ONTARIO COURT OF JUSTICE

CITATION: R. v. Dorphelus, 2019 ONCJ 35

DATE: 2019 01 23

COURT FILE No.: Halton 17 - 2432

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Marley DORPHELUS

Before Justice D.A. Harris

Heard on October 3, November 28 and December 5, 2018

Reasons for Sentence released on January 23, 2019

Charon Kerr......................................................................................... counsel for the Crown

Christina Anik Morrow............................... counsel for the accused Marley Dorphelus

D.A. HARRIS J.:

INTRODUCTION

[1] Marley Dorphelus pled guilty to attempted murder.

[2] He is before me today to be sentenced.

[3] Crown counsel suggested that I should sentence him to imprisonment for 18 years.

[4] Counsel for Mr. Dorphelus suggested that I impose a sentence of imprisonment for 12 years.

[5] They disagreed to a limited degree as to how much credit I should give Mr. Dorphelus for his pre-sentence custody.

[6] Both counsel agreed that I should make the following ancillary orders

(1) a DNA order;

(2) a weapons prohibition pursuant to section 109 of the Criminal Code for life; and

(3) an order pursuant to section 743.21 of the Criminal Code prohibiting communication with his victims during the custodial portion of his sentence.

[7] I find that a sentence of imprisonment for 16 years less credit of two years and seven months is the appropriate sentence here.

[8] My reasons for this are set out under the following subject headings:

1. The fundamental purpose and principles of sentencing;

2. The offence;

3. The impact on the victims;

4. The background of Mr. Dorphelus; and

5. Analysis

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[9] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[10] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.[^1]

[11] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.[^2]

[12] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.[^3]

[13] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.[^4]

[14] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.[^5]

[15] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[16] The offence had a significant impact on the victims, considering their ages and other personal circumstances. Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance, and that the sentence should reflect that.

[17] I must specifically consider section 718.2(d) which provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances”.

[18] I must also consider the impact of section 718.2(e) which provides that “... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.”

[19] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.[^6]

[20] The Supreme Court also noted in Gladue that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. A sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.[^7]

[21] These principles are of less importance however in cases like this. In R. v. Priest, supra, Rosenberg J.A. was careful to exclude "very serious offences and offences involving violence" from the principle that sentences for youthful first offenders should emphasize individual deterrence and rehabilitation.

[22] Even accepting that Mr. Dorphelus is entitled to the shortest sentence possible consistent with the relevant sentencing principles, that sentence must still be proportionate to the gravity of his offences. And it must be grounded in the facts, in the individual circumstances of his case including his actions and their effect on his victim.[^8]

[23] So while I have taken rehabilitation into account, I recognize that denunciation and deterrence are far and away the paramount sentencing goals here.

[24] The maximum sentence for attempt murder is imprisonment for life. The mandatory minimum sentence is imprisonment for four years when a firearm is involved.[^9]

[25] That mandatory minimum reflects Parliament’s recognition of the increased seriousness of offences involving firearms. However, that has also been recognized by the courts.

[26] Armstrong J.A. wrote in R. v. Danvers that:

There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.[^10]

[27] Crown counsel and counsel for Mr. Dorphelus both provided me with copies of a number of cases and drew my attention to what they considered to be the relevant passages in each of them. I have reviewed them. I note that not one is so similar to the case before me that I feel compelled to adopt its reasoning fully.

[28] I do note the following principles that are set out in them.

[29] It appears settled law that:

Attempted murder is one of most serious offences known to our law. Historically, the Courts have often imposed sentences for attempted murder that are more severe than cases of manslaughter. This is due to the singular importance that the law ascribes to a person's intention to kill another human being.[^11]

[30] In Regina v. Logan, Lamer C.J wrote that “Quite simply, an attempted murderer is, if caught and convicted, a "lucky murderer."[^12]

[31] He then went on to write that:

The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky -- the ambulance arrived early, or some other fortuitous circumstance -- but he still has the same killer instinct. Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe.[^13]

[32] Doherty J.A. expressed a similar view in R. v. McArthur, writing:

Without diminishing the seriousness of any of the crimes committed by the respondent, it can be safely said that the four attempted murder convictions are the most serious crimes. Under our law, a person can only be convicted of attempted murder if he or she intended to kill. The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed.[^14]

[33] A conviction for attempted murder will almost inevitably result in a lengthy penitentiary term.[^15]

[34] That being said there is still a wide range of sentences for attempted murder. Laskin J.A. spoke about this in R. v. Tan, supra:

35 The sentences for attempted murder imposed or upheld by this court have varied widely. At the lower end of the range is R. v. Campbell, [2003] O.J. No. 1352 (C.A.), where this court upheld the sentence of nine years' imprisonment. Reflecting an even lower sentence is R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.), where, on a Crown appeal of a sentence of two years less a day (in addition to the 28 months the accused had spent in pre-trial custody), Simmons J.A. said that the appropriate sentence was six years' imprisonment less credit for time served. As Mr. Boucher had already served the custodial portion of his sentence, the court did not impose the higher sentence because it was not in the interests of justice to reincarcerate him.

