Ontario Superior Court of Justice

Court File No.: CR-23-1-0000421
Date: 2025-04-11

Between:
His Majesty the King
and
Kane Alexander Underhill

Karolina Visic and Brontë Willitts for the Crown
Robert Chartier for Mr. Underhill
Heard: March 5, 2025

Reasons for Sentence
Corrick J.

Overview

[1] On September 3, 2024, Kane Underhill pleaded guilty before me to one count of aggravated assault. The matter was adjourned several times pending the preparation of a Gladue Report. On March 5, 2025, I heard the sentencing submissions of counsel. On March 7, 2025, Mr. Chartier notified the Crown and the court that he had made an error during his submissions and wanted to address the matter further. I heard further submissions on April 1, 2025. Mr. Underhill appears today for sentencing.

Facts

[2] The facts were set out in detail in an Agreed Statement of Facts, filed as Exhibit 1. In brief, on August 19, 2022, Mr. Underhill and Mr. Mutombo viciously assaulted Roch Lalonde, a 52-year-old man. Mr. Mutombo stabbed Mr. Lalonde seventeen times. Mr. Underhill struck Mr. Lalonde twice with a steel pole while Mr. Mutombo was attacking him. Mr. Underhill did not know that Mr. Mutombo was in possession of a knife that night or that Mr. Mutombo was stabbing Mr. Lalonde. The two men left Mr. Lalonde for dead. Mr. Lalonde survived the attack but died on February 16, 2023 of unrelated causes.

[3] The assault took place in Ireland Park at Bathurst Street and Queens Quay West. In August 2022, Mr. Underhill was living in a tent in that park. Mr. Mutombo was also staying in that tent. On August 19, 2022, Mr. Lalonde came into the park at approximately 2:30 a.m. He was homeless and was looking for a place to smoke drugs. He had spent the previous night sleeping near the park and asked some people in the park if they had seen his suitcase. He eventually settled near a rock monument in the park to smoke crack cocaine.

[4] Mr. Mutombo arrived in the park at approximately 2:45 a.m. At that time, Mr. Underhill was in his tent. Some people in the park who knew Mr. Mutombo told him that there was a “weirdo” in the area, referring to Mr. Lalonde. Mr. Mutombo said that he would “take care of it.”

[5] Mr. Underhill followed Mr. Mutombo to the rock monument to confront Mr. Lalonde. While Mr. Underhill stood back a bit, Mr. Mutombo approached Mr. Lalonde and told him that they did not want him there. Mr. Lalonde questioned Mr. Mutombo’s authority to tell him to leave. He continued to smoke crack and pay attention to his cell phone, ignoring Mr. Mutombo.

[6] Mr. Mutombo tried to take Mr. Lalonde’s phone and began thrusting forcefully at him, hurting him. Mr. Underhill approached Mr. Lalonde. He did not know that Mr. Mutombo had a knife or that he was stabbing Mr. Lalonde. Mr. Underhill left the area for less than a minute and returned armed with a steel pole. Mr. Underhill struck Mr. Lalonde’s head and the top of his spine with the steel pole causing Mr. Lalonde to hunch forward.

[7] Mr. Lalonde later reported that he could not feel his left leg after Mr. Underhill struck his neck with the pole. He was also unable to feel the rest of Mr. Mutombo’s attack.

[8] Mr. Underhill picked up Mr. Lalonde’s cell phone, which had fallen, left it on a rock, and left the area while Mr. Mutombo continued stabbing Mr. Lalonde. Mr. Mutombo left the area about ten seconds after Mr. Underhill.

[9] The entire assault lasted less than one minute. Approximately two minutes after Mr. Mutombo left, Mr. Lalonde was able to drag himself using a shopping cart for support out from the rock monument to a parking lot on Lakeshore Blvd. where he eventually collapsed. He was found in critical condition shortly thereafter by a security guard.

[10] Mr. Underhill was arrested on August 26, 2022, when he and Mr. Mutombo returned to Ireland Park.

