the witnesses was a sister of Mr. Gray. She testified she thought the appellant must have seen her as she was standing outside the police vehicle. She said she had heard him yelling, but when she approached the vehicle, he said words along the lines of, “I’m sorry, tell grandma I’m sorry, I love her.” Then he said, “I shot my dad. My dad is dead at the house.”
27Video taken at the police detachment garage depicted the appellant stumbling as he was taken into the station. The arresting officer thought the appellant would probably have fallen over had the officer not been holding onto him. After the appellant was placed in a cell, the arresting officer heard him say, “I killed my fucking Dad.”
28No sample was taken from the appellant to determine his blood alcohol concentration. Postmortem analysis of Mr. Shakakeesic’s blood and urine showed the presence of THC and blood and urine alcohol concentrations of 197 and 213.
29The .308 Remington was found in the living room with a round in the chamber.
C. THE CONVICTION APPEAL
(1) Did the trial judge err by failing to give himself and apply a “rolled-up instruction” on the combined effect of intoxication, provocation and the appellant’s experience as a hunter in relation to the issue of intent for murder?
30The main issue at trial concerning the murder charges was whether the Crown had proven the appellant had the intent for murder at the time of the shootings. The appellant acknowledges that the trial judge considered whether the evidence concerning his advanced state of intoxication at the time of the shootings raised a reasonable doubt on the issue. However, he submits that the trial judge erred by failing to give himself, and apply, a “rolled-up instruction” on the issue of intent addressing three important factual elements:
the appellant’s advanced state of intoxication;
the fact that the shootings were a reaction to provocative conduct on the part of Mr. Gray and Mr. Shakakeesic immediately prior to the shootings, in continuing to argue with him after he asked to be left alone (the “pre-shooting conduct”), which Ms. Keesickquayash described as “just agitating him more”; and
his experience and skill in hunting with a firearm, which indicated that he could use his rifle reflexively or instinctively.
31A rolled-up instruction is intended to ensure that all evidence relating to whether the Crown has proven the requisite mental state for murder is considered cumulatively, even if a specific defence, justification or excuse to which particular evidence also relates, e.g., intoxication, provocation, is rejected or not available. This is because “[s]ometimes, the whole exceeds the sum of its parts”: R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at paras. 104 and 107; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at paras. 154-55.
32The appellant acknowledges that the pre-shooting conduct does not meet the requirements of the partial defence of provocation under s. 232 of the Criminal Code, which can reduce murder to manslaughter. He also acknowledges that the pre-shooting conduct may not have been provocative to a sober person. However, he maintains that, given his advanced state of intoxication, the pre-shooting conduct could be viewed as having been provocative to him. He submits that conduct does not have to meet the requirements of s. 232 to be included as part of a rolled-up charge on, for example, intoxication and provocation, in relation to the specific intent for murder: e.g., Phillips, at para. 156.
33On the facts of this case, the appellant asserts that the trial judge was required to consider whether the combined effect of advanced intoxication and provocation raised a reasonable doubt concerning whether he had the requisite intent for murder at the time of the shootings. Further, given his experience and skill in hunting with firearms, the trial judge was also required to consider whether he acted instinctively or reflexively in the state he was in, rather than in a thought-out way, in taking the various steps involved in carrying out the shootings. He contends that, because of his experience and skill, the fact that he carried out those steps did not negate the possibility that he was unable, in his highly intoxicated and agitated state, to foresee the consequences of his actions let alone to intend them.
34The appellant submits that both counsel at trial agreed that a rolled-up self-instruction was required, and that the trial judge erred in failing to self-instruct on, and apply, a rolled-up instruction. Nowhere in the trial judge’s reasons does the word “provocation” appear. Moreover, rather than considering whether the appellant acted reflexively, the trial judge relied on the appellant’s experience as a hunter to support the common-sense inference that he was aware of and intended the consequences of his actions in pointing a gun at a person’s chest and shooting. While acknowledging that that finding may have been open to the trial judge on the record, the appellant submits that the trial judge erred in making it without first considering the possibility that, in his drunken and highly agitated state, his actions were merely reflexive, giving rise to reasonable doubt.
35I would not accept these submissions for several reasons.
36First, trial judges are presumed to know the law. They are not required to self-instruct on basic criminal law principles1 – such as the requirement that in assessing the issue of intent for murder, the trier of fact must assess the evidence cumulatively and must not silo off or compartmentalize, for example, evidence of advanced intoxication from other evidence relevant to the issue of intent.
37Second, defence counsel at trial said he was not arguing “strict provocation” under s. 232(2) of the Criminal Code, as the conduct at issue would not meet the requirement of affecting an ordinary person. Rather, he argued that the trial judge should consider the “highly agitated” state the appellant was in and the “extreme stress” he was under as a result of the argument that started before he left the house for his grandmother’s, and Ms. Keesickquayash’s evidence that he became more and more agitated after returning home. It is therefore not surprising that the term “provocation” does not appear in the trial judge’s reasons.
38Third, the trial judge’s reasons demonstrate that he was fully aware of and considered the evidence concerning the appellant’s agitated state. When considering the issue of intent for murder, he expressly accepted not only that the appellant was highly intoxicated but also that the appellant’s behaviour in fighting and disrespecting his father was uncharacteristic and that the appellant was emotional and crying and sometimes incoherent while in the back of the police vehicle.
39Fourth, although Crown counsel at trial agreed that a rolled-up instruction was necessary, in his submission, that instruction required simply that the trial judge consider the evidence of intoxication together with all the other evidence bearing on the issue of the intent for murder. Crown counsel did not agree that provocation was a necessary element of a rolled-up instruction in this case. In his submission, while there was evidence that the appellant asked to be left alone, there was “zero” evidence of provocation2.
40Fifth, the trial judge’s reasons must be read in the context of the evidence and submissions at trial. Crown counsel at trial cross-examined the appellant about his experience moose hunting with a firearm and about his knowledge of where best to aim in order to kill a moose quickly. Subsequently, during closing submissions, the trial judge engaged with defence counsel on his submissions that the appellant’s experience as a hunter meant that, in his drunken and agitated state, his actions in carrying out the shootings could be viewed as instinctive or reflexive, without consideration of the consequences, thereby raising a reasonable doubt. The trial judge was clearly aware of those submissions and of the subsequent closing submissions of the Crown, listing several factors which the Crown asserted established the appellant’s intent and knowledge of the consequences at the time of the shootings.
41The factors referred to by the Crown included matters such as the steps involved in loading and firing a rifle three times; his ability to hit a moving target; words uttered to his father, e.g., “who’s a coward now”, while holding a rifle, showing that he knew the consequences of pointing a rifle; his recognition that Ms. Keesickquayash was still in the house; his threats to “blast” her after shooting the two other victims; and his confession to a witness that he shot his dad, evidencing an awareness of what he had done.
42Read fairly, in my view, the trial judge’s reasons can only be taken as rejecting the possibility of reflexive action in a drunken and agitated state as raised by defence counsel and accepting the position of the Crown that the appellant acted deliberately with knowledge of the consequences. The trial judge noted that, despite the appellant’s state, upon returning to his room after going to his grandmother’s, he:
located his rifle and the ammunition clip,
inserted the clip into the rifle,
chambered a round by activating the pump,
ensured that the safety was off;
kicked or opened his door;
confronted his father with the loaded gun using the words “pussy” and “coward”;
aimed the rifle at his father and shot him in the chest at close range;
followed and chased Mr. Shakakeesic while chambering another round;
aimed and fired at Mr. Shakakeesic either grazing him or fatally wounding him;
chambered another round and aimed fired at Mr. Shakakeesic, again either grazing him or fatally wounding him;
chambered another round and re-entered the house.
43The trial judge also noted that, while incoherent at times and also stating on one occasion he did not know it would kill his dad, the appellant acknowledged on other occasions, while still in his drunken state, that he had done just that. The trial judge observed that the appellant knew what firing a large calibre bullet into the chest cavity of a moose would do and that the steps the appellant took to kill his father and his friend were identical to the steps required to intentionally kill a moose. He determined that the actions and words of the appellant led to the conclusion that he intended to kill his father and his friend.
44Particularly in light of the series of deliberate actions taken by the appellant and his statements to his father and Ms. Keesickquayash, it was not necessary for the trial judge to self-instruct in his reasons on the requirement to consider the whole of the evidence bearing on intent cumulatively and retrace the submissions of defence counsel. It was sufficient that he explain that the sequence of events that took place satisfied him that, although highly intoxicated and upset, the appellant was aware of what he was doing and intended the consequences of his actions. That conclusion was patent on the record before him.
(2) Did the trial judge err by failing to consider whether the reliability of Ms. Keesickquayash’s evidence concerning the attempted murder charge was affected by the events she witnessed and her morphine consumption?
45During the Crown’s closing submissions, the trial judge commented that he was not going to disregard Ms. Keesickquayash’s “impression” that the appellant was hunting her and that her life was in danger when the appellant came back into the house after shooting Mr. Shakakeesic. In his reasons, the trial judge said he accepted her evidence as to what she saw and heard that evening and that her evidence at trial was “not significantly impeached”.
46On appeal, the appellant asserts that, taking account of her morphine consumption and the fact that she had just witnessed the appellant shooting her longtime partner, it is not surprising Ms. Keesickquayash would conclude that her life was in danger when the appellant was stumbling around in the house and calling out to her in a drunken stupor. In light of her morphine consumption and the tragic events, the appellant submits that trial judge erred in failing to consider the reliability of her evidence concerning what the appellant said and did when he came back into the house after shooting Mr. Shakakeesic.
47I would not accept these submissions. Defence counsel at trial did not meaningfully challenge the accuracy of Ms. Keesickquayash’s evidence concerning what the appellant said and did on re-entering the house. Rather, he argued that her evidence could not ground a conviction for second degree murder. However, he conceded that it would support a conviction for either of the included offences of uttering threats or attempting to cause bodily harm. Further, he relied on the accuracy of her evidence concerning the appellant’s level of intoxication. In the circumstances, I see no basis for a challenge to the reliability of Ms. Keesickquayash’s evidence on appeal.
48Further, I observe that in convicting the appellant of attempted murder, the trial judge relied on much more than Ms. Keesickquayash’s impression that her life was in danger. He relied on the objective evidence that the appellant had chambered another round in his rifle after fatally shooting two other people. He also relied on Ms. Keesickquayash’s evidence that, after re-entering the house, the appellant called her name, asked where she was, announced that he was going to “blast” her “too”, and carried his rifle with him as he walked from room to room.
49I would not give effect to this ground of appeal.
D. THE SENTENCE APPEAL
(1) The Trial Judge’s Reasons
50As set out above, the Crown and defence counsel at trial made a joint recommendation for a sentence of life imprisonment with an 18-year parole ineligibility period on the murder convictions and a 10-year concurrent sentence of imprisonment for attempted murder.
51The trial judge accepted counsel’s joint recommendation as being “a fit and just sentence in the circumstances of this case.” Before doing so, he quoted para. 44 of R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, which explains that a high threshold for departing from joint submissions “is not only necessary … it is appropriate.” He also reviewed the aggravating and mitigating factors present in this case and the caselaw provided by counsel to support their position.
52The trial judge said the aggravating factors included that the appellant had committed two murders with a firearm and attempted another, that one of the murders was of a family member, and that his crimes had had a devastating and lasting impact on the community of Cat Lake.
53He listed the mitigating factors as including the appellant's youth, his lack of a prior criminal record, the Gladue factors that had been presented both through a pre-sentence report and a Gladue report, and the forgiveness of community members.
54The cases referred to by counsel in support of their position were: R. v. Koopmans, 2015 BCSC 2120, R. v. McLeod, 2018 MBQB 73, R. v. Rushton, 2016 NSSC 313, R. v. Sharpe, 2017 MBQB 6, and R. v. Daley, 2021 ONSC 7678. The trial judge said:
These cases, and particularly, Daley, provide helpful summaries of parole eligibility in double murder cases. What distinguishes the higher end of the range sentences is the age of the accused. Important factors in this case are the Gladue issues, [the appellant’s] youth and his lack of criminal record.
