Court of Appeal for Ontario

Date: 2023-11-08 Docket: C65304, C64251 & C64553

Judges: Doherty, Gillese and Zarnett JJ.A.

Docket: C65304 Between: His Majesty the King Respondent and Shawn Cargioli Appellant

Docket: C64251 And Between: His Majesty the King Respondent and Kendell Kamal Appellant

Docket: C64553 And Between: His Majesty the King Respondent and Famien Morrisson Appellant

Counsel: James Lockyer and Alexander Ostroff, for the appellant Shawn Cargioli Joseph Wilkinson and Aditi Iyer, for the appellant Kendell Kamal Richard Litkowski, for the appellant Famien Morrisson Tracy Kozlowski, Jennifer Epstein and Jacob Millns, for the respondent

Heard: May 16-17, 2023

On appeal from the convictions entered on July 25, 2015, and the sentences imposed on January 14, 2016, by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury.

Addendum

[1] In reasons released on September 22, 2023, this court vacated Mr. Cargioli’s conviction on a charge of first degree murder and substituted a conviction for second degree murder. As indicated in those reasons, the court asked for written submissions on whether this court should sentence Mr. Cargioli on the charge of second degree murder, or remit the matter to the trial court for sentencing. Those submissions have been received. Counsel for Mr. Cargioli asks this court to impose sentence. The Crown takes the position that sentencing should be done in the trial court.

[2] Both this court and the trial court have jurisdiction to sentence Mr. Cargioli: Criminal Code, s. 686(3)(b). There is no presumption in favour of either forum. The case law provides examples in which this court, having substituted a verdict for second degree murder, imposes sentence, and cases in which this court remits the matter to the sentencing judge. In many, but not all, cases in which this court has imposed sentence, the parties have agreed that sentencing should be done in this court.

[3] In two respects, the circumstances of this case favour sentencing in this court. First, the trial and the sentencing occurred almost 8 years ago. Asking the trial judge to step back into the role of sentencing judge so long after the trial has been completed is far from ideal. Second, the ultimate issue on sentencing – the fixing of a period of parole ineligibility – would seem to be a relatively narrow one. This is especially true given this court’s determination that the two co-accused who were convicted of second degree murder were properly sentenced to parole ineligibility periods of 14 and 15 years.

[4] However, we are persuaded that the trial court is the appropriate forum for Mr. Cargioli’s sentencing. In so holding, we acknowledge that the trial judge will be required to make findings as to the nature of Mr. Cargioli’s participation in the murder, which will be inconsistent with findings he made at the initial sentencing. Those findings were predicated on the jury’s verdict finding Mr. Cargioli guilty of first degree murder. The findings will now be required to reflect his conviction on the charge of second degree murder.

[5] The need for different findings as to Mr. Cargioli’s role in the murder is an inevitable biproduct of the substitution of the conviction on the included offence of second degree murder. The need for new findings of fact to properly reflect Mr. Cargioli’s role in the crime for which he stands convicted, imposes no significant impediment to the conduct of the sentencing by the trial judge. Just as the trial judge took into account the jury’s verdict in his initial sentencing, he will take into account this court’s determination that Mr. Cargioli is guilty of second degree murder. The trial judge has no vested interest in the facts as he found them at the initial sentencing. His role remains the same. The trial judge must impose a sentence that reflects the offence for which Mr. Cargioli stands convicted and his role in that offence.

[6] We do, however, accept the Crown’s submission that the nature of the sentencing proceedings contemplated by the Crown dictates that the sentencing should be returned to the trial court. The Crown anticipates a contested sentencing proceeding in which there will be substantial evidence adduced, including testimony from various witnesses. Among those witnesses are members of the victim’s family who will provide victim impact evidence. The Crown foresees that there will be disputed facts which may require a “Gardiner” hearing during the sentencing. The proceedings are likely to be lengthy. There can be no doubt that the kind of sentencing hearing contemplated by the Crown is much better suited to the trial court than to this court.

[7] It is not for this court to dictate to the parties how to conduct the sentencing proceeding. The Crown and Mr. Cargioli are entitled to present their case on sentencing as they see fit, of course, within the limits of the applicable law. The fact that the second degree murder conviction is the consequence of this court’s order, and not a verdict at trial, does not diminish the rights of either party on sentencing.

[8] The sentencing hearing contemplated by the Crown in its written submissions makes the trial court clearly the more suitable sentencing venue.

[9] An order will go pursuant to s. 686(3)(b) remitting the matter to the trial court with the direction that the trial court sentence Mr. Cargioli on his conviction for second degree murder.

“Doherty J.A.”

“E.E. Gillese J.A.”

“B. Zarnett J.A.”