Court File and Parties

Court File No.: London 12-7516 Date: 2013-04-30 Ontario Court of Justice

Between: Her Majesty the Queen — and — Chad Hallett

Before: Justice Kathleen E. McGowan

Heard on: February 14, 2013 and April 10, 2013

Reasons for Sentence released on: April 30, 2013 (Orally)

Counsel:

• Peter Rollings, for the Crown
• Michael Barry, for the accused Chad Hallett

Reasons for Sentence

McGOWAN J.:

[1] The defendant, Chad Hallett, has pled guilty to several offences, the most serious of which is a charge of manslaughter. He also pled to a charge of assault causing bodily harm and two further charges of simple possession under the Controlled Drugs and Substances Act. I received the facts on February 14, 2013 and heard sentencing submissions on April 10, 2013.

The Facts

[2] On April 14, 2012, the deceased victim, Daniel Brand, and the second victim, Dave Huffman, were together with other teammates after playing hockey. They attended a bar in Downtown London known as Up on Carling. Another teammate, Derek Pyne, met them there. The defendant, Chad Hallett, was a regular at this bar and was present on this night. According to one of the bar employees he was in an aggressive mood and by his own admission he was intoxicated and had consumed cocaine to enhance the effects of alcohol. Mr. Hallett was involved in an altercation with Mr. Pyne and for reasons unknown he struck out at Mr. Huffman who was merely a bystander. The blow was fierce enough to knock Mr. Huffman off his feet and cause serious damage to his face. His lip was split severely enough to require the facial muscles to be stitched. He endured several visits to doctors and hospital to deal with infections and was unable to work for some weeks.

[3] Mr. Brand witnessed the blow to Mr. Huffman and made some comments to Mr. Hallett, apparently in support of his friend. The bar staff restrained Hallett who was challenging Brand to a fight. Mr. Hallett and his friends then left by the main entrance. The staff suggested that Mr. Brand and his friends take Mr. Huffman out another door that exits onto another street. They left and Mr. Huffman was taken to hospital by another friend while Mr. Brand and his companions went around the corner where, apparently by coincidence, they encountered Mr. Hallett. The defendant came up behind Mr. Brand and called out words to the effect, "Hey, tough guy". Mr. Brand was seen to raise his hands in a gesture that witnesses say meant, "What do you want?" Mr. Hallett took it to mean that Mr. Brand was consenting to a fight and got in the proverbial preemptive first strike. He struck Mr. Brand at least once, possibly twice. Mr. Brand fell to the ground and struck his head causing severe blunt force trauma. He was taken to hospital where he passed away the next day.

[4] Mr. Hallett was arrested on April 15, 2012 and a search warrant was executed at his home. Police seized one baggie of marijuana weighing 112 grams and one baggie of marijuana bud weighing 60 grams and 6.7 grams of cocaine. At the time he was bound by a promise to appear on a charge of simple possession of 1 gram of crack cocaine which was seized during a motor vehicle stop on March 29, 2012.

The Circumstances of the Victims

[5] Daniel Brand was 37 years old at the time of his death. He was the only son of a single mother, Josie Brand. Ms. Brand read her victim impact statement to the court. Daniel was her whole world. There is no way to accurately describe the pain a parent feels upon the loss of a child. This mother was exceptionally close to her son. He was a vibrant, caring man who never harmed anyone in his life, but rather was known and cherished by his friends for his generosity and supportive nature. Five hundred people attended his funeral and 18 friends and relatives filed victim impact statements attesting to their affection for Mr. Brand and the overriding grief they have experienced.

[6] Dave Huffman also read his victim impact statement to the court. He described in detail the aftermath of the assault perpetrated against him. Apart from the serious nature of the injury and the resulting scar, he has suffered considerable emotional trauma. Mr. Huffman is married and is a father of two. His family fears for his safety and they are all having difficulty understanding why he was assaulted and why his friend Daniel was killed. Mr. Huffman now shies away from the downtown area of the city and has lost his sense of security in his home town. He does not harbour ill will toward Mr. Hallett.

[7] A number of the victim impact statements refer to the loss of a sense of security, especially in the downtown area of the city. The offences occurred in an area of London where there are a number of popular bars.

The Circumstances of the Offender

[8] Mr. Hallett is a 27 year old man who has lived in London most of his life. He is 6'2" tall and has an athletic bearing. A pre-sentence report was prepared and filed with the Court along with character references, his school record and a report from his counseling service. He has only one prior offence on his record, a conviction in 2007 for possession of cocaine for the purpose of trafficking. He was sentenced to time served of 115 days and placed on probation.

[9] At the time of these offences he was shy one credit for his high school diploma and he has since completed the remaining credit. His school record is unremarkable although it does show that he has the ability to apply himself and be successful. He worked in construction after leaving school but his bail conditions are tantamount to house arrest and he has been unable to leave home except for school and court and counseling appointments. He has been able to maintain the strict conditions of bail and, according to his sureties, his conduct has been exemplary while in their home.