55In imposing sentence, the trial judge noted that the appellant had murdered his father and his best friend, and said:
These crimes must be punished by a sentence that reflects the community values that lives are sacred and should not be taken by another. Denunciation and deterrence are required.
I can only imagine the horror felt and the trauma experienced by Amy Keesickquayash in seeing her close friend murdered and then being hunted by [the appellant]. This too requires denunciation and deterrence.
(2) The Statutory Framework
56In his reasons, the trial judge referred to ss. 235(1), 745(c) and 239(1) of the Criminal Code. These provisions prescribe the available sentences for murder and attempted murder. Section 745(c) stipulates that a person convicted of second degree murder will be sentenced to imprisonment for life without eligibility for parole until the person has served at least 10 years of that sentence or such greater number of years, not being more than 25 years, as is substituted under section 745.4.
57In my view, additional provisions of the Criminal Code are also highly relevant in this case. Section 745.4, referred to in section 745(c), lists the factors to be taken into account by a sentencing judge in determining whether to substitute a period of more than 10 but not more than 25 years of parole ineligibility when a person is convicted of second degree murder. Those factors are:
the character of the offender;
the circumstances of the offence; and
the circumstances surrounding the commission of the offence.
58Sections 718, 718.1 and 718.2, which set out the fundamental purpose and principles of sentencing, are also of central importance.
59Finally, since the appellant was but three months past his 18th birthday at the time of the offences, I consider it worth bearing in mind s. 745.1 of the Criminal Code. That section prescribes the available parole ineligibility periods for persons under the age of 18 years at the time of the offence who are sentenced to life imprisonment for murder. In the case of a person convicted of second degree murder who was 16 or 17 years of age at the time of the offence, s. 745.1 specifies a parole ineligibility period of seven years.
60All of the provisions referred to in this section are set out in full in Appendix ‘A’ to these reasons.
(3) Did the trial judge err by accepting the joint recommendation of counsel and imposing a parole ineligibility period greater than ten years?
(a) The Positions of the Parties on Appeal
(i) The appellant
61The appellant submits that the trial judge erred by considering himself bound by the high threshold for departing from a joint submission established in Anthony-Cook and, whether or not that threshold applies, in failing to depart from the joint submission of trial counsel concerning the parole ineligibility period.
62He asserts that a parole ineligibility period greater than the 10-year mandatory minimum was unfit given: i) the fundamental principle of proportionality set out in s. 718.1 of the Criminal Code and the diminished moral blameworthiness of the appellant in all the circumstances of this case; ii) the sentencing objectives set out in s. 718 of the Criminal Code, several of which demonstrate that a period of parole ineligibility longer than 10 years was not required in this case; iii) the systemic impacts of colonialization that were present in this case, and which required the exercise of restraint under both s. 718.2(e) of the Criminal Code and Gladue caselaw; and iv) a creeping systemic departure from the principle enunciated in Shropshire,3 at para. 27, that, “as a general rule, the period of parole ineligibility shall be for 10 years”.
63Further, the appellant submits that the trial judge made several specific errors by: relying on the caselaw submitted by counsel as supporting the joint submission; failing to consider or apply factors impacting his moral blameworthiness, including intoxication and provocation; failing to properly apply Gladue principles; and holding that the killing of his father was an aggravating factor under s. 718.2(a)(ii) of the Criminal Code.
(ii) The Crown
64The Crown submits that the public interest test set out in Anthony-Cook applied at trial and informs the standard of review on appeal. Applying this standard, there was no basis for the trial judge to reject the joint submission and his failure to do so does not provide a basis for this court to intervene. In the alternative, the lowest standard of review that could apply would be the Lacasse4 standard, and it does not support intervention.
65Further, as the trial judge concluded, an 18-year period of parole ineligibility is a fit and just sentence. It is supported by the aggravating factors in this case as identified by the trial judge, as well as by the caselaw. In Ontario, parole ineligibility for multiple murders generally falls between 18 and 25 years: R. v. MacKinnon, 2019 ONSC 3436, aff’d 2022 ONCA 811, 164 O.R. (3d) 535. While the appellant had certain mitigating factors in his favour, including his youth, lack of prior criminal record and remorse, those factors do not outweigh the serious aggravating factors that were present in this case. The killing of multiple people is “an aggravating factor in itself, warranting a parole ineligibility at the higher end of the spectrum”: R. v. Sirois, 2008 Carswell 9700, at para. 45, aff’d 2011 ONCA 370. Also significantly aggravating are: the use of a firearm, the fact that the appellant had been warned that very day against using a firearm while drinking, the fact that the victims were unarmed and defenseless, the fact that one of the victims was killed in his own home, and the fact that the other was shot as he was attempting to flee, together with the devastating and lasting impact of the offences on the community, as the trial judge recognized. All these aggravating factors called for emphasis on denunciation and deterrence.
(b) Discussion
The Anthony-Cook Issue
66In Anthony-Cook, the Supreme Court of Canada adopted a public interest test that sets a high threshold for departing from joint submissions on sentence agreed to in exchange for the accused entering a guilty plea.
67The public interest test stipulates that a sentencing judge should depart from a joint submission only “where the proposed sentence would bring the administration of justice into disrepute, or otherwise be contrary to the public interest”: at para. 5. The Court explained, at para. 34, that judges should reject a joint submission only where the proposed sentence is “so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.”
68At footnote 1 of Anthony-Cook, the Supreme Court noted that its reasons did not address sentences flowing from plea agreements in which the parties are not in full agreement concerning the appropriate sentence. In its subsequent decision in R. v. Nahanee, 2022 SCC 37, 474 D.L.R. (4th) 34, at para. 31, the Court made it clear that to constitute a joint submission within the meaning of Anthony-Cook, the joint submission agreed upon in exchange for a guilty plea must cover every aspect of the sentence proposed to the court.
69In this case, the joint recommendation on sentence was made following a trial, not following a negotiated guilty plea. Nonetheless, as noted above, the Crown submits that the public interest test set out in Anthony-Cook applied at trial and informs the standard of review on appeal. The Crown contends that the same benefits of certainty and efficiency that prompted the Supreme Court to adopt a stringent test for departing from joint submissions following a negotiated guilty plea apply where a joint recommendation5 on sentence is made following a trial. The Crown relies on R. v. Baptiste, 2021 QCCA 1064, 73 C.R. (7th) 321, in support of its position.
70I would not accept the Crown’s position for several reasons.
71First, the Supreme Court made it clear in Anthony-Cook that its decision related to joint submissions on sentence made in specific circumstances, namely, “when Crown and defence counsel agree to recommend a particular sentence to the judge in exchange for the accused entering a guilty plea”: at para. 2. Had the Supreme Court intended the stringent test it adopted in Anthony-Cookto apply more broadly, it could have said so. As there was no guilty plea in this case, on its face, the decision in Anthony-Cook does not apply.
72Second, in Anthony-Cook, the Supreme Court explained that the stringent test it adopted was necessary to a large extent because of the quid pro quo provided by accused persons in giving up their right to a trial and pleading guilty in exchange for a joint submission. In exchange for their plea of guilty, accused persons require a high degree of certainty that the joint submission agreed upon will be respected.
73At para. 37, the Supreme Court emphasized that “generally speaking accused persons will not give up their right to a trial on the merits, and all the procedural safeguards it entails, unless they have ‘some assurance that [trial judges] will in most instances honour agreements entered into by the Crown’” (citing R. v. Cerasuolo, 2001 24172 (ON CA), 140 O.A.C. 114, 151 C.C.C. (3d) 445, at para. 9).
74At para. 41, the Supreme Court explained that a stringent test is necessary, because “for joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted.” Further, “if joint submissions come to be seen as insufficiently certain”, the “accused in particular will be reluctant to forego a trial with its attendant safeguards, including the crucial ability to test the strength of the Crown’s case”.
75In Nahanee, at para. 31, the Supreme Court stated that “[j]oint submissions … offer certainty because of agreement in the form of a quid pro quo: the accused agrees to plead guilty in exchange for the Crown agreeing to recommend a specific sentence to the court that both the Crown and the accused find acceptable” (citing Anthony-Cook, at para. 36).
76No similar quid pro quo exists in cases involving a joint recommendation on sentence following a trial, even in a case such as this where the Crown and the defence engage in negotiations that lead to the joint recommendation. While both the Crown and the appellant arguably gave up the right to seek either a higher or lower parole ineligibility period at a contested sentencing hearing, such compromises do not approach the quid pro quo provided by an accused in foregoing the right to a trial.
77In particular, the parties give up little in such circumstances because their ability to make additional sentencing submissions in situations involving a joint sentencing recommendation following a trial are protected to a significant degree by the procedural fairness requirement that the trial judge adhere to most of the procedural guidelines set out at paras. 58 and 60 of Anthony-Cook, i.e., the requirements to notify counsel of any concerns, afford counsel the opportunity to address those concerns, and, if not satisfied, provide clear and cogent reasons for departing from the joint recommendation.
78I recognize, however, that as explained in Nahanee, at para. 59, such protection is not absolute because a want of procedural fairness will only lead to a remedy if it constitutes an error in principle that impacts the sentence, if an insufficiency of reasons precludes appellate review, or if the trial judge provided erroneous reasons for imposing the harsher sentence. Accordingly, as noted in Nahanee, at paras. 48 and 49, it is critical that both the Crown and an accused provide as much relevant information as possible at the sentencing hearing in support of their joint recommendation, and that they not rely on the opportunity of making further submissions “to pull a rabbit out of the hat.” If facets of the negotiations leading up to the joint recommendation are highly relevant to the reasonableness of the proposed sentence, counsel can find ways to make such matters known to the trial judge: Nahanee, at paras. 48 and 49.
79Third, I would not accept the Crown’s contention that the same considerations that prompted the Supreme Court to adopt a stringent test for departing from joint submissions following a negotiated guilty plea apply where a joint recommendation on sentence is made following a trial.
80I acknowledge that, in Anthony-Cook, the Supreme Court observed that many benefits flow from joint submissions agreed upon in exchange for a guilty plea. The benefits flow not only to the accused and the Crown, but also to victims, witnesses, counsel and the administration of justice generally: at para. 35. The benefits include a high degree of certainty concerning sentence for the accused and concerning a finding of guilt for the Crown, and an incentive for accused persons to co-operate in providing information that will assist in solving crime, avoiding emotional stress for victims and witnesses, and saving time and resources for the administration of justice as a whole: at paras. 39-40. The Crown relies largely on the potential loss of similar benefits in asserting that a stringent test for departing from a joint recommendation on sentence following a trial is necessary to preserve such benefits.
81I would not accept this submission. Simply put, I am not persuaded that a similarly stringent test is necessary or appropriate in relation to joint recommendations on sentence made following a trial. Although such joint recommendations also provide benefits to many of the participants and to the administration of justice generally, the level of benefit does not compare to that provided by a joint submission made in exchange for a guilty plea that avoids the necessity of a trial.
82A stringent test is not necessary because two factors contribute to the likelihood that both the Crown and accused persons will make joint recommendations on sentence following a trial such that the benefits that accrue from them are available even though the stringent Anthony-Cook test for departing from them does not apply.
83The first factor is the realistic likelihood that trial judges will generally accept such joint recommendations made by counsel following a trial. As was observed at para. 44 of Anthony-Cook, counsel are well placed to make reasonable and appropriate recommendations. The second factor is that even though the parties give up the right to make submissions for an alternative sentence at a contested hearing, as noted above, procedural fairness requires that the trial judge notify them of any concerns about their recommendation, provide them with an opportunity to make submissions addressing the concerns, and, if the trial judge chooses in the end to depart from the joint recommendation, provide clear and cogent reasons for doing so.
