ONTARIO COURT OF JUSTICE DATE: 2022 12 15 COURT FILE No.: Brampton 21-3110804
BETWEEN:
HIS MAJESTY THE KING
— AND —
VICTOR ALVARADO
Before Justice Sandra Caponecchia Heard on November 30, 2022 Reasons for Sentence Released on December 15, 2022
K. Holmes and J. Vlacic.................................................................... counsel for the Crown T. Mackay.......................................................... counsel for the accused Victor Alvarado
CAPONECCHIA J.:
Introduction
[1] Mr. Alvarado caused the death of his friend, Orlando Donaldson, by stabbing him once with a knife during the course of an argument on July 9, 2021.
[2] The two men met in a shelter earlier the same year. They proceeded to rent a room in the same house. Disputes began to arise, the details of which are contained in an agreed statement of facts. [1] The defendant complained to his landlord, probation officer, father, and doctor about Mr. Donaldson, who was physically bigger than the defendant. For several days before the offence, the defendant stayed in a shelter to avoid the deceased.
[3] The defendant returned to his rooming house the same day of the offence after being encouraged to do so by his father. On July 9, 2021 at approximately 8:00 am an argument ensued between Mr. Alvarado and Mr. Donaldson. The defendant believed Mr. Donaldson was responsible for pushing him down some stairs. Mr. Alvarado exited the house and Mr. Donaldson followed. The defendant called 911 for assistance and was put on hold. The movements of both parties outside the home is captured on a surveillance camera. The deceased can be heard shouting at the defendant "call them, call them." The parties can be seen walking in separate directions, following which the deceased raised his arm towards the defendant and made a gesture that Mr. Alvarado found threatening. Mr. Alvarado hung up on 911, turned around, approached the deceased and stabbed him once. The stabbing takes place outside the view of the surveillance camera. Mr. Alvarado proceeded to pick up Mr. Donaldson's backpack and leave. Mr. Donaldson's backpack was located by police on a garbage container at a nearby bus stop, it contained two knives and Mr. Donaldson's identification.
[4] A post-mortem examination revealed that the cause of death was a single stab wound to the anterior torso which entered his diaphragm and struck the left ventricle of Mr. Donaldson's heart.
[5] After Mr. Alvarado left the scene, he proceeded to take a bus and attend an appointment with his probation officer, following which he met his dad for lunch. He told his dad he had an argument with Mr. Donaldson, that he brandished a knife and "what happened happened." Mr. Alvarado's dad advised his son to notify his probation officer about what happened. Mr. Alvarado followed his dad's advice, and they called Mr. Alvarado's probation officer. The defendant told his probation officer that the deceased had pushed him down some stairs, and that he had "cut" Mr. Donaldson.
[6] Mr. Alvarado's probation officer called police and Mr. Alvarado was arrested later the same day for murder. At the time of the offence Mr. Alvarado was on a community treatment order and receiving medication for schizophrenia. Mr. Alvarado was subsequently assessed by a psychiatrist who did not support a finding of NCR.
[7] A preliminary hearing took place before me in September 2022. Mr. Alvarado subsequently entered a plea of guilty to manslaughter on November 30, 2022.
POSITION OF THE PARTIES
[8] The Crown submits that a sentence of 7 years incarceration is a fit sentence.
[9] The defence position is 5 years jail is the appropriate sentence.
[10] There is also no dispute that a DNA sample and a weapons prohibition for life should be ordered.
THE OFFENDER
[11] Mr. Alvarado is 37 years old. He had a positive upbringing. He grew up with three siblings and both his parents. He continues to enjoy the love and support of his parents.
[12] Mr. Alvarado started coming into conflict with others in high school and did not obtain all his credits to graduate.
[13] He started using cannabis regularly at the age of 15. At the time of the offence, he was using various substances regularly.
[14] At the age of 19 Mr. Alvarado started experiencing feelings of "fear." He was diagnosed and received treatment for paranoid schizophrenia. Between November 2013 and June 2021, he was hospitalized voluntarily and involuntarily for mental health issues approximately 22 times. In the six months preceding the offence he was seeing Dr. Banik monthly and was complying with a community treatment order.
[15] Mr. Alvarado has been in receipt of ODSP since the age of 21 and also works intermittently.
Aggravating Factors
1. The Victim Impact Statement
[16] Orlando Donaldson was 39 years old when he died. His death has impacted his entire family: his parents, siblings, nieces, and nephews. His sister, Sobrena Donaldson, submitted a Victim Impact Statement in which she described the cherished relationship she shared with her brother and the loss to their entire extended family.
