Court File and Parties

Court File No.: CR-18-83

Superior Court of Justice

Her Majesty the Queen

v.

James Garthwaite

Reasons for Sentence

Before the Honourable Madam Justice M.K. Fuerst

on Monday, October 9th, 2018, at Barrie, Ontario.

Appearances: K. Staats, Counsel for the Crown M. Chernovsky, Counsel for James Garthwaite

Monday, October 9th, 2018.

Reasons for Sentence

Fuerst, J. (Orally):

Introduction

James Garthwaite shot and killed 50 year old Dana Camber as a result of a bad drug deal. Ms. Camber was not involved in the drug transaction, nor was she known to Mr. Garthwaite.

Mr. Garthwaite pleaded guilty to manslaughter. Specifically, he admits that he committed the unlawful act of possession of a prohibited firearm, and so caused Ms. Camber’s death.

The Circumstances of the Offence

On March 13th, 2017, James Garthwaite travelled to Barrie from Toronto with David Glover and Gregory Keays. All three were drug users. They planned to “party” in Barrie.

En route to Barrie, Mr. Garthwaite and Mr. Keays did some heroin that Mr. Garthwaite provided, while Mr. Glover got a prescription for opiates filled at a pharmacy.

Mr. Garthwaite brought with him a 12-gauge double-barrelled, sawed-off shotgun and some shotgun shells. He showed the gun to his companions and said that they should shoot the gun out in the woods somewhere.

Mr. Keays drove Mr. Garthwaite to Keswick so that the latter could sell heroin there. They smoked some drugs together.

Mr. Keays arranged to buy drugs from John Nanibush in Barrie. Mr. Garthwaite provided $160 for the purchase.

Around 1:00 a.m. on March 14th, Mr. Keays drove to a mall with Mr. Glover and Mr. Garthwaite. Mr. Nanibush met them there. Mr. Nanibush took the money in exchange for a package that was represented to be fentanyl.

After Mr. Nanibush left, the three men discovered that the package contained bath salts. Mr. Keays and Mr. Garthwaite went into the nearby apartment building where Mr. Nanibush was staying, but did not find him. They did not know that he was staying in Ms. Camber’s apartment.

The men returned to Mr. Glover’s residence. Mr. Garthwaite was upset about the drug “rip-off”. Mr. Keays contacted an intermediary who agreed to reimburse them by giving Mr. Keays drugs. The three men smoked marijuana, then Mr. Keays drove the group to a convenience store where they were to meet the intermediary’s agent.

While they waited, Mr. Garthwaite asked Mr. Keays to take him back to the apartment building to find Mr. Nanibush. Mr. Keays drove back to the apartment building. Mr. Garthwaite went to the front door of the building, then returned to the vehicle. Mr. Keays drove back to the convenience store, where he obtained fentanyl from the intermediary’s agent.

Mr. Garthwaite, Mr. Glover and Mr. Keays smoked the fentanyl in the vehicle.

Mr. Garthwaite wanted to return to the apartment building to get his money back from Mr. Nanibush. At some point, Mr. Keays gave Mr. Garthwaite the phone number for Mr. Nanibush.

Just after 1:00 a.m., Mr. Garthwaite contacted Mr. Nanibush by phone, purporting to be someone who wanted to purchase drugs. There were a series of phone calls and texts between the two men. Mr. Garthwaite set up a fake drug purchase from Mr. Nanibush, as a ruse to get the latter out of the apartment building so that he could be robbed.

Just before 2:30 a.m., Mr. Keays, with Mr. Glover in the vehicle, drove Mr. Garthwaite back to the apartment building where Mr. Nanibush was staying. Mr. Garthwaite went into the building alone.

Minutes later, he returned to Mr. Keays’ vehicle. He told Mr. Keays to get out of there, and that he had “fucked up”. He said that he had the gun with him, that he met Mr. Nanibush in the hallway and chased him, that Mr. Nanibush got into the apartment and he then tried to get in as well, that he was in the doorway trying to get into the apartment, that a lady was closing the door on him, that that was when the gun went off, and that it was an accident.