84A stringent test is not appropriate, because having heard the evidence at trial and heard or read any evidence presented on sentencing, trial judges are in a far better position than after a guilty plea to assess the fitness of a proposed sentence. It is ultimately trial judges and not counsel who bear the heavy responsibility of imposing a fit sentence. Absent the kind of quid pro quo present where the accused agrees to plead guilty in exchange for a joint submission, I am not persuaded that policy considerations justify constraining trial judges’ sentencing discretion by imposing the stringent Anthony-Cook test for departing from a joint recommendation made following a trial.
85Fourth, I do not consider Baptiste persuasive authority for holding that the Anthony-Cook test should be adopted as the threshold for departing from a joint recommendation on sentence following a trial. As a starting point, Baptiste did not involve a trial on the merits. Rather, it was agreed from the outset that the appellant’s Charter motion would be dispositive of the case. After the Charter motion was dismissed, the case proceeded based on admissions. Further, a major concern of the Baptiste court was the failure of the trial judge to put the appellant on notice of his difficulties with the sentence proposed, difficulties which the appeal court did not share. Finally, I note as well that, although the Baptiste court relied, at para. 71, on the benefits that accrue from an uncontested sentencing hearing, it acknowledged that those benefits “are different in magnitude from a guilty plea before trial”. As I have explained, I am not persuaded those benefits warrant adopting the Anthony-Cook test for departing from a joint recommendation made following a trial.
86Fifth, apart from the Quebec Court of Appeal, it does not appear that other Canadian appeal courts have applied the Anthony-Cook test to cases not involving a joint submission agreed upon in exchange for a guilty plea: e.g., R. v. Dunkers, 2018 BCCA 363, at paras. 42 and 44; R. v. Frampton, 2018 NLCA 23, at para. 28; and R. v. Sidhu, 2022 ABCA 66, 411 C.C.C. (3d) 329, at para. 67.
87Based on the foregoing reasons, I conclude that the joint recommendation on sentence made following the trial in this case was not an Anthony-Cook joint submission and that the trial judge was not bound by the stringent Anthony-Cook test in determining whether he should accept the joint recommendation.
88Before closing on this issue, I wish to acknowledge the submissions of the intervener, Aboriginal Legal Services.
89I have determined that the Anthony-Cook test does not apply to joint recommendations on sentence made in the specific circumstances of this case, i.e., following a trial. The intervener’s submissions about whether the Anthony-Cook test should be applied in other situations and how Gladue considerations should be factored into cases governed by Anthony-Cook are beyond the scope of this appeal.
Remaining Issues
90Although the trial judge did not frame his reasons around the Anthony-Cook threshold for departing from a joint submission, neither party disputes that he considered himself bound by it. However, that fact alone does not demonstrate an error in principle justifying appellate interference. The trial judge also concluded that an 18-year parole ineligibility period was “fit and just” for the reasons he gave. The real questions are, did he err in that conclusion or make any error in principle that had an impact on the sentence: Lacasse, at paras. 11, 44.
91I would accept the appellant’s argument that the trial judge made several errors in setting the period of parole ineligibility, resulting in the imposition of a period of parole ineligibility that was, in my view, demonstrably unfit. Those errors include:
failing to consider or apply factors impacting the appellant’s moral blameworthiness, including his advanced state of intoxication and agitation at the time of the shooting;
failing to implement the principle of restraint in sentencing a youthful, first-time offender;
failing to implement the principle of restraint in sentencing an Indigenous offender clearly affected by the systemic impacts of colonization and intergenerational trauma;
failing to recognize the appellant’s immediate and ongoing remorse as a mitigating factor in relation to the period of parole ineligibility; and
relying on caselaw submitted by counsel as supporting the joint recommendation, when it did not support the period of parole ineligibility imposed in the circumstances of this case.
I conclude that these errors led the trial judge to impose a period of parole ineligibility that was disproportionate and, in the particular circumstances of this case, improperly prioritized denunciation and deterrence without considering the equally important sentencing objective of assisting the appellant’s rehabilitation.
Moral blameworthiness
92That moral blameworthiness should be an important factor in determining the length of a parole ineligibility period is made clear by several factors:
the reference in s. 745.4 to the character of the offender;
the Supreme Court of Canada’s statement in Shropshire, at para. 29, that “in permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability”; and
the fundamental principle of sentencing set out in s. 718.1 of the Criminal Code that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.
93The appellant was convicted of two counts of second degree murder, two very serious offences. However, while the trial judge was satisfied that the appellant knew what he was doing in the moment, there can be little doubt that the evidence at trial, and the appellant’s lack of any prior criminal record or history of violence, demonstrated that his conduct on the day in question was not only completely out of character for him but also the product of excessive alcohol consumption and his state of agitation at the time of the shootings.
94Although the trial judge briefly reviewed the circumstances of the offences and of the offender at the outset of his reasons, and also reviewed the mitigating factors present, nowhere in his reasons for sentence did he refer to the appellant’s advanced state of intoxication or his agitation at the time of the offence as factors impacting the appellant’s moral blameworthiness.
95A high degree of intoxication is not always a mitigating factor on sentence or a factor affecting moral blameworthiness, but depending on the circumstances of the case it can be. See, for example, R. v. Mohammed, 2008 60979, at para. 21, aff’d 2009 ONCA 586; R. v. L.P., 2020 QCCA 1239, 393 C.C.C. (3d) 1, at para. 110. See also Clayton C. Ruby, Sentencing, 10th ed. (Toronto: LexisNexis, 2020), §5.303-10.
96At the time of the shootings, the appellant was intoxicated to the point that he had no memory after the fact of the events. Crown counsel at trial and the trial judge both accepted this. As described by Ms. Keesickquayash, he was also highly agitated and acting out of character following the argument with his father about him not having a job and not providing for himself. No doubt the appellant is responsible for his intoxication. Nonetheless, the pattern of his drinking on that day and the level of intoxication he achieved must be considered not only in the context of the other evidence about his character, but also in light of his youth and the effect of the systemic impact of colonialization and intergenerational trauma he had experienced directly. I will discuss these factors more fully below, as they were factors mandating restraint on their own. But they also provide a key to understanding why the appellant became so intoxicated and agitated on the day of the shootings. While the appellant’s intoxication and agitation do not reduce the seriousness of his offences, properly understood, these factors attenuate his moral blameworthiness.
97Mr. Gray’s sister was one of the witnesses who assisted at the scene. In her victim impact statement she said: “we know that he would not have done this if he had been sober … We don’t hold anything against him cus that wasn’t him that night. That was a very drunk blackout [appellant]” (emphasis added).
98In my view, the trial judge erred in failing to consider the appellant’s advanced state of intoxication and agitation as factors reducing his moral blameworthiness.
Youthful First-time Offender
99As I have said, the appellant was exactly three months past his 18th birthday when the shootings occurred, and he had no prior criminal record.
100Youth is a mitigating factor in sentencing: R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at para. 161. This court recently reiterated in R. v. Habib, 2024 ONCA 830, at para. 31, that when sentencing youthful first-time adult offenders, judges must practice restraint, prioritize rehabilitation and account for immaturity, which may mitigate culpability even when it does not excuse the offence.
101In this case, while there is no excuse for the appellant’s actions, which had grievous consequences, it is clear that youthful immaturity may well have played a role in his decision to drink to such excess. Moreover, and in any event, his youth and lack of prior record demonstrate that he has significant potential for rehabilitation.
102Because of their high rehabilitative prospects, youthful offenders should benefit from the shortest possible sentence that is proportionate to the gravity of the offence: Hills, at para. 165; R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at para. 7. While the trial judge listed the appellant’s age and lack of criminal record as mitigating factors, nowhere in his reasons did he advert to this principle or to the need to assist the appellant’s rehabilitation as a sentencing objective deserving prominence. Instead, the trial judge focused on denunciation and deterrence as the relevant sentencing objectives.
103No doubt denunciation and deterrence were important sentencing objectives in relation to the appellant’s very serious crimes. But the trial judge sentenced the appellant to concurrent sentences of life imprisonment for the murders. These mandatory life sentences served the goals of denunciation and deterrence to a significant degree.
104It is also worth noting that, had the appellant been three months and one day younger when he committed these offences, the maximum parole ineligibility period would have been seven years. That fact does not change the 10- to 25-year parole ineligibility range to which the appellant was subject. But it does highlight the significance Parliament attributed to youthfulness in determining a fit and just period of parole ineligibility.
105From the perspective of a young person with no prior experience in the criminal justice system, a period of parole ineligibility of 18 years could appear crushing and eliminate for that young person any hope of a successful reintegration into society.
106Here, given the appellant’s youth and lack of criminal record, the trial judge erred in failing to take account of the sentencing objective of assisting the appellant’s rehabilitation when setting the parole ineligibility period.
The Effects of the Systemic Impact of Colonization and Intergenerational Trauma Experienced by the Appellant
107In his reasons for sentence, the trial judge acknowledged that the appellant is Indigenous, excerpted portions of the pre-sentence report and the Gladue report, referred to R. v. Gladue, [1999] 1 S.C.R. 688, R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, and s. 718.2(e) of the Criminal Code,and listed “the Gladue factors as noted” as a mitigating factor. However, nowhere in his reasons did he analyze the effects of the systemic impact of colonization and intergenerational trauma experienced by the appellant on his moral blameworthiness for the offences.
108As was confirmed in both the Gladue and pre-sentence reports filed as exhibits on sentencing, the appellant experienced a difficult and unstable upbringing. He grew up in a small, remote First Nation community significantly impacted by the imposition of settler culture and the erosion of the traditional way of life. Cat Lake was described as a “high risk” environment because of its high unemployment rate, extreme levels of poverty, inadequate and unsafe housing, low education levels, and other barriers to opportunity.
109Several of the appellant’s relatives attended residential schools. At times, he experienced crowded and inadequate shelter and food insecurity. Throughout his young life, he was exposed to both alcohol and drug abuse, and the violence that can occur as a result of such abuse. Although his mother did not think he suffered from fetal alcohol syndrome, she acknowledged drinking during her pregnancy and observed that the appellant did not thrive as a young child. His mother also acknowledged that her abusive childhood led her to become an abusive mother and that she hit her children a lot. During the approximately five years she and Mr. Gray were together, there was a lot of fighting and drinking. Subsequently, the appellant went back and forth between his parents and eventually began to live full time with his father. Mr. Gray sold drugs and alcohol for a living. The appellant often witnessed people having sex in his home and on one occasion was sexually abused. The appellant had limited education and sporadic employment cutting wood.
110The pre-sentence report noted that both the appellant and his mother “appeared to attribute alcohol use and systemic issues in the community as a catalyst for the offences”. The author of the Gladue report emphasized the use of the numbing effects of drugs and alcohol in the Indigenous population as a means of coping with and providing temporary escape from difficult life circumstances and ongoing historical trauma. She wrote:
A further component of historical trauma is the use of the numbing effects of drugs and alcohol. When people experience intense feelings of fear, shame, anger and guilt and do not possess healthy coping strategies to address these negative feelings they may respond by seeking a numbing process. Statistics on alcohol use shows that Aboriginal people drink less overall than the general population, but when they do drink they drink more than the average person. This is evidence that alcohol use is serving as a numbing, rather than a social function.
111On the day in question, the appellant clearly drank to the point of advanced intoxication and became highly agitated after his father spoke to him about his failure to provide for himself. However, his life circumstances must be viewed as being, to a large extent, a manifestation of the effects of the systemic impacts of colonization and intergenerational trauma he experienced. When viewed through that lens, his level of intoxication and state of agitation reduces his moral blameworthiness.
112Further, in Ipeelee, at para. 59, the Supreme Court stated that s. 718.2(e) of the Criminal Code was designed in part “to encourage sentencing judges to have recourse to a restorative approach to sentencing”. As part of this approach, sentencing judges must consider:
a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts, and
b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.
