Court File and Parties

Court File No.: 8535-13 Date: 2017-06-09 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Kenneth Charles Johnson, Defendant

Counsel: Peter Westgate and Michael Ventola, for the Crown Mary Cremer and Colin Sheppard, for the Defendant

Heard: June 1 and 2, 2017

Before: Boswell J.

Reasons for Sentence

Introduction

[1] Kenneth Johnson was tried before a jury on a charge of second degree murder. He was acquitted of that charge, but convicted of the included offence of manslaughter. These reasons explain the sentence imposed today.

The Offence

[2] To comprehend a sentence, one must first appreciate the nature of the offence committed. In this instance, in its simplest terms, the offence consisted of Mr. Johnson assaulting his roommate, Richard Skupien. In the course of the assault, Mr. Skupien suffered an injury to his spleen. The spleen ruptured and Mr. Skupien bled to death into his own abdomen. There is no dispute that the ruptured spleen caused Mr. Skupien’s death.

[3] There were no eyewitnesses to the assault, though a number of witnesses testified that they overheard arguing coming from the apartment shared by Mr. Johnson and Mr. Skupien the night before Mr. Skupien died. The severity of the assault; its duration; the number of blows inflicted; and the precise circumstances in which it unfolded are all open questions.

[4] Fact-finding during the sentencing phase of a trial, following a jury verdict, is not always straightforward. Section 724(2) of the Criminal Code provides that the court must accept as proven, all facts, express or implied, that are essential to the jury’s guilty verdict. The court is not confined to such essential facts, however, and may go on to make other findings of fact based on evidence adduced at trial or at the sentencing hearing. The court must be careful, of course, not to make factual findings inconsistent with the jury’s verdict.

[5] In this instance, for the jury to have found Mr. Johnson guilty of manslaughter they only needed to be satisfied, to the reasonable doubt standard, that some unlawful and objectively dangerous conduct on Mr. Johnson’s part caused the injury to Mr. Skupien’s spleen that led to his death. There is no serious dispute that the unlawful act involved was an assault. The dynamics of the assault are, as I indicated, an open question, save for the condition that the assault must have been significant enough to pass the “objectively dangerous” threshold.

[6] It falls to the court to determine, to the extent the evidence permits, the circumstances surrounding the assault. In doing so, the court is not attempting to divine what the jury may have concluded, but is rather making its own independent assessment of the evidence, or at least those parts of it that are necessary to permit the proper sentence to be imposed. [1]

[7] Having made those general observations about the fact-finding process, I will briefly describe the circumstances of the assault, as I find them to be.

[8] Mr. Johnson and Mr. Skupien lived together in Richmond Hill in a small, unkempt apartment.

[9] Mr. Skupien collapsed in the apartment just before 9 a.m. on August 24, 2013. Mr. Johnson called 911. Paramedics managed, after extensive CPR, to resuscitate Mr. Skupien. He was transported to the local hospital but died several hours later.

[10] An autopsy was conducted by Dr. Noel McAuliffe of the Forensic Pathology Service. Mr. Skupien was found to have contusions on the scalp; both ears; inside the lips; on the chin; on the outside of the right eye; the back of the left upper arm and shoulder; the left wrist; the right thigh; and the back side of the left knee and calf. He had displaced rib fractures on his left side at ribs 5, 7 and 8, laterally. He also had a number of fractures between ribs 3 and 6 on his right and left sides, at the front of his chest. These anterior fractures were likely the result of chest compressions during CPR.

[11] Dr. McAuliffe’s opinion was that the bruising on Mr. Skupien’s face and body, the lateral rib fractures and the ruptured spleen were all contemporaneous injuries and were all sustained close in proximity to the time Mr. Skupien was conveyed to the hospital, as opposed to remotely. He thought the fractured ribs were the result of a heavy blow or stomping. He concluded that Mr. Skupien had been the victim of a severe beating.

[12] The defence introduced evidence from their own pathologist, Dr. Michael Shkrum, who testified about the timing of the bruising and other injuries sustained by Mr. Skupien. He took issue with Dr. McAuliffe’s findings in three general areas: his description of some of the injuries; the methodology utilized during the autopsy; and Dr. McAuliffe’s failure to recognize the significance of certain findings.

[13] Dr. Shkrum placed particular emphasis on the microscopic study of the bruises and other injuries sustained by Mr. Skupien. He thought the aging of bruises particularly difficult to do in the absence of microscopic analysis. Based on his observations, he opined that bruising inside Mr. Skupien’s mouth was likely recent. By contrast, the rib and spleen injuries showed signs of healing and he thought they were older than the injury to Mr. Skupien’s mouth.

