COURT FILE NO.: CR-21-30000218-0000 DATE: 20220413

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MICHAEL MACKINNON

Counsel: Jonathan Smith and Levi Vandersteen, for the Crown Dirk Derstine and Kristianne Anor, for Mr. MacKinnon

HEARD: February 4 and 25, 2022

Justice J. Copeland

REASONS FOR SENTENCE

Introduction

[1] In a judge alone trial, I found Michael MacKinnon guilty of one count of manslaughter and one count of aggravated assault: R. v. MacKinnon, 2021 ONSC 4763. These were included offences. I found Mr. MacKinnon not guilty of the offences he had been charged with, second-degree murder and attempted murder. Mr. MacKinnon had advanced a defence of not criminally responsible (“NCR”) on the basis that he has Post-traumatic Stress Disorder (“PTSD”) and dissociated at the time of the stabbings. I rejected the NCR defence on the basis that I was not persuaded on a balance of probabilities.

[2] I now must sentence Mr. MacKinnon. The central issues I must decide on this sentencing are the appropriate sentences for manslaughter and aggravated assault in the factual circumstances before the court, and what is an appropriate total sentence for both offences together. The latter issue involves consideration of the totality principle, and principles around the exercise of discretion to impose concurrent or consecutive sentences.

[3] The Crown takes the position that a total sentence of 12-14 years should be imposed, less credit for pre-sentence custody under s. 719(3.1) and any consideration the court deems appropriate for the impacts of the COVID-19 pandemic on conditions of pre-sentence confinement. According to Crown counsel, a sentence in this range would reflect a range of 8-12 years for manslaughter in “aggravated” circumstances, and a sentence of 3-5 years for the very serious aggravated assault on Mr. Deliva.

[4] The defence seeks a sentence of time served. In light of the amount of pre-sentence custody served by Mr. MacKinnon, this would effectively be a sentence in the range of 5-7 years. The defence further submits that if the sentence is time served, or in any event, if the remaining time to be served is less than 2 years, the court could consider imposing a term of probation of up to 3 years, pursuant to s. 731 of the Criminal Code.

[5] Counsel reached an agreement on several issues related to credit for pre-sentence custody and related mitigating effect for particularly harsh conditions of pre-sentence custody, which I discuss below. In addition, counsel are in agreement regarding three ancillary orders that are appropriate in this case (two of which are mandatory).

[6] For reasons set out below, on the conviction for manslaughter on count #1, I sentence Mr. MacKinnon to 9 years imprisonment. On the conviction for aggravated assault on count #2, I sentence Mr. MacKinnon to 3 years imprisonment, concurrent to the sentence on count #1. Pursuant to s. 719(3.1) of the Criminal Code, 69 months (5 years and 9 months) credit for pre-sentence custody is to be deducted from the sentence, which leaves 39 months (3 years and 3 months) remaining for Mr. MacKinnon to serve.

[7] In addition, Mr. MacKinnon will be subject to a s. 109 order for life for both categories of weapons. He will be required to provide a DNA sample. I also make an order of non-communication with a number of listed individuals pursuant to s. 743.21 of the Criminal Code for the duration of his incarceration.

The offences

[8] I will only summarize the facts relating to the offences briefly. Because this was a judge alone trial, the factual findings about the offences are set out in detail in my reasons for judgment.

[9] The offences took place outside the Working Dog Saloon (“the bar”), in the early morning hours of June 16, 2018, shortly after the bar closed. Mr. MacKinnon had been at the bar for the evening with Jaelaune Dimitruk, and they were later joined by Chris Williams. Paul Spilchen, Richard Deliva, and Gordon Forgues were also at the bar for the later part of the evening. Apart from some incidental conversation between Mr. Dimitruk and Mr. Deliva inside the bar prior to closing, the two groups did not interact inside the bar. The two groups of men did not know each other.

[10] I found at trial that Mr. Dimitruk, Mr. Spilchen, Mr. Deliva, and Mr. Forgues were all significantly intoxicated by the time the bar closed. Mr. MacKinnon had consumed five Bud Light tall boy beers, plus one other beer earlier in the evening. Although the alcohol likely had some effect on Mr. MacKinnon, he was not significantly intoxicated.

[11] After the bar closed, the six men stood outside in the parking lot for a period of time. I found that Mr. Dimitruk engaged in conversation with Mr. Deliva and Mr. Spilchen during this time. Mr. Forgues was present, but it was difficult to tell if he was actively participating in the conversation. I found that Mr. MacKinnon was present for that part of the evening, just outside the door to the bar, but it was difficult to tell if he was actively participating in the conversation. For some of this time, Mr. MacKinnon was just standing there. For some of the time he was some distance away speaking to Mr. Williams close to Mr. Williams’ car, which was parked a short distance from the entrance to the bar.

[12] Mr. Spilchen’s group had called a taxi shortly before exiting the bar. The taxi arrived, and Mr. Spilchen’s group got into the taxi and left. Just before they left, they could be seen on the video evidence filed at trial apparently saying goodbye to Mr. Dimitruk, including Mr. Dimitruk embracing both Mr. Spilchen and Mr. Deliva.

[13] Mr. MacKinnon and Mr. Dimitruk then joined Mr. Williams in his car.

[14] Within less than 30 seconds after the taxi pulled out onto St. Clair Avenue East, Mr. Spilchen, Mr. Deliva, and Mr. Forgues returned on foot to the parking lot outside the bar. According to the taxi driver, who testified at trial, the taxi had turned onto St. Clair, and gone only 10 or 20 metres, when one of the men (he was not sure which one), told him to stop. Based on the video evidence at trial, I found that the taxi had probably gone less than 10 metres when it stopped. Mr. Spilchen’s group got out of the taxi, and walked back to the Working Dog parking lot. The taxi driver testified that the passenger in the front seat left the door open when he left. The men did not pay their fare. Mr. Deliva and Mr. Forgues had no memory of why they returned. The reason they got out of the taxi and returned to the parking lot is one of the unanswered questions of this trial.

[15] Mr. MacKinnon testified that he saw Mr. Spilchen’s group come back, and heard Mr. Deliva shout, “Hey buddy”. I found at trial, based on the video evidence, the three men in Mr. Spilchen’s group came back to the parking lot, with Mr. Deliva in front, advancing towards Mr. Williams’ car. Mr. Deliva was looking towards Mr. Williams’ car, and he appeared to be speaking. Mr. MacKinnon and Mr. Dimitruk could be seen on the video getting out of the passenger side of Mr. William’s vehicle.

[16] Based on the video evidence at trial, I found it to be clear that the tenor of the interaction between the two groups was different after Mr. Spilchen’s group returned after leaving in the taxi. Because there was no sound on the video evidence filed at trial, I was not able to draw firm conclusions from the video evidence about what was happening. But the body language of the men was different than what was visible earlier. For a time, Mr. Dimitruk was engaging with Mr. Spilchen and Mr. Deliva. For a time, all of the men except Mr. Williams were in fairly close proximity. During this time, Mr. MacKinnon and Mr. Spilchen could be seen speaking and then shaking hands. Then Mr. MacKinnon stepped away from the group and towards where Mr. Williams was standing a short distance away. Mr. MacKinnon then returned, and was standing near Mr. Spilchen and Mr. Deliva. They appeared to be speaking. Mr. MacKinnon placed his right hand on Mr. Deliva’s shoulder. He then moved his right hand back, and then suddenly made a punching motion at Mr. Spilchen’s stomach with his left hand. Mr. MacKinnon then put his right hand on Mr. Deliva’s shoulder, and made a punching motion at his stomach with his left hand. There was no dispute that this was when the stab wounds were inflicted. It happened very quickly in the video, within the span of a few seconds.

