CITATION: R. v. Stiers, 2010 ONCA 656

DATE: 20101007

DOCKET: C43142

COURT OF APPEAL FOR ONTARIO

Sharpe, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Stiers

Appellant

James Lockyer, for the appellant

Brian Manarin and Holly Loubert, for the respondent

Heard: October 4, 2010

Determination of the appropriate period of parole ineligibility pursuant to s. 745 of the Criminal Code following the judgment in this Court dated May 26, 2010.

ENDORSEMENT

[1] The appellant was convicted by a jury of first degree murder on December 17, 2004. His conviction appeal was dismissed but a verdict of guilty of second degree murder was substituted in a judgment rendered by this court on May 26, 2010. Following the release of this court’s judgment, counsel agreed that rather than remit the matter of the period of ineligibility for parole to the trial judge, it was appropriate for the panel that heard the appeal to deal with that issue pursuant to the powers conferred by s. 686(3)(b) of the Criminal Code.

[2] The Crown’s position is that the period of ineligibility for parole should be fixed at between 12 and 15 years. The appellant’s position is that the sentence be one of life imprisonment without eligibility for parole for 10 years.

[3] The factors to be considered are specified in s. 745.4 of the Criminal Code, namely, (1) the character of the offender, (2) the nature of the offence and the circumstances surrounding its commission, and (3) the recommendation, if any, made by the jury. As the appellant was convicted of first degree murder the jury made no recommendation.

[4] In R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, the Supreme Court of Canada stated, at para. 27:

[A]s a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. [744.5], the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be ”unusual”, although it may well be that, in the median number of cases, a period of 10 years might still be awarded.

[5] The appellant was 23 years old at the time he committed this offence. He worked as a painter and labourer and had fathered three children. He had a criminal record consisting of 14 prior convictions, none involving offences of violence and most involving the breach of court orders. The appellant had a limited education and a serious history of alcohol and drug abuse. There was a clear link between the appellant’s criminal behaviour and his abuse of alcohol.

[6] The appellant has been in custody since his arrest on this offence on September 27, 2003. He clearly experienced significant difficulty adjusting to incarceration in the penitentiary system but since his placement, first in a Regional Treatment Centre following incidents of what he reported as self-inflicted harm, and then in a medium security institution, he has made significant progress. He has improved his educational level, shows a good work ethic, and generally has made the necessary adjustments to life in a custodial setting where he has been able to benefit from rehabilitative programmes. While there have been disciplinary incidents, including one in 2008 involving alcohol, the appellant, now 30 years old, presents as a very different individual than the 23-year-old man who committed this crime. He enjoys significant support from his family and the mother of two of his children.

[7] The facts surrounding the murder are fully set out in our reasons for judgment on the conviction appeal. We rejected the appellant’s argument that the conviction for first degree murder was unreasonable but we also concluded, at paragraph 68, “a verdict of first degree murder was only barely attainable on the facts of this case, thereby highlighting the importance of an appropriate instruction from the trial judge.” We concluded that the jury had not been properly instructed with respect to first degree murder. While this would ordinarily have led to a new trial, the Crown took the position that in the event we found errors relating to the jury instructions on first degree murder, the appropriate remedy was to substitute a verdict of guilty of second degree murder.

[8] As the victim impact statements show, this crime had a devastating effect upon the victim’s family who suffered the horrible loss of a 19-year-old young man of warmth, good humour, and enormous promise and potential.

[9] The appellant continues to maintain that he acted in self-defence but, in an affidavit filed on this appeal and during his cross examination on that affidavit before this court, the appellant expressed remorse for the pain and suffering his conduct caused the friends and family of the victim. We recognize that, as the Crown pointed out, this expression of remorse and apology comes very late in the day.

[10] We recognize as well that while the appellant’s recent institutional history offers the hope of rehabilitation and the possibility of his eventual successful integration into the community, rehabilitation remains a hope, not a certainty.

[11] That said, we must sentence the appellant on the basis of the current state of affairs rather than that which existed at the time of this offence and the time the jury convicted him. At the end of the day there is not a great deal of difference in the positions taken by the Crown and the appellant as to the appropriate period of parole ineligibilty.

[12] We agree with the appellant that the two cases that offer the most guidance in these circumstances are R. v. Maciel (2007), 2007 ONCA 496, 226 O.A.C. 1, and R. v. Pyne (1997), 1997 1472 (ON CA), 104 O.A.C. 225.

[13] In Maciel, as in this case, this court sentenced the offender after a successful appeal from a conviction for first degree murder and after a significant period of time had elapsed from the time of the offence. Maciel involved an offender who had shot his victim in the back and then six more times at a prearranged meeting to settle a dispute over a drug deal. The appellant was described as a lawless, violent person who followed a criminal lifestyle and demonstrated a willingness to use firearms to further his criminal purposes. The offender had made significant progress after almost eight years in custody and enjoyed the support of his wife and family. This court imposed a parole ineligibility of 12 years.

[14] The facts of Pyne appear to be quite similar to the facts of the present case. The appellant had stabbed his victim several times in retaliation for an earlier attack by the victim. The trial judge had imposed a 12 year period of parole ineligibility. By the time of the appeal, the appellant was making good progress in custody. This court dismissed the conviction appeal but allowed the sentence appeal and reduced the period of parole ineligibility to one of 10 years.

[15] In our view the circumstances of this offence are less aggravating than the circumstances of Maciel where a 12 year parole ineligibility was imposed, and closer to the circumstances in Pyne where a 10 year period was found to be appropriate. Another factor distinguishing this case from Maciel is that the appellant has committed no other violent offences and had not adopted a criminal lifestyle when he committed this offence.

[16] Taking all the relevant factors into account, including the character of the offender, the nature of the offence, and the jurisprudence, we conclude that the appropriate sentence is one of life imprisonment with a 10 year period of ineligibility for parole.

[17] In our view, this case, like Pyne, is one where it is appropriate to follow the “general rule” of a 10 year period of parole ineligibility mentioned by the Supreme Court of Canada in Shropshire. We point out that the sentence is one of life imprisonment and that the issue of when, if ever, the appellant has made sufficient progress to be considered an appropriate candidate for parole is in the hands of the Parole Board.

[18] We agree with the submission of the Crown that there should be a lifetime weapons prohibition pursuant to s. 109 of the Criminal Code and a DNA order pursuant to section 487.051. As directed by s. 745.01, we specify that the appellant is sentenced to life imprisonment and is not eligible for parole until September 27, 2013, a period of 10 years from the date of incarceration for the offence.

“Robert J. Sharpe J.A.”

“H.S. LaForme J.A.”

“Paul Rouleau J.A.”