DATE: 20030526

DOCKET: C37025

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and–

TROY CLARKE (Applicant/Appellant)

BEFORE: LABROSSE, WEILER and CRONK JJ.A.

COUNSEL: Christopher Hicks and Catriona Verner,

for the appellant

C. Jane Arnup,

for the respondent

HEARD: May 9, 2003

RELEASED ORALLY: May 9, 2003

On appeal from the sentence imposed by Justice Archie G. Campbell of the Superior Court of Justice, sitting with a jury, dated May 31, 2001.

E N D O R S E M E N T

[1] The appellant was convicted of manslaughter, by a court composed of a judge and jury, in the stabbing death of Daniel Cousins.

[2] The victim was a friend of the appellant. He was 47 years of age. He was emaciated and frail and suffered from numerous health problems. He was stabbed seven times in his own home, a rooming house in which the appellant also had a room. Two of the wounds were likely fatal. The victim was an alcoholic and his blood alcohol level when he died was 196 milligrams of alcohol per 100 millilitres of blood. It was a brutal killing.

[3] The appellant was 29 years of age at the time of the offence and in good health. He was unemployed and on welfare, but was interested in boxing and hoped to work as a trainer in that field. The appellant diverted suspicion away from himself until he was confronted with strong evidence arrayed against him by the police. He then admitted that he had caused the victim’s death.

[4] The trial judge concluded that the jury’s verdict was based either on a doubt about provocation or the “rolled up” defence of lack of intent caused by some alcohol consumption and some provocation. He also concluded that any evidence of the appellant’s impairment was very slight.

[5] The trial judge sentenced the appellant to a term of 14 years’ imprisonment less pre-trial custody. The appellant was in custody for 18 months prior to his trial, for which the trial judge gave the appellant 2 years’ credit. The trial judge declined to give the appellant credit on a two-for-one basis on the ground that the appellant himself had prolonged the length of his custody because he changed counsel and lost his first trial date. The Crown concedes that there was no evidence that the appellant changed counsel for any improper purpose and, thus, the trial judge erred in principle because he took into consideration an irrelevant factor. The considerations respecting two-for-one credit for pre-trial detention all apply here. Pre-trial custody cannot be used to earn remission towards parole; there are few rehabilitative programs available in detention centres, and the conditions in detention facilities are more crowded than in correctional facilities such as penitentiaries. The appellant should have received a credit of at least 3 years for the time spent in custody.

[6] In our view, the trial judge was also in error in stating that “provocation cannot mitigate a sentence in a case like this.” In R. v. Stone, [1999] 2 S.C.R. 290 at para. 237, Bastarache J. for the Court, held that, “[t]he argument that the provocation factor was spent because it had already served to reduce the legal character of the crime overlooks the purpose of s. 232 and therefore must fail.” Thus, provocation is one of the many factors to be considered when assessing the appropriate sentence. In this case, it deserved some modest consideration.

[7] The range of sentence for the offence of manslaughter can vary immensely. This case involved an incident that carried substantial moral culpability. In his sentencing submissions, defence counsel appeared to agree that the appropriate range of sentence for “aggravated” manslaughter was 8 to 12 years’ imprisonment. Crown counsel at trial did not seem to disagree with the stated range. On this appeal, however, counsel for the appellant argues that this is not a case of aggravated manslaughter. We disagree. There are numerous aggravating factors in this case:

(a) the extremely frail and vulnerable nature of the victim, who was defenceless against this armed attack;

(b) the victim was attacked in his own home;

(c) although not in a position of trust, the appellant was looked upon by the deceased and others as a friend who provided some assistance and friendly care to the victim in the past and he abused this relationship by killing Daniel Cousins;

(d) the use of a knife during the commission of the offence;

(e) the brutality of the attack, resulting in seven stab wounds in the chest area, two of which could have caused the death, and some of which were inflicted with considerable force, as shown by the wound going through the breast bone and the pericardial sac into the pulmonary artery;

(f) the appellant wrapped the knife in paper and plastic and hid it in a plastic bag beside recycling boxes outside the building after the killing;

(g) the appellant waited at least 20 minutes before making an anonymous 911 call for medical help for his supposed friend, who was not killed immediately by the stab wounds;

(h) the appellant successfully diverted suspicion away from himself at the scene by purporting to care for the deceased’s welfare and suggesting possible routes which some unknown assailant may have taken into the building;

(i) the appellant characterized himself as flying into “pure rage” against a friend who had only slightly provoked him; and

(j) the devastating impact on the family of Daniel Cousins.

[8] In light of these aggravating factors, we agree that the proper range for this offence and this offender is 8 to 12 years’ imprisonment. The 14-year sentence imposed by the trial judge is outside that range.

[9] We note that the fresh evidence filed on behalf of the appellant indicates that he has adapted well to prison life and keeps busy with school work and other courses and that the authorities are positive about his performance.

[10] In all the circumstances, after the appellant is given credit for his pre-trial custody and the provocation factor is taken into consideration, we would impose a sentence of 9 years’ imprisonment.

[11] Leave to appeal sentence is granted, the appeal is allowed and the sentence is reduced from 12 years to 9 years’ imprisonment.

Signed: “J.-M. Labrosse J.A.”

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”