At 2:40 a.m., Mr. Nanibush and a female companion called 9-1-1 from Ms. Camber’s apartment. They reported that there had been a shooting. Because they were wanted by the police, they left the apartment. The police attended and found Ms. Camber on the floor, with no signs of life.

Ms. Camber suffered a penetrating gunshot wound of the abdomen. The gunshot injured several large blood vessels, the bowel, and bones. The mechanism of death was fatal blood loss/hemorrhage. Ms. Camber would have lived for only a matter of minutes after the shooting.

Mr. Garthwaite specifically admits on this guilty plea that he shot and killed Dana Camber with a sawed-off shotgun, which he carried into the apartment building concealed on his person.

After the shooting, Mr. Garthwaite, Mr. Glover and Mr. Keays returned to Mr. Glover’s residence, and then went to Mr. Keays’ residence in Innisfil. The next day, Mr. Keays and Mr. Glover took Mr. Garthwaite back to Toronto.

Mr. Garthwaite was arrested on April 5th, 2017, and charged with first degree murder, along with Mr. Glover and Mr. Keays.

In May 2017, the sawed-off shotgun was found in a locker used by the boyfriend of Mr. Garthwaite’s sister, at that person’s workplace.

After the preliminary inquiry commenced in June 2018, Mr. Keays and Mr. Glover pleaded guilty to being accessories after the fact to murder. Mr. Garthwaite then truncated the preliminary hearing. He pleaded guilty to manslaughter soon after his committal for trial.

The Victim Impact Information

Dana Camber was a daughter, a sister, a mother and a grandmother. Those she left behind feel sadness and an emptiness in their lives. Some family members have sought counselling as a result of her death and the nature of her death. Others cannot express their emotions because too much pain is involved.

The Circumstances of Mr. Garthwaite

Mr. Garthwaite was 24 years old when he killed Ms. Camber. He is now 26 years old. His mother suffered from drug addiction and related issues. He did not know his father. Mr. Garthwaite and his sister were raised by their grandparents.

Although it seems that Mr. Garthwaite’s grandparents were caring individuals, Mr. Garthwaite fell into a life of crime as a juvenile. He was found guilty as a youth of robbery and other offences in 2009. His criminality carried on after his 18th birthday. In particular, in 2011, he was sentenced to the equivalent of three years in the penitentiary for robbery, use of a firearm and related crimes. The offences involved a home invasion and drugs, in which Mr. Garthwaite wielded a handgun described as an imitation firearm. In 2013, he was found to be a statutory release violator and was recommended to the penitentiary. In 2015, he was sentenced to the equivalent of three years in the penitentiary following his conviction for possession of two firearms knowing that possession was unauthorized, and at a time when he was bound by a prohibition order.

Mr. Garthwaite was on federal parole when he killed Ms. Camber.

Mr. Garthwaite appears to have no employment history. He completed his high school education in the penitentiary. He has one university credit, for a course also completed in the penitentiary.

He has the support of his grandparents, sister, other family members and his girlfriend. They describe him as a caring person. He is close to his grandparents and sister in particular. They expressed their intention to stand by Mr. Garthwaite, while he is incarcerated and on his release.

At the sentencing hearing, Mr. Garthwaite apologized to Ms. Camber’s family for taking her life and for the pain he has caused them. He expressed his intention to try and better himself.