[17] After the stabbings, Mr. MacKinnon left the parking lot on foot. He travelled east on St. Clair, and then north up the first side street, Vivian Road. There, he entered Mr. Williams’ car. He attended at gas station and took money out of an ATM. After that, he and Mr. Williams spent the night at a hotel. Mr. MacKinnon testified that he has limited memory of the events after the stabbings; however, he made inconsistent statements about this issue. Mr. MacKinnon was arrested on Sunday afternoon, June 17, 2018, at the home of his mother-in-law.

[18] At trial, Mr. MacKinnon advanced a not criminally responsible (“NCR”) defence. The NCR defence was advanced on the basis that due to his diagnosis of PTSD, caused by complex trauma in his childhood, and having himself been shot in the chest at the age of 17 years, Mr. MacKinnon dissociated when he heard a threat from Mr. Spilchen or Mr. Deliva, and his actions in inflicting the stab wounds were not voluntary.

[19] I rejected Mr. MacKinnon’s NCR defence as not proven on a balance of probabilities. However, I did accept that Mr. MacKinnon has PTSD, which was not in dispute among the expert witnesses who testified at trial. The primary reason that I rejected the NCR defence was because of concerns in relation to the credibility of Mr. MacKinnon’s evidence. Because of those concerns, the factual basis for the opinions of the defence experts, Dr. Pomichalek and Dr. Gojer, was undermined.

[20] I will not repeat all the factual findings that led me to reject the NCR defence. One aspect of my findings that has relevance in relation to sentencing is that with respect to Mr. MacKinnon’s evidence that either Mr. Spilchen or Mr. Deliva made a threat involving shooting immediately prior to the stabbings, to the extent that Mr. MacKinnon bore the burden on the balance of probabilities in relation to the NCR defence, I was not satisfied on a balance of probabilities that such a threat was made. However, to the extent that the Crown bore the burden to establish the elements of the offences charged, I was left with a reasonable doubt about the credibility of Mr. MacKinnon’s evidence that a threat to shoot was made.

[21] With respect to proof of the offences of second-degree murder and attempted murder, I was not satisfied that the Crown had proven beyond a reasonable doubt the intent required for those offences beyond a reasonable doubt. For that reason, I found that the Crown has not proven count #1 or #2 as charged. However, I found that the Crown had proven beyond a reasonable doubt the included offences of manslaughter and aggravated assault.

[22] As I address further below, although I found that the defence had not established an NCR defence on a balance of probabilities, it is not in dispute that Mr. MacKinnon lives with PTSD. As I explain in the course of my analysis below, even though Mr. MacKinnon’s mental health issues did not rise to the level of an NCR defence, they still have relevance for sentencing.

[23] In the course of my analysis below, I will refer to other aspects of the facts found at trial that are relevant to sentencing. For the most-part, I do not find the need to find additional facts beyond the findings I made at trial, with two exceptions. First, I make findings about the impact of the offences on the family and friends of Mr. Spilchen, and the psychological impact of the stabbing on Richard Deliva (I previously made findings about the physical impact on Mr. Deliva in my trial reasons for judgment).

[24] Second, I make some findings below in relation to the issue of the extent to which Mr. MacKinnon sought treatment for his mental health issues prior to and after the offences. His history of treatment is set out in some detail in my reasons for judgment. The findings I make are more in the nature of characterization, in order to consider the Crown submission that Mr. MacKinnon’s mental health issues should not be significantly mitigating because he was at times stopped taking medications prescribed by his family doctor for mood issues, and because he did not seek treatment in a significant way for his mental health issues during his pre-trial incarceration.

The Circumstances of Paul Spilchen and the impact of his death on his family and friends

[25] Victim impact statements were filed with the court from family and friends of Mr. Spilchen. Many were read in court by the authors. Others were read by Crown counsel. The emotion and loss of Mr. Spilchen’s family and friends could be seen and heard in the courtroom, and also in the written words on the page.

[26] For the most-part, I will not summarize the victim impact statements individually. Rather, I will outline a number of themes that emerged from the statements.

Paul Spilchen’s character and relationships

[27] The victim impact statements were filed by family and friends who had a variety of different types of relationships with Paul Spilchen. The court heard about Paul Spilchen as a son, a fiancé, a brother, a soon to be son-in-law and brother-in-law, a nephew, a cousin, a grandchild, an employee or co-worker, a friend, a Leafs fan, and other relationships he had with the many people in his life. The victim impact statements made clear how broad was the web of relationships that Paul Spilchen wove during his life. They also spoke about Paul Spilchen’s character.

[28] Rhonda Spilchen, Paul’s mother, said he made friends easily and was always smiling. She talked about his decision to attend a trade school to learn a hands-on trade. She initially worried about that decision, but he loved it and excelled. He found work at a company that valued his work, taught him more about his trade, and gave him progressively more responsibility. Rhonda Spilchen described Paul as a positive person, who brought a lot of joy to people’s lives. Family was everything to him. She spoke about Paul’s love for his brother Jacob, 10 years his junior. She spoke about Paul and Annie’s relationship and growing together. And she spoke of her love for Paul and his love for her: “Paul loved me beyond anything in this world. We are each other’s rock, the love between mother and son was unconditional, we were so close. He was so proud of me. He made me the mother I am today. I was so proud to call Paul my son.”

[29] Anna Forte, Paul’s fiancée, spoke about her love story with Paul. She said it was “love at first sight”, and that she knew from the first moment she met Paul met in 2010 that she wanted to spend her life with him. Paul was welcomed by her family, who adored him. The couple lived together with her parents for seven years, and had just moved into their own apartment in May 2018. Ms Forte described Paul Spilchen as a person who took time with everyone he met, and made deep connections with people. He was a hard worker, and was making a name for himself at the company where he worked. He was kind, talented, and humble.

[30] Jacob Storr-Spilchen, Paul’s younger brother, described the closeness of their relationship, and how Paul would always look out for him. They played sports together, and video games. Even though Jacob was 10 years younger, Paul would always make sure he was included when Paul played sports with his friends. Later, they worked together at the same company. Paul was a hard worker, and was making a name for himself at that company. Jacob also spoke about the life lessons that Paul tried to instill in him: “He taught me that working hard for what you get in life will always be worth it. To always try to lend a hand to someone in need. To live life without regrets, and not take everything so seriously because life was too short to let the little things bother you.”

[31] Paula Downie, Paul Spilchen’s aunt, described him as a helper and a giver. Christina Spilchen, also Paul’s aunt, described him as a “family man”. He was the oldest grandchild in his family, and the oldest of 10 cousins. One of those cousins, Shyanne McPherson, described Paul Spilchen as a “social butterfly”, who made lifelong relationships. She described him as laid back, loyal, and trustworthy. He loved sports, especially the Leafs and the Blue Jays.

The Loss experienced by Paul Spilchen’s family and friends

[32] All of the family members and friends who prepared victim impact statements spoke of the profound loss they feel as a result of Paul’s death. Some spoke of feelings of anguish and rage. Some spoke of sadness, anxiety, crippling emotional pain, and sleepless nights.

