Court and Parties
DATE: 2024.02.17 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEENAN GEORGE
Before: Justice Fergus ODonnell
Reasons for sentence delivered on: 15 January, 2024 Written reasons for sentence released: 17 February, 2024
Counsel: Tyler Shuster & Sangeeta Patel................................................................... for the Crown Brenda Sandulak & Sara Ramalho........................ for the defendant, Keenan George
Overview
Overview
Keenan George and his brothers Kegan and Jabari were all born within about a year-and-a-half of each other. In the summer of 2022, with all three brothers in their late twenties, they and their respective girlfriends and a few pets were all living together in a townhouse that Keenan had bought in St. Catharines. Monthly payments by each of the brothers and their girlfriends helped cover Keenan’s costs. Since by all accounts the three brothers were part of a close-knit family, it would have made perfect sense to have your brothers as your house-mates rather than bringing in strangers to share the space and lighten the financial load.
It did make sense. Until it all went horribly wrong. Tragically, on the evening of 30 June, 2022, Keenan stabbed Kegan during an argument at the house, Kegan died of blood loss within minutes and before the night was over Keenan was charged with second-degree murder. For the members of the George family and their partners and friends, nothing will ever be the same again, “all’s changed, changed utterly”.
Following a preliminary inquiry, the Crown agreed to accept a plea of manslaughter from Keenan George. It is my task to determine a proper sentence for him in a case where the Crown and defence are very far apart. The Crown says that the proper sentence for a manslaughter of this sort and for this type of offender is in the range of four-to-six years in the penitentiary less credit for time served in pre-trial custody before Mr. George’s eventual release on bail and the Crown fine-tunes that submission to suggest a sentence between four and five years rather than at the top end of the range. The Crown and defence agree the appropriate credit for pre-sentence custody is seven months.1 Mr. George submits that he should receive a sentence of two-years-less a day, minus credit for his time in pre-sentence custody and says that the sentence should not be served in “real jail”, but rather as a conditional sentence served in the community, commonly known as “house arrest”.
I shall talk about what happened, about some principles of sentencing generally—and of sentencing for manslaughter in particular—and about what I consider to be the most apt sentence for Keenan George. First, though, I must stress that there is no sentence I can impose that will come anywhere close to matching or reflecting the value of Kegan George’s life or that will come anywhere close to compensating for the immediate, medium-term and life-long impacts of his death on those who knew and loved him. While I believe every single person connected to this case wishes with all their heart that there existed a magic rewind button to undo all that has happened, no such magic exists and no human power can come close to undoing what Keenan George did that night.
What Happened? 2
What Happened?
By the time he was twenty-six or twenty-seven years old, Keenan George had achieved something that many of his generation despair of—he had bought his own home. He invited his two brothers and their partners to live with him and his girlfriend, Amber. He was working full-time and he put money into upgrading the house’s only bathroom. He and Amber had high standards for how the house should be kept and they did the lion’s share of the cleaning. In effect, this meant they were often cleaning up after the other people living in the house, both inside the house and also cleaning up pet waste in the yard, even though they did not themselves have a pet. The term used in the agreed statement of facts was that Keenan had “OCD” about keeping a clean house and he was not inclined to wait for others to clean up after themselves because he wanted his house kept a certain way. It being his house, that was fair enough.
However, it was a source of tension that Keenan and Amber did so much of the work. Keenan created a text-message group with his brothers to remind them to clean up and the constant reminders came to cause friction between him and his brothers. A particular concern of Keenan’s was a shower hose in the bathroom he had spent ten thousand dollars to renovate. Keenan had specifically asked that the residents of the house not let the hose become tangled for fear that it could require an avoidable repair.
It all came to a horrible and tragic head on 30 June, 2022. Amber noticed the shower hose was twisted—based on the picture filed, about as twisted as such a hose could possibly be twisted—and told Keenan, who sent a photo of the hose to Kegan, asking that Kegan and his fiancée, Lindsay, keep the hose straight after using it. Keenan and Amber then headed out to a nearby gym. Keenan texted with Kegan as Amber drove and within five minutes of arriving at the gym, Keenan asked Amber to drive home so he could confront Kegan directly.