[11] Mr. Lalonde’s injuries were detailed in an Agreed Statement of Facts, marked as Exhibit 2. He sustained 17 stab wounds to his upper body. One wound penetrated his liver resulting in a severe liver injury. He was stabbed in the upper abdomen, right elbow, left armpit, right upper chest, posterior neck, left upper trap, upper right back, left shoulder, mid-back, and left abdomen. All of the stab wounds were closed with surgical staples. He required blood transfusions due to blood loss. He required surgery to repair a wound in his abdominal wall.

[12] Mr. Lalonde also suffered injuries to his lungs, including pulmonary contusion and injuries that required the placement of tubes around his lungs. A small part of his right fifth rib was sheared off. He sustained scalp lacerations, a collapsed bladder, paraspinal musculature hematoma and hemorrhages in the right femoral artery and in the subcutaneous tissues of the right groin.

[13] In addition, Mr. Lalonde sustained fractures to his left scapula, his skull and two vertebrae.

[14] Mr. Lalonde remained in the Intensive Care Unit until September 3, 2022. He was ultimately discharged from hospital on September 16, 2022. He died in Vancouver on February 16, 2023.

Positions of the Parties

[15] Ms. Visic, on behalf of the Crown, submits that the appropriate disposition in this case is a prison sentence of eight years less the amount of time Mr. Underhill has spent in pre-sentence custody. She also seeks a forfeiture order, a DNA order, and a life-time weapons prohibition order.

[16] Mr. Chartier, on behalf of Mr. Underhill, submits that a sentence of six years less pre-sentence custody is appropriate given Mr. Underhill’s guilty plea, his potential for rehabilitation and the harsh conditions of his pre-sentence custody. Mr. Chartier takes no issue with the ancillary orders sought by the Crown.

Mr. Underhill’s Personal Circumstances

[17] Much of Mr. Underhill’s background is set out in a pre-sentence report, filed as Exhibit 3. He was born in London, Ontario. He is 30 years old. His parents divorced when he was four, and he and his older sister were raised by his mother. He reported to the pre-sentence report writer that his parents’ relationship was toxic, and he was witness to domestic violence.

[18] Growing up, Mr. Underhill’s relationship with his mother was not always good. She had her own mental health issues to deal with. Her sister was murdered, which understandably affected her. She suffered from PTSD. She would lash out at Mr. Underhill. At one point, the CAS was involved with the family after his mother struck him with a paddle.

[19] Mr. Underhill reported that his father was in and out of his life but never fulfilled the role of parent. His father struggled with alcohol abuse.

[20] Mr. Underhill completed high school and a college program in masonry. He worked part-time as a teenager and was employed in the masonry field until COVID struck, and he started receiving CERB payments. He has not worked since then.

[21] Mr. Underhill has a longstanding and serious substance abuse problem. He began smoking marijuana when he was 14 and used it every day, every two to three hours, for ten years. He began using Oxycontin at 16 and for the last five years has been a heavy user of fentanyl and crystal methamphetamine. He was using drugs every day and was under the influence of fentanyl and crystal methamphetamine when he assaulted Mr. Lalonde. He has not used drugs since being in custody, almost 32 months. He currently takes medication to treat his opioid dependence.

[22] Mr. Underhill has a criminal record. His contact with the criminal justice system started when he was just shy of his 24th birthday and is directly related to his opioid addiction. Between 2018 and 2021, he spent two years in jail as a result of three crime sprees.

[23] On February 2, 2019, Mr. Underhill pleaded guilty to multiple property offences that were committed in April and May 2018. He was convicted of 19 charges – theft under x4, theft of a motor vehicle x3, possession of property obtained by crime x4, mischief to private property x2, unauthorized use of a credit card x2, break and enter, weapons dangerous, unlawful possession of an identification card, and fail to comply with a recognizance. He was sentenced to a total of 18 months, less time served and two years probation.