[33] As I have said, I will not specifically outline the loss to each member of Paul Spilchen’s life who suffered and continues to suffer a loss due to his death. But I want to pause to address the loss to his mother, his fiancée, and his brother.

[34] Paul Spilchen’s mother, Rhonda Spilchen, spoke movingly about the loss of her oldest son. She spoke about Paul’s birth, and raising him as a single mother, about how his birth changed her life and gave her purpose. She spoke of her disbelief on being told that Paul had been stabbed, and her pain and shock on being told he had passed away. Ms Spilchen spoke about remaining at the graveside for many hours after Paul’s funeral. She continues to visit his grave every day. Ms Spilchen in many ways also suffered a loss of her younger son with Paul’s death. Her younger son, Jacob, moved out of her home because he could not live with the memories of Paul in the house. In addition, Ms Spilchen spoke about how long and difficult the grieving process has been for her. She spent the first close to seven months mostly in bed. In December 2018, Jacob took her to hospital, where she received treatment for depression and anxiety. She continues to take medication and attend counselling for depression.

[35] Paul Spilchen and Anna Forte were to be married in July 2018. On the night of Paul’s death, Anna was out of town with friends for a bachelorette weekend. She spoke of the horror of being woken in the middle of the night by her best friend and being told that Paul had been stabbed, driving back to Toronto to the hospital, and later learning that Paul had died while she was en route.

[36] Anna’s dreams for a life with Paul were shattered by his death. She told of putting his wedding band on Paul’s finger for the funeral. In her own words, “I became a widow at 27 years old.”

[37] After Paul’s death, Anna quit her school program, and quit her job. She feels that nothing matters to her anymore. In the almost four years since Paul’s death, she has found it impossible to start her life over again. Lily Forte, Anna’s mother wrote about how her family was shattered by Paul Spilchen’s death. She and her husband loved Paul as a son. As parents, they had the added burden of seeing the emotional agony of their daughter losing her partner and the hopes and dreams she had for her life with him. In addition, both Anna and her sister, Daniella Moss, also spoke about how difficult it was to see them impact of Paul’s death on their own parents, who loved him.

[38] Jacob Storr-Spilchen, Paul Spilchen’s younger brother was the first to receive the call about Paul being stabbed. He had to break the news to his mother and father. Paul’s death had profound impact on Jacob. In his victim impact statement, he spoke about his feelings of anger, anxiety, and difficulty connecting with people the way he used to. Jacob also spoke of the impact of Paul’s death on the family as a whole. He said that Paul was the glue that kept the family together. Since Paul’s death, the family has been “broken by grief”.

[39] Many members of Paul Spilchen’s family, and his friends, spoke about feelings of fear, and of loss of safety in their community as a result of the circumstances of Paul’s death.

The Impact on Paul Spilchen’s family unit

[40] One final impact of Paul Spilchen’s death that was clear from the victim impact statements as whole was that his death has had a shattering impact on his broader family unit. I mentioned Rhonda Spilchen explaining that her younger son, Jacob, moved out of her home because he could not live with the memories of Paul there. Jacob himself said that the family was broken by grief. Other family members, including extended family, spoke of the once tight family unit being ripped apart. Paul Spilchen played an important role in the family as someone who brought family together. But beyond that role, it is clear that the impact of the grief that individual family members are suffering as a result of Paul’s death has cast a shadow over all of the family relationships.

[41] Paul’s cousin Shyanne McPherson expressed the devastating impact on the extended family unit in her statement. She spoke of how Paul’s extended family was very connected before his death. There were many family events, camping and cottages in the summer, just dropping in at someone’s home to hang out midweek. After Paul’s death, she said there are only empty chairs, and lost and broken hearts. She feels that the family will never be whole again.

[42] What emerges from the victim impact statements as a whole is that Paul Spilchen was a young man with a bright future ahead of him. He was a hard worker, with plans to build a family with his fiancée. He cared deeply about and loved his family and friends. He showed that love in in concrete ways on a daily basis – always there for a visit, or willing to lend a hand. It is also clear that Paul Spilchen was deeply loved by his family and friends. His death happened only a few short weeks before he was to be married, and begin a new phase of his life. His death at such a young age is a tragedy for his family, his friends, and his community.

[43] As a judge hearing the victim impact statements of Mr. Spilchen’s family and friends, I can only begin to understand the enormity of their loss. No sentence I impose today will heal their pain or undo their heartache. No sentence will bring Paul Spilchen back to his family and friends. But I want to once again thank all of the family members and friends of Paul Spilchen for taking the time and emotional effort to provide the court and the community with some understanding of the effect the offence has had on you.

The Impact of the offences on Richard Deliva

[44] Richard Deliva chose not to file a victim impact statement.

[45] There is ample evidence in the trial record regarding the impact of the offences on him physically. I summarized the physical injuries to Mr. Deliva in my trial reasons for judgment at paragraphs 354-363. I will not repeat those findings. But I will reiterate the conclusion of Dr. Peter Chu, the surgeon who operated on Mr. Deliva the night of the stabbing. Mr. Deliva had lost 30-40% of his blood volume that night. Without surgery, it is probable he would have died, as it would be exceptional for a person with such a significant loss of blood volume to clot on their own and survive. Dr. Chu testified that immediately in the wake of the stabbing, surgery was performed on Mr. Deliva on the night of June 16, and again two days later. Mr. Deliva testified that he had a further surgery related to the stabbing in March 2019. Although I had concerns with some areas of Mr. Deliva’s trial evidence, I accept his evidence about the March 2019 surgery.

[46] Even in the absence of a victim impact statement, I find that being the victim of such a serious act of violence, nearly dying, and undergoing three surgeries as a result would leave a lasting psychological impact on Mr. Deliva. In addition, Mr. Deliva suffered the loss of his close friend Mr. Spilchen.

Circumstances of Mr. MacKinnon

[47] Because of the NCR defence raised at trial, there was extensive evidence about Mr. MacKinnon’s background in the trial evidence. This evidence is summarized at paragraphs 371-413 of the trial reasons for judgment. In light of this, I will only summarize a few significant points here; however, I bear in mind all of his life circumstances in considering the appropriate sentence.

[48] Mr. MacKinnon is 46 years old. At the time of the offences he was 42 years old. He identifies as mixed race, as his father is African-Canadian and his mother is of Ukrainian heritage.

[49] Prior to his arrest, Mr. MacKinnon worked in landscaping construction, driving materials to jobsites, unloading, and assisting with landscaping work. He has a steady work history for many years. Earlier in his work history he went to trade school to join the heat, frost, and asbestos workers union. This involved a four-year apprenticeship, and three sessions of eight weeks of school each. He later obtained his AZ driver’s license and learned to operate heavy machinery.

[50] Although Mr. MacKinnon had a very difficult childhood and youth, which I return to below, in recent years he has had a stable family life and a supportive family. He has been in a common law relationship with Kelly Peliti for the past approximately 25 years. They each have a son from previous relationships, and they each treat the other’s child as their own. They have grandchildren.

[51] In letters filed during the sentencing hearing, Mr. MacKinnon’s family members and friends describe him as hard working, and loving husband, father, and grandfather. They described him as not being an aggressive or violent person. In addition to his stable work history and family, Mr. MacKinnon has a history of contributing to his community through activities such as coaching children’s sports teams of his children and grandchildren. Many of the family members referred in their letters to the difficulties that Mr. MacKinnon had overcome in childhood and youth to make the life he made for himself and his family.

