ONTARIO COURT OF JUSTICE DATE: 2022 09 22 COURT FILE No.: Central West Region 998 WR 22 1369

BETWEEN:

HIS MAJESTY THE KING

— AND —

Jason Lusted

Before: Justice J. De Filippis Heard on: April 7, June 7, and August 5, 2022 Reasons for Judgment released on: September 22, 2022

Counsel: Mr. R. Mahler, counsel for the Crown Mr. A. Furgiuele and Ms. C Barbison, counsel for the accused

De Filippis, J.:

INTRODUCTION

[1] Earl Clapp was a 74-year-old resident of the Town of Pelham in Niagara Region. Jason Lusted is a (now) 52-year-old career criminal. They did not know each other. Their interaction during one night in 2020 resulted in the death of Mr. Clapp and a charge of second-degree murder for Mr. Lusted. During a preliminary inquiry into that charge, the Crown accepted a guilty plea to manslaughter. These reasons explain why I conclude that the appropriate sentence is 18 years in prison, with deductions for certain credits I will describe below.

THE FACTS OF THE OFFENCE

[2] Mr. Clapp owned and operated Niagara Farm Metal Products on his 2.5-acre property. In 2020, he had three utility trailers, behind a locked gate, on that property. A short gravel driveway led from Centre Street to where the trailers were located. One of the trailers was secured by a wheel chock lock. It had been purchased the previous year for $9,514.00.

[3] On the evening of October 1, 2020, Mr. Clapp and his wife watched a movie together before going to bed. That same evening, Matthew MacInnes was “dope sick” (suffering drug withdrawal). At 1:23 AM on October 2, the defendant visited Mr. MacInnes. The latter asked to be driven to a place where he could purchase illicit drugs. In return, he offered to share some crystal methamphetamine with him. The defendant operated a Ford Expedition. He was a suspended driver at the time. Since the defendant intended to find an aluminum trailer to steal early that morning, he agreed to the request.

[4] With Mr. MacInnes as his passenger, the defendant drove to a place in the Town of Pellam where the former purchased fentanyl and methamphetamine. The parties proceeded to a nearby variety store where Mr. MacInnes consumed fentanyl in the washroom and the defendant purchased food. Before leaving the area, at 2:15 AM, the defendant placed a trailer hitch on his vehicle.

[5] The two men travelled towards the property of Mr. Clapp and arrived seven minutes later. On arrival, the defendant exited his vehicle and used tools to cut the lock and chain on the gate. He re-entered his vehicle, reversed into the property, and stopped near a trailer. The defendant used a grinder to cut the chock lock away from the trailer. This noise awakened Mr. Clapp and he went outside to investigate.

[6] Mr. MacInnes, seated in the passenger seat of the Ford Expedition, saw Mr. Clapp approaching them and yelled to the defendant; “someone’s coming, we better get the fuck out of here.” The defendant quickly entered his vehicle and accelerated away. Mr. MacInnes pointed to the right in the direction of where Mr. Clapp was coming from. He noted that the defendant was “hammering the gas” and “his foot was on the floor.” Mr. MacInnes added that the defendant made a deliberate right turn – “swerving more than he should have” – such that the right portion of the vehicle entered the grassy area where Mr. Clapp was standing. This dangerous manoeuvre caused the vehicle to collide with Mr. Clapp and he was pulled under it.

[7] The defendant did not stop the vehicle. He continued to drive away at a high rate of speed, north on Centre Street and west on Regional Road 20. Mr. Clapp remained trapped under the vehicle for 1.9 kilometres when his deceased body came to rest on the north side of the road. At 2:42 AM, a passing motorist discovered the body.

[8] Mr. Clapp sustained severe fatal injuries to his face, torso, and upper limbs because of being dragged by the Ford Expedition. His injuries included several broken ribs, broken nose, dislocated right shoulder, and a complete transection of the ulnar artery of the left forearm and major branch of the left carotid artery, leading to severe blood loss.

EARL CLAPP

[9] Seventy-six people – family, friends, and business associates – submitted statements about Mr. Clapp and several individuals, including his wife and daughter, read their statements to the Court, in the presence of approximately 60 people. I could not do justice to these statements by attempting to summarize them for these reasons. They are a matter of public record. I hope it will suffice to simply note now, as I did during the sentence hearing, that these statements paint a picture of a remarkable man; Mr. Clapp was loved as a husband, father, and grandfather, valued as a friend, and trusted in business. [1]

JASON LUSTED

[10] At the time of the offence, the defendant was 50 years old. At the request of the Defence, I ordered that a Gladue Report be prepared. That was not done. A letter to the Court, from Aboriginal Legal Services, explains that, despite reasonable efforts, the defendant’s aboriginal ancestry could not be confirmed. Nevertheless, the letter does provide the following relevant information.

