Court of Appeal for Ontario

Citation: R. v. Maciel, 2007 ONCA 496

Date: 2007-07-04

Docket: C37342

Between:

Her Majesty the Queen Respondent

and

Richard Maciel Appellant

Before: Doherty, Laskin and Armstrong JJ.A.

Counsel: Philip Campbell for the appellant Jennifer Woollcombe for the respondent

Heard and orally released: June 27, 2007

Endorsement

[1] The appellant was convicted of first degree murder in November 2001. The murder occurred in early June 1999 and the appellant was arrested in September 1999. He has been in custody since then.

[2] In March 2007, this court dismissed the appellant’s appeal from his conviction on the first degree murder charge, but substituted a conviction for second degree murder. The parties agreed that this court should fix the period of parole ineligibility required upon the conviction for second degree murder. In oral argument, the Crown suggested a fifteen-year parole ineligibility order. Counsel for the appellant suggested it should not be more than twelve years.

[3] After reading the written submissions of counsel, the material filed by counsel and hearing further oral argument, the court fixed the period of parole ineligibility at twelve years with reasons to follow. These are those reasons.

[4] The facts surrounding the murder are set out in the reasons of this court on the conviction appeal released on March 22, 2007. As the appellant has been in custody on the murder charge since September 1999, his period of parole ineligibility runs from that date.

[5] Section 744 of the Criminal Code speaks to the factors to be considered in fixing the period of parole ineligibility upon a conviction for second degree murder. These factors are:

• the character of the accused;
• the nature of the offence;
• the circumstances surrounding the commission of the offence; and
• the jury’s recommendation.

[6] There is no jury recommendation in this case since the jury convicted of first degree murder.

[7] The nature of the offence and the circumstances surrounding the offence can be considered together. This offence occurred in the context of ongoing negotiations concerning a drug debt apparently owed by the appellant and his father, both of whom were drug dealers, to certain “Colombians”. The deceased was apparently involved in attempts to broker a deal between the appellant and his father and the Colombians. The appellant and probably his father arranged a meeting with the deceased ostensibly to negotiate this settlement. The appellant went to the meeting with a loaded handgun. He also arranged for the meeting at a location where he could act without fear of anyone coming forward as a witness against him. The deceased was shot within ten minutes of his arrival at the meeting. He was shot seven times. The first shot hit him in the back, but likely did not kill him.

[8] The evidence leaves no doubt that the appellant intended to kill the deceased. It also suggests that the appellant went to the meeting appreciating that gunplay was a real possibility and that he might use his weapon against the deceased. There is nothing to support the conclusion that the appellant acted impulsively, in anger, or in response to any provocation by the deceased. There is a strong sense that the shooting was a cold-blooded reaction to the appellant’s “business” problems.

[9] The nature of the offence and the circumstances surrounding its commission have aggravating features that call for a period of parole ineligibility beyond the minimum of ten years.

[10] We turn next to the appellant’s character. We begin with the question of remorse. The appellant, as is his right, has maintained his innocence throughout and continues to maintain his innocence. It follows that he has shown no remorse and offered no explanation that might mitigate his actions. We, of course, do not hold the appellant’s continued assertion of his innocence against him in any way. It does, however, remove remorse as a potential mitigating consideration.

[11] The appellant was twenty years old when he murdered the deceased. By all accounts, even those of his loved ones, the appellant was a lawless, violent person. In addition to this murder, the appellant had shot and wounded another man about eighteen months before this homicide. The appellant was never charged with any offence arising out of that shooting, but the details of it emerged as part of his fresh evidence application on his conviction appeal. As a youth, the appellant had participated in a very serious abduction and assault. He made his living as a drug dealer and was a part of the criminal subculture.

[12] The appellant’s criminal lifestyle and his demonstrated willingness to use firearms to further his criminal purposes marked him as a very dangerous person in 1999, despite his youth. Were we considering his character as of the date of this offence (June 1999), it would be a very aggravating factor on sentencing.

[13] The appellant is now twenty-eight going on twenty-nine. He has been in custody for almost eight years. By all accounts, he is not the same person he was in 1999.

[14] The appellant now has the support of a loving wife and family, many of whom have attested to the fundamental change that has occurred in the appellant during his incarceration. The appellant is now interested in furthering his education, working for a living, and raising a family. According to his family members, a life of crime has lost its allure for the appellant.

[15] During his incarceration, the appellant has finished high school and taken some additional courses. He has developed significant work skills and gained personal insight into his prior behaviour. The appellant has found spiritual comfort and support in the Catholic church. He has helped and mentored others while in custody. The appellant has no record of any significant disciplinary offences while in custody and has been moved to medium security. We are told that it is only the length of his sentence which prevents a further move to minimum security.

[16] The court must always be concerned about the bona fides of rehabilitation while incarcerated. Sometimes, that rehabilitation will prove illusory when an individual leaves the controlled confines of the institution and returns to his former habitat. There is, however, good reason for optimism in this case. The appellant has shown real and continued progress for over eight years. At least part of that time has been spent in a prison environment that was not conducive to rehabilitation. The appellant also has the strong support of his wife and family.

[17] Section 744 speaks to the character of the accused at the time of sentencing. The appellant’s antecedents certainly reveal the potential for dangerous criminal conduct. However, his development over almost eight years diminishes that potential and suggests a real potential for rehabilitation.

[18] It is our view that taking into account that rehabilitative potential, but bearing in mind the nature of the offence and the circumstances surrounding the crime that an appropriate period of parole ineligibility is twelve years. It will be for the Parole Board to ultimately determine when, if ever, the appellant should be released. No doubt, it will closely examine any proposed release plan at the appropriate time.

“Doherty J.A.”

“John I. Laskin J.A.”

“Robert P. Armstrong J.A.”