The Positions of the Parties

On behalf of the Crown, Ms. Bhangu seeks a sentence of 12 to 14 years in jail, less pre-trial custody for the time post-warrant expiry of the previous sentence, credited at one and a half to one. She submits that this is a manslaughter that is close to a murder. Denunciation, deterrence and protection of the public are the paramount principles of sentencing in this case. She emphasizes that Ms. Camber’s death was unprovoked. It resulted because of Mr. Garthwaite’s anger at another person, Mr. Nanibush. It is aggravating that Mr. Garthwaite, as part of his plan to rob Mr. Nanibush to settle a drug “rip-off” and get his money back, took a loaded sawed-off shotgun to the apartment building where Mr. Nanibush was staying. The shooting occurred as Mr. Garthwaite chased Mr. Nanibush and tried to invade Ms. Camber’s apartment. Mr. Garthwaite was on federal parole, and also bound by a firearms prohibition order at the time. He has a previous criminal record for crimes of violence and firearms offences. His moral blameworthiness is high.

Ms. Bhangu also seeks a DNA order, a lifetime s. 109 order, forfeiture of the shotgun, and a non-communication order.

On behalf of Mr. Garthwaite, Mr. Chernovsky seeks a sentence of eight years in jail, less time in pre-sentence custody calculated at one and a half to one. He makes no submissions about the ancillary orders sought. He submits that while this is an aggravated form of manslaughter, it is nowhere close to a murder. Mr. Garthwaite did not intend that anyone would be shot and killed, although he admittedly brought a loaded shotgun to a drug deal. He pleaded guilty to manslaughter, and did so relatively early. His guilty plea is a meaningful one. In court, he expressed remorse and an appreciation of the consequences of his actions. He had a hard start in life and became involved in drugs in adolescence. This offence revolved around drugs. He has a criminal record, but he also has prospects of rehabilitation. He completed high school in the penitentiary. He is fairly young and has a girlfriend who wants a future with him. His grandparents who raised him, and other family members, are very supportive and will assist him on his release from jail.

The Principles of Sentencing

The objectives of sentencing are set out in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence, both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.

In every case, the determination of a fit sentence is a fact-specific exercise. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at para. 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction”. The facts of the offence, the circumstances of the accused, and his or her moral blameworthiness are all considerations.

Sentencing in Manslaughter Cases

Under section 236 of the Criminal Code, where a firearm is used in the commission of manslaughter, there is a minimum sentence of four years in jail, and a maximum sentence of life imprisonment.

A diversity of circumstances will found a conviction for manslaughter. Accordingly, there is wide variation in the range of sentence, and it is difficult to identify that which is applicable in a given case. At one end of the manslaughter spectrum, the circumstances may approximate an unintentional and almost accidental killing, while there will be those approaching murder at the opposite extremity: see R. v. Carrière (2002), 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10.

Carrière is itself an example of circumstances falling at the most serious end of the manslaughter spectrum. That offender planned to rob a convenience store. He had been drinking. He went into the store at night, armed with a loaded handgun. He brandished the firearm and chased the owner to the back of the store, where there was a struggle. In the course of the struggle, he shot the owner twice. He completed the robbery and fled. The Court of Appeal substituted a conviction of manslaughter for that of murder. It found that the offender’s moral culpability came very close to the murder end of the manslaughter spectrum, in that the offender’s mental state closely approached the level of culpability required for murder. It commented at paragraph 10 that, “Use of a weapon like a .357 magnum almost always results in a death or grievous injury.” It would have imposed a sentence of 14 years’ imprisonment in addition to pre-sentence custody credited at 3 years, constituting a sentence of 17 years in jail, had it sentenced the offender immediately after his trial, rather than years later.

Since Carrière, other cases of manslaughter involving the use of firearms have attracted significant penitentiary sentences, often, although not always, in the double digits. Some examples from the caselaw provided by Crown and defence counsel make this clear.

In R. v. Loppie, the offender pleaded guilty to manslaughter. He and his common-law spouse argued about their relationship. The spouse was in the process of taking steps to leave the offender. The offender became angry. He pulled out a gun and pointed it in the direction of his spouse. As he did so, he accidentally discharged the gun and shot her in the chest, killing her. The sentencing judge described the case as one of domestic violence. She sentenced the offender to 12 years in jail, which was in addition to pre-sentence custody credited as about three years, constituting a sentence of 15 years in jail.