[52] All of this background shows that Mr. MacKinnon had a lengthy period of living a pro-social life prior to the offences for which he is now being sentenced.

[53] I have described in detail in my trial reasons for judgment the difficulties that Mr. MacKinnon faced in his childhood and youth. Mr. MacKinnon’s parents separated when he was very young. For a number of years he lived with his mother. She was an alcoholic. It would be an understatement to say that she did not provide a stable homelife. Mr. MacKinnon’s childhood was chaotic, and marked by neglect, abuse, poverty, and abandonment. All of the experts who testified at trial agreed that the circumstances of Mr. MacKinnon’s childhood provided a basis to find that he had experienced complex trauma within the meaning of the DSM-5.

[54] At the age of 17 years, Mr. MacKinnon was shot in the chest, and nearly died. He was in hospital for approximately six weeks. The shooting had significant physical and psychological effects on Mr. MacKinnon that continue to this day. All of the experts at trial agreed that based on the complex trauma of his childhood, the trauma of the shooting, and all of the subsequent history of Mr. MacKinnon in evidence at trial, he meets the DSM-5 criteria for a diagnosis of PTSD (although Dr. Ramshaw cautioned that it is difficult in retrospect to assess how symptomatic he was at any given time in the past).

[55] Based on Mr. MacKinnon’s evidence at trial, the records of his family doctor, and the expert evidence at trial, I found that he was experiencing mental health difficulties in at least the 14 months prior to the offences.

[56] Mr. MacKinnon has a very dated criminal record, with four adult entries as follows:

• 1995: transportation fraud and fail to attend court – suspended sentence and 18 months’ probation
• 1995: robbery – time served (the quantum of which is not specifically noted) plus 4 months incarceration, plus 1 year probation
• 1995: impaired driving and mischief over $5,000 – $500 fine and a 3-month driving prohibition
• 2002: fail or refuse to provide breath sample – 14 days jail intermittent, 2 year driving prohibition, 2 years’ probation

[57] Mr. MacKinnon was 19 years old at the time of the first three entries in his record, and 27 years old at the time of the last entry. I will return to the relevance of the dated criminal record later in my analysis of aggravating and mitigating factors.

[58] Mr. MacKinnon addressed the court at the close of his sentencing hearing. He expressed his deepest apologies to the family and friends of Paul Spilchen, and to Mr. Deliva. He said he was deeply sorry for what happened that night, that if he could turn back time, he would do so in a heartbeat. He also apologized to everyone impacted by witnessing the events of that night, including the first responders. He also apologized to his wife, sons, and grandchildren. Mr. MacKinnon’s family members also expressed that based on their communications with him, he is remorseful about his actions the night of June 16, 2018.

Applicable sentencing law

General sentencing principles

[59] In determining an appropriate sentence for Mr. MacKinnon, I must weigh the purposes and principles of sentencing set out in s. 718 of the Criminal Code, as follows:

718. The 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 that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[60] In crafting a fit sentence, I must also have regard to the principles set out in s. 718.2, including the following: considering any relevant aggravating or mitigating circumstances; the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; the principles that where consecutive sentences are imposed, the combined sentence should not be unduly harsh; and the principle that courts should exercise restraint in imposing imprisonment.

[61] 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 s. 718.2(d) of the Criminal Code, and is well-established in the case law. 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 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 the various sentencing objectives. See also R. v. Hamilton, at paras. 89-96; R. v. Sharma, 2019 ONCA 274, at para. 23. Thus, 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.

[62] Sentencing is one of the most difficult tasks undertaken by a judge. Ranges of sentence are important, because similar offenders who commit similar offences, should receive sentences of some similarity to each other as a matter of fairness (see s. 718.2(b) of the Criminal Code). But ultimately, a sentencing judge’s obligation is to impose a sentence that considers the relevant sentencing principles, and imposes a sentence that is proportionate to the gravity and circumstances of the offence and the circumstances of the offender. Ranges are to be treated as guidelines, not straitjackets: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 53-60; R. v. Lowe, 2018 ONCA 777, at para. 9; Criminal Code, s. 718.1.

Consecutive or concurrent sentences

[63] Case law recognizes that sentencing judges have significant discretion in whether to impose consecutive or concurrent sentences when sentencing an offender who has been convicted of multiple counts: R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 46; R. v. W.Q., at paras. 9-11.

[64] Sections 718.2(c) and 718.3(4)(b) codify some principles in relation to a judge’s discretion to impose consecutive or concurrent sentences when sentencing an offender for multiple counts:

718.2 A court that imposes a sentence shall also take into consideration the following principles: (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

718.3(4) The court that sentences an accused shall consider directing (b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when (i) the offences do not arise out of the same event or series of events, (ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or (iii) one of the offences was committed while the accused was fleeing from a peace officer.

[65] Where the offences arise out of the same event or series of events, this factor will often weigh heavily towards imposing concurrent sentences: W.Q. at para. 10-11; R. v. Desmarest, [1986] J.Q. no. 1611 (QCCA), at paras. 22-23.

[66] Whether a sentencing judge imposes consecutive or concurrent punishments when sentencing for multiple counts, the total sentence must be a fit one: Criminal Code, s. 718.2(c).

Credit/mitigation for pre-sentence custody

[67] Mr. MacKinnon 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 enhanced custody at the rate of 1.5 days credit for every day of pre-sentence custody: R. v. Summers, 2013 ONCA 147.

[68] 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.

[69] Duncan credit is not a deduction from the otherwise fit sentence; rather it is a factor to be taken into account 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 a number of mitigating factors. If Duncan credit is given, it cannot be given excessive mitigating effect such that it renders the sentence unfit.

[70] 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 of pre-trial detention, and the effect on the defendant of those conditions. Individualized evidence is not required to establish the basic effects of lockdowns: R. v. Bristol, 2021 ONCA 599, at para. 11. This court and the Court of Appeal have also taken notice, in both bail and sentencing decisions, of the harsher conditions of confinement of serving pre-sentence custody during the pandemic.

[71] As I explain in my analysis below, the parties reached agreement regarding the amount of credit under s. 719(3.1) of the Criminal Code, and the amount of mitigation for lockdowns prior to the pandemic. The only contested issue in relation to pre-sentence custody is the amount of mitigating credit to be considered for pre-sentence custody served by Mr. MacKinnon during the COVID-19 pandemic (a period of approximately 25 months).

Range of sentence for manslaughter and for aggravated assault

[72] The maximum sentence for manslaughter is life imprisonment. The maximum sentence for aggravated assault is 14 years imprisonment.

[73] 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. Sentencing for any offence is case specific, and must reflect the circumstances of both the offence and the offender. Given the wide range of levels of culpability and sentence for manslaughter convictions, it is an offence where the case specific nature of sentencing is particularly important.

[74] As a starting point, I note that the Ontario Court of Appeal has held that in manslaughter convictions where certain types of aggravating features are present, the applicable range of sentence is usually between 8 to 12 years: R. v. Clarke (2003), 172 O.A.C. 133, at para. 8; R. v. Devaney (2006), 213 C.C.C. (3d) 264, at paras. 33-34; R. v. Tahir, 2016 ONCA 136. But this is not a fixed minimum and maximum for a labelled category of cases. In each case the court must consider the circumstances of the offence and the offender, as well as the aggravating and mitigating circumstances, and come to a fit sentence.