36 At the highest end of the range, this court has upheld life sentences for attempted murder in R. v. Charlebois, [1987] O.J. No. 886 (C.A.); R. v. Lieug, [1995] O.J. No. 2424 (C.A.); and R. v. Mesgun (1997), 121 C.C.C. (3d) 439 (Ont. C.A.).[^16]

[35] This wide range reflects the fact that while the intent to kill is the constant factor in these cases; there are many other variables that must be considered in determining the appropriate sentence.[^17]

[36] I will address the variables that must be considered here later during the Analysis portion of these Reasons.

[37] Before I can apply the above principles however I must examine the offences here, the impact that they had on the victims and the background of Mr. Dorphelus.

THE OFFENCE

[38] In light of some disagreement between Counsel with regard to what the agreed facts are in this case, I have reproduced them in their entirety as follows:

A. Overview: The Nature of the Incident

1. On Friday August 4, 2017, shortly before 9:30 am, Mr. Matt Rodgers exited the Sunset Grill Restaurant located at the east end of Olde Market Plaza, 361 Cornwall Road, Oakville, Ontario. He entered the southeast Plaza parking lot. Two black men approached. A brief discussion took place and Mr. Rodgers became agitated. In the moments that followed, Mr. Rodgers was shot in the leg and thereafter shot in the head. The head wound was very serious and life threatening. Mr. Rodgers fell to the ground, unconscious. He has remained unconscious since that time. The prognosis for consciousness and recovery is poor.

B. The Parties Involved

i) The Victim: Matthew "Matt" Rodgers

2. Mr. Rodgers is a Caucasian male. On August 4, 2017 Mr. Matthew Rodgers was 35 years of age, approximately 6ft tall, muscular, and 241 lbs. He wore a "Blue Jays" baseball hat, Blade sunglasses, a Rolex watch, a grey t-shirt, camouflaged patterned pants, and white running shoes. He was tattooed on both arms.

3. Mr. Rodgers is originally from London, Ontario, where he has resided for much if not all of his 35 years. His driver's license indicated an address on Highbury Avenue in London. By August 4 Mr. Rodgers was in the 11th year of a long term relationship. Mr. Rodgers and his partner cared for 4 children, three of which were the product of the union. In February 2016 Mr. Rodgers' partner and the children relocated from London to Oakville. The relationship was maintained. On August 4, 2017 the couple was expecting a child in December 2017.

4. On August 4, 2017 Mr. Rodgers was a person of general interest to police. He has a criminal record, and police possess a history of his association with persons who identify as members of the Hells Angels. Police Intelligence Services believe Mr. Rodgers to be associated with the Hells Angels London Chapter, actively involved as of 2014 in its support club, the "Fuck You Crew", and involved in the trafficking of drugs. After the shooting and on August 5, 2017 three men identified by police as members of the Hells Angels attended at the Sunset Grill, made inquiries of staff about Mr. Rodgers, and examined the parking lot of the Plaza.

ii) The Accused: Marley Dorphelus

5. On August 4, 2017 Marley Dorphelus was 21 years of age. He is a black male of Haitian ancestry. His primary language is French. Mr. Dorphelus has an older brother, a twin brother, and two younger brothers. Until 2012 Mr. Dorphelus and his family lived in Montreal. His parents then separated. He, his mother and his siblings relocated to a Montreal suburb. At the time of the move, Mr. Dorphelus was attending high school but in 2013 he terminated his education and found employment. He has no criminal record. He is currently in the 6th year of a long term relationship.

6. With the help of Quebec Police, Halton Regional Police ultimately located 3 music videos on Youtube in which a middle eastern male rapper features. Mr. Dorphelus is present along with other young men. The subject of the song is street crime and gang life. The videos are undated. The rapper and a number of the males were identified by Quebec police. Quebec police were able to identify Mr. Dorphelus, but are unclear of his status or role as it relates to the others identified in the videos.

C. August 4, 2017: Sunset Grill

7. In 2017, Friday, August 4 was, in Toronto, the commencement of the Caribana Grande Parade weekend. Official weekend festivities commenced the evening of August 4, 2017 with the Grande Parade scheduled to proceed August 5, 2017, 10:00am from the Canadian National Exhibition place to 6:00pm on Lakeshore West.

8. On the morning of August 4, 2017, Mr. Rodgers left his partner before she woke and drove to the Olde Market Plaza at 361 Cornwall Road, Oakville. He directed his black 2016 Mercedes GLE (Coupe version) SUV, plated CAXW 611 to the east end of the Plaza and into its southeast parking lot. He backed his vehicle into the southeast corner parking spot next and parallel to the westbound lane of Cornwall Road. The car faced towards the front of the Sunset Grill restaurant located at the plaza's east end. The front of the Sunset Grill consists of tall windows and a glass front door. The south side of the restaurant is lined with large windows that give onto Cornwall Road.

9. Mr. Rodgers entered the Sunset Grill at about 8:55am. Some of the wait staff knew him to attend about once a month when he met with a muscular man with a tanned complexion who was about 6'2" in height. On August 4, Mr. Rodgers directed himself to a table for two along the south wall. He sat facing east and told wait staff that he expected a guest. He ordered orange juice. About thirty minutes passed during which staff observed Mr. Rodgers using his cell phone "the whole time".