Jason Lusted was referred to CAS by his parents in December 1979 at age eight. In November 1980, at age nine, Jason was placed in care at the request of his parents due to incorrigible behaviour (lying, stealing and fire starting) and “emotional disturbance.” Hamilton CAS commenced an application, on consent of the parents, for Jason to be made a Crown ward, which was finalized on June 16, 1982. Given that Jason Lusted was placed in care due to his need for psychiatric treatment and not as a result of poor parenting, the Court ordered the Crown wardship with a term that the family be permitted regular visits with him. CAS determined Jason to be “unadoptable” given the requirement in the court order for regular visits with his biological family. Jason was in group homes as a Crown ward until he was 16 years old. A Crown Ward Administrative Review was completed in November of each year, assessing Jason’s progress while in care. The Crown Ward Administrative Reviews showed that his family exercised their right to visit Jason on a regular basis.

[11] The Defence filed several reports setting out the defendant’s medical issues, including a history of learning disabilities, depression, and drug addiction. A work-related accident many years ago was the cause of chronic low back pain and frequent headaches. This may explain why I do not have evidence of a stable employment history. Another explanation may be the defendant’s criminal record.

[12] In a 30-year period beginning in 1986, the defendant has accumulated 65 convictions for a wide variety of offences. The defendant has been sent to the penitentiary seven times, including a six and ½ year sentence for being an accessory after the fact to murder. He has twice been found guilty of escaping lawful custody and several instances of parole and statutory release violations. It is also noteworthy that on five occasions the defendant was found guilty of dangerous driving and that three of these offences involved flight while being pursued by police. Moreover, he has six convictions for driving while disqualified.

[13] Before, I adjourned to consider the appropriate sentence the defendant addressed the Court; he offered a tearful apology for the suffering he had caused to the deceased, his family, and friends. He acknowledged that his “selfish act and defiance of the law” caused this suffering. The defendant concluded by stating, “I did this, I’ll never forgive myself…I am deeply tormented by what I did”.

SUBMISSIONS

[14] I have the benefit of strong advocacy in this case by Crown and Defence counsel. The parties provided me with fulsome submissions and numerous decisions of other Courts. The submissions of counsel and the general principles that emerge from the case law have been helpful to me. I am grateful for the efforts of counsel.

[15] The Crown introduced his submissions by stating that the defendant “has and will always put others at risk to advance his own interest” and suggested that the appropriate range of sentence is 15 to 18 years. In this regard, counsel noted that the defendant was a suspended driver whose desire to avoid apprehension came at the cost of Mr. Clapp’s life. This is especially aggravating because he has a lengthy criminal record.

[16] Defence counsel began his submissions by stating that Mr. Clapp was a “good man who should not have died this way” and noted that the defendant “was not born evil”: He is the product of troubled parents – his mother was an alcoholic and his father was abusive. He became a ward of the Crown at an early age and spent his childhood in foster homes. He struggled to learn, was often depressed, and was addicted to cocaine and crystal methamphetamine. In all the circumstances, the Defence suggests that the appropriate range of sentence is 10 to 12 years in jail.

ANALYSIS

[17] The sentence I impose cannot erase the loss and pain caused by the defendant. Nor, is it to be a means of revenge for what he did. Moreover, it does not focus only on the defendant and his prospect of rehabilitation.

[18] The imposition of sentence is governed by Part XXIII of the Criminal Code. The following provisions are especially relevant in this case:

718. The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community.

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

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… (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[19] The cardinal principle of sentencing is proportionality. This means that the severity of a sentence will depend on the seriousness of the offence (and its consequences) as well as the moral blameworthiness of the offender; see R. v. Lacasse, 2015 SCC 64. Personal circumstances are relevant in determining proportionality considering the seriousness of the offence, but they do not alter the seriousness of the offence: see R. v. Schofield, 2019 BCCA 22.

[20] The personal circumstances of indigenous offenders occupy a unique place in Canadian sentencing law. In applying this principle, I have been well served by Gladue Reports in other cases. The reports show if and how an offender has been influenced and affected by their indigenous ancestry – either directly, or by systemic and historical factors.

[21] I return to the letter from Aboriginal Legal Services:

This letter should not be read in any way as stating that Mr. Lusted is not an Indigenous person – we are not in a position to draw such a conclusion. Neither should this letter be read as stating there may not be relevant Gladue issues in this case. The fact that we are not able to prepare a Gladue Report for Mr. Lusted does not mean there are no Gladue-related issues counsel may wish to raise with the Court.

[22] The extent to which the defendant’s indigenous ancestry would affect this sentence is not part of my analysis. I do not accept that I can consider “Gladue-related issues” when it is not confirmed that an offender is indigenous. In any event, Defence counsel did not press this point. Counsel stressed, however, that the defendant has had a challenging past, including estrangement from family and community. I agree that these personal circumstances are relevant to my decision.

