ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 2012-04-25

BETWEEN:

HER MAJESTY THE QUEEN – and – CHRISTOPHE LEWIS

Andrew Sabbadini and Heather Davies , for the Crown

Donald F. McLeod and Monte MacGregor, for Christophe Lewis

J. D. mCCOMBS J.

April 25, 2012

Ruling—Period of Parole Ineligibility

1 . Christophe Lewis has been convicted of second-degree murder in the shooting death of Kerlon Charles on February 28, 2005. After the verdict was delivered and the jury returned its recommendations concerning the period of parole ineligibility, I imposed the mandatory sentence of life imprisonment and remanded Mr. Lewis for a hearing on the remaining issue concerning the appropriate period of parole ineligibility.

2 . The Criminal Code leaves it to the trial judge to determine the issue of the length of time the offender must serve before he or she is eligible to be considered for release on parole. The minimum period is ten years and the maximum is twenty-five years. A number of factors must be considered in determining the appropriate period of parole ineligibility. Some of them are set out in section 745.4 of the Criminal Code , which provides that in determining the issue, the court is to consider the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury.

(a) The Nature of the Offence and the Circumstances Surrounding its Commission

3 . Kerlon Charles was lured to a vacant apartment on the pretext that a gun was available for sale. There was no gun for sale. Instead, several armed men waited for him in the vacant apartment, and when he arrived, he was ambushed, forcibly confined, beaten, and shot to death with a semi-automatic handgun. Neighbours heard the beating and heard the victim pleading with his attackers to stop. Kerlon Charles suffered a total of eleven gunshot wounds, including three to the head, one in the back, and one in the groin.

4 . Cleavon Springer, a person of disreputable character with an extensive criminal background, was the only eyewitness to the murder to give evidence at trial. Given Springer’s disreputable character, the jury was cautioned in strong terms that it would be dangerous to rely on his evidence unless it was confirmed by other evidence which they accepted. Springer testified that Christophe Lewis was the person who shot Kerlon Charles to death, and that the motive for luring him to the vacant apartment was to get revenge because Mr. Charles had previously robbed Mr. Lewis of guns and drugs.

5 . Except for the evidence of Cleavon Springer, there was no direct evidence confirming that Mr. Lewis was the shooter; and by their verdict, the jury clearly did not accept Springer’s claim that he was. There also was no direct evidence to confirm Springer’s evidence that Mr. Lewis’s motive was to exact revenge upon Kerlon Charles; and the jury’s verdict implies that they did not accept Springer’s evidence about Mr. Lewis’s motive for revenge.

6 . However, the jury’s verdict convicting Mr. Lewis of second-degree murder means that they were satisfied beyond a reasonable doubt that he either:

a) intentionally aided or abetted the shooter while knowing the shooter’s intention to murder Kerlon Charles;

or

b) formed an intention in common with others to forcibly confine Kerlon Charles, and in doing so, foresaw that his murder would be a probable consequence.

(b) Character of the Offender

7 . Mr. Lewis is now twenty-eight. He was twenty when the murder was committed [1] . At the time of the offence, he had a youth record for assault and robbery, and an adult record from late August of 2003 for offences related to possession of a loaded firearm for which he received a sentence of 90 days imprisonment along with probation and a weapons prohibition order. The lenient disposition was apparently because the sentencing judge accepted as a mitigating factor the fact that Mr. Lewis had recently been the victim of a shooting and the shooter had not been arrested. The sentencing judge accepted that Mr. Lewis feared another attack and had been carrying the loaded gun in order to protect himself.

8 . The pre-sentence report refers to a second occasion when Mr. Lewis was allegedly shot, but provides no details of that alleged incident other than the following statement at p. 6: “the subject also alluded to having been shot on another occasion in 2005 when he inadvertently walked upon ( sic ) an argument between two individuals outside a restaurant”. With regard to that second shooting, Mr. Lewis’s counsel, Mr. McLeod, advised the court that his client was shot in the leg in a drive-by shooting in 2006.

9 . The pre-sentence report indicates that police consider Mr. Lewis to be a member of a street gang. However, that label is resisted by Mr. Lewis, there is no concrete evidence before me to permit that conclusion, and the Crown fairly concedes that Mr. Lewis should not be considered to be a member of a criminal organization.

10 . The factors I have referred to satisfy me, however, that Mr. Lewis was engaged in a high-risk criminal lifestyle at the time he participated in the murder of Kerlon Charles. Moreover, Mr. Lewis was on probation and subject to a weapons prohibition order when he participated in the murder of Kerlon Charles.