[24] On April 2, 2020, Mr. Underhill again pleaded guilty to multiple property offences that were committed in May and July 2019, and to one count of assault causing bodily harm that he committed while in jail. On that occasion, Mr. Underhill was convicted of theft under x2, break and enter x2, possession of property obtained by crime, being an occupant in a stolen vehicle and assault causing bodily harm. He received a sentence of 18 months probation after being given credit for the 248 days he had spent in pre-sentence custody. I will have more to say about the assault conviction.

[25] On November 29, 2021, Mr. Underhill pleaded guilty to multiple offences that were committed between January 2021 and August 2021. He was convicted of theft under x4, breach of probation x4, unauthorized use of a credit card x2, break and enter, mischief under, possession of burglary tools, fail to appear and assault causing bodily harm. He was sentenced to seven months in jail and two years probation.

[26] Finally, Mr. Underhill’s criminal record contains an entry on February 16, 2023, which post-dates this offence. On that date, he pleaded guilty to possession of burglary tools, breach of probation and fail to appear. In addition, facts related to a further charge of assault were read in as aggravating. After giving Mr. Underhill credit for 60 days spent in pre-sentence custody, the judge suspended sentence and placed Mr. Underhill on probation for a year. These offences pre-date Mr. Underhill’s assault on Mr. Lalonde.

[27] Also on February 16, 2023, Mr. Underhill admitted punching a fellow shelter resident in the face with a closed fist. He was not convicted of this offence, but the facts were put before the sentencing judge and admitted to by Mr. Underhill.

[28] The transcripts of the proceedings that resulted in the assault convictions on Mr. Underhill’s criminal record were filed as part of Exhibit 4.

[29] The April 2, 2020 conviction for assault causing bodily harm arose from the following circumstances. On November 4, 2019, Mr. Underhill was in custody awaiting trial in the Sarnia jail. He and two other inmates assaulted a fourth inmate. After the victim had been assaulted by two of his fellow inmates, Mr. Underhill convinced the victim to go into the shower area away from security cameras. Mr. Underhill followed the victim into the shower area, threw a shirt around the back of the victim’s head and punched him between 15 and 20 times in the face.

[30] I describe the facts of this case because they bear some resemblance to the present case. Mr. Underhill participated in a group assault during which he inflicted a high level of gratuitous violence unprovoked. In the present case, Mr. Underhill was not engaged in the initial confrontation between Mr. Mutombo and Mr. Lalonde but for some reason found it necessary to insert himself by striking Mr. Lalonde, an unarmed man who was not in a position to defend himself, in the neck and head with a steel pole.

[31] Although the majority of the convictions on Mr. Underhill’s record are for property offences and are the typical kinds of offences that drug addicts commit to finance their addiction, he has twice been convicted of assault causing bodily harm and has admitted assaulting a fellow shelter resident. This offence represents a significant escalation in the level of violence perpetrated by Mr. Underhill.

Impact On the Victim

[32] Although no victim impact statement was filed, Mr. Lalonde described the attack in detail in a video recorded interview police officers conducted with him on September 12, 2022, almost a month after the assault. Various excerpts from that interview were filed as part of Exhibit 6 on sentence.

[33] Mr. Lalonde described feeling terrified. He said that he was powerless. He could not defend himself or disarm his attackers. He could not even see them. He thought they were trying to kill him. He did not know why. He thought they wanted to steal his cell phone. Mr. Lalonde was particularly frightened after Mr. Underhill struck him with the pole because he was no longer able to walk. Mr. Lalonde thought that he was going to die. He became emotional describing the experience to the officers, breaking down in tears at points.

[34] I have already described in detail the numerous serious injuries inflicted on Mr. Lalonde by Mr. Underhill and Mr. Mutombo. He was hospitalized for nearly a month. The fractures he sustained limited his mobility for a time. Fortunately, he regained his mobility before he was discharged from hospital.

Governing Sentencing Principles

[35] In determining the fit sentence for Mr. Underhill, I am governed by the sentencing principles set out in the Criminal Code.