The texts are patently hostile, on both sides, and do not reflect well on either brother. There are insults back and forth, challenges to each other’s courage or manhood, miscellaneous unhelpful vulgarities, and a threat by Keenan to kick Kegan out of the house with Kegan’s response, “make me.”
When Keenan and Amber arrived home, Kegan and Lindsay were in the back yard. Kegan had told Lindsay they would have to find a new place to live and she was already looking at listings online. The text-message argument then became an in-person argument with each of Keenan and Kegan yelling insults in the other’s face. Keenan told Kegan he had to move out and Kegan refused and told him to try to make him.
Despite the youngest brother, Jabari, trying to insert himself between his two elder brothers. Keenan slapped Kegan in the face, the first apparent overtly violent act. After the slap, Keenan went into the house and Kegan picked up a shovel in the back yard. Jabari was trying to restrain Kegan, but Kegan was bigger and taller. Jabari was the only rational one of the three brothers that night, telling Kegan he should go for a walk and cool down and that he should, “be the bigger man”, to which Kegan said, “fuck that—he’s not going to slap me…he’s not going to sleep here tonight…he’s going to sleep with one eye open.” Jabari said that if they were going to fight it had to be without weapons and soon after that advice Kegan put down the shovel.
Meanwhile, inside the house, Keenan had picked up a knife from the kitchen and went to the closed sliding door to the yard, holding the knife tight against his leg. Jabari’s girlfriend, Mya, called out to Keenan asking what he was doing and reminding him he had a daughter, pleading for a while for him to drop the knife, which he eventually did. In the meantime, people outside and inside were just trying to keep the sliding door closed to keep the brothers apart. Amber was yelling at Kegan and encouraging Keenan to fight him.
After a while, Jabari let go of Kegan and suggested to just let the two brothers fight it out. Despite resistance from Mya and Lindsay on their respective sides of the door, trying to keep it closed, Kegan managed to force his way inside and charged Keenan. The two men fought, with Kegan biting Keenan at one point. Keenan eventually got the upper hand and ended up on top of Kegan on the ground, holding him in a bear hug, as Jabari, Mya and Lindsay tried to separate them and with Amber egging Keenan on. Jabari managed to pull Keenan off Kegan, but then Kegan grabbed a glass vase and smashed it over Keenan’s head.
Kegan then “retreated” from the living room and headed towards the front door and the stairs that led to the upper floors. Keenan grabbed two items from the kitchen knife block and followed Kegan, with “big”, “wide” eyes, saying nothing and looking “like he was in shock”. Approaching Kegan from behind, he raised both items and stabbed Kegan in the mid back and upper-right chest.
Amber had not seen the stabbing, but saw Keenan go out to the back yard with a knife in his hand with blood on it. She asked Keenan why he had a knife and he said, “he smashed me in the back of my head”.3 She accompanied Keenan around to the front of the building and got him to put the knife down out front of the building.
Despite family members’ efforts to save Kegan, including efforts by Keenan himself, and despite the attendance and efforts of paramedics, Kegan died out front of the house because of the stab wound to his chest, which penetrated his heart, lung and liver and caused internal bleeding.
The agreed statement of facts shows that Keenan George was extremely concerned about Kegan’s condition, collapsing at times, begging his brother’s forgiveness and expressing his love for his brother.
What is the Appropriate Sentence?
17.
What is the Appropriate Sentence?
Sentencing is a highly individualized process that seeks to balance the seriousness of the offender’s crime with his moral blameworthiness. It seeks to consider the totality of the offender, not just the act that brought him before the court. A sentence must aim to make society safe by encouraging respect for the law and by using various tools, including where appropriate various forms of custody, to deter the individual and other people in society from committing crimes, to denounce the crime, to rehabilitate the offender, to allow him to make reparations where appropriate and, where necessary to separate him from society. There is a very strong emphasis in Canadian criminal law on using imprisonment only where it is deemed truly necessary and only to the extent deemed necessary. First offenders are also to be sentenced with restraint. The force and balancing of the numerous factors that go into a sentence will vary from case to case and from offence type to offence type.
