Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 04 08

COURT FILE No.: BRAMPTON 22-31103989

BETWEEN:

HIS MAJESTY THE KING

— AND —

EZEKEL VINCENT

Before: Justice P.T. O’Marra

Heard on: November 30, 2023, February 14, and March 15, 2024

Reasons for Judgment on Sentence released on: April 8, 2024

Counsel: V. Aujla and I. Horic........................................................................... counsel for the Crown D. Sarikaya......................................................... counsel for the accused Ezekel Vincent

P.T. O’Marra, J.:

Overview

[1] On June 19, 2022, Kenroy Benjamin shot and killed Sheldon Taylor in cold blood in front of the Chandi Convention Centre (hereinafter “the banquet hall”) located at 5 Gateway Blvd. in Brampton. Immediately afterwards, Mr. Taylor’s good friend, Ezekel Vincent, chased Mr. Benjamin as he fled through the banquet hall parking lot and fired his handgun eight times at Mr. Benjamin, killing him.

[2] Mr. Vincent was charged with second degree murder. I conducted a one-day preliminary hearing and committed Mr. Vincent to stand trial on that charge.

[3] On November 30, 2023, a new information was put before the court and Mr. Vincent plead guilty to manslaughter.

[4] He now stands to be sentenced on that offence.

Factual Background

[5] On the evening of June 19, 2022, Mr. Vincent attended the banquet hall. He arrived with a group of men consisting of Robert Dallas, Steve Hutchinson, Dwight King, and Sheldon Taylor. Shortly thereafter, Kenroy Benjamin, along with other people, also attended at the banquet hall. Both groups proceeded through the security line and entered the hall.

[6] Both groups seemed to stay in the lobby area. However, a short time later both groups left the banquet hall. Mr. Vincent was the first to leave and the rest of his group followed. Mr. Vincent went to the parking lot where he entered his BMW. He moved his car out of its parking space and but left it running in a laneway of the parking lot. When he exited from his car, he put on a two-tone, grey and white jacket.

[7] Mr. Vincent and his group proceeded back to the front entrance of the banquet hall.

[8] Meanwhile, Mr. Benjamin’s group had also returned to the front entrance of the banquet hall. Upon Mr. Benjamin’s return, he was wearing a green jacket.

[9] Both groups met in the line-up near the front entrance. After a short period of time Mr. Benjamin can be seen on the parking lot surveillance video, to step back and shoot Mr. Taylor in the head, killing him. Mr. Vincent then immediately began to shoot at Mr. Benjamin as he fled on foot. Mr. Vincent chased after Mr. Benjamin and fired repeatedly towards his back until Mr. Benjamin fell to the ground. Mr. Vincent then approached Mr. Benjamin while he laid on the ground and shot him in the head at close range.

[10] Mr. Vincent fled on foot.

[11] The post-mortem examination revealed that Mr. Benjamin’s body had eight entry wounds. He had three gunshot wounds to his back, four to his arms, and one to his head.

[12] None of the handguns involved in the shootings were recovered.

[13] Mr. Vincent was arrested on August 10, 2022. He has been in custody at Maplehurst Correctional and Detention Complex.

Was Mr. Vincent already in possession of a handgun, or was a handgun passed to him by someone after Mr. Taylor was shot?

[14] Before proceeding further, it is incumbent upon me to make findings of fact about certain aspects of this offence.

[15] The Defence maintained that Mr. Vincent did not arrive at the banquet hall in possession of a handgun. Immediately after Mr. Taylor was gun down by Mr. Benjamin, an unidentified friend passed Mr. Vincent a handgun which was used to kill Mr. Benjamin.

[16] The Crown argued that the video evidence did not support the Defence’s position.

[17] Despite the difference of opinion, the Defence always submitted that leading up to the shooting Mr. Vincent was “jointly” in possession of the handgun.

[18] When the facts are sought by the prosecution, or otherwise are aggravating, the prosecution has the burden to prove said facts beyond a reasonable doubt: Criminal Code ss. 724(3)(b) and (e).

[19] Section 724 of the Criminal Code of Canada provides, in pertinent part:

(2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury's verdict [of guilty]; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;

(b) the party wishing to rely on a relevant fact ... has the burden of proving it;

(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact.

[20] The assessment of competing versions is subject to precise legal standards driven by the presumption of innocence and the burden of proof. I do not approach resolution by asking which version I prefer. Rather, I must decide whether, on all the evidence, or the lack of evidence, the Crown has proven it was Mr. Vincent who brought the handgun to the scene of the shooting beyond a reasonable doubt.

[21] No viva voce evidence was called on this point. Counsel agreed that I could resolve the issue by examining the parking lot surveillance video which was played extensively during sentencing submissions. In this effort, I must examine the differing versions against the physical and independent evidence.

[22] I reject the Defence theory that Mr. Vincent was passed or found the handgun to shoot Mr. Benjamin after Mr. Benjamin shot Mr. Taylor to death.

