WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code . These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2) , read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2023 03 22 COURT FILE No.: 22-40001736 Metro North, Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Kevonne MARSHALL
Before: Justice Cidalia C. G. Faria
Heard on: February 22 and March 6, 2023 Reasons for Sentence released on: March 22, 2023
Counsel: Matthew Bloch, for the Crown Michael Strathman, for the accused Kevonne MARSHALL
Faria J.:
I. Introduction
[1] In June 2021, Kevonne Marshall testified in a Superior Court of Justice trial that he, not the accused on trial, forced his way into a residence, forcibly confined the homeowner, and beat him causing him long-term injuries. This evidence was false.
[2] On February 22, 2023, Mr. Marshall pled guilty to perjury and on March 6, 2023, both Counsel made oral submissions and filed exhibits.
[3] These are my reasons for sentence.
II. The Facts
[4] In June 2021, a man named Jacob Owusu-Sarpong was tried in the Superior Court of Justice in a judge alone trial before Justice J. Kelly. He was charged with a series of offences regarding a home invasion committed in a residence in Toronto.
[5] Mr. Owusu-Sarpong, in September 2018, with three others attended the area of the residence about a week before the home invasion to scope it out. They were dressed in construction gear, including a helmet, vests, gloves, and one was carrying a blue cooler. This was captured on video surveillance.
[6] About a week later, on September 27, 2018, at about 7:00 a.m., Mr. Owusu-Sarpong returned to the address with two others, one of whom remained in a vehicle. Mr. Owusu-Sarpong and another male, dressed in construction gear and carrying a blue cooler knocked on the door, and rushed in when the homeowner opened the door. The two men severely beat and pistol-whipped homeowner. They stripped him naked in the basement, tasered him and zip-tied him. They then ransacked the home in search of money they never found. They were in the home for about 40 minutes. Both their arrival and their exit into the waiting vehicle were captured on video surveillance. The victim suffered serious injures, including multiple fractures, that required hospitalization and surgeries.
[7] On June 21, 2021, Mr. Marshall testified for the defence at Mr. Owusu-Sarpong’s trial. He falsely testified he had borrowed a helmet, two construction vests and a blue cooler from Mr. Owusu-Sarpong, and that he, a man named Vader and two other men unknown to him, scoped the targeted residence but aborted their robbery plan. He testified he and his accomplices were dressed in construction gear including helmets, vests, dust masks and gloves while carrying a blue cooler.
[8] He testified that several days later, he returned to the residence with Vader and one of the men he did not know. The man he did not know stayed in the car, while he and Vader committed the robbery. He testified they were both in construction gear and had a blue cooler.
[9] Mr. Marshall testified that while in the residence they beat the old man with their hands and a gun, they threw him down the stairs to the basement, stripped him naked and zip-tied him. He said he then searched the house for money. After he escaped into the waiting vehicle, he was dropped off at his home. Sometime later, he returned the construction gear and cooler to Mr. Owusu-Sarpong.
[10] On June 22, 2021, Mr. Marshall was cross-examined. He confirmed he had been recruited to play for the elite basketball program, Canada Topflight Academy, in Ottawa and was living there with a billet family. He testified he did not return to Toronto during the month or two he lived there.
[11] The Crown then called reply evidence. Mr. Tony House, of Topflight Academy, was Mr. Marshall’s basketball coach in Ottawa. He testified that due to poor school attendance, Mr. Marshall was removed from the program and on the morning of September 27, 2018, at 10:18 a.m. he received text messages from Mr. Marshall’s billet family asking about Mr. Marshall’s return to Toronto. Mr. House picked up Mr. Marshall between 12:00 noon and 12:30 p.m. He drove Mr. Marshall to the bus station, bought him a bus ticket at 1:39 p.m., and saw him board the bus in Ottawa headed to Toronto.
[12] Mr. Marshall was not in Toronto at 7:00 a.m. on September 27, 2018. He was in Ottawa. He did not commit the home invasion. Mr. Owusu- Sarpong did [1].
III. Position of the Parties
[13] The Crown submits the appropriate sentence is 3 years jail minus pre-sentence custody. Though he acknowledges the value of time incarcerated while on lockdown is not a mathematical calculation, he recommends a reduction of 2 months. The Crown’s position is therefore 34 months custody with a period of 14 months yet to serve. In support of his recommendation, the Crown emphasizes the fundamental importance of telling the truth to the proper functioning of a criminal trial and submits the principles of denunciation, and deterrence are paramount.
