COURT FILE NO.: CR11-RM1878 DATE: 2016/05/24
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – KRISTOPHER MCLELLAN and KYLE MULLEN Accused
Counsel: Malcolm Savage, for the Crown Ewan Lyttle, for Kristopher McLellan Paolo Giancaterino, for Kyle Mullen
HEARD: May 24, 2016
REASONS FOR JUDGMENT
Aitken J.
Background Regarding Kristopher McLellan
[1] On April 4, 2016, Kristopher McLellan refused to be sworn or affirmed and refused to testify at the trial of Sam Tsega for the second degree murder of Michael Swan. Prior to Mr. McLellan advising the court that he would not testify, he had the opportunity of speaking with counsel and of being fully informed of his options and of the ramifications if he refused to testify. As a result of Mr. McLellan’s refusal, I cited Mr. McLellan in contempt.
[2] Mr. McLellan has already been convicted of the first degree murder of Mr. Swan and is serving a life sentence with no chance of parole before 25 years. There is no doubt that had Mr. McLellan testified, he would have been able to provide highly relevant evidence in regard to what role, if any, Mr. Tsega played in the events leading to Mr. Swan’s death. Mr. McLellan has chosen not to provide such evidence and stated when he refused to testify that this was for safety reasons in penitentiary. I note, however, that during the course of the investigation into Mr. Swan’s death, Mr. McLellan provided a statement to the police relating to Mr. Tsega’s involvement in the offence. He also testified at his own murder trial and, in doing so, implicated Mr. Tsega. Therefore, his testifying at Mr. Tsega’s trial would not have been the first time that he addressed this subject.
Background Regarding Kyle Mullen
[3] On April 4, 2016, Kyle Mullen refused to be sworn or affirmed and refused to testify at Mr. Tsega’s murder trial. Prior to Mr. Mullen advising the court that he would not testify, he had the opportunity of speaking with counsel and of being fully informed of his options and of the ramifications if he refused to testify. As a result of Mr. Mullen’s refusal, I cited Mr. Mullen in contempt.
[4] Mr. Mullen has already been convicted of the second degree murder of Mr. Swan and is serving a life sentence with no chance of parole before 15 years. There is no doubt that had Mr. Mullen testified, he would have been able to provide highly relevant evidence in regard to what role, if any, Mr. Tsega played in regard to Mr. Swan’s death. Mr. Mullen has chosen not to provide such evidence so that he can avoid the label of “rat” in his community of offenders and avoid the negative consequences that could flow from such a label. Nevertheless, during the course of the investigation into Mr. Swan’s death, Mr. Mullen provided a statement to the police relating to Mr. Tsega’s involvement in the offence. Therefore, his testifying at Mr. Tsega’s trial would not have been the first time that he addressed this subject.
Convictions for Contempt
[5] During the contempt hearing, neither Mr. McLellan nor Mr. Mullen attempted to show cause why he should not be found in contempt, and neither tendered any evidence in this regard. Each accepted responsibility for his actions and acknowledged that those actions justified a conviction for contempt of court. I find both Mr. McLellan and Mr. Mullen guilty of contempt of court.
Positions of the Parties
[6] Crown counsel sought a sentence of four to five years for Mr. McLellan and three to four years for Mr. Mullen. He differentiated between the two on the grounds that Mr. McLellan had testified in his own defence at his own trial, but then refused to testify at Mr. Tsega’s trial. According to the Crown, Mr. McLellan’s willingness to testify on his own behalf undermines the credibility of his statement that he did not want to testify at Mr. Tsega’s trial due to safety concerns. I reject this submission as, in the eyes of the criminal subculture, there is a significant difference between testifying in one’s own defence and testifying on behalf of the Crown against another accused.
[7] Defence counsel for both Mr. McLellan and Mr. Mullen suggested that a sentence of two years would be fit and appropriate for both men in all of the circumstances.
Circumstances of Mr. McLellan and Mr. Mullen
[8] Mr. McLellan is 26 years old. He spent his early years in Toronto with his mother, who unfortunately had a crack cocaine addiction. When he was 14, he went to live with his aunt, outside Toronto, and had a more stable life. When he was an older teenager, he returned to Toronto, started to hang out with the wrong crowd, and got involved in criminal activity. He has a criminal record. Prior to his conviction for the first degree murder of Michael Swan, Mr. McLellan was convicted of manslaughter (as a party); break, enter and theft; and possession of property obtained by crime.
[9] Mr. McLellan has been incarcerated in a maximum security wing at a federal penitentiary, but is close to being transferred to a medium security facility. He has a position as vice chair of the inmate committee, which is responsible for handling inmate complaints and grievances. He is responsible for running a canteen and for organizing special events for inmates. While in the institution, Mr. McLellan has completed his high school diploma and has applied to do a business degree through correspondence at Northern University.
[10] Mr. Mullen is 25 years old. He has a significant criminal record, including convictions for second degree murder, robbery, possession of a weapon, possession of a Schedule 1 substance, and two assaults. According to the pre-sentence report prepared following his conviction for the murder of Michael Swan, Mr. Mullen did not have an easy childhood. His mother had significant alcohol abuse, drug abuse, and mental health issues. She abandoned Mr. Mullen and his sister when Mr. Mullen was only six months old. Mr. Mullen was raised by his paternal grandmother and his father. Although Mr. Mullen does not blame his current circumstances on his upbringing, I have no doubt that Mr. Mullen would have benefitted from a childhood filled with more love, care, and attention than he received. To a great extent, he was left to his own devices. He struggled at school and has only a grade eight education and some secondary credits. He got in with a bad crowd. He was drinking alcohol and doing drugs at a young age and he started his criminal career as a young offender. He has no particular marketable skills.