D. Investigation Overview

10. Police spoke to staff and patrons, persons in the area of the plaza, and occupants of vehicles travelling along Cornwall Road. Reports collected suggest that in the morning of August 4, 2017, a total of three black men dressed in dark clothing were seen in the area of the plaza parking lot at various times when Mr. Rodgers sat inside the Sunset Grill. One black man was seen entering and exiting the south end of the Plaza parking lot. Ten minutes later two black men were seen in the southeast corner of the plaza parking lot. While these observations were being made, Mr. Rodgers was seated inside the Sunset Grill. When Mr. Rodgers exited the Sunset Grill, witnesses observed two black men approach. Witness accounts suggest one black man was dressed in a black hoodie/sweater and a second was dressed in a charcoal/black hoodie with a bandana. Witness accounts also suggest two phases to the events that unfolded. First there was interaction between the three men in the southeast corner of the parking lot during which witnesses report seeing both black men brandish a gun. One was believed to be silver and the other black. That phase continued south to the north edge of the westbound lane of Cornwall Road. Two witnesses behind the plaza report seeing a third black man running towards a pickup truck parked nearby that then turned east onto Cornwall Road, and another witness observed a black pickup truck pull up on Cornwall Road. The second phase is said to have occurred on Cornwall Road near its median. Witnesses report two black men on Cornwall Road and shots were fired. Mr. Rodgers fell to the asphalt in the eastbound lane. The two incidents took place in succession and quickly. The shots heard by witnesses varied from 2 to 12. Witnesses report a change in sound between the shots fired in the parking lot and those fired on the street. Given the report of two guns and the change in sound and the three casings recovered at the scene, it is believed that one gun was a revolver and the other an automatic. After the street shooting a number of witnesses observed one of the black men run to a black pickup truck on eastbound Cornwall Road and jump inside. As it sped off, witnesses observed a rear Quebec license plate.

E. Detailed Observations

11. Two staff told police that during the time that Mr. Rodgers sat at his table at the Sunset Grill, they saw two black men walking in the southeast parking lot just before Mr. Rodgers left his table. The staff said the two men "stood out" because of their dark complexions and their apparently all black clothes. One man was described as slightly shorter than the other. His face was partially obscured possibly due to a hoodie that was pulled up on his head. The two staff believed the two men were demonstrating interest in the parked cars, with one staff recalling that at least one of the men pointed towards and peered inside a vehicle.

12. At about 9:20am Mr. Rodgers got up and walked towards the Sunset Grill front door. As he passed staff he said, "my buddy isn't coming", and advised them that he'd left money ($10) on the table. Mr. Rodgers passed through the front door and walked into the parking lot. Shortly thereafter staff heard someone yell "lock the doors".

13. From inside the Sunset Grill, wait staff and two patrons made observations of Mr. Rodgers in the parking lot. The staff saw two black men approach Mr. Rodgers in the parking lot. One wait staff observed a brief interaction between one black male and Mr. Rodgers during which Mr. Rodgers became agitated. From another perspective, two patrons seated together saw two black men standing near the southeast corner of the parking lot where a hedge of bushes separated the parking lot from the north sidewalk of Cornwall Road. They then saw what seemed to them to be men "play": fighting and pushing'. Specifically, one patron saw one of the black men push Mr. Rodgers and, in turn, Mr. Rodgers grab the black man's arm at the bicep. One witness in the restaurant said that the black man involved wore a "hoodie" and had a bandana on his face. One witness in the restaurant believed the interaction in the parking lot lasted about a minute.

14. The wait staff and one of the two patrons seated together in the restaurant believed that a firearm was discharged during the interaction in the southeast parking lot. One of the wait staff said that as the exchange with Mr. Rodgers escalated she saw the black man who had interacted with Mr. Rodgers at first instance lift up his arm. She saw a black object she believed to be a gun, and given its length she believed that it was equipped with a silencer. When it appeared, Mr. Rodgers let go of the black man's arm and turned towards the road. She believed the gun fired because she saw Mr. Rodgers fall to the ground on the grass near the roadside hedges near the sidewalk. As noted, one witness saw a black truck pull up on Cornwall Road at this time. Looked at from the Cornwall Road perspective, one witness saw two men fighting and pushing each other in the parking lot and he saw a white man fall through the hedges onto the grass north of the sidewalk. The white man tumbled then got back up. The witness saw a black male with a blue bandana on his face following behind with a black gun in his hand. It looked like it was equipped with a silencer. Another witness in a vehicle also believed a gun had discharged when he saw Mr. Rodgers fall near the westbound Cornwall Road north sidewalk. One man saw the white man fall on the grass and his hat fall off. Police later recovered Mr. Rodgers' black baseball hat and Blade sunglasses on the grassy north edge of Cornwall Road just south of the parking lot hedges.

15. The descriptions provided by the witnesses of the two black men varied but the black man who interacted with Mr. Rodgers in the parking lot, and who was believed to have discharged his gun in the parking lot was described as "black, 5'7" and thin", or as "5'6" and skinny". That man had run from the parking lot into the street after Mr. Rodgers. This corresponded to the descriptions of the man seen running north after Mr. Rodgers collapsed on eastbound Cornwall Road. He was described as "medium build", or 5"8" with a black hooded sweater and "5'7"and" in dark clothing, with a bandana on his face up to his nose". One witness travelling westbound on Cornwall Road on his bike said he heard 2 pops and when he looked up he saw a man about 5'6" with a black hooded sweater already running north and a "ways away" from the white man and passing through the parking lot bushes when he saw the white man collapse on Cornwall Road eastbound lane. When the man fleeing north was apprehended by police north of the plaza, police notes describe the man at time of arrest: about 5’8" in height. This man was later identified as Mr. Dorphelus. The man on the bike said that as he watched the black man flee northward, he saw a taller man with his hood up running to a truck. He saw the driver of the truck (a black man) and noted the Quebec plate.