[14] Counsel for Mr. Marshall submits that given Mr. Marshall’s age, background, and circumstances, the time he has spent in pre-sentence custody, 13 months enhanced to 20 months, is sufficient to meet all the principles of sentencing. He submits a fit sentence is 1 day plus probation with terms to assist with Mr. Marshall’s rehabilitation.
IV. Circumstances of Mr. Marshall
[15] Mr. Marshall is 20 years old. He has had a challenging life thus far. Comprehensive information was provided via a s. 34 YCJA [2] assessment and a Cognitive and Academic Assessment [3] authored when Mr. Marshall was 18.
[16] His mother immigrated to Canada when she was 13 and due to family conflict went into Children’s Aid care. Resilient, she obtained a postsecondary education, and worked several jobs until she had 2 daughters and then Mr. Marshall. She and Mr. Marshall’s father separated because of intimate partner violence. During one violent domestic episode, at the age of 7, Mr. Marshall intervened to protect his mom. His relationship with his father never recovered and his acting out began.
[17] Mr. Marshall’s long history of academic and behavioural challenges commenced in grade 1. He had a speech impediment that caused him social isolation. He was suspended and had an Individual Education Plan by grade 2. He was in therapy for his behaviour by grade 3. He was diagnosed first with a Learning Disability and then with Attention Deficit Hyperactivity Disorder (ADHD) by grade 4 and prescribed medication. By middle school, he was placed in a special education class and demonstrated symptoms consistent with Oppositional Defiant Disorder (ODD). He went to high school and only obtained 3 credits in grade nine due to academic challenges and absenteeism. He was asked to leave and attended a second high school for grade 10 but did not complete the year.
[18] Mr. Marshall also labours under significant cognitive deficits. He has substantial difficulties in verbal comprehension, perceptual reasoning, working memory and processing speed.
[19] Unfortunately, negative peer influences and his residential environment in the high-priority neighbourhood of Jane-Finch exacerbated his challenges. All his cognitive domain scores declined compared to his previous assessment when he was a child. “This decline can partially be understood in the context of Kevonne’s significant academic disengagement throughout high school, not accessing supports and resources needed for learning, and untreated ADHD symptoms” was one conclusion reached. (Exhibit 3 at page 28)
[20] However, even as he experienced these challenges, he emerged as a talented athlete and excelled as a basketball player in middle school and in high school. He was recruited by Topflight Academy in Ottawa, an elite basketball training programme that could have transformed his life. Unfortunately, his academic challenges and absenteeism led to the demise of that opportunity and a return to negative peer influences in Toronto.
V. Objectives of Sentencing
[21] The fundamental purpose of sentencing is to protect society and to contribute 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 pursuant to s. 718 of the Criminal Code:
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 f. to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[22] How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the accused.
[23] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, (s.718.1). The sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender (s. 718.2). Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)).
VI. Analysis
[24] Perjury is an indictable offence that carries a maximum penalty of 14 years in prison.
[25] Pursuant to Burmudez [4], the sentencing range for perjury or giving contradictory evidence is between two- and six-years imprisonment in cases of homicide, depending on case specific factors and the relative seriousness of the offence.
[26] Recently the Superior Court in King [5] referred to the following factors to consider pursuant to Jordan [6]:
i. The relative seriousness of the offence with respect to which the perjured testimony was given. ii. The effect, if any, on the outcome of the trial by reason of the perjured evidence. iii. Whether the testimony dealt with a vital part of the evidence. iv. Whether the perjured evidence led to the implication of an innocent person in a crime, which is ordinarily a most aggravating factor. v. Whether the perjury was planned and deliberate or the result of a sudden temptation while giving evidence.
[27] In this case, most of the Jordan considerations are aggravating factors applicable to the gravity of the offence while most of Mr. Marshall’s personal circumstances are mitigating factors on the degree of his responsibility.
Aggravating Factors
[28] The nature of the offence of perjury is serious, and although not a homicide, this perjury was committed in a home invasion trial where the victim was severely injured.
[29] Justice Kelly rejected Mr. Marshall’s evidence as untruthful. She reviewed his testimony and found it inconsistent with other evidence, internally inconsistent, and that he was caught in a lie. She convicted Mr. Owusu-Sarpong and fortunately, Mr. Marshall’s false evidence did not affect the result of the trial, but it certainly mislead the court, increased the length of the trial and used precious judicial, police and Crown resources.