[14] Both pathologists cautioned that dating injuries is a difficult task and, at best, only ranges can be provided.

[15] The jury obviously concluded that the injury to Mr. Skupien’s spleen was the result of a beating inflicted by Mr. Johnson. The timing and cause of the balance of his injuries are open to debate.

[16] Mr. Skupien was an incorrigible alcoholic. He was also remarkably accident prone. He was a frequent visitor in his doctor’s office and at the local emergency room. He was regularly observed by friends to be banged up or cut. And he was generally in precarious health.

[17] Pamela McNeill was a neighbour of Mr. Johnson and Mr. Skupien. She was a Crown witness at trial. She testified, and I accept, that she saw Mr. Skupien at about 9 p.m. on the night of August 23, 2013. He was walking down a set of stairs carrying a piece of plywood about six feet long by three or four feet wide. She said hello to him and he gave what she called his typical reply, “Yaaaa”. It was a brief encounter, but she did not notice any signs of injury on him, nor anything unusual about him.

[18] Later that night an altercation was overheard by a number of witnesses going on in the Johnson/Skupien apartment. There was loud music and shouting. It went on for some time, though the parameters are not entirely clear. It began sometime after 9 p.m. and appears to have been over by about midnight. Nothing really turns on the precise duration of the altercation in my view.

[19] My findings in relation to Mr. Skupien’s injuries are as follows. First, I am satisfied that he was not suffering from broken ribs at 9 p.m. when he was observed by Ms. McNeill. In my view it is beyond unlikely that someone suffering from two or possibly three displaced rib fractures would be out carrying plywood down stairs. I appreciate that pain tolerance varies across individuals and that Mr. Skupien was taking prescribed pain medication for other issues. Nevertheless, the chance that a person with those injuries could carry plywood down stairs is so small in my view as to be fanciful.

[20] I conclude that Mr. Skupien’s rib fractures were incurred sometime after 9 p.m. on August 23, 2013 and prior to 9 a.m. on August 24, 2013 when Mr. Johnson called 911. In my view the most likely time is during the altercation overheard by neighbours.

[21] I accept Dr. McAuliffe’s evidence that it would have taken significant force to cause Mr. Skupien’s rib fractures. Such a force is also consistent with an injury to the spleen, which is located in the area of the fractures. I find that the rib fractures and splenic hematoma occurred simultaneously.

[22] There was consensus between the pathologists that the bruising inside Mr. Skupien’s mouth was fresh. That bruising is consistent with blunt force trauma and I conclude it happened at or around the same time as the rib and spleen injuries. There are also a number of other bruises on Mr. Skupien’s head that I find to be consistent with a beating and which I conclude were more than likely suffered as part of the same transaction that caused the rib and spleen injuries.

[23] In summary, I find that there was an altercation between Mr. Johnson and Mr. Skupien sometime between about 9 p.m. on August 23, 2013 and midnight on August 24, 2013. The altercation turned physical. Mr. Johnson struck Mr. Skupien around the head and face with numerous blows, then either punched or kicked him in the ribs, causing at least two ribs to fracture and a splenic hematoma to develop.

[24] I cannot say how long the physical assault lasted. It is possible that it was strung out over some considerable time. It is equally possible that it was relatively brief and focused. I am also unable, on this evidentiary record, to say why the assault happened.

[25] Dr. McAuliffe used the adjective “severe” when he described the beating. The Crown urged the court to conclude that this was indeed a case of a severe beating.

[26] It is hard to say where, on the spectrum of assaults, a beating becomes “severe”. Curiously, none of the first responders and the doctors who cared for Mr. Skupien at the hospital observed any outward signs of injury. That fact tends to support the conclusion that this was not a particularly severe beating. That said, the rib fractures would have required the application of significant force. “Severe” is a relative term. This beating was more severe than some and less severe than others I have seen. It was severe enough to break Mr. Skupien’s ribs and rupture his spleen. I need not say any more than that.

[27] A fit and just sentence is one tailored to the circumstances of the offence and of the offender. I have reviewed the circumstances of the offence. I will turn to the circumstances of the offender.

The Offender

[28] Mr. Johnson is a 50 year old single male. He has two children – a son and a daughter – both in their late 20s. A third child died at age 19. He has three grandchildren. His mother and father are both alive and he remains close to them. They attended virtually every day of his trial as did one of his older sisters. He has three siblings, all older than him, and all of whom he remains close to.

[29] Mr. Johnson had a largely unremarkable childhood. He was diagnosed with Attention Deficit Hyperactivity Disorder when he was seven. He had difficult in school and did not finish grade 10. That said, he has always been a hard worker and has a long history of employment, interrupted only at times he has spent in custody.

