COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Robinson, 2014 ONCA 176

DATE: 20140306

DOCKET: C51957

Laskin, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Robinson

Appellant

Joseph S. Wilkinson, for the appellant

Robert Gattrell, for the respondent

Heard in writing

On appeal from the conviction for second degree murder entered against Eric Robinson by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury, on June 26, 2009, and the sentence imposed on November 13, 2009.

Simmons J.A.:

A. Overview

[1] These reasons address the sentence to be imposed on a substituted conviction for manslaughter.

[2] In June 2009, following a trial by judge and jury, Eric Robinson was convicted of second degree murder. In reasons released on January 24, 2014, this court substituted a manslaughter conviction for the second degree murder conviction.

[3] At the appeal hearing, Robinson asked this court to impose a sentence of time served in the event of a substituted conviction for manslaughter. As we decided not to remit sentencing to the trial judge, and as the Crown did not make sentencing submissions concerning a substituted conviction for manslaughter, in our January 24, 2014 reasons, we directed the Crown to file written submissions on sentence and permitted Robinson to file a written reply.

[4] In their written submissions, neither the Crown nor Robinson requested an oral sentencing hearing. In all the circumstances, I consider it unnecessary to convene an oral sentencing hearing.

[5] Robinson was sentenced to life imprisonment for second degree murder on November 13, 2009. He was arrested on October 9, 2007 and thus had served about two years and one month in pre-sentence custody. Robinson submits that, in accordance with the general practice prevailing in November 2009, his pre-sentence custody should be credited on a two-for-one basis. The Crown does not oppose Robinson’s position. I would credit Robinson with four years and two months of pre-sentence custody.

[6] In addition, Robinson has now served four years, three months and 23 days in the penitentiary. This yields total time served as of the date of these reasons of eight years, five months and 23 days.

[7] For the reasons that follow, I conclude that, had Robinson been sentenced for manslaughter on November 13, 2009, a sentence of eight years, five months and 23 days’ imprisonment would have been fit. In the circumstances, I would sentence Robinson to one day of imprisonment (in addition to time served) plus one year of probation on the terms set out below.

B. The Circumstances of the Offence

[8] The circumstances of the offence are more fully set out in my reasons relating to Robinson’s conviction appeal, reported at 2014 ONCA 63, [2014] O.J. No. 272, and in my reasons concerning a related appeal, R. v. White, 2014 ONCA 64, [2014] O.J. No. 273. For the purpose of these reasons, the following summary is sufficient.

[9] Robinson was one of four young men partying outside the home of a friend in late September 2007. At around four o’clock in the afternoon, the four young men noticed a 16-year-old walking down the street wearing headphones. They decided to rob him. For that purpose, the four young men followed the youth down a catwalk connecting their friend’s subdivision to an adjacent street. At some point, the four young men’s pursuit turned into a running four-on-one chase. Just as the youth reached the adjacent street, one of Robinson’s companions caught up with the fleeing youth, grabbed him from behind and held him in a bear hug. Within seconds, another of Robinson’s companions caught up with “the grabber” and the youth, and stabbed the youth once in the chest, inflicting a fatal wound. Robinson and his remaining companion arrived on the scene seconds after the stabbing. Almost immediately, Robinson and two of his companions (the grabber and the stabber) fled back down the catwalk to their friend’s basement apartment.

[10] Two days after the killing, Robinson gave a statement to the police in which he provided himself with a false alibi that his former girlfriend supported. In the same statement, Robinson offered to provide the police with assistance in finding out who was responsible for the stabbing. He also told police that he knew that one of his companions (the stabber, Omari White) typically carried a knife in his pocket, but that he did not know whether White was present on the day of the stabbing or if White was responsible for the stabbing.

[11] Robinson and two of his companions (the grabber and the stabber) were tried together on charges of first degree murder. Robinson refused to testify at the preliminary inquiry of the fourth young man charged in relation to the stabbing.

[12] As noted above, the victim of the offence was a 16-year-old youth. He was an honours student and was walking to his part-time job at Tim Hortons when he was killed. He was a young man of impeccable character and great promise. His senseless and tragic death had a devastating impact on his parents and his two younger brothers.

C. The Offender

[13] Robinson was 19 years old on the date of the killing, and had a minor non-violent criminal record. While incarcerated, he was moved to a medium security facility and has completed his high school credits.

D. procedural issues

[14] This court is entitled to substitute a conviction for manslaughter and impose a sentence that is warranted in law under ss. 686(1)(b)(i) and 686(3)(b) of the Criminal Code.[^1]

[15] Section 719(1) of the Criminal Code provides that “[a] sentence commences when it is imposed, except where a relevant enactment otherwise provides.”

[16] In R. v. Boyd, 1979 CanLII 3007 (ON CA), [1979] O.J. No. 499, 47 C.C.C. (2d) 369 (C.A.), Martin J.A. noted an argument that there may be an implied power to backdate a sentence to the date on which the original sentence was imposed. However, in Boyd, this court imposed a sentence for a substituted offence commencing as of the date of the court’s reasons.