16. Witnesses observing the events on Cornwall Road during the second phase [that resulted in the collapse of Mr. Rodgers] describe seeing two black males who followed Mr. Rodgers onto the road when Mr. Rodgers emerged from the Plaza parking lot bushes, fell and got back up. One witness reports seeing the first man behind Mr. Rodgers enter the road and stop shooting. That witness saw the second black male in the rear start shooting. One witness travelling eastbound (south of the median) saw a white male enter onto Cornwall Road with a black male giving chase. That black male was dressed all in black with a hoodie. When this black male and the white man reached the median, a second slightly taller black male emerged from the plaza parking lot bushes into the road. Two other witnesses saw this taller black male in a black hoodie in Cornwall Road point and shoot at Mr. Rogers and Mr. Rogers collapse onto the road. One witness travelling on Cornwall Road saw Mr. Rodgers enter onto Cornwall Road and onto its median. He believed the man was playing the game of "chicken": running back and forth in the eastbound lane. A witness travelling in a separate vehicle travelling on Cornwall Road saw Mr. Rodgers being chased by two black men on the road and he believed he saw a gun fire at the moment Mr. Rodgers collapsed. He saw one of the two black males on the road stop and look down at Mr. Rodgers. That man then looked around "as if lost". The witness saw the other black male running to a black pickup truck that was halted in the middle of the eastbound lane of Cornwall Road with its passenger door open. The running man jumped in and the truck immediately sped off at high speed in the direction of Mississauga, abandoning the lone black man on Cornwall Road. The truck had a rear Quebec license plate. Witnesses recalled the plate number.

F. Police and EMS Response

17. During both the parking lot phase and the Cornwall Road phase of the transaction, multiple 911 calls were made. EMS was first contacted at 9:33am and they directed themselves to Cornwall Road. Police responding to the scene responded to a call involving an armed black male dressed in black running northbound. Police Officer McCullagh was in the area. She soon observed a fleeing black male and engaged in a foot chase, ultimately pulling the male to the ground as he scrambled over a fence. As she gained control over the male she located a black gun secreted in his sock and she tossed it at a distance to maintain her safety. Without cuffs or ties she held onto the male's wrists until colleagues arrived. When other officers attended, the male was secured and at 9:54am his hands were bagged. He was arrested at 10:05, and cautioned at 10:06am. He advised police that he wished to speak with counsel. He was searched. At 9:59 D/C Marshall called EMS given concerns he had with the detained male's health. EMS attended and recommended transport to hospital given his rapid heart rate. The male was ultimately cleared at the Oakville Trafalgar memorial hospital. FIS Crichton attended and seized the black male's clothing: black jeans, a black t shirt and a grey/charcoal hoodie. He documented the male's body and his swabbed hands.

18. On arrest the black male maintained his silence. He possessed no wallet or identification. At hospital he spoke only when necessary. At the division he was given the opportunity to speak with duty counsel and did. Following the telephone call he identified himself to police as Marley Dorphelus and he provided his address in Quebec. A brief interview was conducted during which Mr. Dorphelus exercised his right to silence. He was described by the Halton police officers who interacted with him as cooperative with their demands, quiet, and polite.

19. EMS first tended to Mr. Rodgers at 9:45am after arriving at 9:42am. He was lying prone on the eastbound lane of Cornwall Road: his feet oriented north next to the median and his head oriented south. He was unresponsive. There was pooled blood around his head and blood on his left pant leg and running shoe. When EMS rolled Mr. Rodgers onto his back they observed Mr. Rodgers with a wound at the back and front of his head, suggesting the entry and egress of a bullet. EMS observed a cell phone on the asphalt next to him. Mr. Rodgers arrived at the Hamilton General Hospital arriving at 10:16am. On route the gunshot wound to his lower left leg was discovered. A second cell phone was located in his front right pant pocket.

G. Police Investigation

20. At 10:13am, some 40 minutes of the shooting, and at about the same time that Mr. Dorphelus was being placed under arrest (10:10 am), and Mr. Rodgers was arriving at hospital (10:16am), police located a parked black truck with the Quebec plate seen by witnesses at Cornwall Road. It was parked in a Mississauga parking lot along Lakeshore Blvd. A woman sitting in her parked vehicle reported seeing 2 black men exit the truck some 20 minutes earlier. She told police that from her seated position both men appeared to be in their 20s. One was about 6 foot, thin, and around 200 pounds. He wore dark pants and a dark t-shirt and had dark hair. The second was described as 5'9", with a medium build. He had braided black hair.

i) Marley Dorphelus

21. A K9 unit was deployed at the scene to trace the route from the shooting to point of arrest for items of interest. None was found.

22. The black truck was traced to its lessee, a resident of LaSalle, Quebec, He advised that he had loaned his truck to his son who thereafter advised him that it had been stolen. The black truck was searched. It contained numerous construction items in the flatbed portion and 3 empty beverage cans and other items inside. Its exterior, interior, and contents were examined, and surfaces were dusted for fingerprints. No prints referable to Mr. Dorphelus were found.

23. The black handgun recovered from Mr. Dorphelus's sock was submitted to CFS for examination. It is a firearm as defined by s.2 of the Criminal Code: a functioning Heckler & Koch HK45C, a.45 calibre semi-automatic compact handgun with defaced serial number. The detachable magazine has a 10 bullet capacity. The magazine was empty.