[30] At the time of the offences Mr. Johnson was, I understand, working as a general contractor. He got into construction work when he was about 17. He has worked primarily in the construction and asphalt trades throughout his adult life.

[31] Unfortunately, Mr. Johnson has an unenviable criminal record. It began with convictions for break and enter and possession of a narcotic in 1985, when he was 18 years old. Later that same year he was convicted of five counts of breach of recognizance, three counts of theft under $200 and prowling.

[32] In 1986 he was convicted of break and enter and theft and, later in the year, two counts of fraudulent use of a stolen credit card and one count of possession of property obtained by crime. There was then a break in his record until 1991, which was not a good year for Mr. Johnson. He was convicted of resisting a police officer, breach of recognizance, possession of a narcotic and, in December, three counts of robbery. He was sentenced to four years in jail for the robbery convictions.

[33] Mr. Johnson was released from prison in May 1995. But he was sent back in January 1996 after he was convicted of two counts of possession of a narcotic for the purpose of trafficking. He was sentenced to seven months in jail.

[34] There followed a six year gap in the record. In 2002, however, Mr. Johnson was convicted of assault, possession of a prohibited weapon and theft under $5,000. He was sentenced to five months in jail.

[35] In January 2005 Mr. Johnson was convicted of assault causing bodily harm and was sentenced to two years in jail. He was released in May 2006, but recommitted in December 2006 as a result of a parole violation.

[36] In February 2008, Mr. Johnson was convicted of possession of a prohibited substance for the purpose of trafficking and sentenced to one year in jail.

[37] There were no convictions for criminal offences between February 2008 and November 2013 when Mr. Johnson was arrested on the charges now before the court.

[38] The court received many letters of support from the family and friends of Mr. Johnson. They portray him as a very hardworking person and someone who is the first to lend a hand where needed. Many, if not all, of the letters of support where written by people who had known Mr. Johnson for a very long time. He has been able to maintain close relationships with his family and friends over decades. He is described as respectful, reliable and dedicated to those he loves.

[39] His relationship with Mr. Skupien appears to have been close and long-lasting as well. They had been friends for some 20 years. A number of the witnesses who testified at trial described them as close – like brothers. Mr. Skupien was living on the street until taken in by Mr. Johnson.

[40] Their relationship was not without its problems. A neighbour, Mr. Edgar Simon, described them as arguing constantly, and usually about Mr. Skupien’s lack of cleanliness. Other witnesses, namely Michelle Paul and Denise Sherk, both described Mr. Skupien as being afraid of Mr. Johnson.

[41] I think the jury got it right when they found that Mr. Johnson did not intend to kill Mr. Skupien (or at least had a reasonable doubt about whether he did). The evidentiary record persuades me that he did not. Mr. Johnson laid a beating on Mr. Skupien. He did not intend to kill him. But Mr. Skupien was very frail. He was probably dying from liver disease. Whether he and/or Mr. Johnson knew that is an unanswered question. But he was not in a condition where he could sustain the beating.

[42] I am also satisfied that Mr. Johnson regretted the unintended consequences of his actions. He was not prepared to own up to them, but in his own way he was remorseful for what happened.

[43] Mr. Johnson was arrested in connection with Mr. Skupien’s death on November 20, 2013 and has been in custody since that date. To today’s date he has spent 1297 days in custody. His time in custody has not been easy, as I will come to a little later in these reasons. For now I will turn to the impact of the offence.

The Impact of the Offence

[44] The trial was far from a comprehensive biography of the life of Richard Skupien. But from the parts of his life that the trial did shine a little light on, it appears that he lived a hard one. He was 53 when he died, but appeared older. He suffered from chronic pain and was addicted to opioid medication. He was a long-time alcoholic and often intoxicated. He had cirrhosis of the liver and an enlarged spleen. His liver was, in fact, close to failing. He was accident prone; a frequent flyer in his doctor’s office and the local emergency room. How many visits were related to legitimate injuries and how many were feigned or exaggerated to obtain pain medication can only be speculated about. But he was frequently observed by those who knew him to be cut and/or bruised.

[45] Mr. Skupien was estranged from his family. Prior to being taken in by Mr. Johnson he lived on the streets, or not far removed from them. He appeared to have a difficult time with cleanliness and tidiness. His bedroom was an appalling shambles. His messiness was a source of frustration for Mr. Johnson.

[46] Mr. Skupien did have his friends. Mr. Johnson was one of them, despite their troubles. He had a girlfriend, Michelle Paul, for about a year prior to his death. He had another close friend in Denise Sherk. He was known in his local community and cared for.

