Court File and Parties
Court File No.: CR-21-70000167-0000 Date: 2023-01-13 Ontario Superior Court of Justice
Between: His Majesty The King
- and - Trevor Clarke
Counsel: Catherine Glaister, for the Crown Steven Dallal, for Mr. Clarke
Heard: January 25, November 7 and December 16, 2022
Before: M. Forestell J.
Reasons for Sentence
Circumstances of the Offence
[1] On November 16, 2018, Trevor Clarke assaulted Paul Tonna by punching him in the head. Mr. Tonna fell backwards onto the road and lost consciousness. He later died from a head injury. Prior to the assault by Mr. Clarke, there was only a brief conversation between Mr. Tonna and Mr. Clarke. Mr. Tonna showed no sign of aggression or hostility. Mr. Tonna did not appear ready for the punch; his hands were not raised. After Mr. Clarke punched Mr. Tonna and while Mr. Tonna lay unconscious on the roadway, Mr. Clarke stayed briefly in the area, kicking a pole and approaching others on the sidewalk. He then walked away. He was arrested later the same day. Mr. Clarke entered a guilty plea before me to the offence of manslaughter on January 25, 2022.
Positions of the Parties
[2] The sentencing hearing in this case was delayed in order to obtain an enhanced Presentence Report. Submissions were made on November 7, 2022. At that time, Mr. Clarke sought a suspended sentence and probation. A conditional sentence was not available for manslaughter on that date. Subsequently, the Criminal Code was amended, and a conditional sentence became available. On December 16, 2022, further submissions were made, and Mr. Clarke sought a conditional sentence.
[3] The position of the Crown is that a sentence of seven to nine years’ imprisonment is appropriate.
[4] After hearing the evidence and submissions on sentencing, I reserved my decision on sentencing until today.
Victim Impact
[5] I have considered the impact of this offence on the victims and on the community. Paul Tonna lost his life suddenly and violently. His family lost a son and brother. Mr. Tonna’s brother attended the sentencing hearing. Mr. Tonna was someone who was loved by his family and his violent death had to have had an impact upon them. Offences of random violence on our streets also have an impact on the community as a whole, making members of the community feel unsafe walking the streets of this city.
Circumstances of the Offender
[6] I have carefully considered the circumstances and background of Trevor Clarke. On this sentencing, I have the benefit of a Presentence Report prepared by a probation and parole officer employed by the Ministry of the Solicitor General and an enhanced Presentence Report prepared by a social worker through the Sentencing and Parole Project. These reports and the letters from the Aboriginal Healing Project set out in detail the background and family history of Mr. Clarke and his recent efforts to rehabilitate himself.
[7] Mr. Clarke is now 50 years old. He was 46 years old at the time of this offence.
[8] Mr. Clarke is a Black man with Metis heritage. [1] His mother, Deborah Clarke, identifies as biracial-Black and Indigenous. She was raised in Africville (Halifax, Nova Scotia) until she and her family were forcibly relocated when she was nine years old. She had two children, Troy and Trevor, when she was in her teens. Trevor’s father, Clay Berry, was born in Halifax. Mr. Berry was not present for much of Trevor’s life. He left Nova Scotia when Trevor was six years old and moved to British Columbia.
[9] Trevor Clarke was born in Nova Scotia and left Nova Scotia with his mother and brother when he was nine or ten years old. They first moved to Montreal where they stayed with a woman Ms. Clarke believed to be a friend. This woman locked them in a room for six months and stole Ms. Clarke’s monthly child benefit cheques. A neighbour called the police, and they were rescued. They returned to Nova Scotia for a short time and then moved to Toronto when Mr. Clarke was eleven years old. Mr. Clarke’s mother entered into a relationship that lasted 17 years. Her partner was abusive when using alcohol. Ms. Clarke’s partner introduced her to cocaine, and she abused substances during Trevor’s adolescence. Ms. Clarke has now been sober for 20 years. She has multiple health issues and Mr. Clarke lives with her and is her primary caregiver.
[10] Mr. Clarke has lived with his mother for most of his life. They live in a subsidized townhouse. Mr. Clarke grew up in Regent Park. Mr. Clarke met his partner, Sandy MacIntosh, when he moved to Regent Park. They were friends since she was 10 years old, and he was 12 years old. They began dating when Sandy was 15 or 16 years old. Mr. Clarke was 19 years old when Sandy became pregnant with their first son. Mr. Clarke left school three credits short of earning a diploma. He left in order to find employment and provide for his family. He found employment at the food terminal operating a forklift. He maintained this employment for several years and then found ‘odd jobs’.