[17] Mr. Donaldson was the father of 5 children. The mother of his children, Elisha Christopher, read her victim impact statement at the sentencing hearing. She detailed the impact the death of Mr. Donaldson has had on her and her kids. She is now a single mother raising their children alone. She is deeply saddened that her children will grow up without a father and to have lost Mr. Donaldson's support and friendship.
2. Weapon
[18] There can be no doubt that the introduction of knife into verbal dispute between two tenants who were previously on friendly terms is aggravating. That said, I balance this factor against the fact that Mr. Alvarado did not resort to a knife immediately. He first exited the residence and called 911 for help. Mr. Alvarado only took out a knife after being kept on hold by 911, and after Mr. Donaldson raised his arm towards him in what Mr. Alvarado perceived to be a threatening gesture.
3. Criminal Record
[19] Mr. Alvarado's relevant criminal record includes crimes of violence that are of concern. The defendant first came before the court for assault as a youth in 2002. He has 14 criminal convictions as an adult. In 2017 he was convicted of aggravated assault for injuring his father with a knife. In 2021 he was convicted of uttering death threats against his 34-year-old brother. At the time of the offence, he was on probation for the offences against his family members. His father had given consent for contact to Mr. Alvarado's probation officer. According to his criminal record Mr. Alvarado has never been in jail for longer than 60 days.
4. Concealment of the Murder Weapon
[20] The Crown submits that Mr. Alvarado's concealment of the knife he used is an aggravating factor. I give this factor modest weight because the case against Mr. Alvarado was not made any weaker by the inability of the police to locate the knife following his arrest, and because Mr. Alvarado gave police information as to where they might be able to locate the weapon.
5. Flight
[21] The Crown submits that Mr. Alvarado's flight after he stabbed Mr. Donaldson is an aggravating factor. I agree that generally leaving someone for dead after knowingly inflicting a fatal stab wound is a highly aggravating factor. In this case, however, I am not satisfied beyond a reasonable doubt that when Mr. Alvarado left the scene, he did so out of callous disregard for whether Mr. Donaldson lived or died. I am not so satisfied for three reasons:
[22] For one, Mr. Donaldson is seen on surveillance first walking away before he collapsed several feet away from where he was stabbed. He then can be seen running away. Mr. Alvarado and Mr. Donaldson both walked in different direction after the physical encounter. I am not convinced that when Mr. Alvarado walked away, he knew that Mr. Donaldson had collapsed on the sidewalk behind a parked car.
[23] Two, I am not convinced that when Mr. Alvarado left the scene, that he appreciated the extent of the injury he caused. Mr. Alvarado did not make any admission to knowingly have inflicted a fatal stab wound to either his father or probation officer. When Mr. Alvarado spoke to his probation officer about what happened, Mr. Alvarado reported having only "cut" Mr. Donaldson.
[24] The agreed statement of fact does not include a description of the movements or position both individuals were in when Mr. Alvarado struck Mr. Donaldson with a knife. Later the same day Mr. Alvarado had a scratch on his face, and his DNA could not be excluded from the source located under Mr. Donaldson’s fingernails. Mr. Donaldson was taller and larger than Mr. Alvarado. The stabbing took place off camera. Seconds prior to the two moving off screen there is video depicting Mr. Donaldson with his arm raised towards Mr. Alvarado. Screaming and yelling can be heard from the video seconds later when the stabbing takes place.
[25] Three, I also take into consideration that Mr. Alvarado's flight is consistent with other avoidant behaviour the defendant engaged to manage his fear of Mr. Donaldson, including the following:
(1) Mr. Alvarado stayed away from home, and went to a shelter for several days before the offence;
(2) The conflict started inside the home, Mr. Alvarado exited the house and called 911; and
(3) While on hold with 911, Mr. Alvarado began walking away from Mr. Donaldson, and only changed direction when Mr. Donaldson raised his arm towards Mr. Alvarado.
[26] In short, while Mr. Alvarado takes responsibility for intentionally assaulting Mr. Donaldson with a knife and inflicting the single stab wound that caused his death, I am not satisfied that when the defendant fled, he knew the extent of the damage he caused, or that Mr. Donaldson collapsed and that he left out of callous indifference for Mr. Donaldson's wellbeing.
Mitigating Factors
1. Guilty Plea
[27] I accept that Mr. Alvarado’s plea is a genuine sign of his remorse for his actions and the harm he caused.