In R. v. Leaf, the offender pleaded guilty to manslaughter. He went into a residence to commit a drug “rip-off”. He was armed with a loaded handgun, although he did not intend to kill anyone. He displayed the gun and told the occupants of the residence to lie on the floor. When they did not, he cocked the gun to scare them. Once they were on the floor, he began to collect their wallets. As he did so, the gun went off. One of the victims was shot in the neck. The offender took the wallets, left the residence, and disposed of the gun. He was sentenced to imprisonment of 9 years and 7 months, which was in addition to pre-sentence custody credited as 29 months, constituting a sentence of 12 years in jail.

In R. v. Tucker, 2010 ONSC 6600, the deceased became angry when he thought that his girlfriend was involved with the offender. He telephoned the offender. They had a heated exchange. The offender suggested that they meet. They did so. The offender was armed with a handgun. It appears that the deceased had a knife or knives, although there was no evidence that he brandished any knife. The offender shot and killed the deceased. The trial judge described the deceased as “not blameless”. He sentenced the offender to 9 years in jail, less pre-sentencing custody credited as 4 years and 11 months, leaving a sentence to be served of 4 years and one month.

Analysis

I have reviewed and considered all of the cases referred to by Crown and defence counsel. I recognize that the principles of denunciation and deterrence are not always paramount in manslaughter cases, nor is the goal of rehabilitation always subordinate to those objectives: see R. v. Jiwa, 2012 ONCA 532. But, in this case, as in Carrière, the objectives of denunciation, deterrence, both general and specific, and the need to separate Mr. Garthwaite from society have primacy. Rehabilitation cannot be ignored, but it must assume a subordinate role.

The circumstances of this manslaughter are highly aggravating. They include the following:

1. Mr. Garthwaite, driven by anger, came up with a plan to rob Mr. Nanibush that involved a considered ruse.
2. Mr. Garthwaite chose to take with him a gun that he knew was loaded.
3. While I accept that Mr. Garthwaite did not intend to kill anyone, I find beyond a reasonable doubt that his purpose in taking the loaded shotgun was to frighten and intimidate Mr. Nanibush, and in that way to dominate him.
4. When Mr. Nanibush tried to flee to a place of safety, Mr. Garthwaite, while armed with the loaded firearm, chased him in the hallway of an apartment building. Mr. Garthwaite was indifferent to the obvious potential for harm to other occupants of the building.
5. Ms. Camber was killed as Mr. Garthwaite tried to invade her home in pursuit of Mr. Nanibush.
6. Ms. Camber had no involvement in the dealings between Mr. Garthwaite and Mr. Nanibush, and did not provoke Mr. Garthwaite’s anger in any way. She was, in that sense, an innocent bystander.
7. Her death has had a lasting impact on several generations of family members.
8. After the shooting, Mr. Garthwaite fled, ultimately back to Toronto.
9. He took steps to hide the shotgun so that it would not be recovered.

Mr. Garthwaite’s personal circumstances are also aggravating. He was on federal parole, and additionally bound by a firearms prohibition order, when he killed Ms. Camber. Despite restrictions imposed on him by both the judiciary and the Parole Board, his conduct at the time of this offence involved using drugs, selling drugs, buying drugs, and carrying a prohibited weapon and the ammunition for it. He paid no heed to restrictions imposed on him to ensure his good behavior and thereby assist in his reintegration into society and the protection of members of the public. In the past, he violated his statutory release conditions, and on other occasions, he failed to comply with court orders.

Other aggravating aspects of his personal circumstances are:

1. Mr. Garthwaite has demonstrated a propensity for violence over almost a decade, since his teenaged years.
2. It appears that his criminality is connected to a drug problem that remains both unacknowledged and unaddressed.
3. His affinity for guns is of great concern. The link between firearms and the risk of serious injury or death to others is incontrovertible, and sadly evidenced by Ms. Camber’s death.
4. He has no real history of employment.
5. The support of people close to him, including his grandparents who raised him, seems to have had no positive influence on his behavior to this point.