[11] Mr. Clarke remained in the relationship with Ms. MacIntosh for 15 years and they have two adult sons.
[12] Mr. Clarke began abusing alcohol and cocaine at around age 28 or 29 years. Mr. Clarke reported that the start of his substance abuse coincided with the end of his close relationship with his older brother, Troy. Troy was arrested and then incarcerated at that time. Mr. Clarke told the author of the enhanced presentence report that his older brother had been protective and supportive of him. Mr. Clarke reported that the loss of the relationship with his brother and his distress about his mother’s abusive relationship triggered depressive feelings in him. He reacted to these feelings with anger and substance abuse. His partner reported that Mr. Clarke stayed away from the family during the worst times of his substance abuse.
[13] In 2008, Mr. Clarke completed a court-mandated 16-week drug treatment program following which, he experienced almost five years of sobriety. He then began using substances again and did so until committing this offence in 2018. He abused alcohol, cocaine and MDMA.
[14] Mr. Clarke has remained abstinent from substances since committing the offence before me. He has not used any substances for just over four years. During that time, he has attended the Aboriginal Health Circle and has been working with a counsellor from Aboriginal Health.
[15] Mr. Clarke’s criminal history began in 1988 when he was 16 years old, and he was convicted of minor property offences. When he was 24 and 25 years old, he was convicted of possession of narcotics and given non-custodial sentences. At age 28 he was convicted of robbery and sentenced to 75 days’ imprisonment. By the time Mr. Clarke was in his early to mid-thirties he had accumulated a record for more serious offences, including trafficking in substances and robberies. He was sentenced to just under one year for two robberies in early 2008 and to six months for trafficking later in 2008. After a conviction for failing to comply with probation in 2009, Mr. Clarke avoided conflict with the law until the offence before this Court and one other offence of assault causing bodily harm and theft committed a few months before the manslaughter.
[16] Mr. Clarke pleaded guilty to the assault causing bodily harm charge on October 10, 2019, in the Ontario Court of Justice. In that offence, Mr. Clarke punched and kicked the victim in the head area causing significant injuries. Justice D. Moore suspended the passing of sentence and placed Mr. Clarke on probation for two years. Justice Moore, in imposing a sentence that he characterized as exceptional, noted Mr. Clarke’s commitment to his rehabilitation.
[17] Since his release on bail for this offence, Mr. Clarke has lived with his mother. She has multiple medical issues and relies on Mr. Clarke as a caregiver. In addition to caring for his mother, Mr. Clarke has volunteered at the Salvation Army and at Anishnawbe Health in the capacity of a firekeeper.
[18] It is clear from the material before me from his community that Mr. Clarke has fully committed himself to changing his life.
Conditions of Detention and Strict Bail
[19] Mr. Clarke was incarcerated at the Toronto South Detention Centre (“TSDC”) from November 16, 2018, until his release on bail on February 11, 2019 or for 88 days. There were 31 lockdown days during that time.
[20] Mr. Clarke was released on a house arrest bail. He was required to remain in his house except when in the direct presence of one of his sureties. He was volunteering at the Salvation Army while on bail but had to do so with one of his sureties. The bail was changed two years later, on February 11, 2021, to permit him to attend counseling, volunteer activities and court related appointments. Throughout the time that he was on bail, Mr. Clarke was subject to police compliance checks which caused him stress and anxiety.
Law and Analysis
[21] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code, [2] is to “contribute …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; (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; …and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community”.
[22] Denunciation and deterrence are generally the predominant sentencing objectives in sentencing for manslaughter. The killing of another person by committing an unlawful act must be strongly denounced by society. However, rehabilitation remains a relevant consideration. As Chief Justice Wagner wrote in R. v. Bissonette, 2022 SCC 23, [3] “The objective of rehabilitation is intimately linked to human dignity in that it reflects the conviction that all individuals carry within themselves the capacity to reform and re‑enter society.”