[23] Mr. Vincent left the banquet hall after a confrontation inside and immediately went to his BMW. He moved it out of a parking space and positioned the car in the parking lot laneway. He exited the car and left the engine running with the lights on. He changed his clothes. In my view there is a strong inference that Mr. Vincent left the BMW with a handgun expecting a confrontation. I find that Mr. Vincent was not looking to kill anyone that evening just that he returned to the banquet hall armed.

[24] On the parking lot surveillance video loud voices can be heard and then the 2–3 gunshots fired at Mr. Taylor by Mr. Benjamin, and then all subsequent gunshots are fired by Mr. Vincent. This segment in the video is helpful in my determination if Mr. Vincent had already possessed a handgun, or picked one up, or was handed one from someone else. Mr. Taylor’s murder took place near two vans and three cars. When Mr. Benjamin shot Mr. Taylor, one of the rounds struck the wall ricocheting near him causing dust to fly up. Watching frame by frame, Mr. Vincent is not observed to bend down or dip below the white Honda to retrieve a handgun but runs out from behind the Honda and begins to shoot Mr. Benjamin. Furthermore, before any shots are fired, Mr. Vincent is always standing near Mr. Hutchinson and seems to be reaching into his pocket.

[25] I simply do not accept that Mr. Vincent conveniently found a gun at his feet the moment his friend Mr. Taylor was shot.

Positions of the Parties

[26] The Crown submitted that the general range of sentence established by the Ontario Court of Appeal for offences of manslaughter is 8-12 years. However, with the kind of aggravating features the Crown said are present in this case, the Crown submitted that a sentence of imprisonment of between 12-14 years is warranted. The Crown submitted that the circumstances surrounding the killing of Mr. Benjamin, including bringing a loaded handgun to a public gathering and the pursuit of Mr. Benjamin, call for a sentence, not only at the top of the 12-year upper limit of the range, but with a further two years beyond that range. It relies upon the following cases: R. v. Bellissimo, 2009 ONCA 49; R. v. Ghebreigziabiher, 2012 ONSC 5384; R. v. Husbands, 2019 ONSC 6824; R. v. Almaktari, 2010 ONCA 802; R. v. Robert-Stevens, 2019 ONSC 257; R. v. Yaali, 2018 ONSC 3058; R. v. Hanan, 2020 ONSC 1209. The sentences in these cases, except one, range from 10 to 15 years and all involve the use of a firearm.

[27] The Crown reminds me that there is a minimum sentence here of four years since there is a firearm used in the commission of this offence.

[28] The Defence did not dispute the circumstances that led to the killing of Mr. Benjamin which brings the appropriate sentence in the range of 8-10 years; however, submits that Mr. Vincent is deserving of the low end of the range, less pre-sentence custody credit, including mitigation for the harsh conditions at the Maplehurst Correctional Complex. The Defence provided the following cases: R. v. Morris, 2021 ONCA 680; R. v. Jones-Solomon, 2015 ONCA 654; R. v. Cleyndert; R. v. Devaney; R. v. Clarke; R. v. Mohamed, 2023 ONSC 5291; R. v. MacKinnon, 2022 ONSC 1349; R. v. Cheveldayoff, 2018 ONSC 5700; R. v. Scopelliti, 2018 ONSC 4713; R. v. Klimovich, 2013 ONSC 2888; R. v. Gill, 2011 ONSC 1950; R. v. Docherty, 2010 ONSC 2728; R. v. Medwid, 2009 ONSC 1992; R. v. Hermiz, 2007 ONSC 1589.

Evidence/Material Submitted

[29] I have carefully considered the submissions of both counsel along with the various exhibits filed at the sentencing hearing, including: the agreed statement of fact; the Crown’s section 540(7) application materials; the Maplehurst Correctional Complex (Maplehurst) lockdown summary report; the victim impact statement provided by the spouse of Mr. Benjamin, the USB of video surveillance depicting the event; the affidavit of Lisa Smith, a Criminal Intelligence Analyst of the Specialized Enforcement Bureau employed by the Peel Regional Police Service, that provided statistics regarding the prevalence of gun violence in the Region of Peel for the years 2014-2023; Ezekel Vincent’s affidavit that outlined the difficult and abhorrent living conditions at Maplehurst; a will state from Maplehurst Staff Sergeant Marcia Fegan that addressed the concerns raised in Mr. Vincent’s affidavit and 22 letters of support from family, friends, and previous employers. The Defence also provided a letter from Mr. Taylor’s fiancé. I have also considered the very helpful caselaw filed by both counsels.

[30] The parties declined to cross-examine on any of the materials that were provided, including Mr. Vincent’s affidavit and Staff Sergeant Fegan’s will state.

The Victim, Mr. Benjamin

[31] Mr. Benjamin was married and a father of two children. He had a one-year-old and two-month-old when he was killed. He was 28 years old. He was born in Jamaica and emigrated to Canada.

[32] His wife provided a victim impact statement. She has been left a widow and a single mother. She described Mr. Benjamin as “an amazing dad and loved his kids more than anything in the world.” She is saddened and traumatized over the fact that her children will never have their father back.

The Accused, Mr. Vincent

[33] Counsel waived the necessity of a PSR and did not seek for an enhanced PSR. Much of Mr. Vincent’s personal circumstances and life experiences were submitted by counsel on his behalf.