[75] I have considered the sentencing precedents provided by Crown and defence counsel. I will not address every case cited by counsel individually. Rather, I will first outline the cases that I found to be most similar and most reflective of the appropriate range of sentence for this case. I will then briefly address why I find that some of the cases cited by Crown counsel with a higher range of sentence, and some of the cases cited by defence counsel with a lower range of sentence are different than the circumstances of this case.

[76] Imposing similar sentences for offences of similar gravity, committed by similar offenders is a long-recognized principle of sentencing, now codified in s. 718.2(b) of the Criminal Code. However, no two cases are identical. Having reviewed the cases put before the court by the Crown and the defence, I find that the cases that have the most similar groups of aggravating and mitigating factors to this case tend to fall in the range of 8 or 9 years imprisonment.

• In R. v. Lee, 2021 ONSC 7672, a 9 year sentence was imposed following a trial. The offender was much younger than Mr. MacKinnon, but there were circumstances relating to the offence that were more aggravated. In that case a confrontation has occurred between two groups. The victim intervened to try and de-escalate the situation. When that failed, the victim tried to run away. The accused and two friends chased after the victim. The victim died as a result of one stab wound inflicted by the accused, when the victim was on the ground. After the stabbing, the accused and his friends fled the scene, and discarded various items, including the knife used to inflict the stab wound.
• In R. v. Cioppa, 2013 ONSC 1242, an 8 year sentence was imposed on an 18 year old offender following a trial. Cioppa bears many similarities to this case, apart from the younger age of the offender. The death was caused by one stab wound. The attack did not involve any planning, although the offender had earlier used the knife that he was carrying to scare off a group of younger teens. There was mild provocation prior to the stabbing, and the offender fled the scene and did not check on the victim. The offender had no criminal record and had good prospects for rehabilitation.
• In R. v. Hermiz, 2007 ONCA 329, an 8 year sentence was imposed on a 19 year old offender following guilty plea. The offender had been charged with second degree murder. The basis on which the plea to manslaughter was agreed to was that a qualified defence of provocation pursuant to s. 232 of the Criminal Code applied. Like many of these cases, the case involved a confrontation between two groups. The victim struck the offender over the head with a beer bottle, and in response, the offender inflicted one stab wound which killed the victim. The offender then fled the scene. The offender had no criminal record.

[77] I accept that one can find cases with a similar mix of aggravating and mitigating factors as this case that go as low as 7 years, and as high as 10 years imprisonment. But I find that the bulk of the case law with similar constellations of circumstances, offender, and aggravating and mitigating circumstances receive sentences in the range of 8 or 9 years imprisonment (before accounting for pre-sentence custody).

[78] I find that the cases cited by the Crown with higher sentences in the range of 10 years and upwards tend to involve factors that support a higher range of sentence than in this case. For example, in R. v. Punia, 2010 ONCA 573, where a 12 year sentence was imposed and upheld on appeal, the offender has stabbed her sister-in-law in the neck, while the victim was holding her baby. The victim died of significant blood loss, with no attempt by the offender to obtain medical aid. The offender also conspired to conceal the death of the victim for 3 years.

[79] I find that the cases cited by the defence with lower sentences in the range of 5 or 6 years (or lower) tend to have factors that support a lower range of sentence than in this case.

• Many of these cases involve very young (although adult) offenders: R. v. Taylor, 2013 ONSC 3370; R. v. Chan, 2019 ONSC 1400; R. v. Golov, 2018 ONSC 6789; R. v. Gordon, 2020 ONSC 7395.
• Some involve an offender who committed the act that caused the death when they were themselves subject to a severe attack (or in the case of Simcoe, a history of sexual abuse by the victim): Taylor; R. v. Ryczak, 2009 ONCA 311; R. v. Simcoe. I note as well that in Ryczak and Simcoe, where particularly low sentences were imposed, the offenders had pled guilty.
• Other cases with lower sentence have particular circumstances that are mitigating that distinguish them from this case. In Chan, 2019 ONSC 1400, a 5 year sentence was imposed. The 19-year-old offender had taken psychedelic mushrooms and experienced effects where he became psychotic and delusional. The trial judge found that this effect of the mushrooms was entirely unforeseeable to the offender. He was afraid, and went to his father’s home to seek help for the effects of the delusions (his father was a doctor), but under the effect of the delusions, stabbed his father to death, and gravely injured his father’s partner. The circumstances of Chan are very unusual and along with the offender’s young age make it very different from the case before the court.
• In Bengy, 2012 ONSC 4463, a 5 year sentence was imposed. The offender who received the 5 year sentence (Mr. Modeste) in many ways had a similar background to Mr. MacKinnon, in that he had a stable prior work and family life, and strong family support. He had no criminal record. Also similarly to this case, the victim was unarmed, and Mr. Modeste fled the scene after the fact. However, Mr. Modeste was a party to the offence. He did not inflict the fatal stab wound on the victim, rather he was involved in a physical altercation with the victim with others at the time that the principal inflicted the fatal stab wound (see in particular at para. 52).
• R. v. Corbett, 2015 ONSC 6119, involved a manslaughter conviction where the death was caused by a stab wound to the neck. Based on the jury’s verdict acquitting the defendant of murder but convicting him of manslaughter, the trial judge the sentencing judge found that the offender did not have the intent required for murder. However, he also went on to find that the offender was acting in self-defence against an aggressor who was bigger than him, that he had not intended to stab the victim in the neck, but that he had used excessive force (in particular at paras. 18-19, and 31). Although the offender’s background was similar in many ways to Mr. MacKinnon’s, the circumstances of the offence were less aggravated. The sentence imposed in Corbett was 5 years imprisonment.

[80] I find that the appropriate range of sentence for the aggravated assault in this case – involving one stab wound, and life-threatening injuries, is 3 to 4 years (although I acknowledge that some cases go as low as high reformatory sentences where there are particularly compelling mitigating factors): R. v. Ampong, 2013 ONSC 6940, at paras. 24-26; R. v. Tourville, 2011 ONSC 1677. In coming to this conclusion, I note that this was not a situation of an entirely unprovoked assault (although as I have noted, I accept that there was no physical aggression by Mr. Deliva). I also take into account that Mr. MacKinnon has a long period of pro-social behavior in the years prior to these offences, and his criminal record is quite dated (discussed further below).

The Fit sentence for Mr. MacKinnon

[81] In considering the fit sentence for Mr. MacKinnon, I find the following to be aggravating factors: (i) Mr. MacKinnon responded to a verbal argument or altercation with physical violence; (ii) Mr. MacKinnon used a knife to carry out these acts of physical violence. However, I flag that unlike some cases involving the use of a knife, I found as a fact that Mr. MacKinnon was carrying the knife that evening because he used it as a tool for his work, and had transferred it to his shorts pocket when he got changed after work. There is no evidence that Mr. MacKinnon carried the knife with the intent of using as a weapon; (iii) Both Mr. Spilchen and Mr. Deliva were unarmed at all times; (iv) As I have outlined above, Mr. Spilchen’s death caused a terrible loss to his family, friends, and community. The grief that his family and friends continue to suffer is devastating; (v) Mr. MacKinnon made no efforts to determine how seriously he had injured Mr. Spilchen or Mr. Deliva, or to contact emergency services to report the incident; (vi) In relation to the aggravated assault on Mr. Deliva, the injuries were very serious and endangered his life; (vii) Mr. MacKinnon disposed of the knife and his T-shirt after the commission of the offences.