113Setting a lower period of parole ineligibility does not mean an offender will be released into the community at an earlier date. It means only that the offender will have the opportunity to be released at an earlier date if deemed appropriate by the parole board. Here, the trial judge erred by failing to grapple with the questions of whether the unique systemic factors that played a part in bringing the appellant before the court and the understanding and forgiveness of his community that was a theme of the victim impact statements should play a role in determining the particular sanction he was considering: the appellant’s period of parole ineligibility.
The Appellant’s Immediate and Ongoing Remorse
114Similarly, I conclude that the trial judge erred in failing to consider and give significant weight to the appellant’s immediate and ongoing remorse for his actions in determining the appropriate parole ineligibility period.
115Although the trial judge stated in his reasons that the appellant “read his statement [from the dock] through a river of tears for what he had done to his father and his best friend” and accepted the appellant’s remorse “as sincere, as real”, he did not refer in his reasons to the evidence showing the appellant was immediately remorseful following the offences or include remorse in his list of mitigating factors.
116The evidence at trial demonstrated that the appellant was remorseful not only after the fact at the time of sentencing, but also that he was immediately remorseful in the wake of his actions. Ms. Keesickquayash described him crying and remorseful at a time she believed he came upon his father’s body in the house. The witnesses who assisted the police officer at the scene also described his statements of remorse.
117Remorse is a mitigating factor in sentencing, particularly where, as in this case, it suggests a reduced likelihood of reoffending in the future: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 165.
118Remorse also bears on several of the sentencing objectives referred to in s. 718 of the Criminal Code, which in turn bear on the question whether an offender should wait longer to have their suitability for release determined: Shropshire, at para. 19. The relevant sentencing objectives in s. 718 include: the need to deter the offender from committing offences (s. 718(b)); the need to assist in rehabilitating the offender (s. 718(d)); and the need to promote a sense of responsibility in the offender, and acknowledgement of the harm done to the victims or the community (s. 718(f)).
119In expressing his immediate and continuing remorse, the appellant demonstrated that it was unnecessary to extend the parole ineligibility period in order to further those objectives. Particularly when combined with all the other factors I have referred to, I conclude that the parole ineligibility period recommended by the Crown and defence counsel at trial was demonstrably unfit.
The Caselaw Filed in Support of the Joint Recommendation
120I turn now to the caselaw on which the trial judge relied to support the joint recommendation. In my view, it does not support the 18-year parole ineligibility period the trial judge imposed. After listing the five decisions noted above earlier in his reasons, the trial judge had this to say about them:
I have read the decisions of other judges referred to by counsel to support the joint recommendation for sentence. These cases, and particularly Daley, provide helpful summaries of parole eligibility in double murder cases. What distinguishes the higher end of the range sentences is the age of the [appellant]. Important factors in this case are the Gladue issues, [the appellant’s] youth and his lack of criminal record.
121The trial judge relied on this observation to accept the recommendation of counsel to impose a sentence at the lower end of the range the caselaw they provided identified. In my view, however, it was an error to rely on this caselaw as establishing an appropriate range.
122The parole ineligibility periods imposed in the five decisions provided to the trial judge by counsel ranged from 18 to 22 years. Daley was the only Ontario decision of the five and an 18-year period of parole ineligibility was imposed. Daley involved a 24-year-old offender, committing a robbery in the middle of the night, who inflicted 35 and 38 sharp force injuries on his victims respectively, using a knife he brought with him. Although the perpetrator in that case was a visible minority with no prior record, the circumstances are hardly comparable to a spontaneous double murder committed by an 18-year-old Indigenous first-time offender who was highly intoxicated and agitated at the time of the offences.
123The one other decision in which an 18-year period of parole ineligibility was imposed, Rushton, involved a 50-year-old offender who bludgeoned his domestic partner to death with a baseball bat, and later killed his partner’s adult daughter with a claw hammer after she returned home, wrote a false suicide note for her, and used a knife to cut her throat and wrists. Again, I fail to see how this case, involving this level of violence, premeditation and after-the-fact conduct, and a 50-year-old offender, supports an 18-year period of parole ineligibility for the appellant.
124The other decisions relied on at trial involved an execution style double murder of victims ambushed in their own home using an illegal handgun by a 51-year-old Indigenous offender (Koopmans 22-year period of parole ineligibility); the murder of a former domestic partner and a man present with her by a 44-year-old man who posed the victims after-the-fact to make it appear that they were having sex (Sharpe 22-year period of parole ineligibility); and the murder of two people, one of whom was lured to the scene by a 20-year-old Indigenous man with a criminal record for violence (McLeod 19-year period of parole ineligibility).
125On appeal, the Crown relies heavily on MacKinnon, in which the trial judge conducted an extensive review of multiple murder sentencing cases in which consecutive periods of parole ineligibility for second degree murder were available pursuant to s. 745.51 of the Criminal Code. The trial judge in MacKinnon concluded, at para. 67, that the cases in which concurrent periods of parole ineligibility had been imposed after the enactment of s. 745.51 in multiple murder cases arising from a single event revealed a parole ineligibility range of 18 to 25 years. However, since MacKinnon, the Supreme Court in R. v. Bissonnette, 2022 SCC 23, 469 D.L.R. (4th) 387, has struck down s. 745.51, and consecutive periods of parole ineligibility are no longer available. In the result, I consider that a range established in the pre-Bissonnette but post-s. 745.51 context is of questionable assistance. More importantly, I note that the sentencing judge in Daley commented, at para. 63, that she was unable to agree that such a narrow range exists because Parliament has already enacted a range, namely 10 to 25 years. I agree with this observation.
126I have reviewed the other decisions relied on by the Crown on appeal. In my view, none is sufficiently comparable to the unique set of facts present in this case to support a parole ineligibility period of 18 years.
Other Grounds Relied on by the Appellant
127Although I would accept many of the appellant’s submissions for the reasons I have explained, I would not accept all his submissions.
128First, I would not accept the appellant’s submission that we should engage in a “reset” of a creeping systemic movement away from a Shropshire “general rule” of 10 years of parole ineligibility and therefore substitute a 10-year period of parole ineligibility in this case.
129As noted above, s. 745.4 of the Criminal Code permits a sentencing judge to increase the parole ineligibility period for a person convicted of second degree murder above 10 years (but not more than 25 years) taking account of three factors:
the character of the offender;
the nature of the offence; and
the circumstances surrounding the commission of the offence.
130In Shropshire, at paras. 27, 29 and 31, the Supreme Court made it clear that, while “as a general rule, the period of parole ineligibility shall be for 10 years”, an extension of the period of parole ineligibility “would not be unusual”. The court explained that “in permitting a sliding scale of parole ineligibility, Parliament intended to recognize … there will be a broad range of seriousness reflecting varying degrees of moral culpability” within the category of second degree murder. Further, given that the objective of s. 745.4 is to give trial judges discretion to reflect the fact that there is “both a range of seriousness and varying degrees of moral culpability”, it would be incorrect to “start from the proposition that the sentence must be the statutory minimum unless there are unusual circumstances.”
131The aggravating factors in the present case, particularly the fact that two lives were lost, justify a period of parole ineligibility that is higher than the minimum.
132The appellant’s counsel also argued that the trial judge erred in principle in identifying the fact that a family member was killed as an aggravating factor. Relying on parliamentary debates and dicta from the Supreme Court in R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, at paras. 238-40, he asserted that the purpose of s. 718.2(a)(iii), which states that sentencing judges must account for evidence that the offender harmed an intimate partner or family member, was to protect vulnerable and dependent family members, whereas here the victim was a dominant family member. I would say only that even assuming that was an error in principle, it is not one which in my view affected the parole ineligibility period imposed. As I read the record, the sentence requested and imposed would have been the same irrespective of that factor, and appellate intervention is therefore not warranted on that basis: Lacasse, at para. 11.
133Counsel for the appellant also argued that because the appellant was sentenced to two concurrent sentences of life imprisonment, there was no need to increase the parole ineligibility period beyond 10 years to achieve the sentencing objectives of denunciation or general deterrence. He asserted that those objectives were already accounted for through the life sentences of imprisonment. I would not accept this submission. Again, in my view, the aggravating factors present in this case, particularly the loss of two lives, warrants an increase beyond the minimum and some recognition of the need for denunciation and general deterrence.
134Finally, I would not accept the appellant’s submission that the trial judge erred in taking account of the devastating impact of these crimes on the community as an aggravating factor. I acknowledge that the predominant theme of the victim impact statements was forgiveness. The trial judge acknowledged that theme in his list of mitigating factors. However, despite that theme, there can be no doubt that the murders, as well as the appellant’s arrest and incarceration, had a devastating impact on the community. That said, once again, even assuming this was an error in principle, I am not persuaded that it is one that affected the parole ineligibility period imposed. In my view, it was the double homicide and the use of a firearm that primarily drove the 18-year period imposed.
Conclusion on the Parole Ineligibility Period Issue
135I conclude that the trial judge erred in principle by failing to take account of or failing to properly consider various factors that attenuated the appellant’s moral blameworthiness. These factors included, in particular, the highly intoxicated and agitated state the appellant was in at the time of the murders, and the effect of the systemic impacts of colonization and intergenerational trauma on the appellant’s life circumstances. The trial judge further erred in principle by failing to take account of the sentencing objective of assisting the offender’s rehabilitation and by relying on caselaw that did not support the parole ineligibility period imposed.
136I also conclude that the parole ineligibility period imposed was demonstrably unfit having regard to the appellant’s youth, his lack of a prior criminal record, the highly intoxicated and agitated state he was in at the time of the murders, the effects of the systemic impacts of colonization and intergenerational trauma that he had experienced, and his immediate and ongoing remorse. An 18-year parole ineligibility period was crushing in all the circumstances and gave no weight to the important sentencing objective of assisting the appellant’s rehabilitation.
137For these reasons, I would set aside the parole ineligibility period of 18 years imposed by the trial judge. The fact that two lives were lost warrants an increase in the 10-year minimum parole eligibility period to account for the seriousness of the offence and the need for denunciation and general deterrence. Although the use of a firearm is aggravating, the degree of aggravation is attenuated in this case. The 18-year-old appellant owned the shotgun lawfully and used it for the purposes of his livelihood as a hunter on a remote First Nation community. He stored the shotgun in the family home on this occasion, as on other similar occasions when he planned to go out hunting the next day, with the approbation of his father. Picking up the shotgun and using it to shoot his father, whom he respected, and to pursue and shoot his best friend, with whom he had been celebrating, were deliberate but spontaneous acts carried out while highly agitated and in an advanced state of intoxication. The appellant’s state of agitation and intoxication must be understood in the context of the effects of the systemic impact of colonization and intergenerational trauma he experienced and the events that happened that day. The appellant was immediately remorseful. In all the circumstances, while denunciation and general deterrence are required, the sentencing objective of assisting the appellant’s rehabilitation and preserving his hopes, and his community’s hopes, for his reintegration into society also deserves prominence. I would substitute a parole ineligibility period of 13 years.
(4) The appellant’s constitutional challenges
138The appellant submits that the 10-year minimum parole ineligibility period established under s. 745(c) of the Criminal Code violates ss. 7 and 126 of the Charter and is unconstitutional for Indigenous offenders and offenders under the age of 25. As these arguments were not raised in the court below, I would not entertain them on appeal.
139Although appeal courts have discretion to grant leave to a party to raise issues on appeal that were not raised in the court below, including constitutional issues, in general, they are reluctant to do so. Among other things, the appeal court is deprived of the trial court’s perspective and reasoning. Accordingly, only in exceptional circumstances will a party be permitted to raise a new issue on appeal: R. v. J.F., 2022 SCC 17, 468 D.L.R. (4th) 216, at para. 40.