[30] Mr. Marshall’s false testimony went to an essential element at issue in the trial, the identity of the perpetrator of the home invasion. There was significant violence, forcible confinement, permanent injuries, and the possession and use of a firearm.
[31] Mr. Marshall’s false evidence implicated an innocent person, himself, when he attempted to exonerate the person responsible for the offence.
[32] Particularly aggravating is the fact Mr. Marshall had to have prearranged his false testimony. As he was not at the scene of the offence, Mr. Marshall had to have obtained the details of the crime and memorized them, to testify to actions he did not do, in a place he did not go, at a time he was elsewhere. This was a deliberate plan, formulated carefully and in advance of taking the stand.
Criminal Record
[33] When Mr. Marshall committed perjury, he had already been involved in the criminal justice system [7]. Four months before, on February 2, 2021, he had been found guilty of Fail to Comply with an Order and was sentenced to a Conditional Discharge and probation for a year. On February 9, 2021, he pled guilty to Unauthorized Possession of a Firearm in a Motor Vehicle and was put on probation for 2 years and prohibited from possessing a weapon.
[34] His criminal record now contains two more entries: A Break-and-Enter he pled to on February 17, 2023, for which he was sentenced to 6 months of pre-sentence custody enhanced to 9 months and 1 day jail; and an Assault he pled to on March 2, 2023, for which he was sentenced to 20 days pre-sentence custody enhanced to 30 days and 1 day jail. As Mr. Marshall had yet to commit the two adult offences, Mr. Marshall’s subsequent convictions cannot be relied on to aggravate the sentence this court is to impose on this offence [8].
[35] Therefore, although a relevant consideration, Mr. Marshall’s criminal record as a young person is only marginally aggravating.
Mitigating Factors
Guilty Plea
[36] Mr. Marshall pled guilty and relieved the Crown of its onus. Witness attendance was obviated, and their lives were not disrupted by having to testify. Although this is not an early plea and the Crown’s case is overwhelming, nonetheless, a guilty plea does demonstrate remorse. In addition, a guilty plea during these times of strained resources because of the COVID-19 pandemic backlog benefits the criminal justice system. This guilty plea entitles Mr. Marshall to the resultant mitigation
Pre-Sentence Custody / Lockdowns / Pandemic Conditions
[37] Both Counsel agreed Mr. Marshall had served 391 days in jail as of March 6, 2023. As of today, Mr. Marshall has served 406 days in pre-sentence custody.
[38] Counsel filed a Toronto South Detention Centre (TSDC) Lockdown Summary outlining the dates, types and reasons inmates at the detention center were locked down. [9] The facility was in full lockdown 28 days, in partial lockdown for 168 days and therefore in lockdown for a total of 194 days in a 365-day period. Only 2 of those lockdowns were due to maintenance, only 3 of them were due to isolation protocols. The other 189 lockdowns were due to a combination of “Staff Shortages/Isolation Protocols”. That is almost 52% of the time spent in pre-sentence custody being time spent in lockdown. There is no further data for the months of January, February, and March of 2023.
[39] Courts have repeatedly decried the number of lockdowns in detention facilities that give rise to exceptionally difficult and punitive pre-sentence custody conditions. These go beyond the normal restrictions during pretrial custody as referred to in Summers [10] which posited 1 day for 1.5 days enhanced credit for pre-sentence custody. Consideration for such exceptional circumstances was articulated in Duncan [11] and Morgan [12] recognized pandemic conditions are extraordinary.
[40] In addition, Mr. Marshall suffers from “moderately-severe asthma”. He “experiences symptoms daily during certain seasons” which require him to use his prescribed medication regularly, and it is his physician’s medical opinion that he is at an “increased risk of severe illness during the current COVID-19 pandemic.” [13] As a result, his experience of custody is aggravated by both his increased personal medical risk, the congregate nature of incarceration, and the staff shortages and isolation protocols of that confinement.
[41] This combination calls for consideration as outlined in Marshall [14]. A specific quantification is not made, as the Crown submitted, but these conditions are considered mitigating and go into the determination of the appropriate quantum of sentence.
