Court File and Parties

COURT FILE NO.: CR-1626/73 DATE: 2024-03-08 CORRECTED DATE: March 26, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King – and – Tyrone Wilson Defendant

COUNSEL: M. Hegedus, T. Holland for the Crown T. Bariteau for the Defendant

HEARD: February 23, 2024

CORRECTED DECISION: The text of the original reasons for sentence was corrected on March 26, 2024, and the description of the correction is appended.

Reasons for Sentencing

LEIBOVICH J.

[1] Mr. Ratnavel and Mr. Wilson were charged with the first-degree murder of Devon Patten. On February 23, 2024, they both pleaded guilty to manslaughter. Mr. Wilson’s sentencing hearing occurred on February 23rd while Mr. Ratnavel’s hearing has been adjourned to await a pre-sentence report. The Crown seeks a sentence of 6.5 years less pre-sentence custody in addition to a DNA order and a lifetime s.109 order. The defence does not oppose the s.109 order or the DNA order but submits a sentence of 4-5 years less pre-sentence custody is appropriate, with the sentencing being closer to the 4-year mark. The matter was adjourned to today for my decision with respect to sentencing.

Circumstances of the Offence

[2] On August 1, 2019, Mr. Ratnavel and Mr. Wilson had travelled to the victim’s residence along with four other individuals in an SUV, as part of a plan to rob Mr. Patten for drugs. One of the assailants, not Mr. Ratnavel or Mr. Wilson, shortly before midnight shot and killed Mr. Patten in a housing complex at 1250 Pentland Street in Oshawa.

[3] Michael Galloway was a friend of Mr. Wilson. Prior to August 1, Mr. Galloway had been in a short relationship with A.M., who was a friend of Mr. Patten. On the evening of August 1, 2019, Mr. Galloway and Mr. Wilson were with A.M. at Mr. Galloway's home in Scarborough. Mr. Galloway observed text messages from Mr. Patten on A.M.'s phone, causing him to become angry and ultimately leading to the plan to rob Mr. Patten.

[4] After seeing the messages, Mr. Galloway left the room to make a phone call out of earshot of Mr. Wilson and A.M. A short time after the phone call, the SUV arrived at the parties' location to pick them up. Mr. Wilson did not know, nor had he ever met, any of the parties occupying the vehicle, which consisted of Mr. Ratnavel and two other males, including the eventual shooter. Mr. Ratnavel was driving. He drove throughout the incident and afterwards.

[5] A.M. was sent to her home in an Uber and Mr. Ratnavel drove the other parties to A.M.’s home. The parties, with the exception of Mr. Wilson and Mr. Ratnavel, used A.M.’s phone to send Mr. Patten messages to meet at the Pentland complex.

[6] Video footage shows that the SUV drove around the victim’s housing complex then waited in the parking lot of a Metro grocery store and then re-entered the Pentland complex. While in the vehicle at the Pentland complex, Mr. Ratnavel asked A.M. if she could "do more setups like this".

[7] Shortly before midnight, the SUV parked in the north visitor's parking lot at the complex. After a few minutes, A.M. exited the vehicle and walked to a bench in the centre of the complex. At that time, the other parties, including Mr. Wilson, exited the SUV and lined up along the side of a building near the parking lot. Mr. Ratnavel remained in the vehicle.

[8] Mr. Patten approached the bench and spoke with A.M. Within seconds, the other occupants of the SUV, including Mr. Wilson, approached Mr. Patten at the bench and surrounded him. As the incident developed, Mr. Ratnavel moved the car through the parking lot and towards the playground area.

[9] Within seconds of the males approaching the bench and surrounding Mr. Patten, one of them (not Mr. Wilson or Mr. Ratnavel, or Mr. Galloway) drew a firearm and fired a shot. Mr. Patten ran, the shooter followed and fired two more times.

[10] By this time, Mr. Ratnavel had pulled up closer to the park bench. All of the parties ran back to the SUV, and it sped away. There is no evidence that any of the parties, aside from the shooter, knew that a firearm was being brought to the robbery. There is also no evidence that anyone, aside from the shooter, had brought a weapon to the robbery.

[11] Police and EMS attended and attempted to perform lifesaving measures. These were unsuccessful and Mr. Patten passed away at the scene. Mr. Patten was shot three times. The cause of death was a gunshot wound to the abdomen. He was 18 years old.