[36] The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sentences that have one or more of the following objectives:

1. denouncing unlawful conduct,
2. deterring the offender and others from committing crimes,
3. separating offenders from society where necessary,
4. assisting in the rehabilitation of the offender,
5. providing reparations for harm done to the victim or to the community,
6. promoting a sense of responsibility in the offender, and
7. acknowledging the harm done to victims and the community.

[37] The second is the principle of proportionality set out in s. 718.1. Any sentence I impose must reflect the gravity of the offence and the responsibility of the offender. The least intrusive sentence and the sentence of the shortest duration that is necessary to fashion a proportionate sentence should be imposed. This principle of restraint is particularly important when a court is sentencing an Aboriginal offender: Criminal Code, s. 718.2(e).

[38] Furthermore, the sentence should also be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Finally, the sentence should be increased or reduced to account for any aggravating or mitigating circumstances related to the offence or the offender.

Gladue Principles

[39] As I indicated, the matter of sentence in this matter was adjourned for the preparation of a Gladue Report. The court received a letter from Aboriginal Legal Services dated February 20, 2025 indicating that they were unable to locate any information regarding Mr. Underhill’s Indigenous ancestry. They were thus unable to prepare a Gladue Report because they were unsure about the nature of Mr. Underhill’s Indigenous ancestry and therefore could not address how being an Indigenous person had affected his life.

[40] Aboriginal Legal Services made it clear in the letter that they were not stating that Mr. Underhill was not an Indigenous person or that Gladue principles were not relevant to Mr. Underhill’s case.

[41] Mr. Underhill’s mother, Shelley Marsh, advised Aboriginal Legal Services that her father’s mother was Indigenous but lost her status when she married a Caucasian man. Ms. Marsh reported that her father was reluctant to talk about his Indigenous ancestry because of discrimination. She was raised as “non-status” due to her parents’ fear that their children would be taken from them.

[42] Mr. Underhill’s disconnection to his Indigenous ancestry was not of his choosing. Rather it was a choice made by his ancestors to avoid the well-known and hideous effects of colonialism on Indigenous people.

[43] In R. v. Gladue, [1999] 1 SCR 688, para 98, the Supreme Court of Canada held that sentencing judges must consider the overrepresentation of Indigenous people in Canadian prisons, the unique background or systemic factors that have contributed to bringing the particular offender before the court and the appropriate type and length of sanction in the circumstances bearing in mind the offender’s Indigenous heritage or connection. In the end, the sentence must fit the offender and the offence.

[44] I have considered the principles from Gladue. Mr. Underhill’s disconnection from his Indigenous ancestry is a relevant mitigating factor in this case. His life experience as an Indigenous person, however, does not reduce his moral blameworthiness for this offence.

Aggravating and Mitigating Circumstances

[45] I turn now to consider the aggravating and mitigating circumstances of this case. First the aggravating circumstances.

1. Mr. Underhill has a fairly significant criminal record. Although most of the entries are convictions for property offences, it includes two convictions for assault causing bodily harm. In addition, he admitted assaulting a fellow shelter resident in January 2022.
2. At the time of this offence, Mr. Underhill was subject to a probation order that required him to keep the peace and be of good behaviour, be in his residence between the hours of 10:00 p.m. and 6:00 a.m., and to possess no weapons. He was in breach of all of those conditions.
3. Mr. Lalonde was a vulnerable victim. He was a homeless man with mental health and substance abuse problems minding his own business in a public park. His right to be there was no less than Mr. Underhill’s or Mr. Mutombo’s.
4. Mr. Underhill used a weapon to assault Mr. Lalonde. Although he did not bring a weapon to the confrontation, he searched for one, found one and used it during the altercation. Mr. Underhill asserts that he did not know that Mr. Mutombo was stabbing Mr. Lalonde. He believed that Mr. Mutombo was punching Mr. Lalonde. The Crown accepts this. Mr. Underhill’s decision to introduce a weapon into the confrontation when he was unaware that Mr. Mutombo was already using one is an aggravating factor.
5. This was a very violent offence, involving a two-on-one attack. This is the second time Mr. Underhill has engaged in a group assault. The violence Mr. Underhill inflicted was gratuitous.
6. The attack on Mr. Lalonde was unprovoked. Mr. Mutombo took it upon himself to “take care of” Mr. Lalonde, after being told by friends that there was a “weirdo” in the area. Mr. Underhill did not initially approach Mr. Lalonde but stood by while Mr. Mutombo was assaulting Mr. Lalonde with what Mr. Underhill believed to be his fists. It is difficult to understand why Mr. Underhill even joined the fray.
7. Mr. Lalonde was not in a position to defend himself. It was very dark at the rock monument. He could not see his attackers. Mr. Lalonde was seated when he was set upon. He had no weapon.
8. Rather than assisting Mr. Lalonde, Mr. Underhill left him, gravely injured, in a dark and secluded part of the park, late at night, where he was unlikely to be found by a passer-by.
9. The physical and emotional consequences of this attack on Mr. Lalonde were severe. It is clear from the video excerpts in Exhibit 6 that Mr. Mutombo and Mr. Underhill terrified Mr. Lalonde that night. He was unable to describe the incident to police a month later without breaking down in tears.

