Wednesday, December 12, 2012
REASONS FOR SENTENCE
FUERST, J. (Orally):
Nineteen year old Jesse Low died on September 2, 2011, after he was fatally stabled by Raymond Reid. At the time, Mr. Low lived with his girlfriend, Kandice, at the home of her father, David Meecham. Mr. Reid, who was then 23 years old, is both Kandice’s brother and the son of Mr. Meecham. Mr. Reid and Mr. Low knew each other well, and often socialized together.
Mr. Reid was charged with second degree murder. He pleaded guilty to manslaughter after his preliminary hearing.
Crown and defence counsel agree that a significant penitentiary sentence is warranted, but differ as to its length.
The Circumstances of the Offence:
On the morning of September 2, 2011, Mr. Reid was at the home of a friend, David Ferguson. They were drinking hard liquor. They decided to go to the Kinmount Fair. They telephoned Mr. Low and invited him to join them. The three men went to the fair together. Mr. Ferguson described himself and Mr. Reid as “hammered”.
The men became separated at the fair. Mr. Ferguson eventually met up again with Mr. Reid. Mr. Reid said that he had an altercation with a group of youths who threatened him, and that he tore down a tent pole to defend himself. Police officers attended and spoke to Mr. Reid. They smelled alcohol on his breath. He told them he had had four or five beers. The officers described him as coherent and not appearing intoxicated. They noted that he had some injuries from the altercation.
The police drove Mr. Reid to Bobcaygeon to meet his father, Mr. Meecham. It was about 5:00 p.m. One of the police officers told Mr. Reid that he had to settle down. Mr. Reid responded that the officer would not see him again.
Mr. Reid’s father took him to the Meecham residence. Later, Mr. Reid left and hitchhiked to Mr. Ferguson’s home. He met Mr. Ferguson and Mr. Low there. The three men drank alcohol together, and seemed to be getting along fine.
Mr. Ferguson was in the basement when he heard the sound of a fight upstairs. He later asked Mr. Reid what started it, and Mr. Reid said it was over “someone getting lippy.”
Mr. Ferguson came upstairs and found Mr. Reid and Mr. Low fighting in the kitchen near the top of the stairs. They were yelling at and punching each other. Mr. Ferguson tried to separate them and in doing so, pushed Mr. Reid down a couple of stairs. Mr. Low then kicked Mr. Reid in the face. This angered Mr. Reid. The two men continued to fight in the kitchen, with some pauses. During one of the pauses Mr. Reid said to Mr. Low, “I love you, we’re family.”
Mr. Ferguson pushed and directed them out the front door, onto the deck and then the lawn. They continued to fight on the lawn for some time, punching each other, with Mr. Ferguson trying to break them up. He described the fight as fairly even.
A steak knife happened to be stuck in a post on the deck near the front door, four or five feet off the deck. It could not be reached from the ground. Mr. Reid grabbed the knife and stabbed Mr. Low in the abdomen, below the sternum and above the navel. The wound produced only a small amount of blood, and Mr. Ferguson did not think it was serious. The two men continued to fight for a few more minutes, then Mr. Low went toward the road. Mr. Ferguson described him as walking slowly and stumbling. Mr. Low sat down on the side of the road.
Mr. Reid told Mr. Ferguson that he had stabbed Mr. Low. He demonstrated an upward stabbing motion. Mr. Ferguson told Mr. Reid to call an ambulance. He was shocked over what happened. It was completely unexpected. He described Mr. Reid as appearing to be in shock over what he had done.
Mr. Ferguson found the steak knife on the front lawn, and threw it under the garage door to get it out of reach.
Kandice Meecham had made arrangements earlier with Mr. Low to pick him up. She and her father arrived at the Ferguson property about 9:30 p.m. Mr. Low appeared listless. He was moaning as they helped him into the vehicle. Ms. Meecham and Mr. Reid argued briefly before she left with her father and Mr. Low.
En route to the Meecham home, Mr. Low said that he had fallen on a sharp object, a knife or glass. Neither Ms. Meecham nor her father saw Mr. Low’s wound. After they get home, Mr. Meecham called an ambulance. When the paramedics arrived, Mr. Low was vital signs absent. He was pronounced dead at 10:51 p.m.