[23] The range of sentences imposed in manslaughter cases is very broad. The reason for the range of sentencing for manslaughter was explained by the Supreme Court of Canada in R. v. Creighton: [4]
…Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. …
[24] The circumstances of this case place the case near the lower end of the spectrum of moral blameworthiness. Mr. Clarke struck the victim only once, but that one punch had profoundly serious consequences. While at the lower end of the very broad range of seriousness, there are circumstances that elevate the moral blameworthiness of Mr. Clarke. Mr. Clarke had a background as a boxer. Mr. Clarke struck the victim without warning and with considerable force. He left the victim lying on the ground. Mr. Clarke has a criminal record that includes convictions for offences of violence. He was on a release for the offence of assault causing bodily harm at the time of this offence.
[25] Mitigating factors are Mr. Clarke’s guilty plea and genuine remorse for his actions. He has taken significant steps towards rehabilitation. Mr. Clarke struggled with addiction at the time of the offence and has remained free of substance use since the offence. Mr. Clarke had a difficult upbringing. His mother and stepfather had addictions and there was domestic abuse in his home.
[26] In arriving at an appropriate sentence, I must consider sentences imposed on similar offenders for similar offences, while keeping in mind that sentencing is highly individualized and no two cases are identical.
[27] In R. v. Hanifan, [5] the offender and victim got into an argument in a bar. After the victim left the bar, Mr. Hanifan approached the victim and struck him once in the face, causing the victim to fall to the ground and strike his head. Mr. Hanifan fled the scene but surrendered to the police the next day. The victim died a few days later. Mr. Hanifan had a criminal record but the details of the record are not set out in the judgment of the Court of Appeal. Mr. Hanifan did not plead guilty but was convicted after a trial in which he argued that he acted in self-defence. The Court of Appeal held that the sentence imposed of six years’ imprisonment was within the appropriate range in light of the severity of the blow and the tragic consequences.
[28] In R. v. Braune, 2006 ONCJ 50, [6] the offender pled guilty to manslaughter. Mr. Braune, who had a grudge against the victim due to comments the victim had made to his girlfriend, approached the victim, had some words with him and then, without any provocation, punched him in the head, knocking him into a cement wall. Later that night, the victim died due to blunt force trauma to the head. Mr. Braune was 18 years old with no criminal record. He was remorseful and from a stable, supportive family. He served seven months of pre-sentence custody and, upon his release, continued his schooling. The Pre-Sentence Report noted that this was an isolated incident and out of character for Mr. Braune, who was unlikely to reoffend and was motivated to rehabilitate himself. Mr. Braune was sentenced to 30 months in prison with credit given on a two for one basis for the seven months already served, resulting in a further 16 months’ incarceration. A conditional sentence was held not to be appropriate.
[29] In R. v. Tabbara, [2009] O.J. 4397 (S.C.J.), [7] a youthful first offender who was involved in a confrontation and punched the victim once in the back of the neck killing him, was sentenced to two years less a day imprisonment.
[30] In R. v. Isenor, 2007 NSPC 70, [8] Mr. Isenor was found guilty of manslaughter after trial. He punched the intoxicated victim in the mouth outside a bar. The victim hit his head and died. Mr. Isenor was of previous good character, was clearly remorseful and apologized before the court. The assault was uncharacteristic of him. He had an unrelated criminal record. Mr. Isenor was sentenced to three years in prison.
[31] In R. v. Sharpe, 2019 BCSC 1754, [9] Mr. Sharpe delivered one punch to the victim who had thrown a lit cigarette at his girlfriend. The victim fell backward and hit his head and died. Mr. Sharpe had a minor and dated criminal record and was remorseful. Mr. Sharpe was Metis and Black. He was sentenced to two years’ imprisonment.
[32] In R. v. Henry, 2002 NSCA 33, [10] an offender with no criminal record was initially sentenced to a conditional sentence for manslaughter of two years less a day, which the Court of Appeal varied to four years’ imprisonment. As Mr. Henry was leaving a bar, he saw the victim strike a woman after she had pushed or shoved him. Mr. Henry intervened and pinned the victim against the wall, admonishing him for hitting a woman. The victim responded with an obscenity. The victim left the bar shortly after and the offender followed him up the street. Upon catching up to the victim, the offender tapped him on the shoulder and when he turned around, Mr. Henry punched the victim once in the jaw. The victim fell backwards and struck his head on the pavement, causing his death. The accused abruptly left the scene and walked back towards the bar. Mr. Henry had no criminal record and good prospects for the future. In varying the sentence in Henry, the Court of Appeal stated that the trial judge overemphasized restorative objectives and gave little regard to the principles of denunciation and deterrence. The lack of a criminal record in manslaughter cases is not exceptional and is an insufficient cause for extraordinary leniency.