[47] The state of Mr. Skupien’s health by August 2013 was such that he could not absorb a beating without serious consequences. His spleen was enlarged and susceptible to injury. He was malnourished. His platelet count was very low and he bruised easily. He was weak and vulnerable. As I have said, the evidentiary record does not allow me to reach any conclusion about what caused the fight between Mr. Johnson and Mr. Skupien that led to the beating. But the result is clear. Mr. Skupien lost his life.

[48] Ms. Paul and Ms. Sherk both filed Victim Impact Statements. Their comments reflect exactly what one might expect of someone whose close friend has been violently killed.

[49] Ms. Paul has been overwhelmed with a variety of emotions: sadness, anger and confusion. Her own family relationships have suffered in the result. And she has fallen back into drug addiction.

[50] Ms. Sherk has been devastated by the loss of a friend who was more like a brother. Someone who looked out for her and got her off the streets. A big part of her life is missing. She describes having difficulty sleeping, being ill-tempered and says her nerves are shot. She has trouble controlling her moods. And she is afraid to return to Richmond Hill.

The Legal Parameters

[51] Section 236(b) of the Criminal Code provides that anyone convicted of manslaughter is liable to imprisonment for life. There is no applicable minimum sentence in the circumstances of this case.

The Fundamental Principles of Sentencing

[52] Section 718 of the Criminal Code codifies the fundamental purposes of sentencing: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[53] The fundamental principle of sentencing is set out in s. 718.1 of the Code: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[54] Sections 718.2(a) and (b) provide guidance in terms of some of the factors the court should consider in crafting a sentence in harmony with the fundamental principle I just expressed. In particular, sentences should be increased or decreased to account for any aggravating and mitigating circumstances present in the context of the offence. Moreover, any sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[55] No one sentencing principle or purpose trumps the others. In each case, the weight to be put on the individual objectives varies depending on the facts and circumstances of the offence and of the offender. In this instance, there is no dispute that deterrence and denunciation are of particular importance.

The Positions of the Parties

[56] The Crown seeks a penitentiary term of 10-12 years.

[57] The defence urges the court to impose a sentence in the range of 5-6 years. After credit for time served and by way of mitigation for particularly difficult conditions of pre-trial custody, the defence position is that the net sentence imposed should be time served.

[58] Counsel are agreed that Mr. Johnson should receive the following credits against his sentence:

(a) 1.5 days for each of the 1297 days he spent in pre-trial custody, for a total of 1945 days; and, (b) 120 days in consideration of the particularly onerous conditions he suffered through during his time in custody at the Central East Correctional Centre (“CECC”).

Discussion

[59] Equality under the law is an important feature in most people’s conceptualization of justice. It is important that like offenders be treated alike. This principle of parity is codified in our criminal law under s. 718.2 of the Criminal Code.

[60] The sentencing process almost invariably begins with a search for an appropriate range of sentences associated with the index offence. Ranges serve as a helpful guide and they promote parity.

[61] Manslaughter is an offence that may be committed in a very wide variety of circumstances. It is notoriously difficult to pin down an applicable range of sentences for the offence of manslaughter [2]. Depending on the circumstances in which the offence is committed, the sentence may be anywhere from a non-custodial penalty to life imprisonment. That is to say, the circumstances surrounding the commission of the offence are of singular importance.

[62] Certain basic factors must be kept in mind when fashioning a fit and just sentence for manslaughter in the particular circumstances of any given case. First, manslaughter is a form of culpable homicide. It is a serious offence. Mr. Johnson was charged with second degree murder. He was convicted of manslaughter. The jury concluded that Mr. Johnson caused Mr. Skupien’s death by way of an assault. They had, at the least, a reasonable doubt about whether the killing was intentional. I am satisfied that it was not intentional, but it was, nevertheless, the terrible consequence of Mr. Johnson’s unlawful act. Consequences matter; never more so than when the consequence is death.

[63] Second, though manslaughter and murder are both forms of culpable homicide they are very different offences. They are distinguishable on the basis that murder is an intentional killing, while manslaughter is not. That distinguishing feature may represent a wide gulf in one case and a hair’s breadth in another. In other words, there are some cases where death occurs in the course of the commission of a minor offence; others that may be more aptly described as “near murder” [3].

[64] Third, any sentence imposed must ultimately be tailored to suit the degree of moral culpability of the offender [4].