24. Following a visual and metal detector search at Cornwall Road and the area surrounding it, police recovered three .45 calibre spent casings marked "Federal", evidencing the discharge of an automatic handgun, and two unfired bullets with same markings. The firearm was tested and the scene casings examined. CFS opined that all 3 casings recovered at the scene were ejected from the black firearm seized from Mr. Dorphelus. The firearm was not examined for recent use. Mr. Dorphelus's hands were swabbed for GSR. The swabs were not tested nor was his sweatshirt. The firearm grip was tested for DNA. There were 2 unidentified contributors. The base of the magazine was tested for DNA and 1 profile was identified.

25. When Mr. Dorphelus was searched incident to arrest the following items were recovered from his person:

•From his left back pocket: a folded piece of paper on which is printed a photo of a Caucasian hand holding a cell phone. The cell phone screen contains an image of Mr. Rodgers taken from very close proximity, possibly by Mr. Rodgers as a "selfie".

•. From his left back pocket: A folded piece of paper on which the following is handwritten:

2017 Black GLE Coupe

CAX W611

Sunset Grill

360 OLDE, Oakville

26. Both pieces of paper appeared creased and well handled. When examined both contained multiple partial fingerprints. One print was identified on the surface of a piece of paper and it identified a resident of Quebec. It is unknown when that print was deposited; namely before or after the paper's printed use. The handwriting was not identified.

27. Other items recovered from Mr. Dorphelus's person are:

• A blue bandana from his front left pocket, and in other pockets:

• Two unfired bullets: a .45 Federal and a RP.45 (Remington)

• A short (1 inch) threaded metal cylinder of unknown purpose

• $50.00 bill

• A black cell phone [Blackberry Q1O]

28. The Blackberry Q10 removed from Mr. Dorphelus was searched. It was password protected and once opened, it evidenced no use, meaning no calls and no other useful information.

ii) Mr. Matthew Rodgers

29. On arrival at hospital on August 4, 2017 police were advised by staff that Mr. Rodgers was and had remained unconscious. He was shot in the lower left leg below the knee, and in the head. This latter was life threatening and had required emergency surgery to stop blood flow. A bullet fragment had been removed from his brain. On August 18, 2017 Mr. Rodgers, still unconscious, was deemed stable and he was removed from life support. He has remained unconscious and hospitalized. The brain damage is believed to be permanent. His prognosis for consciousness is poor.

30. On August 4, 2017 police collected the items found on Mr. Rodgers' person including a black wallet with drivers license and various other cards, a bundle of $5160 in cash (5000 consisting of 50 $100 bills) bound by elastics, and the Blackberry cell phone from his front right pocket.

31. Police prepared search warrants for Mr Rodgers' two cell phones (2 Blackberry Q5s) his vehicle, and the items retrieved inside it (iphone, ipad etc). Aside from technology, some personal papers were found inside the vehicle along with a driver registration for a different name and a different vehicle. The truck contained items for swimming pool use, a duffle bag of personal items, two pairs of unused running shoes, and 2 bandanas, one blue and one red.

a. Technology/Cell Phone(s)

32. Mr. Rogers' possessed two Blackberry Q5 cell phones: one found on Cornwall Road and one found in his pocket by EMS. During a search of the Mercedes vehicle police located a transmission jammer, 2 iphones, (one silver and one white), and an ipad. The white iphone had a cell phone number written on its back surface. The silver phone did not. Family advised they communicated with Mr. Rodgers on this silver iphone.

33. Though Mr. Rodgers was seen using a cell phone at the Sunset Grill for about 30 minutes, police were unable to retrieve any information from either Q5 cell phone. The Blackberry Q5 retrieved from Cornwall Road at 9:37am was turned on by police at about 1pm. Shortly after the cell phone was activated and display information suggesting it was serviced by Cingular (U.S. AT&T) appeared, an application remotely activated wiped the phone clean of its contents. It was later turned on at about 9:30pm and documented as "wiped". The SIM card was noted as defaced with black marker to hide its identification number. Ultimately, examination revealed that one of Mr. Rodgers' cell phones did not support talk or text, but only data. The other cell phone was serviced by EMnify, a German company using a platform of virtual private networks that both permitted multiple identities to be used on a single SIM card, and supported calls and texts that left no records or logs. In the result the cell phones provided no information.

34. Police spoke to Mr. Rodgers' partner about Mr. Rodgers' business dealings. She advised police that Mr. Rodgers' did not discuss any business specifics with her, and she asked no questions. She believed her partner worked for his father: she did not ask about where the money came from. She told police that on August 4, 2017 Mr. Rodgers had risen before she awoke and the nanny had advised her that he had left for breakfast. She knew nothing of his past meetings with a friend at the Sunset Grill, or a meeting at the Sunset Grill on August 4, 2017. She provided police with the password for Mr. Rodgers' ipad retrieved by them from the Mercedes vehicle. The ipad contained no information. She confirmed the home contained no computers, only cell phones. She provided police with her cell phone number. Police determined that she had made no calls from her cell phone from August 1-5 except one to a "Bio' Hair Salon" on August 4, 2017 at 9:20am. Police were unable to search the home in which she lived: consent had been withheld by its owner, Mr. Rodgers' father.

iii) Cell Tower "Dump"

35. Police secured the August 4, 2017 data from a nearby cell tower to investigate the presence and interaction of cell phones on that day. The data revealed no useful information.