[17] Consistent with the disposition in Boyd, the weight of authority from this court supports the view that where an appeal court imposes a sentence for a substituted offence under s. 686(3)(b) of the Criminal Code, the sentence should commence on the date on which it is imposed: R. v. Conway, 1997 CanLII 2726 (ON CA), [1997] O.J. No. 5224, 36 O.R. (3d) 579 (C.A.), at para. 58; R. v. Carrière, 2002 CanLII 41803 (ON CA), [2002] O.J. No. 1429, 158 O.A.C. (C.A.), at paras. 6, 9 and 18; R. v. Roks, 2011 ONCA 618, [2011] O.J. No. 4266, at paras. 24-25.[^2]

[18] The starting point for determining a fit sentence for a substituted offence is to consider what would have been an appropriate sentence as of the date of the original sentencing: Carrière, at para. 9; Roks, at para. 26. Varied approaches have been adopted to determine how such a sentence should be implemented. For example, in Carrière, this court took account of what would have been the mandatory release date had the sentence been imposed as of the date of the original sentencing. In Roks, this court determined the appropriate sentence as of the original sentencing date, and then credited pre-sentence custody to the original sentencing date on a two-for-one basis, and time served subsequent to the original sentencing date on a one-for-one basis.

E. the Crown’s position on sentence

[19] The Crown asks for a 10-year sentence of imprisonment to run from the date of imposition less credit for pre-sentence custody on a two-for-one basis to the original sentencing date, and on a one-to-one basis from the original sentencing date to the date of imposition. In seeking this sentence, the Crown relies on the following aggravating factors:

• the appellant was a willing and active participant in a group robbery;

• the killing was the culmination of a completely random attack on a total stranger in broad daylight in a residential neighbourhood;

• the victim was vulnerable in that he was unarmed, outnumbered, younger than his attackers and had no reason to be on guard;

• while the attack was impromptu, it was nevertheless co-ordinated in the sense that the attackers timed their approach so that it would happen in the catwalk;

• Robinson knew that the stabber typically carried a knife;

• after the stabbing, Robinson fled the scene, concocted a false alibi and recruited others to support that alibi; and

• the crime had a devastating impact on the victim’s family and is the type of crime that shocks the community.

[20] The Crown acknowledges that Robinson’s youth and prospects for rehabilitation are mitigating factors on sentencing. However, the Crown urges that, despite these factors, the circumstances of the offence require a strong deterrent message.

F. Robinson’s Reply Submissions

[21] Robinson disputes the Crown’s submissions concerning the impact of various aggravating factors and, in particular, disputes the Crown’s submission that he knew that the stabber typically carried a knife. Robinson also points to the fact that prior to trial he offered a plea to manslaughter, which the Crown refused.

[22] Robinson contends that the appropriate range of sentence for manslaughter, where the offender did not directly participate in causing the death of the victim, is four to eight years’ imprisonment. He concedes that proper balancing of the aggravating and mitigating factors in this case should place the sentence in the middle to upper end of this range (i.e. six to eight years’ imprisonment).

[23] To facilitate his transition to the community, Robinson asks that a sentence of one day of imprisonment plus six months’ probation be imposed.

G. Discussion

[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. He acknowledged that fact in his statement to the police.

[25] Overall, the circumstances of this offence reveal the senseless and tragic killing of a vulnerable youth who held much promise; that this crime occurred in broad daylight and in a residential area is also shocking to the community.

[26] At the same time, Robinson’s sentence must reflect his level of culpability. He was not present when the killing occurred and, unlike the grabber and the stabber, he was not a physical participant in the killing. Moreover, the substituted conviction for manslaughter reflects the reality that the Crown was unable to prove that Robinson had the mens rea for murder. The Crown did not prove that Robinson either intended death to occur, or that Robinson realized death was likely to occur from the common purpose in which he engaged.

[27] Having regard to all the circumstances, I am satisfied that a sentence in the range of eight years and five months’ imprisonment would have been a fit sentence as of November 2009.

[28] However, as the sentence imposed by this court will run from the date it is imposed, an appropriate sentence should account for the time Robinson has served to date, as well as facilitate his reintegration into the community. Accordingly, I would impose a sentence of one day of imprisonment (in addition to time served), plus one year of probation on the following terms:

• keep the peace and be of good behaviour;

• report to a probation officer within 48 hours after release and thereafter weekly as directed by a probation officer; and

• reside in a place approved by a probation officer.

H. Conclusion

[29] Based on the foregoing, I would impose a sentence of one day of imprisonment (in addition to time served), plus one year of probation on the terms set out above. This sentence shall run from the date of the release of these reasons.

Released:

“MAR -6 2014” “Janet Simmons J.A.”

“EAC” “I agree John Laskin J.A.”

“I agree E.A. Cronk J.A.”

[^1]: In my reasons dated January 24, 2014, I said I would allow Robinson’s appeal, set aside his conviction and substitute a conviction for manslaughter. In accordance with ss. 686(1)(b)(i) and 686(3), I should have said I would dismiss his appeal and substitute a conviction for manslaughter.

[^2]: In R. v. Salt, 2007 ONCA 263, [2007] O.J. No. 1344 (C.A.), this court directed that the sentence for a substituted offence commence on the date of the original sentence. However, it appears that the parties had agreed on that disposition.