[65] In assessing Mr. Johnson’s moral culpability, a good starting point is an examination of the aggravating and mitigating circumstances of the case. First, by way of mitigation:

(a) I have found that Mr. Johnson is remorseful about what happened to Mr. Skupien. He has never publicly accepted the responsibility for Mr. Skupien’s death, but I do find that he is genuinely remorseful; (b) Mr. Johnson has a strong support network of family and friends in the community. He has a home and job offers awaiting him upon his release; and, (c) I have indicated already that counsel are agreed on a credit to be given against Mr. Johnson’s sentence for time spent in pre-trial custody. It is further agreed that he receive a credit of 120 days for the particularly harsh conditions he experienced while in custody at the CECC.

[66] The reduction in his sentence that reflects the particularly harsh conditions of pre-trial custody deserves some further comment. The public has a right to know why the sentence of a violent offender is being reduced because of the manner in which he was treated by the state while in pre-trial custody.

[67] Section 719(3.1) of the Criminal Code provides for a cap on any credit to be given to an offender for pre-trial custody of 1.5 days per day served. Courts now routinely grant credit in accordance with that ratio. There are two principle reasons for the enhanced credit. One reason has to do with equality. Existing statutory rules for parole eligibility and early release do not take into account time spent in custody before sentencing. Enhanced credit for pre-trial custody is necessary to ensure that an offender who is released after serving two thirds of his sentence serves the same total amount of time in jail whether or not he was released on bail. The second rationale for enhanced credit reflects the fact that conditions in remand centres, like CECC, tend to be harsher than corrections facilities [5].

[68] In R. v. Duncan [6], the Court of Appeal held that in appropriate circumstances, particularly harsh pre-trial custody conditions can provide mitigation apart from and beyond the 1.5 credit provided for in s. 719(3.1) of the Criminal Code. In Mr. Johnson’s case, counsel are agreed that he should receive a credit of an extra 120 days, or approximately four months. The basis for the agreement between counsel is that Mr. Johnson has spent a considerable part of the last four years in lockdown conditions at CECC.

[69] CECC is gaining some notoriety for its routine use of lockdowns as a means to manage what must be described as chronic staff shortages.

[70] A lockdown, as the word suggests, is a state of affairs where inmates are kept locked up in their cells at times when they would otherwise be permitted out of them.

[71] Cells at CECC are 7 feet wide and 15 feet long. Mr. Johnson described his cell in an affidavit filed as part of his sentencing brief:

[T]he cells at CECC are quite small. They contain two metal stools attached to the floor, a metal desk attached to the wall, one small toilet with no lid or seat, one small sink with a water spout for warm and cold water that shoots up like a water fountain and is prone to clogging, and two bunk beds with two plastic mattresses.

The cells in CECC contain a small, long and narrow window at the back that is sealed. There are intake and outtake vents that are constantly clogging and the air feels stale when I breathe.

[72] Rick Camman, the manager of Security and Investigations at CECC, provided the court with a record detailing the lockdown periods that have occurred during Mr. Johnson’s time there. He indicated that inmates were normally released from their cells to a common dayroom for approximately 8 hours per day. On August 6, 2016, dayroom time was increased to 10 hours per day.

[73] Mr. Johnson deposed that on normal days, inmates were permitted to eat their breakfast and dinner in the dayroom. Three days per week they were also given a razor to shave. On lockdown days, he said that he typically would not have access to a phone, the common area fresh air or a shower. He would have a book, pencil, paper and playing cards to pass the time with. He could also watch television in the common area from his cell.

[74] Mr. Johnson kept a record of lockdown days since he began his incarceration at CECC. His records for 2016 disappeared from his cell, but his records for the period November 23, 2013 to December 31, 2015 reflect the following:

Year	Full-Day Lockdowns	Partial Lockdowns
2013 (from November 23)	4	16
2014	34	125
2015	54	170

[75] The records provided by Mr. Camman reflect the following lockdowns:

Year	Full-Day Lockdowns	Partial Lockdowns
2013 (from November 23)	3	13
2014	7	151
2015	1	183
2016	10	137
2017 to date	7	7

[76] I am unable to resolve the discrepancy between Mr. Johnson’s records and those of the institution. It is unnecessary for me to do so. On either party’s records, the number of lockdown periods is remarkable. I am not the first court to raise concerns about this issue.

[77] The overwhelming explanation for such lockdowns – staff shortages – is rather arresting in my view.