In mitigation, Mr. Garthwaite pleaded guilty, after a preliminary hearing at which some evidence was called, but very soon after he was committed to stand trial. His guilty plea is a sign of his remorse and his willingness to accept responsibility for his offence. He expressed remorse to me in court. He is not youthful, but he is relatively young. His childhood was not easy. To his credit, he furthered his education during his incarceration, which demonstrates some ability to commit to a goal. His grandparents and others close to him are prepared to support his reintegration into society on his release from jail.

The circumstances of this shooting do not rise to the level of near-murder described in Carrière. But, Mr. Garthwaite’s moral blameworthiness is high, in particular because he chose to carry a firearm that he knew was loaded to a planned robbery. A substantial penitentiary sentence is required. That suggested by defence counsel is too low, given the many aggravating aspects of this manslaughter. Equally, the range suggested by Crown counsel is too high, given that it would represent a very substantial increase in the length of jail sentences imposed on Mr. Garthwaite, and so offend the jump principle of sentencing.

Conclusion

Mr. Garthwaite, please stand.

I sentence you to 10 years in the penitentiary, less credit for time served of 330 days, treated at one and a half to one as 495 days, or the equivalent of 16 and one half months, leaving a sentence to be served of 8 years, 7 months and 15 days.

There is a DNA order, a s. 109 order for life, a non-communication order with the persons named by Crown counsel, and an order forfeiting the firearm. I impose the victim surcharge of $200, and Mr. Chernovsky, you’ll suggest time to pay.

MR. CHERNOVSKY: I usually say ten years is a representative of what I think of that provision of the Code, but a year after he’s released, I suppose.

THE COURT: Ten years, Ms. Staats? It’s a mandatory order, so I must make it.

MS. STAATS: I have no submission on that, Your Honour.

THE COURT: It’s a mandatory order, so I must make it. So, ten years then. And I got the amount right, Madam Registrar?

COURT REGISTRAR: Yes, Your Honour.

THE COURT: Thank you. You can have a seat, sir. And you want, Ms. Staats and Mr. Chernovsky, just to check my mathematics of ten years less the 495 days.

MS. STAATS: I think we’re agreed, Your Honour.

THE COURT: Thank you. I know on the last occasion, you or Ms. Bhangu had given the names for the non-communication order. I’m not sure if Madam Registrar has those in front of her, but if not, they may need to be repeated. I have endorsed on the indictment that Mr. Garthwaite is sentenced to ten years in jail, less credit for 495 days of pre-sentence custody, based on 330 days at one and a half to one, leaving to be served eight years, seven months and 15 days. There is a DNA order, a section 109 order for life, a non-communication order, a forfeiture order in respect of the firearm, and a victim surcharge of $200 with ten years to pay. I think that’s everything for today. Madam Registrar you have everything you need to do the paperwork?

COURT REGISTRAR: I do. I just need the non-communication names.

MS. STAATS: I know there would be Therese Camber, Cyncerity Camber, Hailey Camber. I just wanted to confirm the other names. I don’t have a copy of what we filed last day.

MR. CHERNOVSKY: Sorry, Your Honour, is there a copy of your ruling?

THE COURT: They’re just my…

MR. CHERNOVSKY: Okay.

THE COURT: …my notes that I read from.

MR. CHERNOVSKY: Thank you.

THE COURT: Thank you.

MATTER CONCLUDED.

Certification

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, AMANDA WALKER, certify that this document is a true and accurate transcription of the recording of R v. James Garthwaite, in the Superior Court of Justice, held at Barrie, Ontario taken from Recording No. 3811_15_20181009_082617__20_FUERSTM.dcr, heard Monday, October 9th, 2018, which has been certified in Form 1 by J. CONJAERTS.

(Date) (Signature of Authorized Person)