It should be obvious from the foregoing that there is a seeming conflict or potential disconnect among the various principles and objectives of sentencing set out in the Criminal Code. (Those principles of sentencing, along with the guidance of appellate courts, are the rules that sentencing judges must proceed by.) A sentence that focuses on denunciation or general deterrence, for example, will tend to be more harsh, whereas a sentence that focuses on rehabilitation will tend to be more lenient. It is the sentencing judge’s job to determine how much emphasis to put on each of the sentencing objectives in light of the particular offence, the specific details of what happened and why and the personal circumstances of the offender in the case before the court.
The balance applied will vary from case to case. For example, the more serious the crime, the more likely that denunciation and general deterrence will play a more prominent role. Depending on the circumstances and history of the offender, there may be very little need for specific deterrence—which is a message from the court to the particular defendant rather than a message to society at large—while in other cases specific deterrence due to the offender’s previous background may itself be a significant driver of the sentence imposed. In all cases, rehabilitation must be factored in because almost every offender in Canada will at some point be released back into society and society will not benefit at that time if no effort has been made at rehabilitation. Ultimately, the sentencing process is extremely individualized.
The process is individualized, but that does not mean the outcome will be random. It is a basic principle of the law that similar cases lead to similar outcomes. It would be perverse if the outcome of a case were entirely unpredictable, based solely on the individual inclinations of the sentencing judge. A fair process requires consistency, which the criminal law calls parity. Parity requires that similar sentences be imposed on similar offenders who commit similar crimes.
In this case the Crown and defence lawyers have put almost two dozen previous decisions before me to assist in determining what is the appropriate sentence for Mr. George.4 Each of those cases, in turn, refers to numerous other cases, as part of the search for a consistent range of sentence for this particular offence and in support of the determination of where Mr. George’s case should fall in the range of sentencing.
I do not plan to refer to all the cases put before me, or even to the majority of them. That does not mean that I do not see any value in the lawyers referring to the cases, only that I do not see value in reciting the details and commentary of two dozen plus cases for the purpose of these reasons. The cases do, however, serve a hugely important purpose because the panorama the cases provide gives me the benefit of the insight of dozens of judges in dozens of cases of the same general nature of Mr. George’s case. That bird’s-eye view of previous decisions helps ensure that while the sentence imposed on Mr. George is individualized to Mr. George and the facts of his crime, it is not unduly determined by the individual perspective of the sentencing judge. My job is, with the help of those other cases, to see what the range of manslaughter sentencings is and where in that range Mr. George and his crime fall.
The first reality here is that the range of sentencing for manslaughter in Canada is massive, from double-digit penitentiary sentences down to suspended sentences.5 That does not reflect a flaw in sentencing but rather is the ultimate manifestation of how sentencing is individual to the crime and offender, because the nature of conduct that can lead to a manslaughter conviction ranges from “near accident to near murder”. It is hard to imagine any other offence in the Criminal Code that will encompass such a wide range of factual and personal circumstances. To that must be added the fact that the background and circumstances of each offender will also vary dramatically. It is highly unlikely that one would ever find an offence and offender that were identical to any other.
I have set out the details of the offence above. That informs one half of my analysis, which must balance the seriousness of the offence with Keenan George’s level of moral responsibility. I have also been provided with insight into the impact of the offence as well as insight into the background of the offender, Mr. George.
I used the word “tragedy” earlier to describe what happened that night. Tragedy is a big word, but no lesser word would fit here. The reality is that when someone kills another person, the consequences of that killing, for both the victim and the killer, radiate out—both far and deep. In most cases that pain is shared between two family and friend groups, the victim’s and the offender’s. In this case of brother killing brother, there is the added dimension of the family they shared being torn apart.