[11] Mr. Mullen believes that he is of aboriginal heritage through his mother; however, details are scant as to her membership in any particular band and as to the impact her aboriginal status may have had on her upbringing, her inability to parent, and Mr. Mullen’s challenging childhood. Mr. Mullen, himself, does not draw a link between his aboriginal status and his current circumstances.
Analysis
[12] The key objectives of sentencing in circumstances like these are general deterrence and denunciation. A strong message must be given to those who want to flaunt the rule of law and play by their own rules.
[13] In R. v. Yegin, 2010 ONCA 238, at para. 2, the Ontario Court of Appeal stated, in upholding a three-year sentence (with one year credit for other incarceration):
The justice system depends on witnesses who testify as required. The justice system’s response to those who prefer to remain aligned with their criminal cohorts rather than do their duty as citizens must be firm and direct – significant jail terms above and beyond whatever other period of incarceration the individual is, or might be, facing for his own participation in the relevant events must be imposed.
We agree with the trial judge, “a strong message” must be given in circumstances like this. Those who choose not to testify in serious criminal cases will face “serious consequences”.
[14] Any sentence for contempt of court for refusal to testify must be less than five years (R. v. Cohn (1984), 48 O.R. (2d) 65 (C.A.), at 90).
[15] In R. v. Bidesi, 2016 BCSC 171, at para. 41, the court concluded that the usual range of sentence for refusal to testify at a murder trial in Canada, at least for first-time contemnors, is 15 months to three years. The experience in Ottawa courts supports this conclusion (see R. v. Boisclair (15 August 2008), Ottawa (Ont. S.C.), aff’d 2010 ONCA 338 (3 years) and R. v. Yegin, 2009 ONSC 6051, aff’d 2010 ONCA 238). Where a witness has twice refused to testify at murder trials, courts in Ottawa have imposed sentences of four years (see R. v. Yegin, 2010 ONSC 2083 and R. v. Esrabian, 2010 ONSC 2896).
Aggravating Factors
[16] Both Mr. McLellan and Mr. Mullen refused to testify in a murder trial. This has been consistently identified by the courts as being the most egregious form of contempt.
[17] Both Mr. McLellan and Mr. Mullen had highly probative evidence to offer, as is obvious from the statements both gave to the police and, in Mr. McLellan’s case, by his testimony at his own trial.
[18] The refusal of Mr. McLellan and Mr. Mullen to testify resulted in the Tsega trial being extended by several days during which Crown counsel presented evidence as to previous statements made by both men to the police and as to Mr. McLellan’s previous testimony at his own trial, Crown and Defence counsel made lengthy submissions regarding the admissibility of those statements and testimony, and the court had to pour over lengthy facta and volumes of jurisprudence before rendering a ruling on admissibility. Although the result was that earlier statements of Mr. McLellan and Mr. Mullen were ruled admissible at the Tsega trial, the court was denied the benefit of viva voce evidence on the issue of Mr. Tsega’s participation in the events that resulted in Mr. Swan’s murder. Evidence presented at trial by witnesses who are subjected to cross-examination is arguably of higher quality than earlier, out-of-court statements that those witnesses gave to police. It remains to be seen what impact the refusal of Mr. McLellan and Mr. Mullen to testify at the Tsega trial will have on the eventual outcome of that trial.
[19] Finally, both Mr. McLellan and Mr. Mullen have criminal records.
Mitigating Factors
[20] Neither Mr. McLellan nor Mr. Mullen has refused to testify previously.
[21] In refusing to testify, neither Mr. McLellan nor Mr. Mullen acted in a contemptuous, impolite, or disrespectful manner to the court.
[22] I do take judicial notice of the fact that anyone labelled in prison as “a rat” or “a snitch” is likely to be at greater risk of harm from fellow inmates than otherwise would be the case. Having said that, neither Mr. McLellan nor Mr. Mullen suggested that they were under duress when they made the decision not to testify at the Tsega trial. Their counsel advised that both men were assuming responsibility for their decision not to testify and were not placing the blame for this on anyone other than themselves.
[23] Both men are relatively young. Both entered prison life at a very young age: Mr. Mullen was 19 and Mr. McLellan 20.
[24] There is no evidence here that either Mr. McLellan or Mr. Mullen was a member of a criminal organization or gang when they committed the home invasion and killed Mr. Swan. In fact, the evidence is that Mr. Mullen’s participation in the events of February 21, 2010 was a last minute arrangement to which he acquiesced because he needed some money. There is no suggestion that Mr. Tsega, a young man with no criminal record, was involved in any gang activity. The relative youth of Mr. McLellan, Mr. Mullen, and Mr. Tsega, and the lack of any element of criminal organization or gang activities in this case differentiates it from cases like Yegin and Esrabian.
[25] Finally, in rendering sentences for Mr. McLellan and Mr. Mullen, the court must consider the totality principle and ensure that the cumulative total of these sentences and the sentences these offenders are currently serving would not result in a period of incarceration disproportionate to the offender’s overall culpability.
Disposition
[26] Taking these factors into account, I sentence Mr. McLellan and Mr. Mullen to 30 months. These sentences are intended to be consecutive to any other sentence being served by Mr. McLellan and Mr. Mullen. However, currently, both are serving life sentences and those end at the end of life. No other sentence can commence once a person’s life has ended. If at any time, however, the life sentence is reduced, this sentence for contempt shall be consecutive to such reduced sentence.
Aitken J.