[82] I do not accept the Crown’s submission that Mr. MacKinnon’s criminal record is an aggravating factor in the circumstances of this case. Crown counsel based this submission on the fact that the 1995 robbery conviction is a crime of violence. I accept that robbery is inherently a crime of violence. But in all of the circumstances of this case, in particular how dated the record is, I do not find it to be an aggravating factor.

[83] The 1995 robbery conviction is very dated (23 years prior to the offences for which Mr. MacKinnon is now being sentenced; 27 years prior to the time of sentencing). Mr. MacKinnon was 19 years old at the time of the 1995 robbery. He was living a much different life at that time, still a very young man, and clearly not having found his footing in life after his difficult childhood and youth. It is clear that at the time of his arrest in this matter, Mr. MacKinnon was a much older man, and living a different life than in his youth – settled in a long-term relationship and working productively. In those circumstances given the extremely long gap in time, I do not find the 1995 robbery to be an aggravating factor on sentence.

[84] Further, in addition to how dated the robbery conviction is, on the limited evidence available to the court about the factual basis for Mr. MacKinnon’s guilty plea to the 1995 robbery and the finding of guilt, taken together with how old the conviction is, I do not find it to be an aggravating circumstance. Crown counsel did not file with the court a transcript of Mr. MacKinnon’s guilty plea to the 1995 robbery (the court is not aware whether the recordings necessary to prepare a transcript still exist). However, the synopsis filed as a lettered exhibit at trial outlines a version of events where, although it is clear that Mr. MacKinnon was a party to the robbery of a donut store, his friend was the main actor and Mr. MacKinnon’s role was secondary. Further, it is clear that no weapons were used, and no physical violence was used. According to the synopsis, the store clerk was put in a back room by Mr. MacKinnon’s friend. Mr. MacKinnon then tried to open the cash register, and then held the back room door shut while his friend opened the cash register. I am, of course, aware that a synopsis is not the same as a transcript of the facts read in and admitted when Mr. MacKinnon pleaded guilty to the 1995 robbery. All that is before the court is the synopsis. However, I find that it is fair to say, in the court’s experience, that although a synopsis does not always reflect the ultimate facts that may come out at a trial or be admitted on a plea of guilt, it would be exceedingly rare that a synopsis – prepared by the investigating officers – would state an individual’s involvement in an offence as being less serious than it actually was.

[85] Thus, what is before the court is a very dated criminal record as a whole. The only adult entry for a crime of violence was committed more than 20 years prior to the offences for which Mr. MacKinnon is being sentenced. It was committed when he was 19 years old, and in a very different place in his life. In these circumstances, I do not find his criminal record to be an aggravating factor.

[86] Having said this, this case is not one where the offender has no criminal record at all, and it deserves weight as a mitigating factor. Although Mr. MacKinnon’s record is dated, he does have a number of adult entries. In all the circumstances, I find that Mr. MacKinnon’s record is a neutral factor, neither aggravating nor mitigating.

[87] I consider the following to be mitigating factors: (i) Mr. MacKinnon is a racialized man; (ii) Mr. MacKinnon’s life in approximately the past 20 years has been pro-social. He has a stable employment history; (iii) He has strong and stable support from his family, friends, and community. He participates in his community by activities such as coaching the sports teams of his children (when they were younger) and grandchildren; (iv) As I explain in more detail below, I find that Mr. MacKinnon’s history in terms the complex trauma he experienced as a child, and the shooting when he was 17 years old which led him to develop PTSD are mitigating factors in relation to sentence. (v) I accept that Mr. MacKinnon is remorseful for his actions. Although I do not accord the expression of remorse at the stage of sentencing the same weight as I would with a guilty plea, it is still a factor that I weigh in coming to the appropriate sentence; (vi) As I explain in more detail below, I also find that harsh conditions of confinement during Mr. MacKinnon’s pre-trial detention should also be afforded weight as a mitigating factor. I refer in particular to lockdowns (not related to the pandemic), and harsher conditions of confinement for a period of just over 2 years due to the COVID-19 pandemic.

[88] Crown counsel made the submission that Mr. MacKinnon’s mental health issues, in particular his PTSD diagnosis should be given limited weight as a mitigating factor. The Crown made this submission on the basis that, although Mr. MacKinnon sought help from his family doctor in the 14 months prior to the offences, when he was prescribed medication by his family doctor, including mood stabilizing drugs, he would at times stop taking the medications. Crown counsel further submits that there is little evidence that Mr. MacKinnon took steps to address his mental health issues while in pre-trial detention. Crown counsel submits that further evidence of steps already taken by Mr. MacKinnon would be required to give significant weight to mental health issues as a mitigating factor (in particular in relation to his prospects for rehabilitation).

[89] I do not accept this submission. First, I do not agree with Crown counsel’s characterization of the evidence about Mr. MacKinnon’s attempts to seek treatment in the 14 months prior to the offences. Second, in light of my finding that the evidence shows that Mr. MacKinnon did try to seek help for his mental health issues prior to the offences, the fact that he was not entirely successful in achieving a proper diagnosis and appropriate treatment, and did not always take his medications as prescribed, should not disentitle him from the mitigating effect of his mental health issues.

[90] I find that the record is clear that Mr. MacKinnon’s mental health issues, in particular the PTSD, played a role in his offending, despite the fact that it did not rise to the level of making out an NCR defence. I will briefly address the evidence with respect to Mr. MacKinnon’s PTSD and his attempts to seek treatment prior to the offences. Then I will elaborate on the two reasons I have just explained that I do not accept Crown counsel’s submission that Mr. MacKinnon’s mental health issues are not a mitigating factor on sentence.

[91] All of the experts who testified at trial agreed that Mr. MacKinnon fit a diagnosis of PTSD based on the diagnostic criteria in the DSM-5 (although Dr. Ramshaw cautioned that it is difficult in retrospect to assess how symptomatic he was at any given time in the past). Further, although I rejected Mr. MacKinnon’s NCR defence, the record is clear that his PTSD played some role in the offences. Even the Crown’s expert, Dr. Ramshaw, stated that it was likely that the PTSD played a role, when combined with other factors including rising tension from either a disagreement or a perceived threat, impulsivity, disinhibition due to consumption of alcohol (although not to the point of significant intoxication), anger, and poor judgment (trial reasons for judgment at para. 497). In particular, Dr. Ramshaw testified that Mr. MacKinnon’s underlying PTSD could have made him more sensitive to provocation in combination with the other factors.

[92] The trial record is clear that Mr. MacKinnon was seeking assistance from his family doctor for mental health and mood issues in the 14 months prior to the offences. Unfortunately, the family doctor had not yet arrived at a diagnosis of PTSD. The effect of this is that although Mr. MacKinnon was receiving some treatment, because the PTSD had not been diagnosed, he was not receiving treatment for PTSD.