[46] I have also considered the following mitigating circumstances.

1. Mr. Underhill pleaded guilty. He has accepted responsibility for this offence. He expressed remorse to Mr. Lalonde for his actions. His plea also saved the time and resources that would have been necessary to conduct a trial.

2. It appears that Mr. Underhill has gained insight into his criminal behaviour and recognizes that the maintenance of his sobriety is critical if he is to live a pro-social life. He instructed his counsel that he wants to serve a penitentiary sentence to take advantage of the programs offered in the federal system to assist him to deal with the problems that underlay his criminal behaviour and to assist him to reintegrate into the community. This insight bodes well for Mr. Underhill’s rehabilitation.

3. Mr. Underhill has the support of his mother and his sister, which is important for his rehabilitation.

4. Mr. Underhill is a skilled tradesman, who in the past has been fully employed, and has operated his own business.

5. Mr. Underhill is an Indigenous man.

6. While in custody, Mr. Underhill completed four Core Life Skills programs – Use of Leisure Time, Changing Habits, Anger Management, and Understanding Feelings.

7. Mr. Underhill has been incarcerated at the Toronto South Detention Centre since his arrest on August 26, 2022. Records from the Detention Centre show the number of lockdowns between July 1, 2022 and February 24, 2025 as 328. I recalculated the number to be 293 between August 26, 2022 and February 24, 2025. Mr. Underhill was locked down in his cell 32% of the time. Nearly all of the lockdowns were due to staff shortages in the institution.

   During lockdowns, family visits are cancelled. Inmates are given thirty minutes out of their cells to use the phone, to shower or to get fresh air in the yard, although these “privileges” may also be cancelled. A letter from Shelley Marsh, Mr. Underhill’s mother, indicates that at least eight of the 24 monthly scheduled visits she had with her son were cancelled after she had made the three-hour drive from her home to see him.

   Mr. Underhill described the impact of the lockdowns on his mental health in an affidavit. His inability to stay connected to his mother, to exercise and to maintain basic hygiene made daily life difficult. Tensions on the range increased as a result of the lockdowns requiring more vigilance on the part of Mr. Underhill, which was itself exhausting and stressful.

   Despite repeated judicial calls for the adequate staffing of correctional institutions to permit inmates to live in humane conditions that allow them to shower and to have access to fresh air, this problem persists: see a summary of cases in R. v. Persad, 2020 ONSC 188, para 29.

8. Mr. Underhill contracted COVID twice while in the detention centre awaiting trial.

I accept that Mr. Underhill experienced particularly harsh conditions of pre-sentence detention, which warrants mitigation: R. v. Marshall, 2021 ONCA 344; R. v. Brown, 2025 ONCA 164.

Range of Sentence and Applicable Principles

[47] Aggravated assault carries a maximum sentence of fourteen years in prison: s. 268(2) of the Criminal Code.