[33] In R. v. Johnny, [11] Mr. Johnny pleaded guilty and was sentenced to six months followed by a three-year period of probation. Mr. Johnny did not have a criminal record and was Indigenous. There was an element of provocation. There were factors that made the victim more susceptible to dying, including a blood alcohol level of approximately 250 milligrams of alcohol in 100 millilitres of blood. The one punch was described as completely out of character and due in part to the consumption of alcohol.
[34] In R. v. Huth, 2014 BCSC 570, [12] Mr. Huth delivered a single blow to the victim's head causing the victim to fall backwards and strike his head on the sidewalk. Mr. Huth was sentenced to two years’ less a day. He was a 24-year-old first offender.
[35] While none of the cases presented are identical to the case before me, the cases show that the range of sentence in cases of manslaughter involving one impulsive punch is from two years less a day to six years. The case of Johnny falls outside that range. The circumstances of that case were exceptional as they involved provocation, the victim’s unusual susceptibility to injury and the finding that the punch was completely out of character for the offender. Hanifan is at the upper end of the range and involved a severe blow and an offender with a record.
[36] In this case, I have considered s. 718.2 (e) of the Criminal Code which states that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders".
[37] In R. v. Gladue, [13] the Supreme Court of Canada held that in sentencing an Indigenous offender the court must consider the unique systemic factors affecting Indigenous offenders. At para. 69 of Gladue, the Court held that “...it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means”.
[38] I have considered the letter from Aboriginal Legal Services indicating that they were unable to confirm Mr. Clarke’s Indigenous background. I have also considered the Enhanced Presentence Report and the letters of support from the Aboriginal Healing Program. I have considered the sentencing reasons of Justice Moore. In sentencing Mr. Clarke for assault causing bodily harm in June of 2021, Justice Moore considered much of the same material that is before me on this sentencing. He concluded that Gladue principles applied. Justice Moore wrote:
Mr. Clarke understands his ancestry is to be part black, part Indigenous, and part white. While it is probably safe to say that the most overt racism he suffered growing up was anti-black racism as that is his most predominant visual appearance, he also describes being called “little Indian boy” growing up. To some extent he suffered from what many multi-racial children suffer, a lack of acceptance by any community. The history of colonialism in Canada and official government policies of assimilation have led to countless Indigenous people being completely divorced and removed from their culture. Indigenous people lost official status through a variety of practices that incorporated both sexism and racism. While I certainly agree that more than a bald assertion is required as the reports from Elder Little Brown Bear make clear, Mr. Clarke has embraced and been embraced by the Indigenous community in Toronto. It is clearly part of who he is. I think to require any more than this in this or other cases would risk once again robbing Indigenous people of their identity as the Indian Act and the Residential Schools tried to do. I am satisfied that Gladue principles apply in this case. [14]
[39] I agree with the reasoning and conclusions of Justice Moore, and I adopt them for the purposes of this sentencing. I find that systemic factors shaped Mr. Clarke’s life in that his family was impoverished, displaced, and struggled with substance abuse.
[40] I have carefully considered the principles from Gladue and R. v. Ipeelee, 2012 SCC 13. [15] I have considered the very serious and violent nature of the offence. The background and circumstances of Mr. Clarke as a Black man with Indigenous heritage provide context for Mr. Clarke’s offending conduct. Mr. Clarke’s recovery and rehabilitation with the assistance of his community also provide me with context for the offence.
[41] I have considered the principle of restraint and will impose what I believe to be the least restrictive sentence that achieves the relevant sentencing objectives.
[42] Mr. Clarke, at the time of this offence and in the years leading up to it, was abusing substances. His criminal record is consistent with a person who has committed crimes to feed his addiction and who has committed crimes while under the influence of substances. Mr. Clarke has, over the last four years, addressed his longstanding substance abuse problem that was the primary driver of his criminality. He has done so after connecting with the Indigenous community in Toronto and with the assistance of that community.
[43] I accept that Mr. Clarke is truly remorseful, and that specific deterrence is not necessary. I have given considerable weight to Mr. Clarke’s rehabilitation over these last four years. Although deterrence and denunciation are the predominant objectives in sentencing for manslaughter, rehabilitation is a significant objective in this case.
[44] I have also considered the harsh conditions of presentence custody and the strict bail to which Mr. Clarke has been subject for the past four years.