Four hundred years ago, the poet John Donne wrote that, “No man is an island, Entire of itself…. Any man’s death diminishes me, Because I am involved in mankind.” Kegan George’s death is an example of this. I have listened to and re-read all of the victim impact statements put before me. They are understandably raw, because when Keenan killed Kegan, Kegan was not his only victim, not by a long shot. All of the many people who loved Kegan and who spoke or wrote so earnestly of his kindness, devotion, good humour, positivity, potential, work ethic and especially his unremitting devotion to his son are victims also. Quite apart from the impossible task of making sense of what happened, they must find the strength to pick up the pieces and carry on, an incredibly challenging task. His young son, Leo, along with all those who support him, has lost the love, guidance and future engagement of his father, not to mention the financial stability that Kegan worked so hard at providing and much of the familial connection of a family that has been splintered. His path through life has been made immeasurably harder than it ever needed to be. How can he possibly understand this? How will the loss of his father affect his emotional well-being, his confidence, his development into manhood? Society, as well, is made weaker for this loss because children often do better with two parents and, as Frederick Douglas noted, strong children are key to society’s strength. The damage extends out across Kegan’s family and friends. The debris field left by his killing includes enduring depression on the part of various family members, school and work problems, disharmony within the family, serious health consequences for a number of members of the family including two heart attacks for Kegan’s mother and huge financial challenges for the mother of Kegan’s child.
I have also been provided with a lot of information about the person who caused this damage. I have both a pre-sentence report and a raft of supportive letters to give me insight into him, his history and his character.
Keenan George was born in Trinidad and Tobago, where he lived with his mother and two brothers, a “humble upbringing” in the words of the probation officer, but one, “devoid of any abuse, mistreatment or trauma”. He and two brothers including Kegan immigrated to Canada in 2009, sponsored by their father who was already here. They became part of a large extended family that was very close-knit. He graduated from high-school here, became a Canadian citizen, worked in a variety of jobs and bought his own home around the age of 27, welcoming his two brothers and their partners and pets to live with him and his girlfriend. He has a nine-year-old daughter and spends time with her as much as possible, working to raise her cooperatively with her mother.
Keenan George has no previous criminal record. His work history is impressive. He has never had any issues with mental health or substance abuse. He has no medical issues that are relevant to choosing either the Crown’s view or the defence view of an appropriate sentence. The people consulted by the probation officer who wrote the pre-sentence report and many of the authors of the twenty-one character letters consistently said that Keenan George has no history of violence.
The reference letters are quite simply glowing in their characterizations of Keenan George. For that matter, they sound quite a lot like the victim impact statements about his brother, Kegan, his victim. They speak consistently of a very positive, motivated, diligent person who was selfless in his compassion and support, financial and emotional, for his siblings and his extended family as well as for people he worked with and for people in the community. He comes across as a devoted father. The letters show the compounded tragedy here, in that Keenan’s relationship with Kegan involved a reciprocity of love and support between the two men and that the killing has torn the family apart. Recurrent themes in the letters are that what Keenan George did was entirely out of character, that he is alive to the damage he has caused across his family and that he is deeply remorseful for killing his brother.
The Crown and defence counsel propose dramatically different sentences for Keenan George. As noted earlier the Crown says the proper range—even allowing for all that can be said in his favour—is a sentence of four to five years in the penitentiary, less his pre-sentence custody. The defence asks for a seventeen-month sentence on top of his pre-sentence custody and says that it should be served in the community, as a conditional sentence.