[34] Mr. Vincent does not have a criminal record.

[35] Mr. Vincent is 38 years old. He was born in Trinidad and is a Canadian citizen. His mother worked in a hair salon and his father was a welder. His parents separated when Mr. Vincent was very young.

[36] He grew up in very difficult conditions. His neighbourhood was described as a ghetto. His home lacked a stove.

[37] His mother left Trinidad when he was 12 years old. He moved into his father and stepmother’s home where he was forced to do all the chores in the home. He suffered corporal punishment.

[38] When he was 13 years old, Mr. Vincent moved into his grandmother’s home.

[39] During his teenage years, he was targeted by bullies and often assaulted. He experienced the following incidents of violence:

• When he was 15 years old, he and his friend were shot at. His friend was mistakenly shot in his leg and stomach.
• When he was 14 years old, Mr. Vincent was stabbed in his chest during a robbery, and subsequently hospitalized.
• When he was 16 years old, while fleeing from another attempted robbery, Mr. Vincent was stabbed and injured.
• When he was 17 years old, Mr. Vincent was shot at in a drive-by shooting.

[40] Mr. Vincent completed his high school education in Trinidad. When he was 19 years old, he entered a government cleaning program.

[41] He came to Canada when he turned 20 years old.

[42] Mr. Vincent claims to have suffered from various forms of police harassment while living in Canada. He claims to have been subjected to arbitrary and unlawful arrests by the police on several occasions.

[43] Mr. Vincent has been employed by SRPK Transport and Miller Waste Management Systems. Both past employers have written support letters that confirm that Mr. Vincent was an excellent employee who demonstrated kindness and integrity. Mr. Vincent is convinced that he has been passed over many times for a promotion and seen others promoted ahead of him due to his race.

[44] The letters filed on behalf of Mr. Vincent describe him as an attentive, generous, loving, and hard-working son, grandson, stepson, godson, godbrother, brother, uncle and friend to all that know him.

[45] They describe Mr. Vincent in the following terms:

• “He has an unwavering commitment to those around him.”
• “He has served as a role model.”
• “a person of good character.”
• “a person with a strong moral compass.”
• “a person with a high moral character.”
• “He has a strong work ethic.”

[46] All of his background shows that Mr. Vincent had a lengthy period of living a pro-social life prior to this offence for which he is now being sentenced.

[47] Mr. Vincent addressed the court in his allocution. He accepted full responsibility for his actions. He expressed his deepest apologies to the family of Mr. Benjamin. He meant for none of this to have happened and wished that he could go back in time and change everything. Mr. Vincent hoped that his plea and sentencing would bring closure and healing to Mr. Benjamin’s family and their forgiveness.

[48] He apologized to the community that he put in danger that night. He apologized to his family. He proclaimed that despite his actions, he is not a violent individual. He has learned that his actions have consequences for himself and others.

[49] Mr. Vincent was saddened about the loss of Mr. Taylor. Although he lost a friend, he realized that others have lost much more.

[50] Finally, he stated that once he has completed his sentence that he wishes to make a positive impact on the community.

Analysis: General Principles of Sentencing

[51] The purpose of sentencing is set out in section 718 of the Code. It states that “[t]he 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”.

[52] Section 718 sets out the objectives of sentencing namely denunciation; specific and general deterrence; rehabilitation of the offender; the requirement that offenders be separated from society where necessary; the reparation for victims; and the promotion of a sense of responsibility in offenders.

[53] The fundamental principle of sentencing is set out in s. 718.1 which provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The “gravity of the offence” refers to the seriousness of the offence. The “degree of responsibility of the offender” refers to the offender’s role or culpability in the offence. (R. v. Hamilton (2004), 186 C.C.C. (3d) 129 (Ont. C.A.) at paras. 90-91).

[54] We operate in a common law system. While every case is different, courts should strive to impose sentences which are like sentences imposed on similar offenders in similar cases. This principle reflects the principle of parity and the role of stare decisis. It is ultimately a question of fairness which requires that the sentence imposed fall within an acceptable range of sentences for similar offences committed by similar offenders. Differences in sentences should be capable of rational explanation: (Ruby on Sentencing ninth ed para. 2.29 and R. v. Klemenz, 2015 SKCA 79 at para. 46 (Sask. C.A.)).

[55] In arriving at a fit sentence, the court must have respect for the principles of restraint embodied in ss. 718.2 (c) to (e) of the Code.

[56] The court’s goal is to arrive at a fit sentence. If the sentence reflects the statutory and common law principles, the court has a certain amount of discretion in how it balances and applies the sentencing objectives in s. 718.1 (see Ruby on Sentencing ninth ed. paras. 1.61 to 1.63). The court must have regard to the factors set out in the Code as well as the nature of the offence and the circumstances of the offender (Ruby on Sentencing ninth ed. para. 2.8).