[28] In his elocution at the sentencing hearing, Mr. Alvarado displayed genuine remorse for his actions.
[29] This guilty plea is a meaningful one, made at a time when there is a backlog at all levels of court due to the Covid-19 pandemic.
[30] This guilty plea is particularly meaningful given the triable issues in this case. Based on the evidence I heard at the preliminary hearing, the Agreed Statement of Facts, and Mr. Alvarado's self-report to a forensic psychologist, self-defence was a live issue in this case. There is no dispute that Mr. Alvarado suffered from a mental illness at the time which coloured his perception of the threat Mr. Donaldson posed, as well as his judgment as to what was a reasonable response. If this matter proceeded to trial, the Crown would be hard pressed to dispute that Mr. Alvarado perceived Mr. Donaldson to be a threat, and this case would have come down to a jury deciding whether the defendant's actions were disproportionate to the threat Mr. Alvarado perceived.
2. Mental Health
[31] I am required to determine the extent to which Mr. Alvarado’s mental health contributed to his actions when imposing an appropriate sentence: R. v. Ellis, 2013 ONCA 739.
[32] In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct: R. v. Robinson, [1974] O.J. No. 585 (C.A.).
[33] Dr. Jones’ report satisfies me there is such a causal link in this case. At the time of the offence Mr. Alvarado was on a community treatment order for schizophrenia. Notwithstanding the medication he was taking, he continued to have paranoid thoughts about Mr. Donaldson. He complained to his landlord, father, probation officer, and doctor. He went to a shelter instead of living under the same roof as Mr. Donaldson. Dr. Jones’ report satisfies me that Mr. Alvarado had some vague paranoid ideations in relation to Mr. Donaldson which more than likely arose from his underlying disease. While Mr. Alvarado’s illness may have fallen short of depriving him of appreciating the nature and quality of his acts or knowing they were wrong, I am satisfied that, but for his underlying disease, he would not have perceived Mr. Donaldson as a threat.
3. Harsh pre-trial conditions during Covid
[34] As of November 30, 2022 Mr. Alvarado spent 259 out of 509 days, or half his time in pre-trial custody, under full lock down at the Maplehurst Detention Centre. Full lockdown means Mr. Alvarado was confined to his cell. While in lockdown Mr. Alvarado did not have the option to spend 6.5 hours a day outside his cell to use the day room. Mr. Alvarado was also in partial lockdown for an additional 14 days.
[35] The parties jointly submit that the unusually harsh pre-trial detention conditions are a mitigating factor that warrants a reduction in sentence of nine months. [2]
[36] Sometimes a specific number of days or months are given is what has been commonly referred to as "Duncan" credit, named after an Ontario Court of Appeal case by the same name which I am bound to follow. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the "Duncan" credit, only one of presumably several relevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence. If treated in that way, the "Duncan" credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. Marshall 2021 ONCA 344, [2021] O.J. No. 2757 (CA) para. 53.
[37] "Duncan" credit is one of the mitigating factors to be taken into account; however, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors: Marshall, para. 52.
ANALYSIS
[38] The range of sentences imposed in manslaughter cases is very broad. The reason for the range of sentencing for manslaughter was explained by the Supreme Court of Canada in R. v. Creighton, [1993] 3 S.C.R. 3 at 48:
... Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender.
[39] Sentences for manslaughter vary from a suspended sentence to sentences of life imprisonment. An appropriate sentence for manslaughter "must reflect our society's concern for the sanctity of life," and ordinarily "a lengthy sentence must be imposed having in mind the gravity" of the crime: R. v. Head, [1985] O.J. No. 153 (Ont. C.A.).
[40] As a general rule, severe sentences are imposed proportionate to the gravity of the offence of manslaughter: R. v. Turcotte, (2000), 48 O.R. (3d) 97 (Ont. C.A.) at para. 19.
[41] The availability of probation should not dictate a reformatory sentence, but it can be a secondary benefit of one: see: R. v. Croft, [2018] O.J. No. 3779 (S.C.J).
[42] Both the Crown and defence submitted various sentencing cases in support of their respective positions.
[43] The two cases submitted by the defence are of limited guidance because they do not involve an assault with a lethal weapon, a knife, by someone like Mr. Alvarado who suffers from schizophrenia.