[12] The shooting was captured on video. The Crown submits that when you watch the video, you can see Mr. Wilson moving towards the victim after the first shot is fired. I disagree. While the video shows Mr. Wilson making a forward step after the first shot, I do not see that as being indicative of anything. Critically, Mr. Wilson did not pursue the victim after the first shot was fired.

Victim Impact

[13] Impact statements were filed from Mr. Patten’s brothers, father and a close family friend. Devon’s sudden death at the young age of 18 has clearly left a tremendous void. It is evident from the materials filed that Devon’s 18 years were not easy ones for him or his brothers. Devon was fortunate to find a friend named Reggie. Reggie’s family took Devon in and helped to feed and support him over the years. Ms. Wiseman wrote:

So from grade 3 to grade 11 I was his everything that had to deal with safety, health, cleanliness, love, mentorship and more. I love him, he meant the world to me, and now he is gone.

[14] Devon’s brother felt guilt for not being able to move Devon out of Oshawa earlier:

Me and my brother carry this weight and guilt on us everyday that we didn’t get him out of Oshawa in time I was in the process of getting him out of there, then was killed shortly after. We feel guilty because we could’ve worked harder and faster to get him out of that environment. He was a very good kid and extremely ambitious more than myself. Only 18 years old when he passed, he had goals he wanted to take care of his family and his brothers especially. Was kind and generous and genuine.

[15] Devon’s brother wrote how he missed Devon:

This crime has made it extremely hard to do every activity I previously enjoyed. All the way from brushing my teeth to riding a motorcycle. Every single task I’ve done previously I’ve done together with my brother Devon. This isn’t fair what happened to him, nothing is the same. Nothing at all. I’m still trying to wrap my head around what happened. To elaborate some more; brushing my teeth we all did before school, I can be brushing my teeth and instantly be reminded of him and my other brother joking around in the one bathroom we all shared trying to brush our teeth. Its like a sigh of disappointment I have every time. “Oh, yea he’s not here anymore”.

Circumstances of the Offender

[16] Mr. Wilson is 24 years old. He was 20 years old at the time of the event. He does not have a criminal record. He graduated high school in 2017. He was the valedictorian and received two awards. He spent 1.5 years at George Brown but did not complete his degree. He has worked consistently up until his arrest. He worked at a moving company and in construction.

[17] Mr. Wilson wrote a letter expressing his remorse for his actions. A number of letters of support were filed, including one from a correctional officer and one from a fellow prisoner. The correctional officer stated:

Tyrone Wilson lived on one of my working units for an extended period of time beyond a year, during which I had numerous encounters with him and I can say he always exhibited a very positive and well intentioned disposition towards me and all other staff. He was a very pleasant individual consistently and showed interest in receiving self-improvement materials over the course of his stay. I am very comfortable in suggesting that I believe this person has a very good chance at not re-offending in the future and would have no concerns in knowing he was in the community. I have not written a letter in support of anyone before but I felt it was quite fitting that Mr. Wilson would receive my first one as I find him to be the most deserving.

[18] Mr. Wilson’s brother also wrote a letter. Mr. Wilson and his brother were raised by their mother. The family’s financial situation was poor. Mr. Wilson’s brother wrote:

He taught me how to be the sharing and compassionate person I am today. He's always had my back in everything I've done. He has been my support system since the day I was born. He is genuinely a good person with a big heart.

[19] A family friend wrote:

I have known Tyrone, through my son, for a number of years and have always thought of him as a very caring and thoughtful young man.

Tyrone has always shown respect for his family and friends and was always willing to help someone in need if he could.

[20] Mr. Wilson was at one point on medication for depression, although no longer. When the programs restarted in jail Mr. Wilson was able to complete an anger management program.

Aggravating and Mitigating Factors

[21] The aggravating factors are the following:

1. This was not a spur of the moment robbery. Rather, this was a planned, organized effort to rob the victim of drugs;
2. Mr. Wilson recklessly participated in an inherently dangerous event with four other individuals despite the fact that he did not know three of his fellow accomplices. Mr. Wilson did not know the shooter and did not know that he had a gun. However, it is aggravating that he chose to engage in this criminal enterprise with individuals that he did not know and that he had no idea what they were capable or not capable of doing; and
3. The impact on the victims. The death of Devon not only ended a life prematurely but also upended his family and friends’ lives.

[22] The following are the mitigating factors:

1. Mr. Wilson was only 20 at the time of the event;
2. He has pleaded guilty and expressed remorse;
3. He has no criminal record;
4. He has support in the community; and
5. He can be rehabilitated.