11 . Mr. Lewis has a nine-year-old daughter. The pre-sentence report indicates that he maintains a close and positive relationship with her. He is intelligent, and although he left high-school without completing grade ten, he has demonstrated entrepreneurial ability, as evidenced by his having incorporated his own modestly successful clothing business in 2005. I accept the submissions of Mr. McLeod that Mr. Lewis still has prospects for rehabilitation.

(c) Recommendation of the Jury

12 . The jury unanimously recommended that the period of parole ineligibility remain at the minimum ten years. While their recommendation is an important factor to be considered, I must also bear in mind that it was made without awareness of Mr. Lewis’s prior criminal record, or of the wider sentencing context that I am required to consider.

(d) Victim Impact Statement

13 . Kerlon Charles’s parents prepared a victim impact statement. They were present in court during sentencing submissions but asked that the Crown read their statement to the court. They have been devastated by their son’s murder. Their own words movingly describe their pain:

That one night of violence has changed our life forever. Since then we both experience severe bouts of feeling very sad, depressed, and irritable and tend to argue and fight more frequently.

The loss of Kerlon has left a very large hole in our life that can never heal. We miss him dearly with every passing day and regret that our dreams for him have been taken away forever.

(e) Position of the Parties

(i) Crown

14 . The Crown concedes that the jury’s verdict means that Mr. Lewis must not be treated as if he is the person who fired the fatal shots. The Crown submits, however, that many aggravating factors require a substantial increase in the period of parole ineligibility.

15 . The Crown points to Mr. Lewis’s prior criminal record, and the fact that when Kerlon Charles was murdered, Mr. Lewis was on probation and subject to a weapons prohibition. As well, the Crown points to the chilling circumstances of the offence, including the luring of the victim to the vacant apartment; the arrangements to have a group of armed men present; the forcible confinement; the beating that preceded the murder; the fact that several of the men present carried firearms; and the brutal use of a semi-automatic weapon to murder Kerlon Charles by shooting him multiple times.

16 . The Crown points to established authority in support of its submission that the use of a firearm to commit murder is a significant aggravating factor that supports a substantial increase in the period of parole ineligibility.

17 . The Crown submits that having regard to all of the circumstances, the appropriate period of parole ineligibility is fifteen years.

(ii) Defence

18 . Mr. McLeod acknowledges the existence of significant aggravating factors but submits that there are significant mitigating factors as well. He stresses the fact that the jury’s verdict means that Mr. Lewis was not found to have been the person who fired the fatal shots. He submits that the prospects for the rehabilitation of Mr. Lewis are good, as evidenced by his demonstrated ability to operate a successful clothing business, his amenability to supervision in the community in the past, and his relationship with and commitment to his nine year-old daughter.

19 . Mr. McLeod reminds me that the matter of parole ineligibility is within my discretion, and submits that the appropriate parole ineligibility range on the facts of this case is between ten and twelve years. He urges me to adopt the unanimous recommendation of the jury and decline to order an increase in the mandatory ten-year period of parole ineligibility.

(f) The Law

20 . It is well-established that where murder is committed through the use of firearms, determination of an appropriate period of parole ineligibility must emphasize denunciation of the conduct, the deterrence of others, and the protection of society. The authorities were recently thoroughly canvassed by A.J. O’Marra J. in R. v. John 2011 ONSC 3313 , [2011] O.J. No. 2465 , and I adopt his observations and conclusions concerning the applicable governing principles.

21 . This was a vicious and cold-blooded murder. It occurred in the course of an armed, forcible confinement and beating of the victim, who was shot multiple times at close range. Mr. Lewis has a criminal record that includes convictions relating to the carrying of a loaded firearm. He was on probation and subject to a weapons prohibition when the victim was murdered.

22 . However, the jury’s verdict means that he is to be dealt with on the basis that he was not the person who fired the fatal shots. Moreover, there is reason to hope that he can be rehabilitated. As well, the unanimous recommendation of the jury is an important factor to consider. Although the jury did not know the background of Mr. Lewis, their recommendation should be taken to reflect their views concerning his level of involvement in the murder.

(g) Conclusion and Disposition

23 . Having regard to all of the circumstances, including Mr. Lewis’s character, the nature of the offence he committed, the circumstances surrounding its commission, and the recommendation of the jurors, I conclude that the period of parole ineligibility should be increased to twelve years.

24 . For the murder of Kerlon Charles, I hereby fix the period of parole ineligibility at twelve years.

25 . Two further orders are mandatory in this case and I hereby impose them: a D.N.A. order under s. 487.051 of the Criminal Code , and an order prohibiting Mr. Lewis for life from being in possession of any firearms, or any weapon or other items enumerated in s. 109 of the Criminal Code .

McCombs J.

[1] Although Kerlon Charles was murdered on February 28, 2005, Mr. Lewis was not arrested for the crime until April of 2010.