[57] The principle of restraint carries some weight in this case but must be balanced with the primary need for general deterrence, denunciation, and specific deterrence. The principle of restraint is codified in section 718.2(d) of the Code and is well established in the caselaw. In R. v. Batisse, 2009 ONCA 114 at paras. 32-35, the Court of Appeal held that, included in the principle of restraint, is the notion that in a case where a serious sentence of imprisonment is required; for example, for purposes of general deterrence and denunciation, a court must impose the shortest sentence of imprisonment that will achieve various sentencing objectives. (Hamilton at paras. 89-96 and R. v. Sharma, 2019 ONCA 274 at para. 23).

[58] While a significant penitentiary sentence is required in this case, it should not be longer than what is needed to achieve general deterrence, denunciation, and specific deterrence.

The Range in Sentence for the Offence of Manslaughter

[59] Section 236 of the Code states the following:

Every person who commits manslaughter is guilty of an indictable offence and liable

(a) 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.

[60] In Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 57-58, the Supreme Court stated the following about sentencing ranges:

Sentencing 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. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case…

[61] The Ontario Court of Appeal has held that in manslaughter convictions where certain aggravating features are present, the applicable range of sentence is usually between 8 to 12 years.

[62] There is a very broad range in sentences for manslaughter, depending on the circumstances of the offence and the offender: R. v. Hermiz, at para. 10. Copeland J. (as she then was) in R. v. MacKinnon, at para. 73, stated the following:

It is well-established that the sentencing range for a conviction for manslaughter is very broad. This reflects the fact that manslaughter offences can range from unintentional and almost accidental killing at one end of the spectrum to cases approaching murder at the opposite end: R. v. Carriere (2002), 164 C.C.C. (3d) 569 at para. 10. The varying circumstances that may give rise to a conviction for manslaughter lead to this wide variation in appropriate sentences because there is a broad range of moral culpability which will depend on the particular circumstances of any case.

[63] Counsel for the Crown and the Defence provided 24 sentencing decisions. The decisions involving a firearm reflect the need for a significant amount of general deterrence and public denunciation. Rehabilitation is to be considered but to a lesser degree than in other non-loaded firearm related offences.

[64] The Crown has submitted the following authorities to support its recommendation and setting out the ranges for aggravated manslaughter.

[65] In R. v. Husbands, the offender was convicted of 2 counts of manslaughter and 6 counts of aggravating assault after opening fire 14 times with a loaded handgun in the Eaton’s Centre food court after spotting perpetrators of a past attack on him. He killed 2 men and injured 6 others. He was sentenced to life imprisonment.

[66] In R. v. Almaktari, the offender caused the death of another man by use of a firearm. He was charged with first degree murder. The jury found him guilty of manslaughter. He received a sentence of 15 years. The defence appealed the sentence. The court held that the sentencing judge respected the findings of the jury implicit in the manslaughter verdict. The court also held that it was open to the sentencing judge to find the facts "near to murder." The sentence was high in the circumstances but was not unfit "for this brutal aggravated homicide." The sentence of 15 years was sustained with a modification for credit based on presentence custody.

[67] In R. v. Yaali, the offender pleaded guilty to manslaughter using a firearm and was sentenced to 13 years' imprisonment. The offender had been in a dispute with another male over his former girlfriend. He attended at the male's home with a gun, saw the male was armed and fired numerous shots at him but ended up hitting the former girlfriend. The sentencing judge declined to find that there were elements of self-defence and provocation behind the offender's actions that mitigated his moral culpability. The Court of Appeal agreed that "the actions of the other male led, to some degree, to the ultimate event, but ... [the offender] could have taken other steps than deciding to confront the other male in the manner that he did": Dhanda (C.A.), at para. 6.

[68] Justice Quigley in R. v. Robert-Stevens, at para. 111, offered this view of an appropriate range of sentence for the manslaughter case before him which involved a shooting in a residential area of Toronto:

... sentencing in manslaughter cases is quintessentially case-specific. However, the Court of Appeal of this Province has held that in cases where the conduct of the offender was accompanied by aggravating features, the appropriate sentence will usually fall within the range of 8 to 12 years.

[69] In R. v. Hanan, the offender received a 15-year sentence. Again, this was a case where the original charge was murder. The appellant was convicted of manslaughter after trial. The appellant intentionally and unlawfully shot two people, killing one and paralyzing the other. He did not act in lawful self-defence. He shot the deceased with a handgun that was illegal for him to possess.

[70] In R. v. Al-Rubayi, the offender was the shooter, he brought a loaded gun and specifically said that the victim "deserved it". He pleaded guilty to manslaughter. The offender shot the victim five times with a handgun at a house party. The offender was 22, with no prior record but a later conviction for assault and one for robbery. The Crown sought a sentence of 10 to 12 years' imprisonment. The defence argued for a 6 to 8-year sentence. He was sentenced to 10 years' imprisonment.

[71] The Defence relies on the following cases to support its position on sentence.

[72] In R. v. Jones-Solomon, the offender appealed his conviction for manslaughter and from sentence of 13 years' imprisonment. The offender’s former girlfriend and two or three other males entered the victim's apartment. The men started to beat the victim. One of the men fatally shot the victim. In arriving at the sentence, the trial judge was not satisfied beyond a reasonable doubt that the appellant was the shooter, but he was satisfied that the appellant had participated in the beating of the victim. The facts of the killing, express or implied in the jury's verdict, placed this offence at the higher end of manslaughter, closer to murder. The 13-year sentence of imprisonment was upheld.