[10] Mr. Hallett is the product of a dysfunctional family. His father had serious mental health issues and his mother was a substance abuser. He was raised mainly by his father and grandparents. Both his parents are now deceased, as is his grandfather who was the most influential adult in his life. He has a younger brother but they are not close.

[11] He resides with his former girlfriend and her family who have pledged $50,000 as sureties. They remain fully supportive of him and describe these offences as completely out of character. They have known him for many years and have never seen any tendency to be violent.

[12] His plan for the future is to return to school and learn culinary arts.

[13] Immediately after the offence he expressed shock and great remorse for his conduct. He surrendered himself to the police and in the interval between his release and his guilty plea he has submitted to drug counseling and has completed his high school education. His lawyer has advised the court that it has always been his desire to plead guilty. In fact, the case was never set for trial. The delay between his arrest and his plea has been the result of ongoing discussions between defence and crown counsel. Mr. Hallett has pled guilty without the benefit of a joint submission.

The Law

[14] Although Mr. Hallett is charged with assault causing bodily harm and two drug offences I will focus my comments on the manslaughter charge, as did counsel, since it attracts the most severe penalty.

[15] The offence of manslaughter can be described as the culpable taking of another's life through the commission of an offence. In this case, even though Mr. Hallett did not intend to kill Mr. Brand, the force he used against Mr. Brand constituted an assault and he is therefore guilty of the crime of manslaughter. Manslaughter does not carry a statutory minimum penalty and, accordingly, the range of sentence can theoretically lie between a suspended sentence with probation to life in prison. The circumstances of this tragic case are not unusual in that the case law seems replete with examples of manslaughter committed through assaultive behaviour where death was not intended. In many of the cases cited by counsel, alcohol and/or drugs played a significant role.

[16] In determining a fit sentence the Court is required to have regard to the principles set out both in statute and at common law as reflected in jurisprudence. The statutory considerations on sentencing are set out in S. 718 of the Criminal Code:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

S. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

S. 718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

[17] Courts of all levels in all provinces have had many occasions to comment on the applicable principles of sentence. The cases cited by counsel reflect those principles and demonstrate how the Courts have imposed sentences ranging from reformatory to 10 years in the penitentiary for fact scenarios not unlike the one here, but not necessarily on all fours with this one. The disparity is a function of several factors including the character of the defendant, his moral blameworthiness and prospects for rehabilitation. All, of course, are united in the concept that the primary principle must be the denunciation of the offence and general deterrence of like-minded persons.

[18] The Supreme Court of Canada has indicated that the moral blameworthiness of the offender is a significant consideration. In R. v. Martineau, [1990] 2 S.C.R. 633, paragraph 11 the Court affirmed the fundamental principle that punishment should be proportionate to the level of moral blameworthiness of the offender. Parliament recognized this principle for the offence of manslaughter by leaving the sentence completely open to the court. The Court elaborated on this principle in a discussion of retributive justice in R. v. C.A.M., [1996] S.C.J. No. 28 at paragraph 81:

Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.

[19] The Supreme Court made it abundantly clear that there is no place in the principles of sentence for vengeance. It is difficult for society to comprehend the difference sometimes, particularly when the crime is especially egregious and the consequences devastating to the victims and their families and communities.

Application to This Case

[20] Most analyses take into account the aggravating and mitigating circumstances, as required by s. 718.2, to see how they factor into the applicable principles.

[21] It is axiomatic that the most obvious aggravating factor here is the senseless loss of an innocent life. Nothing Mr. Brand did at any time that evening should have provoked any kind of violent response. The impact of his death on his family, friends and community is demonstrated by the grief expressed in the many victim impact statements. The violence of the assault has diminished the community's sense of security in a busy and popular part of the city.

[22] The fact that Mr. Hallett was fuelled by drugs and alcohol may be considered by some to be neutral or even mitigating but here the defendant has a prior conviction for trafficking in drugs and just two weeks prior he had been found in possession of cocaine while operating a motor vehicle. On the day of his arrest there was a substantial quantity of marijuana and cocaine found in his home. These circumstances demonstrate a reckless attitude toward the dangers of consuming drugs and a disregard for the law even though he had been previously penalized for a similar offence. In my view, they tend to aggravate the offence. As it often happens, his realization of his folly comes way too late to save some innocent persons from serious harm.

[23] The bar staff indicated that Mr. Hallett had been aggressive that evening. His assault on Mr. Huffman was quite serious and the injuries sustained by him must have been obvious to the offender and yet he did not hesitate to challenge Mr. Brand and use excessive force upon the mildest of provocations. His violent demeanour throughout this tragic evening constitutes an aggravating circumstance that needs to be specifically addressed, for it is this kind of pugilistic behaviour in drinking establishments which must be deterred.