H. Nature of Pre trial Custody

36. Mr. Dorphelus was arrested on August 4, 2017. On August 5, 2017 at 1:55pm after persons identified as Hells Angels attended at the Sunset Grill, police contacted Maplehurst Correctional Centre to notify the facility of the identity of the victim: a Hells Angels/Outlaw associated person. Maplehurst placed Mr. Dorphelus in segregation for his safety. On August 8, 2017. Mr. Dorphelus was required at court and a high risk escort was organized. A tactical presence was requested for the courtroom. On August 20, 2018 Mr. Dorphelus, through his counsel, waived his right to a bail hearing.

IMPACT ON THE VICTIMS

[39] I was given four Victim Impact Statements. These were prepared by Monica Rodgers (mother of Matthew Rodgers), and Ashley Rodgers (wife of Matthew Rogers), both of whom read their statements out in court. The statement of John Rogers (father of Matthew Rodgers) was read by Crown counsel. The statement of Diane Goulet (wife of John Rodgers) was simply filed with the court.

[40] These statements included certain statements of fact that were inconsistent with the above Agreed Statement of Facts. In those cases, I have disregarded the incorrect version of events and relied on the agreed facts.

[41] Other statements clearly fell outside the scope of section 722(4) of the Code and I have disregarded those as well in my determination of the appropriate sentence.

[42] I did take into account the following.

[43] Matthew Rodgers was unconscious when he arrived at hospital on August 4, 2017. He has remained unconscious since then. Hospital staff noted that he was shot in the lower left leg below the knee, and in the head. The head wound was life threatening and required emergency surgery to stop blood flow. A bullet fragment was removed from his brain. On August 18, 2017 Mr. Rodgers, still unconscious, was deemed stable and he was removed from life support. He has remained unconscious and hospitalized. The brain damage is believed to be permanent. His prognosis for consciousness is poor.

[44] He was a good and loving son to his parents, a good and loving husband to his wife and a good and loving father to his children. They all love him very much and are greatly affected by his absence in their lives. His wife has continued to visit him regularly at hospital. He was the sole source of financial support for his family before these events.

BACKGROUND OF MR. DORPHELUS

[45] I was not told much about Mr. Dorphelus.

[46] I was provided with letters from Mr. Dorphelus, his mother, his girlfriend of six years and a long-time friend. These confirm the information contained in the Agreed Statement of Facts, including the following.

[47] Mr. Dorphelus is currently 21 years old. He is one of 3 brothers.

[48] Their childhood was difficult.

[49] When their parents separated, the boys stayed with their mother.

[50] Mr. Dorphelus left school without completing high school in order to work and help support his family.

[51] Every one of the writers expressed surprise that Mr. Dorphelus committed this offence. They all described it as being totally out of character for him.

[52] He had no prior criminal record.

ANALYSIS

[53] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.) supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.[^18]

[54] Everyone agrees that Mr. Dorphelus is going to the penitentiary for a long time. My task is to determine the precise length of that period of imprisonment.

[55] Whatever sentence I impose, at least one side and maybe both will be disappointed.

[56] The family and friends of Matthew Rodgers may believe that the sentence is too lenient, while Mr. Dorphelus and his family and friends may think that the punishment goes too far.

[57] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."[^19]

[58] General deterrence and denunciation are clearly the most important principles of sentence in this case, but I must not lose sight of the other principles.

[59] I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Dorphelus and yet, at the same time, one that is responsive to his unique circumstances.

[60] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[61] The aggravating factors can be found in the offence itself.

[62] This was not a spontaneous offence. There was considerable planning.

[63] In that regard Crown counsel and counsel for Mr. Dorphelus disagreed as to the degree of planning present here.

[64] Crown counsel argued that when Mr. Dorphelus came to Oakville, he did so with the intention of killing Mr. Rodgers.

[65] Counsel for Mr. Dorphelus argued that the agreed statement of facts did not support this degree of premeditation.

[66] I agree that the agreed statement of facts did not explicitly say that this attempted murder was premeditated.

[67] However, I am allowed to draw inferences from those agreed facts as long as the facts support the inference beyond a reasonable doubt.[^20]

[68] I am not satisfied beyond a reasonable doubt that Mr. Dorphelus came to Oakville with the settled intention of killing Mr. Rodgers as opposed to robbing him or threatening him or something else short of killing him.

[69] I am satisfied beyond a reasonable doubt of the following.

[70] Mr. Dorphelus came to Oakville looking for Mr. Rodgers. This is borne out by him being in possession of a photograph of Mr. Rodgers and a sheet of paper containing information identifying Mr. Rodgers’ motor vehicle.

[71] He believed that Mr. Rodgers would be at that particular location, again borne out by information on the same piece of paper. The accuracy of Mr. Dorphelus’ information was borne out by the fact that Mr. Rodgers was indeed there when Mr. Dorphelus came looking for him.

[72] Mr. Dorphelus was accompanied by two other men. Mr. Dorphelus and at least one other man were armed with loaded handguns. They were prepared to use those handguns, as evidenced by the fact that they did use them that day.

[73] It is clear that the third man was tasked with driving the “getaway” car.