I accept unreservedly that there is no absolute bar to a conditional sentence for manslaughter and that conditional sentences have in fact been granted for manslaughter on occasion, assuming, of course that the appropriate sentence is not two years or longer, which would in and of itself be an automatic bar. Those have been recognized realities in this province for close to a quarter of a century.6 At the same time, the lack of a bar to a conditional sentence does not mean that a conditional sentence will be a common outcome for manslaughter or that it will be an appropriate outcome in any particular case. Every case must be decided on its own facts.7
I take the Turcotte case upon which Ms. Sandulak relies for the imposition of a conditional sentence for manslaughter to be unhelpful in determining the specific question of whether or not Keenan George specifically should be granted a conditional sentence. In the first instance, the decision presents most clearly as one of those occasions on which an appellate court actually remains true to its precise role and authority on a sentencing appeal, that is to say, that the outcome in Turcotte is driven by the Court of Appeal’s recognized duty not to stick its oar in to interfere with a trial judge’s sentence unless a very clear case of error has been made out. In short, the Court of Appeal majority deferred to the trial judge’s conclusion as being within the available range of sentences, all things considered.8
Also, while there are similarities between the Turcotte case and Keenan George’s case, there are significant differences. Perhaps the greatest similarity is that Mr. Turcotte and his victim—his mother—typically got along very well and were described by Mr. Turcotte’s sister as, “best friends”, which carries echoes of the relationship between Keenan and Kegan George. Both men pleaded guilty to manslaughter, although Mr. Turcotte was required to have a jury vindicate that plea,9 which is not a material difference on the facts of that case. I believe it could also be said, that as found by the trial judge in relation to Mr. Turcotte, Keenan George likely presents no risk to the community. Otherwise, though, there are significant differences. Mr. Turcotte had consumed sixteen to eighteen beers leading up to his mother’s killing and had a blood alcohol concentration of 230 mg of alcohol in 100 ml of blood, or almost three times the legal limit for driving a car in this country. He was also on five medications including a pain medication and a sleeping medication and was depressive and, in the opinion of his treating doctor, acting in a psychotic state from the effects of alcohol and his sleep medication. Other than the bare suggestion that Keenan George may have been concussed from being hit in the head with a vase, there is nothing even close to that in the present case in terms of mitigation of personal responsibility and Keenan George only got hit with the vase after he precipitated a verbal and then physical conflict with Kegan.10 Keenan George was driven by anger when he confronted Kegan, not by the seriously diminished judgment that comes from heavy alcohol consumption.
I also note that the family members of the victim and offender in Turcotte were supportive of leniency to Mr. Turcotte, whereas there is a familial split on that topic in the present case. It goes without saying that the views of victims in relationship to sentence cannot be determinative, but where, as in Turcotte leniency appears to have been the shared preference of the victim’s children, it was obviously a factor to be taken into account.
In deciding what is a fit sentence, I must consider the principles and purposes of sentencing set out in the Criminal Code. I must consider any mitigating circumstances, including the fact that Keenan George has pleaded guilty, which saves a broken family from the stress of a trial. I am entirely satisfied that Mr. George is genuinely remorseful for what he has done and that his remorse was in full play within minutes of his crime once he recognized the consequences of his actions. He has no previous criminal record. He has lived a pro-social and productive life and has clearly been a positive force in the lives of family members, friends and fellow workers. He has excellent prospects for rehabilitation.11 He was twenty-eight years old at the time of the offence. I must consider all of this and more and I must remember that imprisonment is to be used with restraint, especially with a first offender.
On the less flattering side of things, rather than staying at the gym and perhaps burning up his frustrations through exercise before going home to address his issues with Kegan rationally, Keenan actively engaged in a text-message slagging match with Kegan and then rushed home to confront him personally. Once the text message argument became a face-to-face argument, it was Keenan who converted it into a physical confrontation, with the slap. When he went into the house, he retrieved a knife while Kegan was still outside and Keenan had to be persuaded to give that knife up. This was a different knife than the one used to kill Kegan. Once he was first pulled off Kegan inside the house and soon after was hit with the vase by Kegan, Keenan retrieved two weapons including the knife from the kitchen and then stabbed Kegan from behind with each weapon as Kegan was walking away, after which no amount of reason and no amount of regret was going to turn back the clock.
As in so many things, of course, Keenan was not alone in this horrific manifestation of anger, immaturity and pride, far beyond what one would expect of someone of his age and positive family and personal background. Having seemingly established a pattern of failing to do his share around the house, Kegan engaged in the immature and unproductive texting back and forth. Although it appears that he and his partner were already looking for alternative places to live by the time Keenan got home, Kegan went into resistance mode when Keenan mentioned that very thing and refused to leave. Kegan picked up the shovel, although he never used it and put it down at Jabari’s insistence. He, however, failed to heed Jabari’s perfect advice to go take a walk and cool off. Once inside the house, he attacked Keenan. None of this is intended to blame Kegan for his own death, and nothing he did justified losing his life, but it takes two to tango. Ironically, it was the youngest of the three brothers who was the most mature. Amber Marino made things worse by inflaming Keenan against Kegan.