[48] There is a wide variation in the sentences imposed for aggravated assault depending on the brutality of the assault, the injuries to the victim and their ongoing impact on the victim’s life, the use of a weapon, the premeditation involved, the motive for the attack and the individual circumstances of the offender. I agree with Justice Downes, who wrote, “it is clear from even a cursory glance at the authorities that the range of sentence for cases of aggravated assault involving serious injury is wide to the point of impracticality:” R. v. Pangan, 2014 ONCJ 327, para 38.

[49] Counsel have provided several decisions in support of their positions on sentence, which I have reviewed. I am mindful, however, of Lamer C.J.C.’s caution that “the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction:” R. v. M. (C.A.), para 92.

[50] In 2011, Justice Code established a sentencing range for serious assaults in R. v. Tourville, 2011 ONSC 1677, para 30. He described sentencing cases for serious assaults as falling into three ranges. At the highest range were cases that involved recidivists with serious criminal records or unprovoked or premeditated assaults with no suggestion of self-defence or consent. These cases generally attracted sentences of four to six years in prison.

[51] In 2019, Justice Code clarified that the range of sentence for cases of the most serious assault offences was wider than he had described it in Tourville, with the top of the range being eight years in prison: R. v. Seerattan, 2019 ONSC 4340, para 36.

[52] The sentences in the cases provided by counsel range from 30 months in R. v. Moreau, 2024 ONSC 1579 to nine years in R. v. Clymer, 2017 ONCJ 432.

[53] At the lower end of the range were the cases of Moreau, Fisher and Fortune. In Moreau, the offender received 30 months in prison for aggravated assault. He did not use a weapon and had not previously been sentenced to a prison term.

[54] The offender in R. v. Fisher, 2024 ONCA 878 received a sentence of three and a half years for aggravated assault. In that case, the offender used a knife he was carrying to slash the victim. The case did not involve a two-on-one attack.

[55] In R. v. Fortune, 2024 ONCA 269, the victim and offender were arguing. The victim entered the offender’s room and kicked him in the head. The offender retaliated by stabbing the victim five times. The Court of Appeal increased the offender’s sentence from two years to three and a half years. Again, this was not a two-on-one attack. Nor was it an unprovoked attack as Mr. Underhill’s attack on Mr. Lalonde was.

[56] There are also several cases at the higher end of the range. In R. v. Clymer, 2017 ONCJ 432, Justice West imposed concurrent nine-year sentences on an offender who stabbed two people, one six times, the other three times. Both victims were grievously injured. The attack was unprovoked and committed against unarmed people. The offender was 34 years old. He had substance abuse issues that aggravated a longstanding problem he had with rage. He had an extensive criminal record that included two convictions for assault and one for armed robbery. He had not previously been sentenced to a penitentiary sentence. Although there were two victims in this, it was not a group assault.

[57] The Ontario Court of Appeal upheld sentences of 7.5 years imposed on two young men who were convicted by a jury of aggravated assault and assault with a weapon: R. v. Kanthasamy, 2007 ONCA 90, para 71. The offenders were 20 years old at the time of the offence. One offender had no criminal record and the other had a conviction for theft under. The victim was unarmed. The offenders attacked him with machetes severing his finger and inflicting 21 or 22 cuts all over his body. The sentencing judge noted that as a result of the attack, the complainant’s life was forever changed for the worse.

[58] There are significant differences between this case and that of Mr. Underhill. In Kanthasamy, the attack was planned and premeditated. The offenders did not plead guilty or take responsibility for the offence. One offender had no criminal record. The second offender had only a conviction for theft under. However, in both cases, the attack was perpetrated by two people on an unarmed victim. In both cases, a weapon was used, although in Kanthasamy, the offenders initiated the confrontation armed with weapons.

[59] The sentencing judge indicated that he would have imposed substantially longer sentences on the offenders but for the fact that the offenders were young, without criminal records and had rehabilitative potential: Kanthasamy, at para. 71.

