Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 09 05 COURT FILE No.: Hamilton 24-47104571

BETWEEN:

HIS MAJESTY THE KING

— AND —

OWEN SILVERTHORNE

Before: Justice J.P.P. Fiorucci

Heard on: August 21 and September 5, 2024 Reasons for Sentence released on: September 5, 2024

Counsel: Bruce Sosa, counsel for the Crown Scott Reid, counsel for Owen Silverthorne

Reasons for Sentence

FIORUCCI J.:

[1] Owen Silverthorne entered a guilty plea to the offence of manslaughter for the unlawful killing of Shane Grenier on March 6, 2022. The parties were known to each other. They had exchanged numerous messages in the twenty-four-hour period preceding Mr. Grenier’s death. Mr. Silverthorne admitted that he was doing drug transactions on behalf of a drug dealer. The parties agree that the deceased, Mr. Grenier, was a drug user and had planned to rob a drug dealer. He was in possession of a BB gun on the day he died.

[2] When the deceased entered Mr. Silverthorne’s vehicle on March 6, 2022, an altercation occurred between the two men while they were both seated within the vehicle. During this dispute, Mr. Silverthorne discharged his handgun and a single bullet travelled through the cheek and neck of the deceased causing his death. The deceased was thrown out of Mr. Silverthorne’s vehicle a short distance from the scene of the shooting. Mr. Silverthorne took steps to conceal his involvement in the shooting by reporting his vehicle stolen and destroying evidence including the vehicle, his cell phone and the deceased’s cell phone and the handgun used to shoot the deceased.

[3] By his plea of guilt Mr. Silverthorne has acknowledged that he caused Mr. Grenier’s death and that he caused the death unlawfully. By pleading guilty he has waived his right to a trial and his right to pursue any triable issues in relation to the altercation that occurred within the vehicle. Of note, the Crown has explicitly acknowledged that Mr. Silverthorne had an arguable claim of self-defence on the evidence that was anticipated to be heard at a trial. It was conceivable that the issue of provocation would have arisen in relation to the charge of second-degree murder. These considerations led the Crown to agree to accept a guilty plea to manslaughter.

[4] This case provides a stark example of what Justice Moldaver noted in R v. Parranto, 2021 SCC 46 about the perils of drug trafficking. Justice Moldaver, at paragraph 89, stated that “[t]rafficking also leads indirectly to a host of other ills, including an increase in all manner of crime, committed by those seeking to finance their addiction, as well as by organized crime syndicates”. Since much of this criminal activity is violent, “trafficking has come to be understood as an offence of violence, even beyond the ruinous consequences it has for those who abuse drugs and in the process, destroy themselves and others”: at paragraph 89.

[5] Our community is plagued by the devastation caused by drug addiction and drug trafficking and the accompanying violent gun crime. It all too commonly envelops young people in our community. In this case, it has had devastating effects on two young people, Mr. Silverthorne and Mr. Grenier and of course their families and loved ones.

[6] No sentence can repair the harm caused by the events of March 6, 2022. The task of a court faced with sentencing an offender in Mr. Silverthorne’s position is to apply the principles of sentencing to arrive at a just and appropriate sentence. It is not to place a number on the value of Mr. Grenier’s life. As can be seen by the heart-wrenching victim impact statements read aloud and filed in court, Mr. Grenier’s life was invaluable to those who truly knew him, even with his struggles and his faults.

[7] Section 718 of the Criminal Code instructs that 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. Sentencing judges strive to achieve this goal by imposing just sanctions that have one or more of the following objectives: (a) denunciation of the unlawful conduct and the harm done to victims or to the community that is caused by the unlawful conduct; (b) specific deterrence of the offender and general deterrence of other persons who might commit similar offences; (c) separation of offenders from society, where necessary; (d) assistance in rehabilitating offenders; (e) reparations for harm done to victims or to the community; and (f) promoting a sense of responsibility in offenders, and acknowledgment of the harm they have caused to victims or to the community.

[8] Ultimately, the fundamental principle of sentencing, set out in s. 718.1 of the Criminal Code, is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the offender.

[9] Section 718.2 (a) of the Criminal Code states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[10] The following are aggravating circumstances in Mr. Silverthorne’s case:

(a) Mr. Silverthorne armed himself with a loaded prohibited firearm as a tool of his drug trafficking; (b) the consequential lasting and devastating impact on the Grenier family, his friends and others close to him, as demonstrated by the victim impact statements read in court and filed on behalf of the victim’s family; (c) Mr. Silverthorne has a criminal record. Although not extensive, and primarily a youth record, it includes the offence of robbery and demonstrates that he had immersed himself in the criminal subculture at a young age; (d) The proliferation of firearms poses a threat to public safety. The principles of deterrence and denunciation are the primary sentencing objectives when determining an appropriate sentence.