[78] Staff Sergeant Andrea Bourgeault testified at the sentencing hearing. She is one of three current staff sergeants at CECC. She said the following when asked to explain the significant number of staff shortages leading to lockdowns at the facility:

(a) CECC is divided into a number of units, sometimes called pods. Each unit has six ranges. Ranges are rows of cells in two levels. Each range has a dayroom, with a number of tables and a television; (b) Each unit is intended to be staffed by a manager and six correctional officers. One officer is stationed in an observational tower that oversees the entire unit. The other five patrol the ranges within the unit; (c) The minimum number of officers that are needed within a unit, in order to permit the inmates access to the dayroom is four – one in the tower and three on the floor, plus a manager. Any less staff and a lockdown results; (d) Historically, the driving factor behind staff shortages has been a hiring freeze imposed upon the Ministry of Community Safety and Correctional Services that prevented adding officers, even to replace ones lost through attrition; (e) Since 2014, however, the Ministry has been recruiting new officers. CECC currently has sufficient corrections officers, but insufficient managers. The absence of a unit manager results in a lockdown; (f) The shortage of managers is a result of a number of factors, which includes a lack of qualified individuals willing to assume the role. Managers apparently make little more than corrections officers and sometimes less. Not enough people are willing to take on the additional responsibility without a meaningful increase in remuneration. The managerial shortage is an issue that has persisted for seven years; (g) A former staffing model included a 9 a.m. to 9 p.m. shift, which was not popular among corrections officers. In Staff Sergeant Bourgeault’s view, some officers were circumventing those shifts by calling in sick or taking vacation dates, resulting in shortages, particularly after 6:00 p.m. A significant number of lockdowns in Mr. Johnson’s records commenced at 6:00 p.m.; (h) Recently a new staffing model has been introduced with 7 a.m. to 7 p.m. shifts, which has cut down on shortages.

[79] This is not a public inquiry into the conditions at CECC. My intention is simply to highlight the conditions of Mr. Johnson’s remand custody and the explanation offered by the state for those conditions.

[80] Crown and defence counsel have agreed that a credit should be given to Mr. Johnson against his sentence because of the particularly harsh conditions of his pre-trial custody. Those conditions have impacted in a material way on his health. Lockdowns create increased tension among the inmates, with a corresponding increase in violence. They have resulted in increased stress, anxiety and depression in Mr. Johnson’s case.

[81] I agree with counsel that the evidence in this case supports the reduction they have agreed upon.

[82] I turn now to the aggravating features of this case. They include:

(a) This was a violent, physical assault; severe enough to break at least two of Mr. Skupien’s ribs and injure his spleen; (b) Mr. Skupien was a vulnerable individual at the time. He was underweight, malnourished, an alcoholic, suffering from cirrhosis of the liver and an enlarged spleen. He could not possibly defend himself against the bigger and stronger Mr. Johnson; (c) Mr. Skupien was beaten in his own home – a place that should have been a safe harbour for him; (d) Mr. Skupien and Mr. Johnson were friends. This wasn’t a relationship of trust, in the legal sense, but for all practical purposes there was an element of trust between the two roommates that Mr. Johnson betrayed; (e) Mr. Johnson has a lengthy and unenviable criminal record, including several convictions for violent offences. I acknowledge that there is almost a six year gap between Mr. Johnson’s last offence and the one now before the court. On the other hand, Mr. Johnson’s record reflects pretty regular offences from the time he was 18 until now.

[83] Crown and defence counsel each provided the court with a number of cases in an effort to establish the appropriate range of sentence for this offence. As I indicated, the Crown’s view is the range is 10-12 years while the defence holds the view that it is 5-6 years.

[84] I accept that there is a general range of 8-12 years for manslaughter when committed in particularly aggravating circumstances. Some courts used to refer to these types of cases as “aggravated manslaughter” but the Court of Appeal put that practice to bed in 2006 in R. v. Devaney [7], re-affirming that the appropriate approach is to compare the circumstances of each situation on a case-by-case basis.

[85] The cases referred to by the Crown included:

(a) R. v. Clarke [8], where the accused and the deceased lived together in a rooming house. The deceased was an alcoholic who suffered from numerous health problems. The accused stabbed the deceased seven times, in his own home. There was a finding of slight provocation. The trial judge imposed a sentence of 14 years given the brutality of the attack. The Court of Appeal reduced the sentence to 12 years, indicating that the appropriate range for this offence, with numerous aggravating features, was 8-12 years; (b) R. v. Cleyndert [9], where the accused and the deceased were both attending a post-high school graduation field party. The accused was described as looking for trouble and had been involved in a number of confrontations. The deceased eventually threw a punch at the accused, who stabbed the deceased eight times. The trial judge found that this was a case of “aggravated” manslaughter, the usual range of which was 8-12 years. He imposed a sentence of 12 years given that the moral blameworthiness of the accused was very high. This case was, he thought, close to murder. The Court of Appeal found that the trial judge had considered the appropriate range and upheld the sentence of 12 years; (c) R. v. Woodford, 2016 MBQB 72 [10] where the accused got into a fight with her common law partner and her partner’s two sisters. In the course of the fight the accused obtained a knife and stabbed her partner once in the chest, killing her. The trial judge found that the stab wound would not have required significant force, even though it was deadly. Moreover, the accused acted in the throes of an assault upon her by the sisters of the deceased. Her moral culpability was reduced. The accused was young, at 21, and an aboriginal offender. She was sentenced to 8 years; (d) R. v. Hall, [2008] O.J. No. 1965 (S.C.J.) [11] where the accused and another man, both intoxicated army reservists, beat and killed a homeless person in Moss Park in Toronto, adjacent to the Moss Park armory. The accused demonstrated a hatred towards homeless people. The beating was a savage attack. The accused were both in their early 20s and neither had criminal records. They had supportive families and good prospects for rehabilitation. They were each sentenced to 10 years; and, (e) R. v. Klimovich, 2013 ONSC 2888 [12] where the accused stabbed his wife repeatedly with two knives during the course of an argument. The attack was brutally violent and though the jury concluded that it was manslaughter, I, as the trial judge, found that it was a near murder and only reduced to manslaughter on the basis of provocation. The accused had no criminal record. He called 911 and admitted killing his wife immediately. He was suffering from depression at the time of the killing. He was sentenced to 11 years.

[86] The cases referred to by the defence include:

(a) R. v. Chan, 2006 ONCJ 436 [13] where the accused, age 61, engaged in what might be described as a wrestling match with his 72 year old wife on their bed. The bed frame somehow shifted and the deceased’s head and shoulders fell down between the bed and the wall. She suffocated. The accused delayed calling 911 until the next day. He lied about what happened. The accused had no criminal record and the trial judge described the violence used as being at the lower end of the scale. The accused entered a guilty plea. The sentence imposed was 3 years and 7 months in jail; (b) R. v. Hanifan [14] where the accused and deceased engaged in a confrontation at a bar. Outside the bar the accused punched the deceased once in the face. He fell to the ground and struck his head on the pavement, suffering fatal injuries. The accused was convicted of manslaughter and sentenced to 6 years. The Court of Appeal upheld the sentence, noting that it was in the appropriate range given the severity of the blow that felled the deceased, its tragic consequences, and the criminal record of the accused; (c) R. v. Henderson, 2005 BCCA 3 [15] where two males beat another male to death at a crack house where they were employed. The accused punched and kicked the deceased while he was on the ground. The deceased remained laying in a parking lot for about two hours until found by a security guard. The trial judge found that the accused had instigated the fight and was joined in the attack by his co-accused. The accused was 30 years old with a criminal record that included a conviction for robbery. He was on probation at the time of this offence. A sentence of 8 years imposed by the trial judge was upheld on appeal; (d) R. v. Henry, 2002 NSCA 33 [16] where the accused sucker punched a smaller and intoxicated male whom he had witnessed striking a young woman. The accused walked up behind the deceased and tapped his shoulder. When he turned around the accused punched him once in the face. He fell backwards and struck his head on the pavement, suffering fatal injuries. The accused was 31 years old, self-employed, with no criminal record. The trial judge imposed a sentence of 2 years less a day. The Nova Scotia Court of Appeal found that the trial judge had failed to put sufficient emphasis on denunciation and deterrence. They noted that despite the broad variety of sentences for manslaughter, most do fall within a 4 to 10 year length. The most significant distinguishing feature is the moral blameworthiness of the offender. Here, a sentence of 4 years was substituted on appeal; and, (e) R v. Reeve, [2010] O.J. No. 5823 (S.C.J.) [17] where the accused caused the death of his business partner by pushing him during a heated argument. The deceased fell backwards and hit his head on a trailer hitch, killing him. The accused then took considerable effort to cover up the offence by staging it to look like an accident. He put the deceased’s body into a car and drove it off a bridge over the Trent Canal. The accused was 69 years old with no criminal record. He was convicted of first degree murder and served 10 years in prison before his conviction was overturned. On the retrial, he entered a plea of guilty to manslaughter. He was sentenced to two years less one day (time served) in view of the time he had already served as well as immigration consequences that would result if he were sentenced to more than 2 years.

[87] The cases cited by counsel are helpful, but of course they cannot and do not define where, on the spectrum of possible sentences, Mr. Johnson’s moral blameworthiness places him.

[88] In my view, it is less than those cases referred by the Crown that involved the use of weapons such as Clarke, Cleyndert and Klimovich. Each of those cases involved repeated stabbings. At the same time, it is higher than those one-punch cases referred to by defence counsel, including Hanifan, Henry and Reeve and certainly higher than Chan, which I would classify as a near accidental killing.