I have referred earlier to the many cases put before me and said that I did not plan to refer to them all. I would say that the two cases that I found most apt in my deliberations were the decisions in R. v. Croft 2018 ONSC 4405 and R. v. Smith 2017 BCSC 2513. Both were stabbings. Neither is identical to the present case, but both provide helpful guidance.
Croft was a conviction after trial, which is a fair distinction, although somewhat less so because Mr. Croft was found guilty only of manslaughter after having been charged with second degree murder12. At trial he argued self-defence, which was rejected. Mr. Croft and his brother had disliked each other for ages. One evening as his brother passed by beneath a balcony, Mr. Croft spat at him and called him a “faggot”.13 His brother ignored him and then went to work, but returned early to confront Mr. Croft, clearly hyped up. His brother retrieved an expandable baton from his apartment and put it in the back of his jeans, although he never used it. He then confronted Mr. Croft in another apartment despite the efforts of two women to block his way. The physical fight was uneven as Mr. Croft’s brother was much stronger. His brother delivered the first blow and Mr. Croft was on the defensive. Ultimately, Mr. Croft grabbed an old steak knife from the balcony and stabbed his brother, causing his death.
Mr. Croft’s background bears some similarities to the George family story. He was raised by his mother in Guyana and lived a good life there. At age nineteen he was sponsored by his father to come to Canada, where strife developed with his stepmother. After being attacked with a machete, Mr. Croft lost his home, business and family and developed mental health issues. Alcohol use played a significant role in his offence. The judge described him as a broken man. He imposed a sentence of six years less credit for pre-sentence custody.
Smith was yet another of these tragic cases. Mr. Smith’s family had been deeply disadvantaged by its experience with the residential school system, “lives filled with violence, addiction, abandonment, suicide, homicide, neglect”(at paragraph 2). One day, in an alcohol-fueled, consensual fight, Mr. Smith stabbed his uncle once and killed him. Mr. Smith was nineteen years old and had no criminal record, but in his family alcohol, drugs and violence were simply a way of life, taught by his uncles. Mr. Smith had pleaded guilty and the judge found there was an element of provocation, although the introduction of the knife was an aggravating factor. Even with his tragic family background and indigenous factors, the sentence imposed—at the low end of the range as stated by a clearly and understandably sympathetic judge—was a sentence equivalent to thirty-eight months’ imprisonment.
In the present case, this was a very serious criminal act, committed by a mature, otherwise rational person and driven by anger over disrespect arising out of a relatively trivial set of affronts involving housework and the “rules” of the home. Keenan George’s judgment was not impaired by alcohol or drugs. He and Kegan were the product of a positive family upbringing. Even allowing for the blow to the head as some sort of “provocation”, Keenan George’s moral responsibility for what he did remains significant. There is nothing about the facts of this case or the background of Keegan George as the offender that puts it remotely in the range of a reformatory sentence. To impose a sentence of the length proposed by the defence here would be to significantly diminish the value of Kegan George’s life and would be inconsistent with the courts’ responsibility to denounce what happened here. Even where there may be no need for specific deterrence in relation to Keegan George personally, there remains a need for general deterrence—a message to society at large that behaviour like what happened here exposes an offender to a significant prison term. The sanctity of human life is a cornerstone of our society and of our country’s belief system and it must be made clear that while the physical consequences of going down the slippery slope of unrestrained anger may be unpredictable, where that slope leads to the death of another human being, the consequences will be significant. While not the only sentencing considerations in this case, denunciation and general deterrence are the predominant considerations. While general deterrence must be used with restraint for a first offender, that restraint applies to reduce what would otherwise have been a longer sentence for a defendant with a criminal record.