[23] Manslaughter is culpable homicide that is not murder (or infanticide). The maximum penalty for manslaughter is life imprisonment. Unlike murder, there is no minimum penalty. In this case, I find that the position advanced by the Crown is a measured response to the offence and the offender. Having regard to the legal principles set out above, I will explain why I conclude that the upper end of the range proposed by the Crown is appropriate.

[24] The gravity of the offence of manslaughter, always present because death is involved, is also reflected in the manner of death and the events leading to it. The seriousness of the present offence is obvious and acute: Mr. Clapp died in horrific circumstances. While standing on his property to investigate a suspicious sound he became entangled under the defendant’s vehicle and dragged over almost two kilometres of road. He was snarled this way because the defendant, having been made aware of Mr. Clapp’s presence, aborted his attempted theft, and drove dangerously to escape. Moreover, there was no need to escape in this manner: Mr. Clapp was on foot and the defendant and Mr. McInnes were in a motor vehicle. The defendant could easily have departed without the excessive speed and the sudden, sharp right turn that ultimately killed Mr. Clapp.

[25] The defendant’s childhood was a hard one. He is a drug addict with some mental health issues. I do not ignore these personal circumstances, but it must be said that he is not alone in facing such burdens. What sets the defendant apart is that he has lived a life of persistent criminality. This began while he was a youth and continued with few gaps until age 50, when he was arrested for causing the death of Mr. Clapp. His life is defined by a complete disregard for the law, court orders, and public safety. His unnecessary, selfish, and deadly action of driving dangerously and fleeing the scene of a crime comes with a history of such misconduct. His moral blameworthiness is high.

[26] I accept the sincerity of the defendant’s apology. But it comes too late to materially affect my decision on sentence; like the defendant’s mitigating personal circumstances, it carries less weight given his life of crime. Moreover, there is nothing in the record before me that inspires confidence in the prospect of rehabilitation; indeed, the defendant’s background suggests it will be neither quick nor easy.

[27] Having regard to this offence and this offender, my focus must be on denunciation and deterrence. Previous sentences failed to deter the defendant and assist in his rehabilitation. It is my duty to condemn his actions and protect the public from him and other like-minded individuals by sending a strong message that the punishment will fit the crime and the criminal.

SENTENCE CREDITS

[28] A sentence imposed on an offender must consider pretrial detention. This deduction is known as the “Summers credit.” It may also be appropriate to lessen that sentence to account for particularly severe pretrial conditions. This is known as the “Duncan credit.”

[29] In R. v. Marshall, 2021 ONCA 344, the Court of Appeal for Ontario said the following (at paragraphs 51 to 53):

It is also important to appreciate and maintain the clear distinction between the “Summers” credit and the “Duncan” credit. The “Summers” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “Summers” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “Summers” credit is statutorily capped at 1.5:1. It is wrong to think of the “Summers” credit as a mitigating factor. It would be equally wrong to deny or limit the “Summers” credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.

The “Duncan” credit is not a deduction from the otherwise appropriate sentence but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[30] In the present case, there is no controversy about the credits. The defendant has been in custody since the date of his arrest. As of the date of these reasons, that amounts to 713 days. Accordingly, the Summers credit is 1070 days. Institutional records show that for 300 days of pretrial custody, the defendant was under lockdown. I have been told that this is primarily due to staff shortages arising from the pandemic. Defence counsel described the conditions as “intolerable and the most restrictive pretrial custody seen in Ontario.” The parties jointly submit that the Duncan credit should be 365 days. I accept this submission.

[31] The total credits in this case amount to 1435 days (just under four years).

RESULT

[32] I have determined that the sentence should be 18 years in jail. Four years will be deducted to account for the Summers and Duncan credits. Accordingly, I order that the defendant serve an additional 14 years.

[33] Defence counsel asks that I recommend that this sentence be served at the Bath Institution as it has programs, such as Pathways, that the defendant feels will benefit him. I am not aware of the programs available at the various institutions and what would best assist the defendant. Staff at Corrections Canada are better positioned to make this decision. I note the defendant’s request in these reasons as they will be provided to Corrections Canada along with the warrant of committal and other documents.

ANCILLARY ORDERS

[34] The defendant is subject to the following orders: He must provide a sample of his DNA. He is prohibited from possessing firearms, ammunition and other weapons as defined in section 109 of the Code for life. He is prohibited from operating a motor vehicle for 20 years. He is prohibited from communicating with Mr. Clapp’s family while serving this sentence. [2]

Released: September 22, 2022 Signed: Justice J. De Filippis

[1] A few of the victim impact statements include comments about what the sentence should be. Defence counsel did not seek to have the statements redacted but, properly, reminded me that I must ignore those comments. I have done so.

[2] The non-communication provision was not requested at the sentence hearing. I subsequently received an email from Crown and Defence counsel in which they jointly submitted that I make the order, as requested by the family of Mr. Clapp.