140In exercising its discretion, an appeal court will consider all the circumstances, including: whether the record is sufficient to permit full, effective and fair determination of the new issue; prejudice to the other party; whether the failure to raise the issue at trial was due to tactical reasons; and whether refusing to hear the new issue creates a risk of a miscarriage of justice: J.F., at para. 41; R. v. Brar, 2024 ONCA 254, at para. 41; R. v. Salifu, 2023 ONCA 590, 429 C.C.C. (3d) 492, at para. 15; R. v. Roach, 2009 ONCA 156, at para. 6.
141In this case, even leaving aside the importance of the trial judge’s perspective on these issues, the record is inadequate in several respects. For example, with respect to the appellant’s argument that the minimum parole ineligibility period arbitrarily violates the s. 7 interests of young adult offenders, the Crown had no opportunity to lead neuroscience evidence in response. No reasonable hypotheticals were developed in the court below to advance the appellant’s s. 12 argument, and neither were any offered to this court in any detailed way until oral argument. Accordingly, the Crown had no realistic opportunity to challenge them or respond. Further, as the Charter arguments were raised for the first time on appeal, the Crown had no opportunity to develop a record at trial addressing whether any of the alleged Charter infringements could be justified under s. 1.
142Equally, if not more important, is the fact that raising the Charter issues in the court below would not have assisted the appellant’s trial counsel’s strategy of negotiating what he considered was an acceptable parole ineligibility period with the trial Crown. Parties should not generally be entitled to adopt new positions on constitutional issues on appeal that are contrary to, or that may have undermined, their position at trial.
143Finally, I see no risk of a miscarriage of justice in this case. Even if s. 745(c) were to be found unconstitutional, given the aggravating factors present here, I see no realistic possibility that the appellant’s parole ineligibility period would be set below 10 years.
E. DISPOSITION
144Based on the foregoing reasons, I would dismiss the appellant’s conviction appeal. I would allow the appellant’s sentence appeal, set aside the concurrent parole ineligibility periods of 18 years ordered by the trial judge with respect to the two convictions for second degree murder and substitute a parole ineligibility period of 13 years on each such conviction to run concurrently. I would order that the sentence imposed by the trial judge remain the same in all other respects.
“Janet Simmons J.A.”
“I agree. L. Favreau J.A.”
I. OVERVIEW
145I agree with my colleagues that:
(i) Mr. Wesley’s appeal from his convictions should be dismissed;
(ii) this court should not entertain his challenge under ss. 7 and 12 of the Canadian Charter of Rights and Freedoms to the 10-year minimum parole ineligibility period established by s. 745(c) of the Criminal Code, R.S.C., 1985, c. C-46; and
(iii) the public interest test as articulated by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, does not bind sentencing judges who are presented with a joint recommendation for sentence following a contested trial on the merits.
146However, although the public interest test articulated in Anthony-Cook does not bind a sentencing judge following a contested trial, a sentencing judge’s acceptance of a joint recommendation on sentence following a trial does not entitle an appellate court to push the resulting sentence to one side with the ease that my colleagues display.
147Further, I do not regard the period of parole ineligibility imposed on the appellant as amounting to a demonstrably unfit sentence. With the greatest respect to my colleagues, I see their extraordinary reduction of the parole ineligibility period from 18 years all the way down to 13 years as nothing more than the product of their improper rejection of the parties’ joint recommendation on sentence and their re-weighing of the relevant factors in a manner contrary to the principles of appellate deference set out in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
148Accordingly, while I would grant the appellant leave to appeal his sentence, I would dismiss the sentence appeal. In my view, the sentencing judge committed no error in principle in imposing the sentence, nor do I regard the imposition of an 18-year parole ineligibility period as demonstrably unfit.
149This dissent will address two issues:
(i) The role the joint recommendation on sentence following a contested trial should play in an appellate court’s review of the sentence; and
(ii) whether the sentence imposed, of parole ineligibility for 18 years, was the product of legal error or demonstrably unfit.
II. APPELLATE TREATMENT OF A JOINT RECOMMENDATION ON SENTENCE FOLLOWING A CONTESTED TRIAL
A. General principles
150In Anthony-Cook the Supreme Court of Canada fashioned the principle that a trial judge should only depart from a joint submission on sentence following a guilty plea when the “proposed sentence would bring the administration of justice into disrepute or, would otherwise be contrary to the public interest”: at para. 5. That threshold would be met where a joint submission is “so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down”: at para. 34.
151Counsel could not point to a decision of a provincial appellate court that squarely applied the Anthony-Cook public interest test to joint recommendations on sentence that follow a contested trial on the charges. As the majority observe at para. 86 of their reasons, a few appellate courts have questioned the application of the Anthony-Cook public interest test – which flows from an agreement that avoids a trial on the merits – to circumstances where a verdict results from a contested trial.
152The majority offer five main reasons why they conclude a test as stringent as that fashioned in Anthony-Cook is not necessary or appropriate for joint recommendations on sentence made following a trial: at paras. 71-86. I do not take issue with the thrust of their analysis. I agree that the “level of benefit” that results from a joint recommendation following a trial does not rise to the level of that produced by a joint submission made in exchange for a guilty plea: at para. 81.
153But, where does that conclusion leave the matter? Where a trial judge accepts a joint sentence recommendation following a contested trial, can an appellate court then treat the joint recommendation as essentially irrelevant when undertaking the deferential review of sentence mandated by Lacasse?
154As I read their reasons, the majority fail to squarely address that question. On the one hand, the majority contend that it is not necessary or appropriate to apply a stringent public interest test to the sentencing process that follows a trial:
[B]ecause having heard the evidence at trial and heard or read any evidence presented on sentencing, trial judges are in a far better position than after a guilty plea to assess the fitness of a proposed sentence. It is ultimately trial judges and not counsel who bear the heavy responsibility of imposing a fit sentence.
155Yet, having recognized the position of the sentencing judge following a trial, the majority’s appellate review of the sentence imposed by the trial judge appears to give little effect to the fact that this trial judge, who heard all the evidence, took into account a joint recommendation made by the parties, including the appellant. Instead, the majority’s analysis appears to proceed from its rejection of the application of the Anthony-Cook public interest test to an explanation of why the sentence imposed in this case was demonstrably unfit, without consideration of the parties’ agreement and joint recommendation.
156In considering the role that a joint recommendation of sentence following a trial should play in the appellate review of the sentence imposed, it is worth recalling that in Anthony-Cook the Supreme Court canvassed three possible tests to apply when a trial judge was faced with a joint sentence recommendation following a guilty plea: a simple “fitness” test; the “demonstrably unfit” test; and the public interest test that it ultimately chose: at paras. 46-48. In rejecting both the simple fitness and demonstrably unfit tests, the Supreme Court noted that those tests applied in circumstances different than a joint recommendation after a guilty plea, stating, at para. 48:
Further, both the fitness test and the appellate “demonstrably unfit” test suffer from a similar flaw: they are designed for different contexts. As such, there is an appreciable risk that the approaches which apply to conventional sentencing hearings or sentencing appeals will be conflated with the approach that must be adhered to on a joint submission. In conventional sentencing hearings, trial judges look at the circumstances of the offender and the offence, and the applicable sentencing principles. They are not asked to consider the critical systemic benefits that flow from joint submissions, namely, the ability of the justice system to function fairly and efficiently. Similarly, appellate courts are not bound to consider these systemic benefits on a conventional sentencing appeal. The public interest test avoids these pitfalls. [Emphasis added.]
157While the situation in the present case of a joint recommendation following a contested trial differs from that of a joint submission after a guilty plea, the difference is more one of degree than of kind. That is to say, in both circumstances benefits of certainty to the parties and potential benefits to the system of criminal justice are present, although not to the same extent.
158The Court of Appeal of Quebec recognized the existence of some benefits of a joint recommendation following a contested trial in R. v. Baptiste, 2021 QCCA 1064, 73 C.R. (7th) 321. That court recalled that the sentencing phase of proceedings retains a basic adversarial nature: at para. 34. Against that background, the court went on to describe the benefits of a joint recommendation following a contested trial at paras. 71-74:
The importance of preserving the high degree of confidence necessary to prevent an unnecessary contested sentencing hearings [sic] and the important role of the Crown as the protector of the public interest, as the Supreme Court underlined in Anthony-Cook and recently in Ontario (Attorney General) v. Clark, cannot be ignored and do not simply vanish after a trial.
Even though the benefits of an uncontested sentencing hearing after trial are different in magnitude from a guilty plea before trial, they too save “precious time, resources, and expenses, which can be channeled into other matters”.
The criminal justice system has many moving parts. Sentencing hearings are one of them. In the recent case of R. v. K.G.K., Moldaver, J. referred to the compelling observations of Doherty, J.A. in R. v. Allen where he stated that “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources”.
Timely and efficient sentencing hearings are expected under s. 11(b) of the Charter. So is cooperation between counsel, including through joint submission after trial. This “is no small benefit” because it allows “our justice system to function more efficiently”. Obviously, any time that “goes to one case cannot go to another”. [Footnotes omitted.]
159If the benefits to the parties and the system of justice associated with a joint sentence recommendation following a contested trial are greater than those present in a contested sentencing hearing following a trial yet less than those from a joint recommendation following a guilty plea, where does that leave an appellate court in terms of the degree of scrutiny (or deference) that it should accord such a joint recommendation?
160For the reasons that follow, I would fold the considerations to be given by an appellate court to a sentence that results from a trial judge accepting a joint recommendation following a contested trial into the framework of any inquiry into whether the sentence is “demonstrably unfit”.
161In any such inquiry, the fact that the sentence resulted from a joint recommendation following a verdict should be given significant weight. In this regard, the comments made by the Supreme Court in Anthony-Cook about the impact of counsel’s joint recommendation apply equally to one made after a verdict. As stated at para. 44 of Anthony-Cook:
I note that a high threshold for departing from joint submissions is not only necessary to obtain all the benefits of joint submissions, it is appropriate. Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests of both the public and the accused. As a rule, they will be highly knowledgeable about the circumstances of the offender and the offence and the strengths and weaknesses of their respective positions. The Crown is charged with representing the community’s interest in seeing that justice is done. Defence counsel is required to act in the accused’s best interests, which includes ensuring that the accused’s plea is voluntary and informed. And both counsel are bound professionally and ethically not to mislead the court. In short, they are entirely capable of arriving at resolutions that are fair and consistent with the public interest. [Citations omitted; emphasis added.]
162Of course, counsel making a joint recommendation after a verdict must inform the sentencing judge about the circumstances leading to the joint submission, including any benefits obtained by the Crown or concessions made by the accused: Anthony-Cook, at paras. 53-54. Yet, the necessity of counsel providing the sentencing judge with a full account of the circumstances of the offender and offence as Anthony-Cook stipulated is lessened in the circumstances of a joint recommendation following a verdict for two reasons. First, as the majority recognize, the trial judge has heard the evidence regarding the circumstances of the offence and has made a determination of guilt. Second, usually a joint recommendation will be made after the sentencing judge has obtained a pre‑sentence report and, if relevant, a Gladue report, as occurred in the present case.
163I conclude that where a sentencing judge accepts a joint recommendation made by counsel after a verdict, those circumstances require an appellate court to proceed with great caution before concluding that the sentence imposed was demonstrably unfit. The existence of the joint recommendation must factor into an appellate court’s assessment of whether the sentence imposed represented a substantial and marked departure from the range of possible reasonable sentences in the circumstances and thereby justify appellate interference.
164Further, in the circumstances of a joint recommendation following a verdict, an appellate court must read the resulting sentencing reasons in the distinctive context in which they are given. Specifically, the reasons must be read in light of the “live issues” regarding sentence that remain for determination: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69. A joint recommendation on sentence reduces the “live issues” at play. As well, the appellate reading of the sentencing reasons must take into account the extent of the justification offered by the parties for accepting their joint recommendation. All of which is to say that it should not be unexpected that the sentencing reasons given following a joint recommendation that a trial judge decides to accept likely will focus more on touching the mountain tops, rather than doing deep dives into the valleys, given the agreement of the parties on sentence and the detail of their justification for the joint recommendation.