[23] In addition, Mr. Wilson was subject to exceptionally punitive conditions while serving his pre-sentence custody. Mr. Wilson filed an affidavit setting out the jail conditions during his time in pre-sentence custody. Mr. Wilson has been in custody since September 27, 2021. As of today, he will have served 894 days. He has been subject to 280 full lockdown days and 187 days of partial lockdowns. A partial lockdown occurs when the inmate must remain in his cell for less than six hours a day, while a full lockdown occurs when the inmate must stay in his cell for over six hours a day. Mr. Wilson swore in his affidavit:

On days that we are locked down, I have to stay in this small cell, for often 24 hours or longer. During lockdowns, I am not permitted to access the yard, or the phone and aside from for 20-30 minutes every three days, when we are let out of our cell to use the shower or make a phone call, we are stuck in our cell.

[24] Earlier in his pre-sentence custody many of the lockdown days were related to the COVID-19 pandemic. At one point Mr. Wilson was in lockdown for 41 straight days due to an outbreak and safety precautions. Since February 23, 2023, Mr. Wilson has been subject to 92 full lockdown days and almost all of them were due to staff shortages. Mr. Wilson was triple bunked in his cell for 379 days. His cell was 7 by 15 feet. When he was triple bunked, he slept on a mattress on the floor with his head near the toilet. The excessive lockdowns and triple bunking are mitigating factors to be considered in imposing sentence. As stated by the Court of Appeal for Ontario in R v. Marshall, 2021 ONCA 344 at paras. 50, 52:

A "Duncan" credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 "Summers" credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The "Duncan" credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a "Duncan" credit: R. v. Morgan, 2020 ONCA 279.

The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[25] The conditions in which Mr. Wilson has served his pre-sentence custody is a mitigating factor. However, any mitigation given to such conditions cannot skew the sentence or take an unwarranted significance that would result in an unfit sentence: see R. v. Cunningham, 2023 ONCA 36, at paras. 59-62.

Law and Analysis

[26] Section 718 of the Criminal Code describes the purpose of sentencing:

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:

(i) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(ii) To deter the offender and other persons from committing offences;

(iii) To separate offenders from society, where necessary;

(iv) To assist in rehabilitating offenders;

(v) To provide reparations for harm done to victims or to the community; and,

(vi) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[27] Further, s. 718.1 of the Criminal Code provides that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[28] Manslaughter is a serious offence because it involves the taking of a life. However, there is no dispute that the sentencing range for a conviction for manslaughter is very broad. As stated by Copeland J., as she then was, in R. v. MacKinnon, 2022 ONSC 1349 at para. 70:

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.

[29] The court must ensure, as stated in s. 718.1 of the Criminal Code, that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. To ascertain this, courts look to sentences given in other cases. The parity principle, which is now required by s. 718.2 (b) of the Criminal Code, requires that similar offenders who commit similar offences in similar circumstances be given similar sentences. Past cases, or precedents, create sentencing ranges to help guide the court. But ultimately, sentencing is an individualized process and sentencing ranges are not meant to handcuff the court. As stated by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 57:

Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case…

Also see: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 108; R. v. A.J.K., 2022 ONCA 487, 415 C.C.C. (3d) 230, at para. 71.

[30] The parity principle takes on special relevance in this case because Mr. Galloway, one of the participants in the robbery that led to Mr. Patten’s death, pled guilty to manslaughter before Justice Adamson in the Ontario Court of Justice. The Crown sought a sentence of 9 years and the defence, 7 years. Justice Adamson imposed a sentence of 7 years and 4 months. Mr. Galloway was 18 at the time that Mr. Patten was killed. He had three youth convictions for assault. He similarly suffered lockdowns and triple bunking as did Mr. Wilson, although not to the same extent as Mr. Wilson, especially with respect to the triple bunking. Mr. Galloway also did not know there was a gun. His moral blameworthiness is higher than Mr. Wilson because it was Mr. Galloway’s idea to rob the victim. He set everything in motion. He called the other assailants.

[31] The Crown and the defence have both supplied me with numerous cases in support of their respective positions. They acknowledge that there is not one particular case where the facts are directly on point. This is not unusual, given the wide variety of circumstances that are considered in the sentencing process. That being said, I will briefly summarize some of the cases that I found the most helpful.