[93] This brings me to the first reason that I reject Crown counsel’s submission that Mr. MacKinnon’s mental health issues, and in particular his diagnosis of PTSD, should only be given limited weight as a mitigating factor. I do not agree with Crown counsel’s submission characterizing the trial evidence as showing that Mr. MacKinnon did not take significant steps to address his mental health issues. Mr. MacKinnon attended at his family doctor at least six times in the 14 months prior to the offences to seek assistance with mental health issues (see trial reasons for judgment, paras. 406-411). His family doctor considered various diagnoses, and prescribed various medications at different times. Unfortunately, his family doctor did not reach a diagnosis of PTSD. Indeed, the family doctor’s working diagnosis and the basis on which he was treating Mr. MacKinnon at the time of the offences was bi-polar disorder. Mr. MacKinnon cannot be faulted for not receiving the correct diagnosis and treatment (nor do I fault his family doctor. The experts who testified at trial spoke of the difficulty of diagnosing PTSD, as it often presents symptoms that could be mistaken for other mental health conditions).

[94] My second disagreement with Crown counsel’s submission in relation to Mr. MacKinnon’s mental health issues is that I do not accept that he should be disentitled to mitigation in relation to mental health because at times he would stop taking the drugs that his family doctor prescribed to him for mental health issues, and at times did the same during his pre-trial incarceration.

[95] The reason I reject this submission is that in the court’s experience, it is not unusual for people seeking help for mental health issues to undertake such treatment in fits and starts, especially at the beginning. The record before the court is clear that Mr. MacKinnon recognized that he was having difficulties with his mental health and mood, and tried to get help from his family doctor. We know now, in retrospect, that family doctor’s diagnosis of bi-polar disorder was wrong. But the record is clear that no medical professional had arrived at the correct diagnosis for Mr. MacKinnon – PTSD and complex trauma – either before the offences were committed, or indeed even once he was in pre-trial detention, until the process of assessment for the NCR defence began.

[96] I also reject Crown counsel’s submission that Mr. MacKinnon’s mental health issues should be given limited weight as a mitigating factor because he did not seek treatment in a sustained way during his pre-trial detention. As I have just noted, he was not diagnosed with PTSD until he was assessed by Dr. Gojer and Dr. Pomichalek in late 2020 and early 2021. Further, I am doubtful that significant resources were available for Mr. MacKinnon to seek treatment once the PTSD was diagnosed, while he was in pre-trial detention, during the COVID-19 pandemic.

[97] In sum, I am satisfied that it is appropriate to treat Mr. MacKinnon’s mental health issues, in particular the diagnosis of PTSD and complex trauma, as mitigating factors on sentence. They are relevant to Mr. MacKinnon’s prospects for rehabilitation, particularly when viewed in the context of his pro-social life for approximately 20 years prior to the offences at issue. He sought treatment in past prior to these offences. He has expressed a willingness to continue treatment, both in his own words when he addressed the court during the sentencing hearing, and as expressed to his family and friends and conveyed to the court in their letters filed at the sentencing hearing. Given his sustained attempts to seek treatment from his family doctor in 2017 and 2018, I accept the evidence of Mr. MacKinnon’s willingness to seek treatment for his mental health issues. I find that his mental health issues are a mitigating factor in considering the appropriate sentence.

[98] The defence made the submission that “there was an element of self-defence in [Mr. MacKinnon’s] confrontation with the victims”, and that this is a mitigating factor. I reject the defence claim that there was an element of self-defence in his confrontation with Mr. Spilchen and Mr. Deliva. Self-defence was not raised as a defence at trial. Although I was left in a reasonable doubt by Mr. MacKinnon’s evidence that a threat to shoot was made by either Mr. Spilchen or Mr. Deliva, I was not persuaded on a balance of probabilities that such a threat was made. The limitations of the trial evidence in terms of the memories of various witnesses, and concerns I had about some aspects of Mr. MacKinnon’s evidence, made it impossible to come a firm conclusion about what happened immediately prior to the stabbing. But there is no evidence that either Mr. Spilchen or Mr. Deliva had a weapon of any kind on their person, or acted in a physically aggressive manner prior to the stabbings. Nor was Mr. MacKinnon’s act of inflicting the two stab wounds reasonable in the circumstances. I do not find there to be any element of self-defence that is mitigating in relation to sentence.

[99] For sake of clarity, I note that the fact that Mr. MacKinnon chose to have a trial is not an aggravating factor. However, that choice disentitles him to the mitigating effect that would follow a guilty plea.

[100] As I have noted above, the range of sentence for manslaughter is very broad, reflecting the wide range of factual circumstances which can underpin a manslaughter conviction. Mr. MacKinnon’s act of stabbing Mr. Spilchen in the torso caused Mr. Spilchen’s death. Mr. MacKinnon fled the scene and did not seek to check the injuries or render assistance. I find that Mr. MacKinnon’s level of moral blameworthiness is relatively high. Similarly, the aggravated assault conviction in relation to the stabbing of Mr. Deliva also involves a relatively high degree of moral blameworthiness. A significant sentence of imprisonment is necessary for purposes of general deterrence and denunciation.

[101] At the same time, the court must balance Mr. MacKinnon’s mostly positive antecedents in the past approximately 20 years, and the mitigating effects of his very difficult youth and childhood, which impacts him in the form of PTSD today. In addition, the court must consider that the tragic events of June 16, 2018 were in no way planned by Mr. MacKinnon. There was some level of verbal confrontation between the two groups of men prior to the stabbings, which the evidence at trial does not allow the court to precisely determine.

[102] The sentence imposed must serve the goals of protection of the public, expressing society’s denunciation for the offences, deterring others from committing similar offences – particularly here, where the life of a member of the community was lost. But the sentence must not crush Mr. MacKinnon’s prospects for rehabilitation. Given his long history of pro-social behaviour prior to the offences, his family support, and his willingness to seek treatment for his PTSD, I accept that Mr. MacKinnon has good prospects for rehabilitation.

[103] Having considered the circumstances of the offences, and of the offender, the aggravating and mitigating factors in this cases, prior to considering the issue of mitigating effect of lockdowns and pre-sentence detention during the pandemic, I was of the view that a total sentence of 10 years in total for both counts would be appropriate. I come to this conclusion on the basis that, standing alone, the appropriate sentence count #1 (manslaughter) would be 8 or 9 years, and the appropriate sentence for count #2 (aggravated assault), standing alone, would be 3 years.

[104] I find that a totality of 11 or 12 years imprisonment, which would result if sentences of 8 or 9 years and 3 years were imposed consecutive to one another would be excessive and in conflict with the totality principle. In the circumstances of this case, I find that the appropriate means to address the issue of totality is to impose concurrent sentences. The two stabbings occurred just seconds apart, in identical circumstances. Imposing concurrent sentences is the appropriate way to reflect this circumstance. However, the concurrent sentences must also reflect that two people were stabbed. This requires adjusting the sentence for the manslaughter count upwards to reflect the increased gravity and moral blameworthiness arising from the fact that two people were stabbed. In order to impose a fit total sentence, I find that (prior to consideration of mitigation for lockdowns and pre-sentence custody during the pandemic), the sentence on count #1 for manslaughter should be 10 years, and on count #2, 3 years concurrent. [1]

[105] I turn then to whether and how to factor in as a mitigating circumstances the fact of lockdowns during Mr. MacKinnon’s pre-sentence custody, and the fact that just over 2 years of the pre-sentence custody was served during the COVID-19 pandemic, which involved harsher conditions of confinement than in non-pandemic times.

[106] The parties reached an agreement regarding the mitigating effects of lockdowns (not related to the pandemic). They agreed that the mitigating effect of time spent in lockdown should be a total of 4 months (apart from credit related to harsh conditions of confinement due to the COVID-19 pandemic).