B. Application to the present case
165In the present case, the joint sentence recommendation accepted by the trial judge should be given significant weight in any demonstrably unfit analysis for several reasons.
166First, the recommendation was the product of a series of discussions between counsel. Defence counsel advised the court:
I can tell Your Honour that in arriving at the joint recommendation, my friend and I have had a couple of conferences. Ms. Burden and Mr. Keen and myself had a – a more thorough TEAMS meeting where we shared case law, had some discussions back and forth and ultimately what we've agreed upon is, with respect to the two counts of second-degree murder, is a life sentence with no parole eligibility for 18 years, concurrent on both counts.
With respect to the attempt murder involving Amy Keesickquayash, there's an agreement for a 10-year sentence to be served concurrently to those life sentences.7 [Emphasis added.]
167Second, defence counsel explained that the joint recommendation was the product of the parties balancing a number of factors, especially the nature of the offence and the circumstances of the offender:
In our discussion, obviously involved sort of the two, you know, glaring differences here. One we're dealing with a really serious offence and the circumstances of that – commission of that offence are – are really aggravating given the nature of relationships and – and the use of a firearm and how the entire sequence of events took place.
What we're balancing that or – or attempting to balance that with, is the character of the offender and in this case, you know, we have a really comprehensive Gladue report which sets out not only Mr. Wesley’s background and history and – and trauma, but also that of his family and – and his community.8
But I think my friend and I have done our – our very best to balance the competing interests and the criteria under the – the Criminal Code. I think we've taken a look at the relevant case law and have tried to place this in the spectrum of severity and then give Mr. Wesley credit for his character, the moral culpability and obviously the factors referenced in the – in the Gladue report. I don't have any further submissions Your Honour, subject to any questions.9 [Emphasis added.]
168Third, both counsel informed the court that their discussions had considered the range of sentences disclosed in the case law. Defence counsel advised that it was difficult to find a case that directly corresponded to the present one:
[W]e can look at case law and my friend has filed some of the cases that they used in our negotiations. I used a separate set of cases which certainly had a lower – so I would say 15-to-18-year range, but it’s really difficult to sort of pinpoint, oh well that's present in this case. That's not present in this case. And it's really an individualized process.10
169Crown counsel also referred to what the case law disclosed:
For second-degree murder, the minimum parole ineligibility period is 10 years. There is no maximum. For double homicides the case law – so other similar cases, generally suggests that the range of parole ineligibility should be between 18 and 25 years. And there are some other cases, typically at this point a little bit dated, that suggest lower periods of parole ineligibility. So, what we're really talking about today is how much time Mr. Wesley has to serve before he’s eligible for parole.11
170Fourth, both counsel identified the aggravating and mitigating factors at play in the case. Defence counsel identified several of the factors that were balanced in arriving at the joint recommendation:
- The offender’s youth, with the offences occurring just a few months after his 18th birthday:
What I think at the end of the day my friend and I recognize, jointly is that this was a very serious incident, but that we're dealing with an offender who's very young. A young Indigenous offender. Mr. Wesley's date of birth is September 6, 1999. This offence occurred three months to the day after his 18th, birthday. You know had this offence occurred three months earlier the Court would have recognized he had a reduced level of moral culpability because of his – his age and – and I think that's something that – that can't be lost here.12
- The trauma suffered by the offender’s family and the larger community as described in the Gladue report:
I think my friend and I both jointly recognize in the Gladue report, the trauma that Mr. Wesley has endured in his lifetime. Not just the trauma his community has – has suffered. The trauma that his family has suffered, but the trauma that Mr. Wesley, himself has suffered and the circumstances in which he was raised and sort of how his view of the world evolved from a – from a very early stage and I think my friend and I recognize that as – as highly mitigating and – and part of the reason for – for the joint recommendation of a – of an 18-year period of parole ineligibility. I would say that we're also doing our best to acknowledge that Mr. Wesley has been in custody at this stage, four years five months and 11 days. A tremendous period of – of custody for somebody so young.13
Several of the victim impact statements expressed “a tremendous amount of forgiveness”;14
Few members of the small Cat Lake community were not touched by the events of the offences, a factor that cut both ways: it made the nature of the offences more damaging, yet many in the community regarded the over-consumption of alcohol as a serious driving factor with respect to these offences;15
The Gladue report describes the problem of over-consumption of alcohol in Cat Lake;16
The offender’s remorse:
I will say that yes, this matter proceeded to trial, but I would still say that throughout the trial and in the pre-sentence report and the Gladue report, specifically the Gladue report, it's apparent that Mr. Wesley [is] remorseful for what happened. This this wasn't the sort of trial where Mr. Wesley took the stand and said I didn't do this.
He took the stand and said, I recognize I did this. I was so drunk I don't know why I did this. And in my respectful view, that – that's very different than a situation where an individual takes the stand and says I didn’t do this. It still shows in my respectful view, a sign of – of remorse.17
- The offender’s continuing struggle with developing poor associations:
You will see in the – in the Gladue report that Mr. Wesley has struggled with associations and I can tell Your Honour that if Mr. Wesley wants to have shot at parole and you know, in 13 a half years roughly, that's something he's going to have to work on, on a tremendous amount in – in custody. Yeah, it's – you know just for transparency purposes, Mr. Wesley will appearing – will be appearing in Provincial Court tomorrow afternoon and dealing with some Provincial charges in the Ontario Court of Justice, that he’s accrued during his time in – in custody.
What I will say, Your Honour about that is that Mr. Wesley came into custody at a very young age. He was a vulnerable individual when he came into custody. I would imagine being in his shoes after your lawyer has an attempt – or has full disclosure and has a chance to review it and discusses the strength of the Crown’s case, the likely outcomes and hearing you know, we're going to be going to trial and the issue is murder versus manslaughter; that there is going to be a significant period of custody going forward, being an individual who's very young, very impressionable, it would be easy to fall into the wrong sort of circles and it appears that that's what Mr. Wesley has – has done while in custody
… [H]e needs to stay away from some of the peer groups that – the negative peer groups that are referenced in – in the – in the Gladue report.18
171Crown counsel provided the Crown’s perspective so that the sentencing judge had a “thorough justification of the joint submission”: Anthony-Cook, at para. 57. His submissions touched on several factors:
- The nature of the offences:
As double homicides go, this was bad. It is two discreet deliberate killings, one following another followed by an attempt to kill another person. Those facts would ordinarily push a Court towards the high end of the range of 18 to 25 years.19
- The aggravating factors, beyond the fact that the crime involved two homicides and an attempted murder: the appellant killed a member of his family; he used a firearm; and the impact of the offences on the Cat Lake community.20 On the latter point, Crown counsel informed the court about information he had obtained from the Cat Lake community:
The community of Cat Lake in discussing with Chief of the community and members of the community when I met with the last time that they was here was – and with also members of the Victim Witness Service and members of the community as well, the community was really fractured over this. You saw from the list of people I read out today that there were people here who were connected to everybody. They were loved ones of Isaac, they were loved ones of Austin, they were loved ones of Tyrese. There were other people who were very angry at what Austin had done and were very closely connected with Tyrese.
There were other people who were just horrified by this but were deeply saddened by it. And the result was a community that went through a significant period of fracturing where people were upset at other family members. People were upset at other community members. Notwithstanding that when you look at the victim impact statements here today and notwithstanding the significant impact on the community, you can also see in the victim impact statements a theme amongst all of those victim impact statements even from Ms. Sakakeesic who still appears to be quite – very upset at Austin. And that theme is one of forgiveness.
Austin’s grandmother and grandfather … expressed they just wanted the prosecution to stop. Let him come home.
We've had other members of the community expressing that a significant jail sentence is required. But the theme that comes through in the victim impact statements you've seen today is one of forgiveness.…21 [Emphasis added.]
- The mitigating factors, including the offender’s youth and that he was a first-time offender.22 As well:
[T]here are also some very significant mitigating facts here. One of which is the forgiveness of the community members who have spoken out here, one of which is his youthfulness, one of which is the Gladue factors that are front and centre in both the pre-sentence report and the Gladue report.
Austin’s grandparents, family have all been affected by the legacy of colonialism. They’ve all been impacted by decisions by the government of Canada to take children away from their families and essentially lock them up in residential schools. And those [indiscernible] effects are felt are felt today.
Your Honour needs to take those factors into account and ultimately it’s the Crown’s submission – and I understand my friend joins on this, that all of these factors would tend to push the Court towards the lower end of the sentencing range in this case, one of 18 – one of a parole ineligibility period of – of 18 years.23
172The trial judge concluded that the joint submission was a fit and just sentence in the circumstances of the case. He reached that conclusion “after considering the submissions of counsel and case law cited, the pre-sentence and Gladue reports, the victim and community impact, and Mr. Wesley’s statement” to the court: 2022 ONSC 2974, at para. 38.
173In my view, counsel’s description of the process that led to the joint sentence recommendation, their detailed submissions to the court to explain and justify the joint recommendation, and the fact their submissions reflected the key factors set out in more detail in the pre-sentence and Gladue reports that were before the court together worked to make the joint recommendation one to which the trial judge was required to give significant weight.
174Those same circumstances require, in my respectful view, that this court proceed with great caution before setting aside a sentence based on the parties’ agreement and joint recommendation and, instead, substituting its own view of how it would have sentenced the offender.
175As I will now explain, I strongly disagree with my colleagues that the sentence imposed was the product of legal error or demonstrably unfit. In so finding, in my respectful view, my colleagues have ignored the Supreme Court’s admonition in Lacasse that appellate courts “may not intervene lightly” in a sentence imposed: at para. 39.
III. WAS THE IMPOSITION OF AN 18-YEAR PAROLE INELIGIBILITY PERIOD THE PRODUCT OF LEGAL ERROR OR was THE SENTENCE DEMONSTRABLY UNFIT?
A. Overview
176I concur with the majority’s rejection of several of the grounds advanced by the appellant on his sentence appeal: the need to engage in a “reset” of a movement away from some “general rule” of 10 years of parole ineligibility, paras. 128-131; treating the killing of a family member as an aggravating factor, at para. 132; the imposition of concurrent life sentences as obviating the need to impose a parole ineligibility period greater than the statutory minimum, at para. 133; and the trial judge’s consideration of the impact of the crimes on the community as an aggravating factor, at para. 134.
177However, I respectfully disagree with their conclusion that the imposition of an 18-year period of parole ineligibility was the product of legal error or rendered the sentence demonstrably unfit thereby justifying appellate intervention.
B. The context in which the sentence was imposed
178The period of parole ineligibility imposed by the trial judge must be assessed within the context in which it was made.
179The indictment charged the appellant with two counts of first degree murder – killing his father and best friend – one count of attempted murder, in respect of his father’s girlfriend, Ms. Amy Keesickquayash, and one count of assault on his grandmother, Ms. Susan Shingebis.
180At the conclusion of the evidence, the Crown conceded that it could not establish first degree murder as the evidence did not establish, beyond a reasonable doubt, that the murders were planned and deliberate. The Crown also conceded that the appellant should be acquitted on the assault charge in respect of his grandmother.
181On his part, the appellant conceded that he shot and killed his father and best friend but contended he should be convicted of manslaughter, not second degree murder. The appellant took the position that he should be acquitted on the charge of attempted murder.
182By reasons delivered November 9, 2021, the trial judge convicted the appellant of the second degree murders of his father and best friend and the attempted murder of Ms. Keesickquayash. He found the appellant not guilty of assaulting his grandmother.
183The trial judge directed the preparation of pre-sentence and Gladue reports.
184Six months later, on May 16, 2022, counsel made sentencing submissions.
185The appellant was represented by counsel. No allegation of ineffective assistance of counsel is made by the appellant on this appeal.
186The sentencing hearing started with defence counsel informing the court of an agreement the parties had reached on the issue of the appropriate period of parole ineligibility. It is worth recalling defence counsel’s submission to the court:
MR. SEIB: Your Honour there – as my friend had indicated there's a joint submission to be put before the Court.