[24] Mr. Hallett is not without his redeeming features. He has no history of violence and I have no doubt that he is extremely remorseful. It has always been his intent to plead guilty and assume responsibility for his conduct. The plea signifies an intention to change his ways and an understanding that a trial would increase the suffering of the victims and families. An acceptance of responsibility for criminal behaviour is a significant signal that the offender can be rehabilitated. Mr. Hallett's ability to abide by the strictest of bail conditions also indicates ability to reform. He has taken positive steps to deal with the drug addiction and has completed the final credit for his high school diploma. He has strong support from his former girlfriend and her family; this family has been a positive influence on him for a number of years and I am satisfied that they will continue to support him once after he is released from prison.

[25] It is difficult to assess the need for specific deterrence with an offender like this. On the one hand he is truly remorseful and quite capable of reform, but on the other he has demonstrated a disregard for the law and reckless attitude toward illegal drugs. If he is able to overcome completely his dependence on drugs, especially marijuana and cocaine, then it is highly unlikely that he will pose a risk to society. The penalty here must be significant enough to reinforce for him, for some time to come, that he has a long way to go to satisfy the community that he is no longer a risk. Such a sentence, need not be so harsh, however as to crush any hope for his continued rehabilitation. While he is not a youthful offender, he is still a relatively young man who has lots of time to recover fully from his addiction and to acquire decent employment and become a contributing member of society.

[26] This is a case where general deterrence must have greater precedence than specific deterrence. It seems that as long as we have bars and young irresponsible drinkers there is a potential for this kind of violence to erupt. Alcohol is often cited as the catalyst in triggering violent behaviour and when it is readily available to those who do not have the maturity to behave responsibly, a clear message must be send that the violence ignited by alcohol will not be excused and the consequences to those who ignore the warning signs will be severe.

The Criminal Code provides that a sentence must be proportional to the seriousness of the offence and must be consistent with other sentences for similar crimes. Counsel here are quite split on the quantum of sentence; the Crown seeks a global sentence in the range of seven years although he acknowledges that this is disappointingly low in the eyes of the family and friends of the victims. Defence counsel suggests that a sentence in the range of three years is more consistent with other cases and addresses all of the principles of sentence.

[27] I have had the benefit of reading the cases submitted by counsel. Some are relied on by both Crown and Defence. I note that the majority of cases included in the defence compendium are more than a decade old. These older cases stress the need to place emphasis on the rehabilitation of the offender. The more recent cases clearly delineate denunciation and general deterrence as the primary concerns. I find the reasoning of the sentencing judges in R. v. Iozzo, [2001] O.J. No. 3641, R. v. Yusuf, 2012 ONSC 2421, [2012] O.J. 2367 and R. v. Braune, 2006 ONCJ 50, [2006] O.J. No. 679 to be particularly helpful. Together they recognize the appropriate principles of sentence and all balance the circumstances of the offender against the need to denounce the behaviour and deter others from similar courses of conduct. Perhaps Braune is the one most like this case in terms of the facts alleged. However, the offender was significantly younger, being 18 at the time of the incident and had no record. He was sentenced to sixteen months in addition to the seven months of pre-sentence custody. I interpret this to be the equivalent of a 30 month sentence. In Iozzo, the offender received a sentence of three years. He had no criminal record. In Yusuf, the actual assault was more violent and protracted and the offender had demonstrated an inability to abide by court orders after his release on bail. He was sentenced to six and one half years in the penitentiary.

[28] There is one final principle of sentence that must be considered in this case and that is the principle of totality. Mr. Hallett is also to be sentenced on the assault causing bodily harm involving Mr. Huffman and the two drug charges. He has spent 60 days in pre-sentence custody and given his record for drug trafficking in 2007, I am satisfied that a sentence of time served (1 day concurrent) on each of the drug offences would suffice. It is the equivalent of 30 days consecutive on each.

[29] The offence of assault causing bodily harm is a serious one. Mr. Huffman was an innocent bystander who just happened to be the companion of the other man who was involved in an altercation with the defendant. There is absolutely no excuse for this behaviour. The victim suffered a rather significant injury which required ongoing treatment and caused the victim to lose several weeks of work which must have been difficult for a family man. He suffers from emotional trauma; his lifestyle has changed and so too have the lives of his wife and children. The force used against Mr. Huffman was very similar to blow that caused the death of Mr. Brand and could just as easily resulted in another tragedy. In my view, the principle of denunciation and general deterrence are just as important in arriving at this sentence as it is in sentencing for manslaughter.

[30] In the end result when all of these factors are balanced, I am more than satisfied that a sentence in the penitentiary is warranted. Bearing in mind the facts and circumstances of these offences, their impact on the victims and their families and community and the relevant jurisprudence the sentence for the offence of manslaughter will be 54 months and for the offence of assault causing bodily harm the sentence will be a further term of six months for a total sentence of 60 months (5 years).

[31] The offender will be prohibited from the possession of any firearms and other items proscribed in s. 109 for a period of 10 years. He is also ordered to provide a sample for the DNA data bank.

Released: April 30, 2013 (Orally)

"Justice Kathleen E. McGowan"

Signed: Justice Kathleen E. McGowan