[32] In R. v. Robinson, 2014 ONCA 176, the Court of Appeal determined that a sentence of 8 years, 5 months and 23 days imprisonment would have been fit. Robinson was one of four young men partying outside the home of a friend. They saw the 16-year-old victim and decided to rob him. They chased the victim. One assailant grabbed the victim and another one stabbed him in the chest. Robinson arrived on scene seconds later. Robinson was 19 years old on the date of the killing and had a minor non-violent criminal record. The Court of Appeal stated at para. 24:

I agree with the Crown’s submission that despite his youth and his prospects for rehabilitation, the sentence imposed on Robinson should strongly reflect the sentencing principles of denunciation and deterrence. Robinson joined three others in an attempt to rob a defenceless victim. He and his companions chased the victim down. He was aware that these events could lead to harm to the victim that was more than minor or trifling. Moreover, despite Robinson’s submissions to the contrary, I accept the Crown’s position that the evidence at trial demonstrated that Robinson knew that the stabber typically carried a knife.

[33] In R. v. Araya, 2015 ONCA 854, the accused was given a sentence of 6 years imprisonment, less 15 months credit for pre-sentence custody. After a four-week jury trial, the accused was found guilty of manslaughter. The accused and two youths participated in a robbery which resulted in the shooting of a 17-year-old boy. The accused was not the shooter and did not carry a gun, but he knew that his co-accused had an armed gun. The robbery was planned. The accused was 18 years old at the time. He had no prior record and had strong family and community support.

[34] In R. v. Tsega, 2021 ONSC 4651, the accused was given a sentence of five years less pre-sentence custody. He was initially charged with second-degree murder but was ultimately convicted of manslaughter as a party. A group of individuals broke into the victim’s home, shot the victim, terrorized, and confined other members of the household, and robbed the victim of drugs, money, and electronics. Mr. Tsega was not present for the home invasion; but he played an instrumental role in the execution of the home invasion by showing the individuals where the young victim lived. Mr. Tsega had strong family support, was 18, remorseful and did not know that a firearm would be used.

[35] There is no dispute that Mr. Wilson deserves a lower sentence than Mr. Galloway. While Mr. Wilson was two years older than Mr. Galloway, he was still a young adult, and he had no criminal record compared to Mr. Galloway’s three youth convictions for assault. Furthermore, the entire criminal scheme originated with Mr. Galloway, who called in the other assailants. But for Mr. Galloway’s scheme, Mr. Patten would still be alive.

[36] Mr. Wilson’s actions must still be denounced. He participated in a planned and cowardly, four-on-one scheme to rob an 18-year-old for drugs– an inherently dangerous criminal enterprise. Mr. Wilson did not have a gun and did not know there would be a gun. Nor did not Mr. Wilson throw a punch or attack the victim. But he approached the victim in unison with his fellow assailants, blocking a potential area of escape and lending his size and presence to intimidate and coerce. In this case, there was danger in numbers.

[37] Mr. Wilson is also a youthful first-time offender, who has pleaded guilty, expressed remorse, and can be rehabilitated. He has also, as mentioned, been subject to exceptionally punitive conditions which go well beyond the normal restrictions associated with pre-sentence custody. The number of lockdowns and triple bunking that Mr. Wilson was subjected to is appalling. The staffing level problems at the Central East Correctional Centre have not abated post-pandemic.

[38] Having regard to all the aggravating and mitigating factors, a sentence of 5 years is appropriate.

Pre-sentence Credit

[39] Mr. Wilson is entitled to receive credit for the time he has spent in pre-sentence custody. The standard credit is 1.5 days for every one day served in pre-sentence custody. The rationale for providing such credit was set out by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 22:

Courts generally gave enhanced credit in recognition of the fact that "in two respects, pretrial custody is even more onerous than post-sentencing custody" (Rezaie, at p. 721). As Laskin J.A. explained:

First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody awaiting trial.

[40] As explained in R. v. Marshall, 2021 ONCA 344 at para. 51:

[…] The "Summers" credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The "Summers" credit is statutorily capped at 1.5:1. It is wrong to think of the "Summers" credit as a mitigating factor. It would be equally wrong to deny or limit the "Summers" credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.

[41] Mr. Wilson has served 894 days in pre-sentence custody. He is entitled to credit of 1.5 days for every day he served for a total credit of 1,341 days.

Conclusion

[42] Mr. Wilson is sentenced to 5 years for manslaughter, less 1,341 days, for a remnant of 484 days. He will be subject to a lifetime s.109 order and a DNA order.

The Honourable Justice H. Leibovich

Date Released: March 26, 2024

March 26, 2024 – Correction

1. Any reference to Mr. Galloway’s companion has been changed from her full name to her initials.