I can tell Your Honour that in arriving at the joint recommendation, my friend and I have had a couple of conferences. Ms. Burden and Mr. Keen and myself had a - a more thorough TEAMS meeting where we shared case law, had some discussions back and forth and ultimately what we've agreed upon is, with respect to the two counts of second-degree murder, is a life sentence with no parole eligibility for 18 years, concurrent on both counts. [Emphasis added.]
187There is no suggestion that defence counsel so informed the court without instructions from the appellant to do so.
188Part II.B of this dissent summarizes, at some length, the submissions made by defence and Crown counsel in support of their joint recommendation regarding the period of parole ineligibility.
189In his reasons for sentence, the trial judge accepted the parties’ joint submission:
After considering the submissions of counsel and case law cited, the pre-sentence and Gladue reports, the victim and community impact, and Mr. Wesley’s statement to me, I conclude that the joint submission is a fit and just sentence in the circumstances of this case.
190On this appeal, the appellant maintains the positions he advanced before the trial judge on the issue of his culpability: he seeks to set aside the convictions for second-degree murder and substitute convictions for manslaughter, and he seeks to set aside the conviction for attempted murder. The appellant enjoys a statutory right of appeal from conviction; I fully understand the position he is taking in respect of the convictions imposed following a contested trial.
191However, on this appeal the appellant resiles from the agreement he reached below with the Crown on sentence. If unsuccessful in his conviction appeals, the appellant seeks to reduce his period of parole ineligibility below the 10-year mandatory minimum to seven years in the event his constitutional challenge succeeds. If that challenge does not succeed, the appellant seeks to reduce the period of parole ineligibility to the minimum 10-years.
192As I read the majority’s reasons, they give no practical effect to the fact that the appellant seeks leave to appeal a sentence to which he agreed at the sentencing hearing. The majority appear to proceed on the basis that since the trial judge was not bound by Anthony-Cook to accept the joint recommendation on sentence, the issue of sentence can be looked at afresh without regard to the appellant’s agreement below to a parole ineligibility period of 18 years.
193In my respectful view, that is not a proper exercise of the appellate review power. The trial judge’s reasons for sentence must be assessed in the context in which they were given, namely following the parties representing to the court that they had reached an agreement on sentence and requesting that the trial judge accept and impose the sentence agreed upon.
C. The majority’s justification for interfering with the period of parole ineligibility
194The majority justify their extraordinary reduction of the parole ineligibility period imposed by the trial judge on two bases.
195First, the majority conclude that the trial judge committed errors in principle:
(i) He failed “to take account of or fail[ed] to properly consider various factors that attenuated the appellant’s moral blameworthiness”, specifically the appellant’s intoxicated and agitated state and the effect of the systemic impacts of colonization and intergenerational trauma;
(ii) he failed to take account of the sentencing objective of assisting the offender’s rehabilitation; and
(iii) he relied on caselaw that did not support the sentence imposed.
196Second, the majority take the view that the parole ineligibility period imposed was demonstrably unfit having regard to: the appellant’s youth; lack of a prior record; his highly intoxicated and agitated state; the systemic impacts of colonization; and his immediate remorse.
197The majority conclude that the 18-year parole ineligibility period was “crushing” in all the circumstances.
D. Analysis
D.1 The trial judge’s reliance on the jurisprudence counsel placed before him
198Since the substance of the majority’s discussion of legal errors and the unfitness of the sentence tends to overlap, I shall first consider their contention that the jurisprudence considered by the trial judge does not support the period of parole ineligibility imposed. That contention feeds their argument that the sentence was demonstrably unfit. As I read their reasons, the majority make two points: that the caselaw filed in support of the sentence cannot be relied on to show a general range for double homicides; and that the cases themselves were factually distinct and involved more morally reprehensible crimes and offenders.
The critique of the existence of any “range” other than the statutory parameters
199For their first point, the majority rely on the decision of the trial judge in R. v. Daley, 2021 ONSC 7678, to suggest that really there is no “range” of parole ineligibility that applies to cases of double murders: at para. 125. They point to the statement in Daley, at para. 63:
It is recognized that in the case of Kyle Sparks MacKinnon the court suggested that the range of ineligibility in multiple murder cases, arising from a single event, in which concurrent periods of parole ineligibility have been imposed, is 18 to 25 years. (para 79) This court is unable to agree that such a range exists, or that it is that narrow. In the case of parole ineligibility, Parliament has already provided a range – the range is between 10 years and 25 years. As the legislation currently stands, the periods of parole ineligibility can be served concurrently or consecutively. As previously stated, there is no request for consecutive sentences requested or warranted in this case. Therefore, the range is between 10 years and 25 years in total. [Emphasis added.]
200The reference to the possibility of consecutive periods of parole ineligibility was rendered moot by the decision of the Supreme Court of Canada in R. v. Bissonnette, 2022 SCC 23, 469 D.L.R. (4th) 387.24 What remains of the extract from Daley is nothing more than a statement of the obvious, namely that s. 745(c) of the Criminal Code prescribes a statutory period of ineligibility for parole for a conviction for second degree murder that runs from a minimum of 10 years to a maximum of 25 years.
201While that is the framework guiding a sentencing judge in cases of second‑degree murder, the reality is that the principle of proportionality requires courts to seek analogical guidance from previously decided cases, a process that, in turn, produces a distribution or range of ineligibility periods that reflect, in part, the gravity of the offence. The previously decided cases clearly establish the principle that the killing of multiple people is an aggravating factor in itself that warrants a parole ineligibility at the higher end of the statutory spectrum: R. v. Sirois, 2008 CarswellOnt 9700 (S.C.), at para. 45, aff’d 2011 ONCA 370; R. v. Kyle Sparks MacKinnon, 2019 ONSC 3436, at paras. 60, 67, and 78.
202In the present case, the trial judge observed in his reasons that the Daley decision provided “helpful summaries of parole eligibility in double murder cases.” Daley noted and commented on the decision in MacKinnon. In MacKinnon, MacDonnell J. conducted an extensive examination of parole ineligibility periods imposed in cases where consecutive periods were imposed and in those where concurrent periods were imposed. With respect to the jurisprudence from cases where concurrent periods were imposed, MacDonnell J. stated, at para. 67:
An examination of the cases in which concurrent periods of parole ineligibility have been imposed for multiple second degree murders subsequent to the enactment of s. 745.51 reveals a range of ineligibility of between 18 and 25 years: see R. v. Bains, 2015 BCSC 2145 (18 years); R. v. Rushton, 2016 NSSC 313 (18 years); R. v. McLeod, 2018 MBQB 73 (18 years); R. v. Marki, 2018 ONSC 5106 (20 years); R. v. Salehi, 2019 BCSC 698 (20 years); R. v. Kionke, 2018 MBQB 71 (20 years); R. v. Sharpe, 2017 MBQB 6 (22 years); R. v. Koopmans, 2015 BCSC 2120 (22 years); R. v. Klaus, 2018 ABQB 97 (25 years); R. c. Ramsurrun, 2017 QCCS 5791 (25 years). That range is markedly higher than the range that a single count of second degree murder would normally attract, but a higher range is consistent with the the [sic] fact that the offender caused more than one death. [Citations partially omitted.]
203The MacKinnon analysis pre-dated the decision in Bissonnette, which diminished its assistance in the eyes of the majority: at para. 125. However, in MacKinnon the trial judge fashioned the period of parole ineligibility in the context that the periods of parole ineligibility were to be served concurrently, not consecutively: at para. 85.
204As well, in its post-Bissonnette decision of R. v. Husbands, 2024 ONCA 155, 170 O.R. (3d) 486, dealing with whether the imposition of life sentences for convictions on two counts of manslaughter was unfit, this court observed at para. 122:
[T]the appellant was not sentenced as if he were guilty of murder. In my view, had he been found guilty of two counts of second-degree murder, not only would he have received automatic life sentences, but he would have received a dramatically increased period of parole ineligibility, much beyond the statutory minimum of seven years that was imposed here. One need look no further than MacDonnell J.’s judgment in R. v. MacKinnon, 2019 ONSC 3436, aff’d 2022 ONCA 811, 164 O.R. (3d) 535, leave to appeal refused, [2023] S.C.C.A. No. 37, where he imposed 22 years of parole ineligibility for a public shooting involving 16 shots fired on a busy Toronto street.. [sic] In this decision, MacDonnell J. reviewed numerous other decisions involving sentencing for multiple second-degree murders involving a range of ineligibility of between 18 and 25 years: paras. 67, 78.
205Finally, it is worth observing on this point that Lacasse spoke at some length about the role of ranges in the sentencing process. In Lacasse the Supreme Court stated that “[s]entencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives”: at para. 57. As the Supreme Court held in that case, “the choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot in itself constitute a reviewable error”: at para. 51. Sentencing ranges are “historical portraits for the use of sentencing judges, who must still exercise their discretion in each case”: at para. 57.
206By way of summary, I do not share the majority’s view that the jurisprudence, including the specific cases put before the trial judge, does not support the period of parole ineligibility imposed.25 On the contrary, the cases disclose a range of parole ineligibility periods that have typically guided sentencing decisions, a range affirmed by this court post-Bissonnette. Accordingly, I see no basis for the majority’s conclusion that the jurisprudence does not support the period of parole ineligibility that the trial judge accepted upon the parties’ recommendation.
The majority’s critique based on distinguishable facts
207As their second point, the majority spend time distinguishing the specific facts of prior double murder decisions in which the parole ineligibility period ranged from 18 to 25 years. The majority conclude, at para. 126, that none of the cases is “sufficiently comparable to the unique set of facts present in this case to support a parole eligibility period of 18 years.”
208I disagree.
209First, in their submissions requesting that the trial judge accept their joint recommendation of 18 years of parole ineligibility, the parties recognized that none of the cases offered a “perfect fit”. Nevertheless, the parties obviously thought the cases would provide the trial judge with some useful assistance in considering their proffered recommendation on sentence. Defence counsel submitted:
It’s – this is really an individualized process and we can look at case law and my friend has filed some of the cases that they used in our negotiations. I used a separate set of cases which certainly had a lower – so I would say 15-to-18-year range, but it’s really difficult to sort of pinpoint, oh well that's present in this case. That's not present in this case. And it's really an individualized process.
But I think my friend and I have done our – our very best to balance the competing interests and the criteria under the – the Criminal Code. I think we've taken a look at the relevant case law and have tried to place this in the spectrum of severity and then give Mr. Wesley credit for his character, the moral culpability and obviously the factors referenced in the – in the Gladue report.26 [Emphasis added.]
Crown counsel submitted:
For second-degree murder, the minimum parole ineligibility period is 10 years. There is no maximum. For double homicides the case law – so other similar cases, generally suggests that the range of parole ineligibility should be between 18 and 25 years. And there are some other cases, typically at this point a little bit dated, that suggest lower periods of parole ineligibility. So, what we're really talking about today is how much time Mr. Wesley has to serve before he’s eligible for parole.27
210Second, the jurisprudence recognizes that the search for a close or perfect fit is a futile quest. The use of caselaw in the sentencing process involves a form of analogical or comparative reasoning. The circumstances of the specific case are compared to those other sentencing decisions, and the result imposed below in the specific case is then compared to the pattern of results in previous cases that reflect roughly similar circumstances. A close or perfect comparison rarely exists. That is not a product of any theoretical flaw in the analytical process. It simply results from the myriad of different circumstances that are the product of, and are associated with, human conduct. The Supreme Court acknowledged this reality at para. 58 of Lacasse when it stated:
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.
211Accordingly, a sentence is not demonstrably unfit merely because it does not closely or perfectly fit the sentences imposed in previous cases. Such fits lie beyond the capability of our justice system. Rare is the case that presents identical or nearly identical features or circumstances of all the factual circumstances of the case for which a sentence must be crafted. Instead, the most that one can reasonably ask of a sentencing judge is to canvas cases in analogous circumstances, ascertain whether they bear some resemblance to aspects of the case before the sentencing judge and then, applying judicial discretion to the myriad factors prescribed by law, reach a sentence that is reasonably fit, or, in the negative language of the Criminal Code, that is not demonstrably unfit in the circumstances.