[74] Mr. Rodgers was a known member of an outlaw motorcycle club associated with Hells Angels and involved in the illicit drug trade.

[75] He was expecting to meet someone other than Mr. Dorphelus and his companions and they were not there to transact any sort of legitimate business with him.

[76] Finally, the guilty plea in this case was a clear admission that Mr. Dorphelus intended to kill Mr. Rodgers when he began shooting at him.

[77] As I stated above, this offence was not spontaneous. There was considerable planning.

[78] Further, Mr. Dorphelus brought a loaded handgun to a public place and fired it at Mr. Rodgers multiple times.

[79] The impact of this offence could not be more serious.

[80] Mr. Rodgers is not dead, but he is barely alive.

[81] This situation is devastating to his family. In many if not most ways, he is gone from them. However, the fact that he holds on to the slightest degree of life appears to have prolonged the usual progression through the stages of grief. It is highly doubtful that these family members will ever get over this completely.

[82] Having said that I note that Crown counsel referred to the fact that Mr. Dorphelus would be released someday while Mr. Rodgers will not. Two Victim Impact Statements, also stress that the family members “all have life sentences” and another asks me to “please remember our family has a life sentence. We do not get to apply for parole in 6 or 7 years.”

[83] I wish to note that I am not taking into account when, if ever, Mr. Dorphelus might be granted parole sometime in the future. I leave that decision to the National Parole Board.[^21]

[84] I also note that no sentence, not even a death sentence were it available, imposed on Mr. Dorphelus would do anything to improve Mr. Rodgers’ condition.

[85] Finally, the idea that the punishment should correspond either in kind and or degree to the injury caused has never been an accepted principle of sentencing in our courts and is certainly not to be found in the Criminal Code.

[86] Having said that, I am very mindful of the provisions of section 718.2(a)(iii.1) and have given great weight to the fact that “the offence had a significant impact on the victims, considering their ages and other personal circumstances”.

[87] There are also a number of mitigating factors in this case.

[88] Mr. Dorphelus is a young man.

[89] He pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for the victims to revisit their victimization while sitting through a trial in a public courtroom.

[90] Mr. Dorphelus has repeatedly expressed remorse for what he has done.

[91] He had no prior criminal record.

[92] He has otherwise led a very good life and been of good character.

[93] He has the support of his family and friends.

[94] I am satisfied that he has very good prospects of rehabilitation.

[95] The mitigating factors however are greatly outweighed by the aggravating factors. There is no reason to depart from the conclusion that general deterrence and denunciation must be the paramount principles of sentencing in the circumstances of this very serious offence.

[96] After considering all of the above, I am satisfied that the appropriate period of imprisonment in this case is 16 years, less credit for pre-sentence custody.

ENHANCED CREDIT FOR PRE-SENTENCE CUSTODY

[97] Mr. Dorphelus has been in custody at Maplehurst since August 4, 2017. That totals 538 days.

[98] Both counsel agreed that, in light of R. v. Summers, he is entitled to enhanced credit under section 719(3.1) of the Criminal Code at a rate of 1.5 to 1 to reflect the lost eligibility for remission or parole.[^22]

[99] The Supreme Court of Canada held that, “The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely”.[^23]

[100] So it is agreed that I should credit the 538 days at the rate of 1.5 to 1 which works out to 807 days.

[101] Counsel for Mr. Dorphelus requested further credit to reflect the amount of time that he spent in protective custody and the number of lockdowns that occurred during his detention.

[102] Both counsel provided me with a number of cases addressing this issue. I have read all of these but find that most, while helpful, are not definitive of what I should do.

[103] I do note that the Supreme Court of Canada left this option of further enhanced credit open, with the statement quoted above at paragraph 99 as well as further stating that “individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including under s. 24(1) of the Charter”.[^24]

[104] Since then, the Ontario Court of Appeal has recognized that “lockdown” conditions can constitute harsh presentence incarceration conditions warranting further mitigation of a sentence.

[105] In R. v. Duncan, the Court of Appeal stated that:

in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration.[^25]

[106] The Court of Appeal took a similar position in R. v. Kizir, where the Court stated:

There is no one formula or approach to determining credit for harsh conditions. The sentencing judge was clear that he was using a "broad brush" approach. The sentencing judge was entitled to adopt the methodology he did. Applying that methodology, he considered the additional 90 days of credit (above what a 1.5:1 calculation would permit) to appropriately reflect the harsh conditions presented by the lockdowns. We would defer to that conclusion.[^26]

[107] With respect to the need for evidence supporting this, I note the comments of the Supreme Court of Canada in R. v. Summers, supra that:

As well, when evaluating the qualitative rationale for granting enhanced credit, the onus is on the offender, but it will generally not be necessary to lead extensive evidence. Judges have dealt with claims for enhanced credit for many years. The conditions and overcrowding in remand centres are generally well known and often subject to agreement between the parties; there is no reason this helpful practice should not continue. There is no need for a new and elaborate process - the [Truth In Sentencing Act] introduced a cap on the amount of enhanced credit that may be awarded, but did not alter the process for determining the amount of credit to apply.[^27]

[108] The conditions in Maplehurst are indeed well known to this court. It is very telling that the Maplehurst Correctional Complex routinely provides courts with a “Lock-Down Summary” which is subtitled “(Enhanced Sentencing – Pre-Trial Custody)”.