[11] The following are mitigating circumstances in Mr. Silverthorne’s case:

(a) Mr. Silverthorne’s guilty plea is an acknowledgement of responsibility for the offence; (b) The triable issues of self-defence and provocation prompted the resolution reached by the parties; (c) This resolution has spared valuable judicial resources; (d) The guilty plea in this case also eliminated the uncertainties inherent in the trial process. It has provided certainty to the Crown and to the community. It has avoided the necessity of witnesses testifying at the trial. It has also avoided the necessity of the family of Mr. Grenier having to experience the traumatic accompanying emotions of the trial process; (e) Mr. Silverthorne is still a young man who has the support of his family. Should he choose to take advantage of any programming that might address the root causes of his offending behaviour, given his ability to maintain lawful employment, he has positive prospects of rehabilitation.

[12] I am mindful of the guidance given by the Ontario Court of Appeal in R. v. Marshall, 2021 ONCA 344, at paragraph 53:

Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 187 O.A.C. 307 (C.A.).

[13] I have found that the quantification or deduction of six months for Duncan credit, as jointly proposed by Crown and Defence counsel, does not result in the Duncan factor taking on unwarranted significance. It was one of the mitigating factors that counsel considered in arriving at the appropriate sentence jointly submitted.

[14] Crown and Defence counsel agree that a 5.5-year jail sentence is a just sanction that gives due consideration to the mitigating and aggravating circumstances, and the principles of sentencing. It also takes into account those harsh conditions of pre-sentence custody which have been acknowledged by the Crown based on the evidence provided by Defence counsel during pre-trial negotiations.

[15] Counsel have taken guidance in relation to an appropriate sentence from the authority referred to by Crown counsel, Mr. Sosa, R. v. Young, 2022 ONSC 1143. Of particular note, as Mr. Sosa pointed out, was the review of authorities provided by Justice Forestell, at paragraphs 36 and 37 of that decision. Counsel and I gave due consideration to the precedents outlined in those paragraphs, which informed the joint position put forward for consideration.

[16] Joint submissions “are a subset of resolution discussions”: R. v. Anthony-Cook, 2016 SCC 43, at paragraph 2. The Crown and Defence counsel “agree to recommend a particular sentence to the judge, in exchange for the accused entering a plea of guilty”: R. v. Anthony-Cook, at paragraph 2. A sentencing judge must not reject a joint submission unless he or she finds that the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

[17] As the Supreme Court of Canada stated in R. v. Anthony-Cook, at paragraph 34, rejection of a joint submission “denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. The Court explained that this is “an undeniably high threshold”: R. v. Anthony-Cook, at paragraph 34.

[18] The high threshold for departing from joint submissions is appropriate because Crown and Defence counsel “are well placed to arrive at a joint submission that reflects the interests of both the public and the accused”: R. v. Anthony-Cook, at paragraph 44. Justice Moldaver noted that “[a]s a rule, [counsel] will be highly knowledgeable about the circumstances of the offender and the offence and the strengths and weaknesses of their respective positions”: R. v. Anthony-Cook, at paragraph 44.

[19] A joint submission is the culmination of Crown and Defence counsel balancing the aggravating and mitigating circumstances, the circumstances of the offence and the offender to arrive at the proposed resolution. Counsel make qualitative and quantitative assessments during pre-trial negotiations to arrive at a joint resolution.

[20] The Ontario Court of Appeal in R. v. Harasiuk, 2023 ONCA 594 has recently re-affirmed the principles set out in R. v. Anthony-Cook. In Harasiuk, the Ontario Court of Appeal referred to its own decision in R. v. Fuller, 2020 ONCA 115 wherein the Court emphasized that joint submissions should only be rejected in “rare cases”. At paragraph 16 of R. v. Fuller, the Ontario Court of Appeal said, “[t]he effective and efficient operation of our criminal justice system relies on litigants enjoying a high degree of confidence that joint positions will be accepted when guilty pleas are entered”.

[21] Mr. Silverthorne is sentenced to 5.5 years jail for the offence of manslaughter. The pre-sentence custody which Mr. Silverthorne has already served equals 800 actual days which when enhanced at the 1.5 to 1.0 Summers rate equals 1200 days or 39.5 months. This pre-sentence custody is attributed to the manslaughter conviction. The result is that Mr. Silverthorne will serve a further 26.5 months jail.

[22] I make the following ancillary orders:

(a) A primary DNA databank order. Mr. Silverthorne is required to provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act; (b) A s. 109(3) Criminal Code weapons prohibition order for life; (c) A s. 743.21 Criminal Code order prohibiting Mr. Silverthorne from contacting directly or indirectly N.G., S.G., J.C., L.G., D.J., M.S.J., and any known member of Shane Grenier’s family; and (d) The victim surcharge is waived.

Released: September 5, 2024 Signed: Justice J.P.P. Fiorucci