212That the trial judge considered cases that contained features that distinguished them from aspects of the present case does not amount to a legal error, as the sentencing process does not limit the use of prior cases to those that are perfect or close fits.28 That the trial judge considered the cases counsel asked him to consider does not open the door to appellate intervention in the sentence he imposed.
D.2 Omissions from reasons for sentence
213The majority conclude that the trial judge made several errors in setting the period of parole ineligibility, specifically that he failed to take account of or properly consider various factors that attenuated the appellant’s moral blameworthiness such as the appellant’s intoxicated and agitated state, the effect of the systemic impacts of colonization and intergenerational trauma, the appellant’s profession of remorse, and the sentencing objective of assisting the offender’s rehabilitation.
214I see no such error. With respect to my colleagues, their analysis fails to fairly assess the trial judge’s reasons for sentence in the context in which they were given.
215The trial judge’s reasons for conviction disclose that he was fully alive to the evidence regarding the appellant’s state of intoxication at the time he killed his father and best friend, then attempted to kill his father’s girlfriend. The trial judge explained why he rejected the defence’s submission that the appellant was in a state of advanced intoxication to the extent of an impairment of the accused’s foresight of the consequence of his act sufficient to raise a reasonable doubt about the required mens rea for second degree murder. The trial judge concluded that despite the appellant’s impairment, he formed the intent to kill his father and best friend: 2021 ONSC 7264, at paras. 80-89.
216We have dismissed the appellant’s appeal from the resulting convictions for second-degree murder and attempt murder. Consequently, the sentence imposed by the judge must be evaluated in the context of undisturbed findings that notwithstanding his impairment, the appellant possessed that state of mind to kill his father and best friend and to attempt to kill his father’s girlfriend.
217At the sentencing hearing, the trial judge learned that notwithstanding the state of the appellant’s impairment, the appellant joined with the Crown in placing before the trial judge a joint recommendation that an 18-year parole ineligibility period be imposed. Specifically, defence counsel submitted:
Particularly I think everybody is in agreement that over-consumption of alcohol was a serious driving factor with respect to these offences and in fact you see in the pre-sentence reports – or in the victim impact statements some of the members of the community talk about, you know, just how they think this wouldn't have happened but for the – the over-consumption of alcohol.
And then you take a look at the Gladue report and you see how the over-consumption of alcohol has – how it first became a problem in – in Cat Lake and how it continues to be a problem in – in Cat Lake and I think that really goes to the character of the offender, the community itself has its own struggles and in my respectful view really has an impact on – on moral culpability.29
You know everybody always wants to know, why did this happen and unfortunately in this case I don't think we have a – an explanation other than we have a young individual who has suffered a severe amount of trauma in his life, was consuming a significant quantity of – of alcohol and – and simply – not simply but had an explosion. That suddenly all of that pent up trauma came bursting out as a result of what appeared to be a dispute between Mr. Wesley and – and his father.30
218In light of the position the appellant took at the sentencing hearing and the detailed examination of the evidence about the appellant’s impairment the trial judge undertook in his earlier reasons, I do not see the lack of further detailed analysis of the appellant’s impairment by the trial judge in his sentencing reasons as amounting to an error in principle. The bottom line is that the trial judge gave the appellant the sentence he requested: an 18-year parole ineligibility period.
219I reach a similar conclusion with respect to the majority’s critique of the extent of the trial judge’s treatment in his sentencing reasons of the effect of the systemic impacts of colonization and intergenerational trauma, the appellant’s profession of remorse, and the potential for his rehabilitation. I have set out in Part II.B above the extensive submissions made by both counsel on those issues in support of their joint recommendation. As I have said, the trial judge acceded to that joint request. In my respectful view, for the majority to say that these factors were not considered fails to fairly read the reasons of the trial judge in the distinctive context in which they were given.
D.3 The majority’s conclusion that the sentence was “demonstrably unfit”
220Which leaves for consideration the remaining critique the majority direct at the sentence, namely that it was demonstrably unfit.
221The majority take the view that the period of parole ineligibility imposed rendered the sentence demonstrably unfit having regard to the appellant’s youth, lack of a prior record, his highly intoxicated and agitated state, the systemic impacts of colonization and his immediate remorse.
222I respectfully disagree.
223As the Supreme Court noted in Lacasse, over the years courts have used a variety of expressions to describe a sentence that is demonstrably unfit: “clearly unreasonable”; “clearly or manifestly excessive”; “clearly excessive or inadequate”; or representing a “substantial and marked departure”: at para. 52. These expressions reflect “the very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence”: at para. 52.
224In my view, the period of parole ineligibility imposed by the trial judge was not “clearly unreasonable” or “clearly or manifestly excessive” or “clearly excessive or inadequate” or a “substantial and marked departure” from the applicable jurisprudence:
(i) The appellant, who was represented by counsel against whom no allegation of ineffective assistance is made and who, one must conclude, was acting on the instructions of the appellant, agreed to an 18-year period of parole eligibility, joined the Crown in recommending that sentence, and secured from the trial judge the sentence he sought. Hardly a “clearly unreasonable” result;
(ii) as described in Part II.B above, the joint submissions canvassed the material aggravating and mitigating factors, as well as the nature of the offence, the circumstances surrounding its commission, and the character of the appellant. The trial judge’s reasons for sentence took those factors into account;
(iii) the joint submissions informed the trial judge that the balancing of relevant factors that underpinned the recommended period of parole ineligibility was the product of discussions between counsel. It was not a spur-of-the-moment recommendation; it was the product of considered reflection by counsel; and
(iv) the period of parole ineligibility sought by the parties and imposed by the trial judge reflected the consistent jurisprudence that a conviction for double murders attracts a longer period of ineligibility. The period imposed was reasonably fit and just in the circumstances.
225My colleagues obviously disagree with the way in which both parties and the trial judge balanced the relevant factors. That they would have acted differently as trial judges does not render unreasonable the sentence sought by the parties and imposed by the trial judge. In this regard, it is worth recalling that in Lacassethe Supreme Court reminded appellate courts about the caution with which they must proceed before invoking such a basis for intervention: “[A]n appellate court may not intervene simply because it would have weighed the relevant factors differently”, at para. 49. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, the Supreme Court affirmed Laskin J.A.’s statement in R. v. McKnight (1999), 1999 3717 (ON CA), 44 O.R. (3d) 263 (C.A.), that: “Only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere with the sentence on the ground the trial judge erred in principle” (emphasis added).
226I see nothing unreasonable in the trial judge accepting the joint recommendation of the parties in this case. Consequently, I cannot join my colleagues in their extraordinary reduction of the period of parole ineligibility.
CONCLUSION
227For the reasons set out above, I join my colleagues in dismissing the appeal from convictions and not entertaining the Charter challenge to the minimum 10‑year period of parole ineligibility. Although I would grant leave to appeal the period of parole ineligibility, I would dismiss the sentence appeal.
Released: January 24, 2025 “J.S.”
“David Brown J.A.”
APPENDIX ‘A’
Provocation
Murder reduced to manslaughter
232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.
Punishment for murder
235 (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
Minimum punishment
(2) For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by this section is a minimum punishment.
Attempt to commit murder
239 (1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Purpose and Principles of Sentencing: Criminal Code, ss. 718, 718.1, 718.2
Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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 the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, …
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
… shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Sentence of life imprisonment
745 Subject to section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be …
(c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 745.4
Persons under eighteen
745.1 The sentence to be pronounced against a person who was under the age of eighteen at the time of the commission of the offence for which the person was convicted of first degree murder or second degree murder and who is to be sentenced to imprisonment for life shall be that the person be sentenced to imprisonment for life without eligibility for parole until the person has served …
(c) seven years, in the case of a person convicted of second degree murder who was sixteen or seventeen years of age at the time of the commission of the offence.
Ineligibility for parole
745.4 Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.
Let me be very clear. The conclusion that imposing consecutive 25‑year parole ineligibility periods is unconstitutional must not be seen as devaluing the life of each innocent victim. Everyone would agree that multiple murders are inherently despicable acts and are the most serious of crimes, with consequences that last forever. This appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.
In the circumstances, this Court has no choice but to declare s. 745.51 Cr. C. invalid immediately. This declaration strikes down the provision retroactively to its enactment in 2011. The applicable law is therefore the law that existed prior to that date. This means that the respondent must receive a sentence of imprisonment for life without eligibility for parole for a total period of 25 years. [Emphasis added.]
Footnotes
- See, for example, R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 74; R. v. Snyder, 2011 ONCA 445, 278 O.A.C. 233, at para. 24.
- Relying on R. v. Azzam, 2008 ONCA 467, 91 O.R. (3d) 335, at para. 65, the Crown asserts that evidence of anger short of provocation should not properly be part of a rolled-up instruction at the behest of the defence. That position appears to be contrary to what this court later said in Phillips, at para. 156. However, I need not resolve this issue for the purposes of this appeal. See also Cudjoe, at para. 108.
- R. v Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227.
- R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
- The Crown referred to the joint recommendation on sentence made in the court below as a “joint submission”. Because I would reject the Crown’s position that the Anthony-Cook public interest test should apply in this case, I use the term “joint recommendation” throughout these reasons to differentiate the joint position advanced in this case from a joint submission following a guilty plea to which the Anthony-Cook test applies.
- In correspondence sent prior to the appeal hearing, the appellant abandoned the s. 15 Charter argument raised in his factum.
- Transcript, Vol. 6, pp. 713-714.
- Transcript, Vol. 6, pp. 714-715.
- Transcript, Vol. 6, p. 721.
- Transcript, Vol. 6, p. 717.
- Transcript, Vol. 6, pp. 722-723.
- Transcript, Vol. 6, p. 717.
- Transcript, Vol. 6, pp. 717-718.
- Transcript, Vol. 6, p. 715.
- Transcript, Vol. 6, pp. 715-716.
- Transcript, Vol. 6, p. 716.
- Transcript, Vol. 6, pp. 718-719.
- Transcript, Vol. 6, pp. 719-720.
- Transcript, Vol. 6, p. 727.
- Transcript, Vol. 6, pp. 723-724.
- Transcript, Vol. 6, pp. 724-725.
- Transcript, Vol. 6, pp. 726-727.
- Transcript, Vol. 6, pp. 727-728.
- In Bissonnette, the Supreme Court stated at paras. 142 and 143:
- The ranges both counsel used when considering to make a joint recommendation were materially higher than the parole ineligibility fashioned by the majority. Defence counsel informed the court that he used a set of cases that pointed to a range of 15 to 18 years: Transcript, Vol. 6, p. 717. Crown counsel submitted that the circumstances of the offences ordinarily would push a court toward the high end of the range of 18 to 25 years, but the “very significant mitigating facts” of the present case “would tend to push the court towards the lower end of the sentencing range in this case, one of 18 – one of a parole ineligibility period of – of 18 years”: Transcript, Vol, 6. pp. 727-728.
- Transcript, Vol. 6, pp. 716-717 and 721.
- Transcript, Vol. 6, pp. 722-723.
- In the case of R. v. Koopmans, 2015 BCSC 2120, the Indigenous offender shot three victims in sudden, rapid succession in the home of one of the victims. He failed to kill the first victim but was convicted of attempted murder. He killed the second and third victims and was convicted of two counts of second-degree murder. In respect of the latter two offences, concurrent periods of 22 years of parole ineligibility were imposed. Although the majority dismiss Koopmans as insufficiently comparable, the circumstances of the offences in Koopmans closely resemble those of the present case. However some of the circumstances of the offender are different, particularly his age (51 at the time of sentencing).
- Transcript, Vol. 6, p. 716.
- Transcript, Vol. 6, pp. 720-721.