Conclusion
44.
Conclusion
In all the circumstances of this case, I am of the view that any sentence less than four years would fail to respond to the requirements of a fit sentence. As Mr. George has served the equivalent of seven months of pre-sentence custody before his release on bail, the sentence remaining to be served will be forty-one months.
As the proper sentence for Mr. George is more than two-years-less-a-day, he is not eligible for a conditional sentence.
Mr. George will be required to provide a sample of his DNA for inclusion in the DNA data bank.
There will be a weapons prohibition under s. 109(2) of the Criminal Code for life.
Released: 17 February, 2024
Footnotes
Footnotes
- Ms. Sandulak made reference to the pre-sentence custody having been spent at a time when Covid was still an issue in the jails, which she said might make for a somewhat greater credit, although she did not press the point. I am disinclined to take the credit for pre-sentence custody beyond where the arithmetic takes us. There is no evidence before me about the real-time Covid consequences at Niagara Detention Centre when Keenan George was there. There has also been, with respect to those of a different view, somewhat of an emphasis on how conditions were with Covid in jails, without any countervailing consideration that life on the outside was not exactly normal at the same times, meaning that even people who were at liberty, whether charged with a crime or not, were themselves enduring significant challenges and receiving no comparable discount for it. Any rational assessment of credit for Covid conditions has to take that into the mix. Ultimately, however, in the present case there is no evidentiary basis upon which to grant additional credit that is not agreed upon between the parties.
- I was given a 132-paragraph agreed statement of facts setting out the backgrounds of the people involved and what happened leading up to the fight, during the fight and after the fight. I do not intend to reproduce that level of detail here, but have distilled the facts down to some of their most important elements.
- Examination showed two cuts on Keenan’s head, as well as a bite mark on his arm
- The cases put before me include the following: R. v. Ali, 2022 ONCA 736; R. v. Turcotte 2000 ONCA 14721, [2000] O.J. No. 1316 (O.C.A.); R. v. Simcoe, Docket: C36047 (O.C.A.); R. v. Noj [2022] O.J. No. 5875 (O.C.J.); R. v. Lemoine [2001] O.J. No. 6244 (O.S.C.J.); R. v. Torrezao [2018] O.J. No. 2198 (O.S.C.J.); R. v. Morris, 2018 BCSC 803; R. v. Clarke 2023 ONSC 347, (O.S.C.J); R. v. Lecaine, (No. 8901-0272-C6) (ABQB); R. v. Maulen [2022] B.C.J. No. 500 (B.C.S.C.); R. v. Young [2016] O.J. No. 5512 (O.C.J.); R. v. Hayhoe [2020] O.J. No. 5967 (O.S.C.J); R. v. Alvarado 2022 ONCJ 577; R. v. Gordon 2020 ONSC 7395; R. v. Croft 2018 ONSC 4405; R. v. Smith 2017 BCSC 2513; R. v. Bennett 2016 NBQB 78; R. v Engebretsen, 2016 BCCA 182; R. v Seguin 2016 BCPC 31; R. v Brinton 2014 ONSC 5970; R. v Taylor 2013 ONSC 3370; R. v Williams 2013 BCSC 1082.
- A helpful canvas of this issue can be found in the judgment of Hill J. in R. v. Hermiz, [2007] O.J. No. 1589 (ON SCJ). See also R. v. Creighton, 1993 SCC 61, [1993] S.C.J. No. 91, paragraph 86.
- See R. v. Turcotte, 2000 ONCA 14721, [2000] O.J. No. 1316 (ONCA), at paragraph 19. In the same decision, however, Catzman J.A. also noted that, “many, if not most, sentences for manslaughter are in the penitentiary range.” In his dissent, at paragraphs 39-41, MacPherson J.A. points out that many conditional sentence manslaughter cases have involved, “very profound mitigating circumstances”, which are not matched in the present case. Frustration over a shower hose, for example, does not come close to killing someone who has, “engaged in years of physical, sexual and emotional abuse.”