[109] I received such a summary in this case[^28]. I also received an Affidavit from Mr. Dorphelus setting out the adverse effects of being in protective custody at all times combined with frequent lockdowns[^29].

[110] I note that he first agreed to be placed in protective custody when staff at Maplehurst suggested that he do so.

[111] He subsequently declined an opportunity to change this status, but I am satisfied that it was eminently reasonable for him to do so. After all, he had shot someone who was associated with people who could be associated with people who might be prepared to assault or even kill Mr. Dorphelus if the opportunity were to present itself within the general prisoner population in Maplehurst.

[112] Another possible source of danger, not voiced by Mr. Dorphelus but apparent to me, could come from associates of the two men who were with Mr. Dorphelus in Oakville that day. He has not identified them so far and shows no sign of ever doing so but he is the only person who could do so. The death of Mr. Dorphelus would of course remove that possibility.

[113] So Mr. Dorphelus had every reason to choose protective custody over general population. That does not however alleviate the harsh conditions experienced in protective custody, especially when these are combined with frequent lockdowns.

[114] He was alone in his cell for most of each day. He had very limited yard or shower privileges. Participation in programs was problematic.

[115] It does not help that he is a Francophone in an environment that is predominantly English speaking.

[116] He is depressed. He feels “agitated, nervous and tired, all at once”.

[117] A psychiatrist saw him approximately three times and then stopped. He has seen the health unit approximately five times despite numerous requests.

[118] The circumstances described by him are very similar to those described in recent reports about the experiences of prisoners who are placed in solitary confinement.

[119] I am satisfied that I should reduce the sentence by a further 133 days to reflect the harsh conditions experienced by him.

[120] That would bring the total credit for pre-sentence custody to two years and seven months.

SENTENCE

[121] For the above reasons, after taking into account time served of 538 days pre-sentence custody credited as 807 days plus a further reduction of 133 days to reflect the harsh conditions experienced by him during that time, I sentence Mr. Dorphelus to imprisonment for 13 years and five months.

[122] I also make the following ancillary orders.

[123] This is a primary compulsory offence and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. Dorphelus of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[124] I make an order pursuant to section 109 of the Criminal Code prohibiting Mr. Dorphelus from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance. This will be a lifetime prohibition.

[125] I make an order pursuant to section 743.21 of the Criminal Code prohibiting any contact or communication by him with Matthew Rodgers or Ashley Rodgers or their children, or Monica Rodgers, John Rogers or Diane Goulet during the custodial portion of the sentence.

Released: January 23, 2019

Signed: Justice D.A. Harris

[^1]: R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.) at para. 102; R. v. Lyons, [1987] 2 S.C.R. 309 (S.C.C.) at para. 26; R. v. Morrisey, 2000 SCC 39, [2000] S.C.J. No. 39 (S.C.C.) at para. 46.

[^2]: Criminal Code, section 718.1

[^3]: R. v. Hamilton, supra, at para. 90.

[^4]: Ibid, at para. 91.

[^5]: R. v. Priest, [1996] O.J. No. 3369 (Ont. C.A.) at para. 26, quoted in R. v. Hamilton, supra, at para. 92.

[^6]: Gladue v. The Queen, [1999] S.C.J. No. 19 (S.C.C.) at para. 36; see also R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 (S.C.C.) at para. 20.

[^7]: Gladue, supra, at paras. 43 and 48; see also R. v. Proulx, supra, at paras. 18 – 20.

[^8]: Regina v. Tan, 2008 ONCA 574, [2008] O.J. No. 3044 (Ont. C.A.), at para. 33.

[^9]: Criminal Code, section 239(1)(a.1)

[^10]: R. v. Danvers, [2005] O.J. No. 3532 (Ont. C.A.), per Armstrong J.A. at para. 78.

[^11]: R. v. Ljeskovica, [2008] O.J. No. 4935 (S.C.J.), per Trotter J. as he then was, at para. 14.

[^12]: R. v. Logan, [1990] S.C.J. No. 89 (S.C.C.), per Lamer C.J. at para. 19.

[^13]: Ibid, at para. 20.

[^14]: R. v. McArthur, [2004] O.J. No. 721 (Ont. C.A.), per Doherty J.A. at para. 47

[^15]: Ibid, at para. 48

[^16]: Regina v. Tan, supra, at paras. 35 and 36.

[^17]: R. v. Ljeskovica, supra at para. 16.

[^18]: R. v. Hamilton, supra at para.1

[^19]: R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 (Ont. S.C.J.), per Fuerst J. at para. 59.

[^20]: R. v. P.E.S., 2018 MBCA 124, [2018] M.J. No. 305 (Man. C.A.) at paras. 43 and 44; R. v. LeBreton, 2018 NBCA 27, [2018] N.B.J. No. 103 (N.B.C.A.) at paras. 32 to 35.

[^21]: I note also that Crown counsel made it clear that she was not asking me to impose a longer period of parole ineligibility.

[^22]: R. v. Summers, 2014 SCC 26, [2014] S.C.J. No. 26 at para. 68.

[^23]: Ibid, at para. 71.

[^24]: Ibid, at para. 73.

[^25]: R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (Ont. C.A.) at para. 6.

[^26]: R. v. Kizir, 2018 ONCA 781, [2018] O.J. No. 5127 (Ont. C.A.) at para. 15.

[^27]: R. v. Summers, supra at para. 80.

[^28]: Exhibit 6

[^29]: Exhibit 7