[60] Justice Morgan observed in R. v. Roberts, 2018 ONSC 4566 that a sentence of six years in prison for aggravated assault was in the middle of the range of sentence in the reported cases rather than at the top of the range as noted by Justice Code in Tourville. The cases presented to me by counsel in this case bears this out.

[61] The parity principle codified in s. 718.2(b) of the Criminal Code requires that I also consider the sentence I imposed on Mr. Mutombo for his role in this assault. On April 3, 2025, I sentenced Mr. Mutombo to nine years in prison.

[62] There are significant differences between Mr. Mutombo and Mr. Underhill. Mr. Mutombo had a more significant related criminal record. He was the initial aggressor in this attack. The injuries he inflicted on Mr. Lalonde were more serious. His prospects for rehabilitation were guarded. He had no support in the community and was unsure whether he could maintain his sobriety in the community, something that was critical to reduce his risk to public safety.

[63] The circumstances of any case, including this one, can be readily distinguished from any other case. Sentencing is not a precise science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. Despite this, prior decisions assist in determining the principles that must guide my decision.

[64] It is clear from the jurisprudence that denunciation and deterrence are the predominant sentencing objectives in cases of aggravated assault where the victim suffers grievous injuries.

Determination of a Fit Sentence

[65] Sentencing ranges are guides, not rules, for sentencing judges. They are not “straitjackets” depriving judges of their ability to impose sentences that reflect both the circumstances of the offence and of the offender: R. v. Lacasse, 2015 SCC 64. A fit sentence is one that is proportionate to the gravity of the offence and the moral blameworthiness of Mr. Underhill.

[66] This was a cowardly, vicious two-on-one attack on an unarmed man who had no chance to defend himself. The level of violence was extreme and gratuitous. It was simply a matter of luck that Mr. Lalonde did not die in that park that night. He suffered severe injuries. The gravity of this crime is very serious.

[67] The degree of Mr. Underhill’s moral blameworthiness is high. For some inexplicable reason, other than that he was high, he inserted himself into what he thought was an unarmed confrontation, attacking Mr. Lalonde with a weapon. He was on probation at the time of the attack, having been convicted of assault causing bodily harm only nine months earlier.

[68] The sentences he has previously received for assault have not deterred him, making specific deterrence, as well as general deterrence, an important sentencing objective.

[69] I have also considered the principle of restraint. Mr. Underhill has not previously been sentenced to a penitentiary term. A first penitentiary sentence should not be any longer than is necessary to achieve the relevant sentencing objectives: R. v. Borde, para 36. This principal of restraint is also important because Mr. Underhill is an Indigenous man.

[70] There is good reason for optimism about Mr. Underhill’s potential for rehabilitation. He has re-established his relationship with his mother who has indicated that she will continue to support Mr. Underhill when he is released from custody. He has marketable skills. He has gained insight into his drug addiction and seems to now have the resolve to tackle it.

[71] After considering all of the circumstances of this case, in my view the appropriate sentence is seven years, less the time he has spent in pretrial custody. This is the sentence that I impose. It reflects the serious crime Mr. Underhill has committed and his high degree of moral blameworthiness. It also addresses the applicable sentencing principles and the aggravating and mitigating circumstances.

[72] Mr. Underhill has spent 960 days in pre-sentence custody between August 26, 2022 and today. He applied 60 of those days to the sentence he received on February 16, 2023. He is thus entitled to credit of 1,350 days for the 900 days he has spent in pre-sentence custody, in accordance with R. v. Summers, 2014 SCC 26. By my calculation, seven years is equal to 2,555 days. After crediting him 1,350 days, Mr. Underhill has 1,205 days or 39.5 months left to serve.

Ancillary Orders

[73] There will be an order pursuant to s. 109 of the Criminal Code prohibiting Mr. Underhill from possessing any weapons for life and an order pursuant to s. 487.051(1) of the Criminal Code that Mr. Underhill provide a sample of bodily substances for the purpose of forensic DNA analysis.

[74] I have not received a forfeiture order with respect to Mr. Underhill.

[75] The victim fine surcharge will be waived.

Corrick J.
Released: April 11, 2025