- The Court of Appeal also showed openness to a conditional sentence in R. v. Simcoe, 2002 ONCA 5352, a case in which it ultimately reduced a fifty-six month sentence to time served of twenty-eight months. But for the time having been already served, the Court said a conditional sentence would have been appropriate, but the provocation at play in Simcoe and the offender’s personal background, all of which are set out at paragraph 25 of the Court’s reasons (including alcohol consumption, extreme provocation and a list of traumas endured by Ms. Simcoe), far exceed anything present in Mr. George’s case. A conditional sentence was also imposed for manslaughter in R. v. Hayhoe, [2020] O. J. No. 5967 (Fuerst J.). I note, however, that that case was a joint submission and the conditional sentence was imposed on top of the equivalent of 14 ½ months of pre-sentence custody followed by a strict bail. Most importantly, the evidence in that case made it clear that Mr. Hayhoe’s health condition meant that a sentence of real jail was very likely to be a death sentence.
- See paragraph 16 of Turcotte. Whether or not the rules about appellate intervention in sentence appeals are more honoured in the breach than the observance is a topic for another day.
- The Crown refused to accept Mr. Turcotte’s plea of manslaughter at the start of the trial and proceeded to try him for second degree murder, but the jury returned a manslaughter verdict in the result, the charge he was willing to plead to at the start.
- I accept that where there has been provocation, any such provocation may be relevant to the appropriate sentence, even if the provocation has already formed the underpinning for a reduced charge of manslaughter: see R. v. Stone, 1999 SCC 688, [1999] 2 S.C.R. 290, at p. 407. The value of any provocation here (i.e. the hitting with the vase by Kegan Smith) is substantially diluted by the fact that it was Keenan Smith who initiated the face to face confrontation, it was he who engaged in the first physical act (the slap to Kegan’s face) and he had already acquired a knife in the kitchen while Kegan was isolated in the back yard behind the patio door. It is true that Kegan was the first to pick up a weapon (the shovel), although he never used it and, due to the actions of Jabari and the girlfriends holding the door shut the shovel was never really in play. I also recognize that there were things that Kegan could, and should, have done differently, that would almost certainly have led to a different outcome, including being more mature in his treatment of his brother’s home, going for a walk to calm down as suggested by Jabari and not re-initiating the physical confrontation once he got inside the house.
- Mr. George’s counsel made passing references to the relevance of anti-black racism and the clearly disadvantageous social circumstances endured by many black people in Canadian society as discussed by the Court of Appeal for Ontario in R. v. Morris, 2021 ONCA 680. It must be kept in mind, that, to the extent that Morris applies to a particular sentencing decision, it applies only to the moral responsibility element of sentencing, not to reduce the seriousness of the offence as a consideration. The relevance and application of the decision in Morris will vary from case to case. I note that, at paragraph 79 of Morris, the Court of Appeal says that social context evidence (e.g. about the black experience in Canada), may shift the focus from specific deterrence to a more rehabilitative focus. This consideration is not relevant here as I am satisfied that there is no need at all for a specific deterrence focus on Keenan George; he is not likely to appear before the court again. By contrast, the social context reality to which Mr. George’s counsel made reference does not change anything in relation to the objectives of general deterrence or denunciation: see paragraphs 82-86 of Morris. That being said, every offender’s background and life circumstances will play a role in his or her sentencing analysis, which necessarily includes any circumstances derived from his or her race, among other circumstances. However, the mere fact that Keenan George is black clearly does not change the sentencing analysis without more: “Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount.”: paragraph 97 of Morris. I do not consider the defence comparison of this case with Justice Hornblower’s decision in R. v. Noj, [2022] O.J. No. 5875, a case with Gladue considerations, to be at all apt, either in terms of the offenders’ backgrounds or in terms of the underlying facts.
- The judgment does not show if Mr. Croft had been offered a manslaughter plea before trial or not.
- Ms. Sandulak relies on this comment as making a difference between the two cases. While there is no spitting on Keenan George’s part, I would treat Keenan’s calling Kegan a “mother cunt” as being equally provocative as Mr. Croft’s “insult”.