Lack of sophistication
[42] When confronted on the stand that on the day of the robbery in Toronto, he was in Ottawa being picked up his basketball coach and dropped off at the bus station, Mr. Marshall replied “I don’t know”. His response was simple and mystified. The narrative he falsely testified to, was easily established as untrue by the Crown and found to be clearly not credible by the jurist. The documentation before me demonstrates Mr. Marshall does not have the sophistication to have concocted this plan, obtained the disclosure, created the narrative, and executed the perjury alone. But it is he perjured himself, and he alone, who takes responsibility for it.
Personal circumstances
[43] Mr. Marshall’s background and current circumstances contain several mitigating factors outlined in both his s.34 Report and his Cognitive and Academic Assessment:
i. Learning Disability: Mr. Marshall’s learning disability has hindered his academic and personal development. He knows he has difficulty “explaining himself”, “loses focus and attention quickly”. The supports he received did not enable him to acquire the skills to function at a level he can achieve success, either as a child or now as a young adult. (Exhibit 3 at page 20) ii. ADHD: Mr. Marshall’s medical condition has been untreated, or inadequately treated since he was a child. At one point he was prescribed medication, but he did not have a treatment plan throughout his adolescence, nor does he have one now. [15] iii. Behavioural issues: Though identified as early as grade one, and assessed as having conduct consistent with ODD, the treatment Mr. Marshall received as a child did not translate or continue into effective treatment during his adolescence. It appears he has developed his own coping strategy “of breathing or walking away or trying to listen to music as a way of dealing with angry outbursts”. [16] iv. Limited education: The combination of his unsupported learning disability, his untreated ADHD, and his unmanaged behavioural issues have led to a very limited education. He has not been in school since about 16 years old and only had 4 credits at the age of 18. [17] v. Family background: As a single mom, Mr. Marshall’s mother raised three children with limited support. Though she has made her best efforts, and Mr. Marshall comes from a loving home, his childhood and family background contained family violence perpetuated by his father that has had a lifelong impact. Not only did Mr. Marshall not have the support and nurturing of his father, but he had to grow up watching his father in contact with his sister and giving her gifts. [18] vi. Mental health: At times Mr. Marshall reported feeling sad and withdrawn, being secretive, refusing to talk, lacking energy, and preferring to be alone. [19]
Age
[44] Mr. Marshall is only 20 years old. He is still a very young man. He is young enough, and given the adversity he has faced, he is resilient enough to have a real chance at success. His youth has also not been marred by addiction. Though he struggles with his anger, he has not physically harmed others. He has “never been known to bully others or be mean or make threats.” [20]. I appreciate he has a recent assault committed while in custody but given the frustrations and difficulties with his behaviour while growing up, this lack of violence reflects an effort to self regulate during life’s most turbulent and impulsive stages.
Rehabilitation
[45] While in his current structured environment of incarceration, Mr. Marshall has demonstrated his potential for rehabilitation. He has completed enough high school equivalency courses that he is within 3 credits of finishing secondary school [21] and has completed programming to improve his mind set and wellness while in custody. [22] He is also still young enough to use his athletic ability and talent to rehabilitate himself through sport.
Social Context
[46] Although a Race and Cultural Impact report was not provided, the issues and information that such reports provide permeate both Mr. Marshall’s s. 34 Report and his Cognitive and Academic Assessment.
[47] Mr. Marshall is a young Black man who moved into one of Toronto’s most challenged neighbourhoods at Jane and Finch at the age of 7. This neighbourhood, and its experience with gun violence, policing, group rivalries, educational deficits, and some negative interactions with the criminal justice system impacted Mr. Marshall. Just of few of those impacts are named in the s. 34 Report as follows: [23]
- The family “can hear gunshots in the neighbourhood from time to time.”
- Some of the children he grew up with and knows “get into trouble together” and “all of them as some point have been in trouble with the law”.
- Mr. Marshall’s mother “does not believe that Kevonne is in a gang but expressed that the police think that he is because of where he lives and who he knows in the neighbourhood.”
- She “sent Kevonne to Father Henry Carr as they had a good basketball team, and she did not want him to go to his home school (Westview) due to neighbourhood rivalries.”
- Mr. Marshall was recruited to attend a basketball school in the U.S., and while his mother was raising money to send her son there, “Kevonne was mistakenly arrested. He was proven to be at the community centre and not involved but the offer to attend the school in the U.S. was pulled.”
- Mr. Marshall got a job at the Boys and Girls Club “training children in basketball but due to who Kevonne knew in the neighbourhood the job fell through.”
- His mother “tries to keep Kevonne out of Yorkwoods Plaza due to community conflicts.”