[45] In accordance with the principles set out in R. v. Marshall, 2021 ONCA 344, [16] harsh conditions of pre-sentence custody may be considered in mitigation of sentence.
[46] Strict bail conditions may also serve to mitigate the otherwise appropriate sentence. [17] The mitigation for harsh conditions and strict bail is not a mathematical exercise. Mr. Clarke was in custody for less than three months. I accept that conditions were harsh, and some consideration is warranted but that consideration is limited.
[47] I also accept that Mr. Clarke’s bail conditions were strict and had an impact on his day-to-day life. This was particularly true for the first two years of his bail when he could not leave the house without a surety. While he faced restrictions in the last two years of the bail, those restrictions had much less impact on Mr. Clarke’s life.
[48] This was a random and violent attack on a stranger by an offender with a record for violence. Without the significant rehabilitative steps taken by Mr. Clarke and the Gladue factors at play, this offence committed by an offender with Mr. Clarke’s criminal history, would have demanded a sentence in the four to five-year range. The sentence that I will impose in this case is one that falls well below that range because of the unique circumstances of Mr. Clarke.
[49] Having weighed the relevant factors and principles, I am satisfied that Mr. Clarke’s exceptional commitment to rehabilitation and the involvement of his Indigenous community in that rehabilitative process justify an exceptional sentence. I cannot, however, agree with counsel for Mr. Clarke that a sentence of under two years can be imposed. I find that the objectives of general deterrence and denunciation and the need for a sentence that is proportionate to the gravity of the offence requires that I impose a penitentiary sentence. As a result, a conditional sentence is not available.
[50] Before consideration of the harsh conditions of pre-sentence custody and the strict bail, I would have imposed a sentence of 30 months’ imprisonment. I am satisfied that the sentence should be somewhat reduced because of the conditions and strict bail. I find that the appropriate sentence therefore is one of twenty-eight months’ imprisonment before statutory credit for the time spent in pre-sentence custody.
Conclusion
[51] For these reasons, I sentence Mr. Clarke to twenty-eight months’ imprisonment before statutory credit. He has spent 88 actual days in custody which are credited at 1.5:1 as 132 days. The remaining sentence to be served is 719 days or 1 year, 11 months and 20 days.
[52] Because the sentence to be served is under two years, I am able to impose a period of probation. In this case, I find that a period of probation is appropriate to assist Mr. Clarke with his continued rehabilitation and reintegration into the community following his incarceration. I therefore impose a period of probation of two years. In additon to the statutory conditions, Mr. Clarke must report to a probation officer within 48 hours of his release from custody and thereafter as required; he must reside at an address approved by his probation officer; he shall possess no weapons as defined by the Criminal Code; he shall have no contact with Mark Tonna; and he must attend and participate in any counselling or rehabilitative programs recommended by his probation officer and sign any releases necessary for the probation officer to monitor his attendance and participation in such programs.
[53] There will be a s. 109 order prohibiting Mr. Clarke from possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[54] Manslaughter is a "primary designated offence" in s. 487.04, the section of the Criminal Code dealing with forensic DNA analysis and the securing of DNA samples. As such, s. 487.051(1) of the Criminal Code makes such an order mandatory. Therefore, I order that Mr. Clarke provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.
M. Forestell J.
Released: January 13, 2023
Footnotes
[1] There is no Gladue report before the Court because Aboriginal Legal Services was unsure about the specific nature of Mr. Clarke’s Aboriginal ancestry and because Aboriginal Legal Services was unable to address how being an Aboriginal person had affected Mr. Clarke’s life circumstances. See Exhibit 6 – letter from ALS March 5, 2020.
[2] R.S.C., 1985, c. C-46
[3] 2022 SCC 23
[4] , [1993] S.C.J. No. 91 (S.C.C.), at para. 86
[5] , [2001] O.J. No. 1576 (C.A.)
[6] 2006 ONCJ 50
[7] [2009] O.J. 4397 (S.C.J.)
[8] 2007 NSPC 70
[9] 2019 BCSC 1754
[10] 2002 NSCA 33
[11] , [1994] B.C.J. No. 1373
[12] 2014 BCSC 570
[13] , [1999] 1 S.C.R. 688
[14] See also R. v. Kehoe 2023 BCCA 2 at paras. 53-57
[15] 2012 SCC 13
[16] 2021 ONCA 344
[17] R. v. Downes , [2006] O.J. No. 555 (C.A.)