[107] With respect to mitigation of sentence for exceptionally harsh conditions of confinement due to the pandemic, the parties disagree on the extent of the mitigating effect. The defence seeks mitigation for the effects of serving pre-sentence custody during the pandemic on the basis of .5 days for every 1 day served during the pandemic (i.e., 12 months total). In oral submissions the defence also made the submission that another means by which the court could arrive at an appropriate amount of mitigation was by working from the 4 months agreed to by the parties for lockdown credit.

[108] Crown counsel does not dispute that in serving pre-sentence custody for approximately 2 years during the pandemic, Mr. MacKinnon was subjected to harsher conditions of confinement than inmates who have served pre-sentence custody during non-pandemic times. However, Crown counsel disputes some of the factual assertions in Mr. MacKinnon’s affidavit. Crown counsel did not urge a specific quantum on the court for mitigating effect of serving pre-sentence custody during the pandemic. But it was clear the Crown’s position was that the quantum urged by the defence was excessive.

[109] The parties both filed written evidence in relation to the effects of the pandemic on conditions of confinement. Initially they had intended to engage in cross-examination on this evidence because there were some areas of dispute. After inquiry from the court about whether this was a reasonable use of court time, given the recognition in the case law that pre-sentence incarceration during the pandemic results in harsher conditions of confinement than in non-pandemic times, the parties agreed just to file the written evidence. This consisted of an affidavit from Mr. MacKinnon, and responding notes from John Lawson, security Manager at the Toronto East Detention Centre.

[110] I do not intend to make detailed factual findings about the circumstances of Mr. MacKinnon’s confinement as a result of the pandemic. I accept that his conditions of confinement during the pandemic were harsher than they would otherwise have been in non-pandemic times. As noted above, this court and the Court of Appeal have recognized that this is something courts may take judicial notice of. Effects of the pandemic on conditions of confinement include increased use of lockdowns, due to staffing challenges caused by the pandemic and when particular units are placed on droplet precautions because of potential exposure to the COVID-19 virus, more limited programming, more limited access to visits, and more limited access to phone calls and showers. I note in particular, that even according to Mr. Lawson’s notes, in-person visits at the institution were cancelled for a total of approximately 12 months in the approximately two-year period between mid-March 2020 and the sentencing hearing in late February 2022. This is a significant hardship on inmates in terms of family support. In addition, given the limited ability to socially distance and take personal steps to avoid exposure to the virus when a person is incarcerated, I accept that pre-sentence incarceration during the pandemic includes psychological stressors that are heightened above non-pandemic times.

[111] Taking into account that just over 2 years of Mr. MacKinnon’s pre-sentence custody was served during the pandemic, accepting that this resulted in harsher conditions of confinement, and also weighing the 4 months that the parties agreed to for mitigating effect of lockdown credit, I find that it is appropriate to adjust the total sentence to reflect mitigating effect of harsh conditions of confinement. I find that the total adjustment to reflect this mitigation should be 1 year (12 months) for the combined effect of lockdowns and harsher conditions of confinement due to the pandemic (i.e., 8 months for the pandemic conditions, plus the 4 months agreed to by the parties for lockdowns). Taking this into account, the sentence imposed will be 9 years on the conviction for manslaughter on count #1, and 3 years concurrent for the conviction for aggravated assault on count #2. In accordance with the principles expressed in Duncan and Marshall, I am satisfied that the 9 years total sentence imposed is within the range of appropriate sentence in this case.

[112] In coming to the conclusion that 9 years total is a fit sentence for Mr. MacKinnon, I have considered the defence submission that a lower total sentence, in light of the amount of pre-sentence custody credit and mitigation in this case, could have brought the remaining sentence to serve below two years, which would have allowed the court to consider imposing a term of probation of up to 3 years on top of the custodial sentence (Criminal Code, s. 731). Defence counsel made the submission that this scenario would provide for a longer period of control by correctional authorities over Mr. MacKinnon than would a longer custodial sentence, which would leave the remaining sentence too long to impose a probation order. In the submission of the defence, the longer period of control provided for by a shorter jail sentence followed by a probation order would better serve the goal of rehabilitation and to the extent it is necessary, protection of the public.

[113] Although there is some force to this submission, the difficulty I have with it is that to bring the sentence down low enough that the court could impose a term of probation, I find would lead to the imposition of a sentence that was insufficient for purposes of general deterrence and denunciation. In other words, I find that a custodial sentence low enough that the court would be allowed to impose a term of probation pursuant to s. 731 of the Criminal Code would be an unfit sentence, even if it included a term of probation. Further, the sentence that I find is fit will leave over 3 years of the custodial term remaining for Mr. MacKinnon to serve. I find that this is a sufficient period to allow time for rehabilitation purposes while Mr. MacKinnon is within control of correctional authorities.

[114] As noted above, the parties reached an agreement regarding Summers credit under s. 719(3.1). The agreement was for credit at a rate of 1.5 days for every day of pre-trial custody. I have updated the calculation to today’s date. In addition, I do the calculation in months rather than days. Mr. MacKinnon was arrested on June 17, 2018. From that date until today is 46 months (3 years and 10 months). At the rate 1.5:1, that amounts to 69 months credit (or 5 years and 9 months). Pursuant to s. 719(3.1) of the Criminal Code and Summers, 69 months credit will be deducted from the sentence I impose today.

The sentence and ancillary orders

[115] On the conviction for manslaughter on count #1, I sentence Mr. MacKinnon to 9 years imprisonment. On the conviction for aggravated assault on count #2, I sentence Mr. MacKinnon to 3 years, concurrent to the sentence on count #1. Pursuant to s. 719(3.1) of the Criminal Code, 69 months (5 years and 9 months) credit for pre-sentence custody is to be deducted from the sentence, which leaves 39 months (3 years and 3 months) remaining for Mr. MacKinnon to serve.

[116] Pursuant to s. 109 of the Criminal Code, I impose a weapons prohibition on Mr. MacKinnon. The order is mandatory for both offences. Because of Mr. MacKinnon’s 1995 conviction for robbery, although it is very dated, he is not considered a first offender for purposes of s. 109. As a result, for both categories of weapons listed in s. 109, the prohibition is for life.

[117] Both offences of which Mr. MacKinnon was convicted are primary designated offences 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. MacKinnon for DNA analysis. That order is to be made as an in-custody order.

[118] Pursuant to s. 743.21, I order that for the duration of Mr. MacKinnon’s sentence, I order that Mr. MacKinnon is prohibited from communicating directly or indirectly with the following people:

• Anna Forte
• Rhonda Spilchen
• Amanda Fraser
• Paula Downie
• Christina Spilchen
• Jacob Storr-Spilchen
• Lily Forte
• Carmen Forte
• Philip Smith
• Jade Spilchen-Downie
• Shyanne McPherson
• David Forte
• Daniella Moss
• Jaime Hatch-Merrett
• Monique Balbuena
• Shannon Bulger
• Richard Deliva

[119] I thank counsel for their assistance and collegiality throughout this trial.

Justice J. Copeland Released: April 13, 2022

[1] One could come to the same result with consecutive sentences, but it would require lowering the sentences on one or both counts to achieve an appropriate total sentence. As I have noted, given the identical circumstances and proximity in time of the two stabbings, in this case I find that concurrent sentences are appropriate. Whether a court imposes consecutive or concurrent sentences, where there are multiple counts, the totality principle will usually require some adjustment of the sentences on individual counts.