- Mr. Marshall also “knows a lot of people who have been hurt or killed from the neighbourhood, he does not show it or talk about his emotions at all”. These experiences led to “fears (of) going on the bus” and he wants to go everywhere in an Uber.
[48] I am mindful of the opening paragraph in Morris [24] which states:
It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continue to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis…Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased.
[49] Moreover,
“evidence of anti-Black racism and its impact on the specific offender can be an important consideration when determining the appropriate sentence” (Morris, at paragraph 87)
and
“[w]hereas no one individual should be completely absolved of their own responsibility when it comes to offending behaviour, the social realities that have produced or contributed to such behaviour can be acknowledged and serve to guide judicial decision making” (at paragraph 40).
[50] The Ontario Court of Appeal also stated:
The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender’s degree of personal responsibility, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence” (Morris at paragraph 13).
[51] I find Mr. Marshall’s environment did negatively impact the opportunities he had, the undesirable influences he was exposed to, and the choices he made. This is a mitigating factor for consideration.
Sentencing Principles
[52] “Perjured testimony strikes at the very heart of the judicial system. The court has always taken a most serious view of such offences and lengthy sentences are the usual course.” [25] All stakeholders in the criminal justice system depend on the commitment of witnesses to honour their oath and tell the truth when they testify. Perjury fundamentally undermines a criminal trial’s crucial truth-seeking function.
[53] Denunciation and deterrence are paramount sentencing principles. Both Mr. Marshall specifically, and others in the community generally, who contemplate the formulation of a false narrative and testifying to it, must be deterred. Mr. Marshall’s decision to associate with a negative peer group that led to this perjury must be sanctioned severely. The principle of parity, that similar offenders who commit similar offences should receive similar sentences is also applicable.
[54] Both Counsel referred to King and Bermudez for assistance.
[55] Mr. King was a 50-year-old jailhouse informant with a significant criminal record who testified an accused had confessed a murder to him. He misled the court about being a first-time jailhouse witness. He was not. His false testimony attempted to enhance his own credibility to the detriment of someone else’s criminal jeopardy. He was sentenced to two years in jail. Mr. Bermudez was a 39-year-old man who gave contradictory evidence is 6 proceedings over 7 years in the homicide prosecution of his common-law wife’s 2 ½ year old little girl. He was sentenced to 3 years in jail
[56] In both cases, the offenders were older, more sophisticated, and their false testimony pertained to murder prosecutions.
[57] Justice Boucher in King helpfully reviewed several cases that contained features comparable and distinguishable to the case before me.
- In R. v. Reyat, 2014 BCCA 101, a jury found Mr. Reyat guilty of perjury for proceedings that alleged 19 false statements in the murder trial of two Air India bombers. In addition to a manslaughter conviction, he was sentenced to 9 years for the perjury, the longest in Canadian history.
- Both R. v. Schertzer, 2015 ONCA 259 and R. v. Millington, 2015 BCSC 1380 involved police officers who provided false evidence. The Ontario Court of Appeal increased one sentence to 3 years in jail and the BC court sentenced that officer to 30 months in jail.
- In R. v. Jonas, [1998] O.J. No. 436, R. v. C.D., [2000] O.J. No. 1668 (CA), R. v. Talbot, [2013], O.J. 3230 (S.C.), and R. v. White, 2010 ONSC 6539, the offenders perjured themselves for their own benefit. The first three during bail hearings, and the fourth at two of his trials. They were sentenced to 15 months, 1 year,16 months and 30 months jail respectively.
- In R. v. Jordan and Sager, 1986 ABCA 168, leave denied [1987] SCCA No. 36, and R. v. Dorn, 2010 ONSC 2631, the offenders testified falsely to exculpate an accused. Mr. Jordan and Ms. Sager provided alibi evidence and were counselled by the accused. Mr. Jordan had a serious record and was sentenced to 4 years. Ms. Sager who was under the influence of the accused with a minimal record was sentenced to 2. 5 years. Mr. Dorn, a primary earner for his young family, tried to help his friends in a murder trial. He was sentenced to 2 years.
[58] The balancing of the applicable principles, the personal circumstances and the jurisprudence illustrates the complex task of sentencing referred to as a “highly individualized exercise that goes beyond a purely mathematical calculation” described in Lacasse [26].