[44] Of all the case submitted by the Crown, I find R. v. Haslett, [2015] O.J. No. 4753 to be the most helpful because it involved a single stab wound inflicted on a resident of a rooming house by another resident who suffering from schizophrenia. The offender was sentenced to eight years, less pre-trial custody. However, Mr. Haslett, unlike Mr. Alvarado, was not complying with his course of treatment at the time of the offence and did not plead guilty. Mr. Haslett was found guilty of manslaughter after a trial.
[45] The court in Haslett took guidance from other cases. One such case is, R. v. Cantaderio, [2002] O.J. No. 5242 (SC). In that case, the court sentenced an 18-year-old suffering from chronic schizophrenia as well as a severe cognitive impairment, who had inflicted a fatal stab wound in a fight, to seven years incarceration, less 24 months credit for pre-sentence custody. The offender plead guilty, but unlike Mr. Alvarado, had no criminal record.
[46] In another case, R. v. Gray, [1995] O.J. No. 236, Watt J. as he then was, sentenced a 29-year-old person with paranoid schizophrenia to 6 years. The offender pled guilty to manslaughter for killing his partner by kicking her in the head. Unlike in Mr. Alvarado's case, no weapon was used, and the offender had no record for violence.
[47] What I take from all the cases is that sentences of 7 and 8 years for manslaughter have been imposed upon offenders who suffer from schizophrenia and cause the death of another human being by inflicted a single stab wound. I also take from the cases that that the pertinent sentencing principles, in a case such as this one, are denunciation, general deterrence, and individual deterrence.
[48] That said, general deterrence is a factor of decreased significance in cases where an offender’s behaviour is driven by mental illness: R. v. Dedeckere, 2017 ONCA 799.
[49] Individual deterrence and denunciation are of paramount importance in this case.
[50] Individual deterrence is important here given Mr. Alvarado’s criminal record for assaultive behaviour. He has a prior record for assaulting his dad with a knife.
[51] As for Mr. Alvarado's moral blameworthiness, I am satisfied Mr. Alvarado tried to manage his fear of Mr. Donaldson using the options available to him. He was complying with a community treatment order and taking medication for his disease. He spoke others about how he was feeling about Mr. Donaldson. He left his home and belongings to go stay in a shelter when his probation order prohibited him from returning home. On the day of the offence when a disagreement arose at the house he walked outside and called 911 for help, only to be placed on hold. Once outside, Mr. Alvarado began to walk away and changed course only after Mr. Donaldson engaged him by raising his arm towards Mr. Alvarado.
[52] With all that said, I agree with Justice Durno's observations in R. v. Hagendorf, [2000] O.J. No. 6072 (S.C.J.). Having reached a conclusion regarding the impact of mental illness on sentence it is important to note that mental illness, while a significant factor, should not eclipse the gravity of offence.
[53] The principle of denunciation is of central importance because the imposition of a substantial jail sentence is vital in cases such as this where a loss of life ensues as a result of the introduction of a knife into an argument between residents of a rooming house. The sentence imposed in this case must express, to the extent it can, society's denunciation of Mr. Alvarado's conduct in unlawfully taking the life of a fellow human being. The sentence imposed must reflect the core societal value of the sanctity of human life.
[54] I conclude, after considered Mr. Alvarado’s background, the circumstances of the offence, the aggravating and mitigating factors, including the harsh pre-trial conditions, and applying the principles of sentencing that a fit sentence in Mr. Alvarado's case is six years incarceration (or 72 months).
[55] As of today, Mr. Alvarado has spent 524 days in pre-trial detention. Pursuant to s. 719.(3.1) of the Criminal Code I am deducting 786 days, the equivalent of 26 months, from the six-year sentence.
[56] Pursuant to s. 719(3.3) the warrant of committal will record the time he spent in pre-trial detention - 524 days, the credit he received for it - 786 days, and the remaining sentence to be served, 46 months.
[57] As for the ancillary orders requested, manslaughter is a primary designated offence under s. 487.04 of the Criminal Code, and there will be a DNA databank order under Section 487.051, as well as order pursuant to section 109 of the Criminal Code prohibiting Mr. Alvarado from possessing the weapons enumerated in that section for life.
[58] A copy of these reasons for sentence shall be prepared and are to accompany the warrant of committal, along with the agreed statement of facts, Dr. Jones’ report and the two victim impact statements.
Released: December 15, 2022 Signed: Justice Sandra Caponecchia
[1] See Exhibit 7 on sentencing [2] The defendant’s lockdown records were made Exhibit 8 in these proceedings. As of November 30, 2022, he spent 259 of his 524 days (approximately half his in time) in full lock down, and 14 days in partial lock down.