[73] In R. v. Cleyndert, the offender was charged with second degree murder but convicted of manslaughter by a jury. The trial judge sentenced him to a global sentence of 12 years. The offender, according to the trial judge, was "looking for trouble." There were two confrontations initiated by the offender. There was a fistfight where the victim threw the first punch, but the offender stabbed him 8 times with a butterfly knife, a prohibited weapon. The trial judge found many aggravating factors and appears to have treated the case as one of aggravated manslaughter. The offender showed no remorse; had a criminal record that included convictions for threatening and assault; and found that the victim was vulnerable in that he was unaware that the offender was carrying a knife. The Court of Appeal confirmed the 8 to 12-year range in cases of aggravated manslaughter. Sentences at the low end of the range include mitigating factors such as a guilty plea. The Court upheld the sentence.

[74] In R. v. Devaney, the Crown appealed the sentence of 11 years’ imprisonment as manifestly unfit. The offender was convicted by a jury of manslaughter in the death of his landlady. The victim, who was in her early 60's, was stabbed 107 times all over her body. She also sustained a blunt force injury to her head. The 25 defensive wounds indicated a significant struggle. The offender killed the victim shortly after she told him that he had to move out so that another tenant, who was able to pay rent, could move in. The jury's verdict of manslaughter indicated that they accepted or had a reasonable doubt that the offender committed the offence while under the influence of alcohol and was sufficiently intoxicated to lack the requisite intent for murder. The offender was in his early 40's. He was unemployed due to injury. He had a significant alcohol problem and was experiencing financial difficulties. The offender had no criminal record. He was sentenced to 11 years' imprisonment. He was credited with 6.5 years for the 2 years and 8 months he served in pre-trial custody. His net sentence was, therefore, 4.5 years. On appeal, the Crown submitted that the fit sentence was a total sentence of 18 to 20 years' imprisonment. The appeal was dismissed.

[75] In R. v. Clarke, the offender was convicted by a jury of manslaughter after a trial for murder. The victim was stabbed 7 times in the rooming house that both men lived in. The victim was frail and suffered numerous health problems. The killing was described as "brutal." The Court of Appeal reduced the sentence imposed from 14 to 9 years' imprisonment.

[76] In R. v. Cheveldayoff, 2018 ONSC 5700, the offender was facing a second-degree murder charge and plead guilty to manslaughter. The Crown did not accept the plea. However, after trial, the jury returned a verdict of manslaughter. The offender approached a donut store and encountered three men standing outside the door. All exchanged words with each other. When the offender tried to exit the store, he was blocked by the same men outside the door. A fight ensued. Eventually the offender pushed the victim away. As the victim was walking away the offender produced a gun and shot him 6 times in the back, killing him. The offender's rehabilitation prospects were very poor based on his criminal record, offending while on bail, and carrying a loaded gun while prohibited. The judge found that the case was one that was close to murder. The offender had been involved in 2 previous robberies on strangers with the use of a knife. He had a lengthy and unenviable criminal record. There were few mitigating factors. The offender received a 16-year jail sentence for manslaughter.

[77] In R. v. Docherty, 2010 ONSC 2728, the offender was convicted of manslaughter for killing the victim by stabbing him several times. The offender received a 12-year sentence.

[78] In R. v. Gill, 2011 ONSC 1950, a 24-year-old offender shot and killed the victim at an engagement party after the victim had struck him in the head with a bottle during a fight. The offender was sentenced to 10 years’ imprisonment.

[79] In R. v. Hermiz, 2007 ONSC 1589, the offender was sentenced to 8 years' imprisonment after stabbing his victim following a fight in which he was attacked with a beer bottle.

[80] In R. v. Klimovich, 2013 ONSC 2888, a jury found the offender guilty of manslaughter in the death of his wife. The victim was slashed and stabbed over 40 times; her left cheek bore a sickeningly long and deep gash and her neck was marred by numerous puncture wounds. The offender was charged with second degree murder. The offender was sentenced to 11 years’ imprisonment with credit for time served of 6 years and 8 months for a net sentence of 4 years and 4 months.

[81] In R. v. Medwid, 2009 ONSC 1992, the 18-year-old offender stabbed the victim and cut his throat while the offender was inebriated. The offender was sentenced to 11 years’ imprisonment.

[82] In R. v. MacKinnon, 2022 ONSC 1349, the offender responded to a verbal argument by stabbing the unarmed victim. The offender made no efforts to determine how seriously he had injured the victims and he did not even contact the emergency services. The offender disposed of the knife and his T-shirt after the commission of the offences. The mitigating factors were that he was a racialized man. The last 20 years the offender had stable employment and was living a positive social life. He had strong and stable support from his family, friends, and community. As a child, the offender experienced a complex trauma as a result of which he developed PTSD which were mitigating factors in relation to sentence. The offender was remorseful for his actions. The offender was sentenced to 9 years’ imprisonment for manslaughter less his credit for pre-trial custody and harsh conditions.