[59] Mr. Marshall knows the difference between a lie and the truth. He knew he was lying. He planned to lie to the court, and he executed the plan. He did not perjure himself to help himself – but rather to assist an associate, perhaps a friend. Not only did he receive no benefit – he now must endure the consequences alone.
[60] The Crown is correct a 3-year sentence is a fit one. However, in this case that quantum must be attenuated by the very specific and numerous mitigating factors applicable to Mr. Marshall’s personal background and circumstances, particularly his severe cognitive limitations, medical diagnoses, and memory issues.
[61] As the author of his s.34 Report so aptly put it in 2020, “Though he has some insight into his own challenges, others have been known to take advantage of him”, and “Given Kevonne’s severe learning disability he is especially vulnerable to being exploited and taken advantage of by others. He has limited abilities to resist and to defend himself against others who may want him to engage in criminal activities even when he may not want to do so himself.” [27] Mr. Marshall is a vulnerable person.
[62] In addition, his age, he was 19 at the time of the offence, his efforts at rehabilitation while in custody, his experience of lockdowns, and his social environment also attenuate what would otherwise be a more severe sentence. I am also mindful that at the time of his perjury, he still had no adult convictions. As such, a balancing of all the applicable principles and the unique personal circumstances of Mr. Marshall, in this case, lead to a sentence on the lower end of the spectrum.
VII. Sentence
[63] Mr. Marshall, I sentence you presentence custody of 406 days enhanced by 1.5 to 609 days (21 months) and 1 day in jail.
[64] I also order you to be on probation for 2 years with the following terms:
- All statutory terms: to Keep the Peace and Be of Good Behaviour; to report within 48 hours to a probation officer and thereafter as required; to reside where approved of by the probation officer; to notify of any change of address; and to attend court as required.
- Have no contact with Jacob Owusu-Sarpong.
- Attend for assessment, or counselling at follows:
- At CAMH or designate facility for ADHD.
- At CAMH or designate facility for counselling relating to behavioural issues and a Learning Disability.
- Complete your secondary school diploma.
- Attend life skills and self- advocacy programs.
- Sign releases to enable the probation officer to monitor attendance for assessment, counselling, and treatment.
- Complete 50 hours of volunteer work, preferably, in a basketball environment.
[65] A DNA Order will also issue pursuant to s.487.04 of the Criminal Code as perjury is a secondary designated offence.
Released: March 22, 2023 Signed: Justice Cidalia C. G. Faria
[1] Exhibit 5: R. v. Owusu-Sarpong, 2021 ONSC 5114 [2] Exhibit 3: CAMH, s. 34 YCJA Report, Kevonne Marshall, September 24, 2020, Shelley Langill, MSW, RSW, Dr. Joe Beitchman, MD, FRCPC, Danjana Molodenski, MA [3] Exhibit 4: CAMH, Cognitive and Academic Assessment Report, Kevonne Marshall, September 24, 2020, Dr. Tracey Skilling, Dajana Molodenski, MA [4] R. v. Burmudez, 2013 ONCJ 113 at paragraph 47. [5] R. v. King, 2019 ONSC 2166 [6] R. v. Jordan and Sager, 1986 ABCA 168, leave denied [1987] SCCA No. 36 at para. 7. [7] Exhibit 1: Criminal Record, Kevonne Marshall. [8] R. v. Wilson, 2020 ONCA 3 at para. 60. [9] Exhibit 2: Toronto South Detention Centre, Lockdown Summary, Kevonne Marshall, January 1, 2022, to December 31, 2022. [10] R. v. Summers, 2014 SCC 26. [11] R. v. Duncan, 2016 ONCA 754. [12] R. v. Morgan, 2020 ONCA 279. [13] Exhibit 6: Email, Dr. Mohammad Asmal, April 24, 2020 [14] R. v. Marshall, 2021 ONCA 344. [15] Exhibit 3 at page 29. [16] Exhibit 3 at page 12. [17] Exhibit 3 at pages 9 and 27. [18] Exhibit 3 at page 4. [19] Exhibit 3 at page 25. [20] Exhibit 3 at page 9. [21] Exhibit 7a: Amadeuz Student Status Report, Kevonne Marshall, March 8, 2023. [22] Exhibit 7b: Amadeusz Certificate of Participation, February 21, 2023. [23] Exhibit 3 at pages 3 to 8, and 13. [24] R. v. Morris 2021 ONCA 680. [25] Jordan at para. 6. [26] R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para. 58. [27] Exhibit 3 at pages 28 and 29.