[89] The Crown urged the court to find that there were sufficient aggravating circumstances here to place this case within the range of 8-12 years typically appropriate for manslaughter cases with significant aggravating features. The defence urged the court to find quite the opposite – that there were insufficient aggravating features here to warrant a sentence in the 8-12 year range.

[90] Ranges are, of course, not fixed in stone. They are merely intended to be helpful guidelines and a useful tool in the effort to treat like cases alike [18]. The question is whether this case is sufficiently like other cases that have fallen into the range of 8-12 years to justify such a sentence. In my view it is, though it is at the bottom end of that range.

[91] The Crown spent considerable effort through the trial and in sentencing arguments urging upon the jury and the court the theory that there had been an ongoing abusive relationship between Mr. Johnson and Mr. Skupien. The best I can say, having heard all of the evidence, is that there may have been. They certainly had their arguments. But at the same time, many of their neighbours described them as close friends, like brothers, who looked out for one another. There was some evidence adduced about incidents of violence purportedly witnessed by two separate individuals. In my view there are sufficient reliability concerns with that evidence that I am not able to say, beyond a reasonable doubt, that a history of abuse is present in this case as an aggravating factor.

[92] I am able to say that this was a very violent attack on a frail and defenceless man in his own home. It can only be described as cowardly given the difference in size and strength between the two men. Mr. Skupien sustained what must have been horribly painful injuries and he undoubtedly suffered throughout the last night of his life. He died violently, painfully and slowly.

[93] I am unable to say just how long Mr. Johnson delayed before calling 911. I cannot say what the gap was between when he ought to have called 911 and when he actually did. I am able to say that he never did tell any of the first responders what really happened to Mr. Skupien. In my view, it would not have made a difference in terms of Mr. Skupien’s chances of survival. It appears to me that he was past recovery by the time he collapsed at home. At the same time, Mr. Johnson described himself as an aider to Mr. Skupien to anyone who cared to listen, rather than as the instrument of his death.

[94] This is not Mr. Johnson’s first conviction for violent offences. He has a long record, though admittedly somewhat dated.

[95] Again, in my view, there are sufficient aggravating features here to put this case within the range suggested by the Crown; but just. In the result I sentence Mr. Johnson to eight years imprisonment. He is entitled to a credit of 1945 days for his pre-trial custody, plus an additional 120 days for the harsh conditions of that custody. The total credit is 2,065 days, which is the equivalent of five years and eight months. The net sentence will therefore be two years and four months.

[96] In addition, the following two ancillary orders are made, on an unopposed basis:

(a) An order that Mr. Johnson provide a sample of his DNA under s. 487.051 of the Criminal Code; and, (b) A weapons prohibition for life under s. 109 of the Criminal Code.

Boswell J.

Released: June 9, 2017

Endnotes

[1] R. v. Ferguson, 2008 SCC 6, [2008], S.C.J. No. 6 at para. 18 [2] See R. v. Creighton, (1993), 83 C.C.C. (3d) 346 (S.C.C.) at para. 20; R. v. L. (N.A.) (1999), 1999 NSCA 41, 172 N.S.R. (2d) 375 (N.S.C.A.) at para. 14; R. v. Reeve, [2010] O.J. No. 5823 (S.C.J.) at para. 50. [3] See R. v. Henderson, 2005 BCCA 3, at para. 20 [4] R. v. Creighton, as above, at para. 20, citing R. v. Martineau, [1990] 2 S.C.R. 633 at page 647. [5] R. v. Summers, 2014 SCC 26 [6] R. v. Duncan, 2016 ONCA 754 at para. 6 [7] R. v. Devaney, [2006] O.J. No. 3996, at para. 33 [8] R. v. Clarke, [2003] O.J. No. 1966 (C.A.) [9] R. v. Cleyndert, [2006] O.J. No. 4038 (C.A.) [10] R. v. Woodford, 2016 MBQB 72 [11] R. v. Hall, [2008] O.J. No. 1965 (S.C.J.) [12] R. v. Klimovich, 2013 ONSC 2888 [13] R. v. Chan, 2006 ONCJ 436 [14] R. v. Hanifan, [2001] O.J. No. 1576 (C.A.) [15] R. v. Henderson, 2005 BCCA 3 [16] R. v. Henry, 2002 NSCA 33 [17] R v. Reeve, [2010] O.J. No. 5823 (S.C.J.) [18] See R. v. D.D., [2002] O.J. No. 1061 (C.A.), at para. 33