[83] In R. v. Mohamed, 2023 ONSC 5291, during an argument in an apartment building hallway, the 24-year-old offender stabbed the unarmed victim 3 times and fled. The offender was smaller and had just been assaulted by the victim. He pleaded guilty to manslaughter and was sentenced to 9 years’ imprisonment less his pre-trial custody.

[84] Finally, in R. v. Scopelliti, 2018 ONSC 4713, the offender was convicted of manslaughter for shooting his father-in-law after a falling out over a change in the victim's will. The trial judge imposed a sentence of 10 years’ imprisonment.

[85] Justice Schreck completed a helpful analysis of the relevant manslaughter sentencing cases in this province in R. v. Smith, 2022 ONSC 3800. He identified three broad ranges of sentence as follows:

• a lower range of six to eight years in less serious cases where, for example, the accused was not aware of a firearm possessed by a co-accused or where the accused was a youthful first offender with significant rehabilitative potential, citing cases like R. v. Turner, 2019 ONSC 5435, R. v. Sahal, 2016 ONSC 6864, and R. v. Kwakye, 2015 ONCA 108;

• a mid- range of eight to 12 years in cases where some significant aggravating factors are present, such as the use of a firearm or brutal violence against a vulnerable elderly victim, citing cases like R. v. Tahir, 2016 ONCA 136, R. v. Devaney (2006), 213 C.C.C. (3d) 264 (Ont. C.A.); and R. v. Clarke (2013), 172 O.A.C. 133 (C.A.); and

• a higher range of 12 to 15 years in cases where the most serious aggravating factors are present such as a significant criminal record, planned violence, active participation in brandishing or discharging firearms or in a planned home invasion involving beating of the victims, citing cases like R. v. Jones-Solomon (2015), 2015 ONCA 654, 329 C.C.C. (3d) 191 (Ont. C.A.), R. v. Atherley, 2009 ONCA 195, R. v. Thompson, 2008 ONCA 693, and R. v. Warner, 2019 ONCA 1014. Also see: R. v. Hanan (2022), 2022 ONCA 229, 161 O.R. (3d) 161 (C.A.).

[86] I find that Mr. Vincent falls within the upper end of the mid range. Not only did Mr. Vincent possess a loaded and restricted firearm, but he also used his firearm to brutally kill Mr. Benjamin and, while doing so, put others at risk.

Aggravating and Mitigating Factors Affecting Sentencing

[87] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I note the following aggravating and mitigating features of this case.

Aggravating Factors:

I find the following to be aggravating factors:

1. Mr. Vincent chose to carry a loaded and prohibited firearm to a busy banquet hall in the evening risking that its use might result in multiple injuries and death. There was a sea of people lined up to get into the banquet hall. There was a man operating a barbecue in the parking lot only a few feet from the location that Mr. Vincent started shooting. There was a black Volkswagen Jetta with a passenger directly in the line of fire. On the video, a couple was seen jumping out of the way and another woman crawled behind a car for safety. Sentencing principles require significant denunciation for firearm offences. See R. v. Danvers (2005), 199 CCC (2d) 490 at paras. 77-78.
2. Mr. Vincent illegally possessed the firearm by lack of any licencing authorization.
3. Mr. Vincent fired 8 shots as Mr. Benjamin fled the scene. At no point did Mr. Benjamin turn and point his handgun at Mr. Vincent. Mr. Vincent did not shoot Mr. Benjamin in self defence as he did not present a danger to Mr. Vincent.
4. As Mr. Benjamin laid prone on the ground, Mr. Vincent callously fired a bullet into his head.
5. The firearm that was used to kill Mr. Benjamin was never recovered.
6. Gun crimes are increasing in this region. Lisa Smith, a Criminal Analyst from the Peel Regional Police, set out in her affidavit the statistics concerning the prevalence of gun violence in Peel Region for the years 2014-2023. The affidavit discloses that illegal firearm possession charges, shooting occurrences and gun related homicides are on the rise. I note that the worse year for gun related homicides and shootings was in 2022. There were 26 homicides, that included 15 homicides where the cause of death was due to gunshot. There were 129 shootings where 641 rounds were fired. Therefore, I take judicial notice that guns are a problem in Peel Region and surrounding regions.
7. Finally, the impact on Mr. Benjamin’s family is devastating.

Mitigating Factors:

I consider the following as mitigating factors in this case.

1. Mr. Vincent’s guilty plea. The guilty plea was entered after Mr. Vincent’s preliminary hearing; however, the preliminary hearing was originally set for 7 days but because of the collaborative working relationship between counsel and the Crown, the preliminary hearing took one day which was spent watching video surveillance and hearing the testimony of one police officer. His guilty plea is a significant sign of remorse and contrition for his actions. It also saved the necessity of a protracted jury trial in the Superior Court of Justice.
2. Mr. Vincent is a first-time offender.
3. The early part of Mr. Vincent’s life was disruptive and dysfunctional.
4. Mr. Vincent is a racialized man. He has experienced racial discrimination in his community and has been exposed to unlawful detentions and arrests by the police. The upward mobility and job promotion have been stymied due to his race.
5. Mr. Vincent also experienced childhood trauma when he was growing up in Trinidad. He was subject to corporal punishment. He was also a victim of gun violence and was wounded when he was a teenager.
6. Mr. Vincent has strong and stable support from his family, friends, and community.
7. Mr. Vincent has led a pro-social lifestyle since he arrived in Canada. He has a stable employment history.
8. I also find that harsh conditions of confinement during Mr. Vincent’s pre-trial detention should be also afforded weight as a mitigating factor. I refer to the lockdown summary from Maplehurst and Mr. Vincent’s affidavit. I will expand below.

Provocation and its application to Mr. Vincent

[88] There is also the issue of provocation that arose because of Mr. Benjamin shooting Mr. Taylor in the head, that preceded Mr. Vincent shooting Mr. Benjamin 8 times. R. v. Stone, [1999] 2 S.C.R. 290 at para. 247, makes clear, provocation “is just one factor to be considered in assessing what end of the manslaughter sentencing range is approached in the circumstances of a particular case.” In my view, there is an undeniable link between Mr. Taylor’s death and the shooting of Mr. Benjamin. If Mr. Taylor was not shot by Mr. Benjamin, I doubt that Mr. Vincent would have shot Mr. Benjamin that evening. However, the mere fact that the shooting occurred seconds after another shooting does not lessen its severity.

[89] Eight bullets left Mr. Vincent’s gun as he chased and hunted down Mr. Benjamin, who was running away. All eight bullets struck Mr. Benjamin. Bullets struck his upper and lower back, left elbow, right arm, and his right wrist. The eighth bullet was fired directly into Mr. Benjamin’s head at close range as he laid dying and prone on the ground. Other innocent bystanders attending the banquet hall that were waiting in a line-up or in the parking lot were forced to witness Mr. Benjamin’s killing and his dying body as he laid facedown in the parking lot.

[90] One could argue that Mr. Benjamin’s death would not have occurred had he not shot Mr. Taylor. However, it is more fitting to examine the chain of events and remind ourselves that there would not have been any deaths without handguns. That evening, Mr. Benjamin and Mr. Vincent both chose to take handguns to a busy banquet hall.

[91] This was a heartless act committed in circumstances where random shots were fired in the direction of not just the deceased, but other members of the public who were present. It is no wonder there were more casualties than the two men that died that night.

[92] Manslaughter does cover a wide spectrum of killing. This killing is close to murder.

The Impact of Race and Culture

[93] As I stated earlier, an enhanced PSR, also known as an Impact of Race and Culture Assessment, was not requested nor arranged in this matter. However, counsel cited examples of Mr. Vincent’s exposure to anti-black racism. He also drew my attention to R. v. Morris (2021), 2021 ONCA 680, O.J. No. 5108, para. 13, which I have reviewed carefully.

[94] I have no doubt that, while in this country, Mr. Vincent was subject to police harassment and racism. He grew up in poverty and was subject to physical abuse.

[95] Whatever horrible life experiences Mr. Vincent had to endure while growing up in Trinidad, and the police harassment and anti-black racism after he arrived in Canada, provided little mitigation of moral blameworthiness for bringing a loaded handgun to a crowded banquet hall parking lot and discharging it.

[96] There must be a significant aspect of deterrence to those who carry concealed handguns in any public place whatever the circumstances in which they came to possess and carry the handgun. The potential for death, severe injury and mayhem is self-evident. See: R. v. Husbands, 2019 ONSC 6824 para. 135, affirmed R. v. Husbands, 2024 ONCA 155.

What is the fit and appropriate sentence?

[97] Balancing the legal principles, precedents and the aggravating and mitigating factors, I find the appropriate sentence to be 11 years.

Pre-Sentence Custody

[98] Mr. Vincent should be given credit for the time he has spent in pre-sentence custody: Criminal Code, ss. 719(3) and 719(3.1). The loss of early release caused by custody being served pre-sentence can be a sufficient circumstance to justify an award of enhanced credit at the rate of 1.5 days for every day of pre-sentence custody: R. v. Summers, 2013 ONCA 147.

[99] In addition, in some circumstances, when harsh conditions prevailed during pre-sentence detention, mitigation in the form of credit greater than the 1.5 days per day maximum set out in s. 719(3.1) of the Criminal Code may be appropriate: R. v. Duncan, 2016 ONCA 754 at para. 6.

[100] Duncan credit is not a deduction from the otherwise fit sentence; rather it is a factor to be considered in determining the appropriate sentence. In other words, it may be a mitigating factor: R. v. Marshall, 2021 ONCA 344 at paras. 50-53. This type of credit need not be assigned a specific number of days. In Marshall, the Court of Appeal cautioned that if a sentencing judge approaches Duncan credit by quantifying a specific number of days, the judge should be careful that doing so does not "skew" the calculation of the ultimate sentence, by inappropriately treating it as a deduction, rather than one of several mitigating factors. If Duncan credit is given, it cannot be given excessive mitigating effect such that it renders the sentence unfit.

[101] Whether and how much credit to give for harsher conditions of confinement, whether due to the pandemic, or due to lockdowns, is a matter of discretion, based on the record before the court regarding the conditions pre-trial detention, and the effect on the defendant of those conditions.

[102] Mr. Vincent is deserving of Summers credit pursuant to s. 719(3.1) of the Code which is credit at a rate of 1.5 days for every day of pre-trial custody. Mr. Vincent has been incarcerated since the date of his arrest, which was on August 10, 2022. As of the date of submissions, the lockdown summary from Maplehurst Correctional Complex indicated that Mr. Vincent has been in custody for 552 days, however, I have updated his total time in custody up to and including today, which totals 608 days or one year and 8 months. I do the calculation in months rather than days. At the rate 1.5:1, that amounts to 30 months credit (or 2.5 years). Pursuant to s. 719(3.1) of the Criminal Code and Summers, 30 months credit will be deducted from the sentence I impose today.

[103] I turn then to whether and how to factor as a mitigating circumstance the fact of lockdowns and harsh conditions during Mr. Vincent’s pre-trial custody. The lockdown summary from Maplehurst indicated from August 11, 2022, until February 14, 2024, Mr. Vincent has been on full lockdown on 151 occasions and partial lockdown on 60 occasions for a total of 211 occurrences. He was triple bunked five times.

[104] Mr. Vincent’s affidavit described inhumane and abhorrent conditions that included often receiving feces and blood-stained clothes during the clothing changeover once a week. He claimed that the sheets and blankets were changed once every 4 to 6 months and when received they were often soiled and stained. The lack of hygiene has led Mr. Vincent to experience rashes.

[105] When toilets were clogged, days would go by before a plumber would arrive to unclog the pipes. As a result, the inmates would have to defecate into noodle cups. Often there was no toilet paper, and it would take days to receive a new roll. That would require the need for the inmates to tear up clothing or use their hands and then wash up.

[106] Inmates were supposed to be provided access to a yard for fresh air once every day. According to Mr. Vincent, that rarely occurred.

[107] Mr. Vincent described several incidents that were demonstrative of the horrible conditions at Maplehurst. On one occasion, Mr. Vincent was suspected of hiding contraband in his body. He was taken to a dry cell, which had no running water and no mattress. His clothes were removed and he was given a feces-stained gown to wear. The toilet could not be flushed and was filled with feces. For three days he stayed in the feces-smelling cell. He described the experience as torture. No drugs or any other contraband were located inside Mr. Vincent’s body.

[108] Another incident occurred after an inmate punched a correctional officer. The culprit was immediately removed from the range. However, all the inmates were locked in their cells until a “special unit” arrived. The “special unit” deployed a flash grenade. The inmates were zip-tied and stripped to their boxers. Everything was removed from their cells including all their sheets. They were put back in their cells with only their boxers. The fans were turned on and cold air was pumped into their cells. Mr. Vincent was forced to wrap himself in his mattress for warmth.

[109] In response to the allegations raised in Mr. Vincent’s affidavit, the Crown sought a will say from Staff Sergeant Marcia Fegan on the conditions of confinement. The statement detailed the policy and procedures for laundry and bedding exchange, the number of clothing items each inmate is entitled to have in his possession, yard access, body scans when inmates return to the institution, shower protocol during lockdowns, and COVID procedures for intake.

[110] The statement also described the “major incident” that occurred on December 22, 2023, in Unit 8B. A correctional officer was punched that rendered him unconscious. He suffered major injuries and was taken by EMS to the hospital. As a result, other inmates started to bang on the glass and threaten other staff. The staff attempted to lock up the inmates in their cells, but they refused. The Institutional Crisis Intervention Team was called in for the safety and security of the staff and institution. A search for weapons was conducted to prevent further assaults on staff. Staff Sergeant Fegan confirmed that flash grenades and zip-ties were used as part of their search.

Length of Incarceration

[111] As I have stated earlier, the parties did not seek to cross-examine on this evidence and agreed to simply file the material. I do not intend to make detailed factual findings other than to say that Mr. Vincent was subject to harsh conditions of custody while at Maplehurst. He is certainly entitled to credit in that regard. There is a mitigating effect of lockdown credit. Therefore, I find that it is appropriate to adjust the total sentence to reflect the mitigating effect of harsh conditions of confinement, including approximately 211 days of lockdown. I find that the total adjustment to reflect this mitigation should be 1 year (12 months).

[112] Taking this into account, the sentence will be 10 years. I will reduce the sentence by the appropriate pre-trial Summers credit of 30 months. The remaining sentence to be served by Mr. Vincent will be 7.5 years.

[113] Pursuant to s. 109 of the Code, I impose a weapons prohibition on Mr. Vincent. The order is mandatory for this offence. The prohibition is for life.

[114] The offence of which Mr. Vincent plead guilty to is a primary designated offence within the definition in (a) of s. 487.04. Pursuant to s. 487.051(1), I order authorizing the taking of bodily samples from Mr. Vincent for DNA analysis. That order is to be made as an in-custody order.

[115] I thank all counsel for their assistance in this very difficult matter.

Released: April 8, 2024 Signed: Justice P.T. O’Marra