Meanwhile, Mr. Reid cleaned himself up and changed his clothes at the Ferguson home. He put the shorts he had been wearing behind an end table in a bedroom. The police later found Mr. Low’s tank top in the laundry room at the Ferguson home, under some clothes. The blood of both Mr. Low and Mr. Reid was identified on the top, which was stretched in the neck area and torn.
At 10:55 p.m. Mr. Reid telephoned his grandmother, told her that he had been in a fight with Mr. Low, and said that he was not sure if Mr. Low was okay. He said that Mr. Low was lying on the side of the road and he thought he had injured him. Mr. Reid had two telephone conversations with his grandmother, who described him as “drunk and distressed”. She told him to call the police.
At 11:01 p.m. he called 911. When the 911 operator asked him if he had an emergency, he replied, “No, I don’t have an emergency. I’d just like a cruiser to come pick me up.” The operator asked him what the problem was and he said, “The problem is, I just got into a little fight with my sister’s boyfriend and I just got a phone call back saying he was dead.” Later the operator asked, “And you assaulted him?” Mr. Reid replied, “I didn’t assault him, he assaulted me.” Later still Mr. Reid said, “Yeah, I have a broken hand and a busted lip and a broken nose. He fuckin assaulted me three times.” When he was asked if he needed an ambulance, he said, “I don’t need an ambulance, I need a lawyer.” The 911 operator described Mr. Reid as “an intoxicated male”.
Constable King was the first officer to arrive at the Ferguson house, at 11:03 p.m. He spoke to Mr. Reid and watched him moving around. He believed that Mr. Reid was under the influence of alcohol, but he was coordinated in his movements. Mr. Reid had mood swings and seemed to be emotionally unsettled, so the officer noted that he was “very 253” or impaired.
Detective Constable Brown also came to the house. He observed Mr. Reid to be incoherent in his speech and slurring his words. His opinion was that Mr. Reid was highly intoxicated.
Mr. Reid told Constable King that when they were at the fair they “were jumped by guys and Jesse had been stuck”. Mr. Reid said that Mr. Low was at the Ferguson home earlier, but left before he arrived. When Constable King asked why Mr. Reid was fighting, Mr. Reid said, “What fight?” When the officer later asked where the fight had occurred, Mr. Reid motioned out the front window. Constable King told Mr. Reid that Mr. Low was dead. He asked what condition Mr. Low was in when he left the residence, and Mr. Reid said, “Barely breathing.” Constable King found Mr. Reid to be evasive, coy and uncooperative. He did not notice any injuries to Mr. Reid.
Mr. Reid was taken to hospital at eight o’clock the next morning. He was found to have a contusion on his hand, which was tender and swollen on top. He said that he dropped the hood of a car on his hand about a week earlier, and had reinjured it when he punched another person the previous evening.
Mr. Ferguson pointed out the knife to the officers. Its blade exceeded 12 centimetres in length. Mr. Low’s blood was identified on the blade and on the lawn.
The cause of Mr. Low’s death was a stab wound to the abdomen. The knife penetrated the skin, the abdominal wall, the peritoneal cavity, and went into the liver, causing internal bleeding into the abdominal cavity. The pathologist’s opinion was that it would not have required a substantial amount of force to produce this wound. She said that Mr. Low would be expected to compensate for the blood loss for a period of time before collapsing and dying. She noted that Mr. Low had an injury to his nose.
Mr. Reid was on probation for assault causing bodily harm when he killed Mr. Low.
The Victim Impact Statements:
Ten victim impact statements were provided by family members and friends of Mr. Low. They described him as a happy and compassionate young man who enjoyed a close relationship with both his immediate and extended family. The senseless loss of his life has left them broken-hearted and feeling that their lives will never be the same. It is particularly painful to them that he was killed by someone whom he regarded as a friend.
The Circumstances of Mr. Reid:
Mr. Reid was born to teenaged parents who lived together but never married. He had an unstable childhood, which lacked structure and discipline. His father was a cocaine addict. His mother developed an alcohol problem. His parents separated a number of times and reconciled, and the family moved frequently. Their relationship ended while Mr. Reid was still in elementary school. He remained with his mother.
Mr. Reid was placed in a group home for several months when he was about 12 years of age, because of rebellious behaviour. He returned to his mother’s home briefly, then moved out and lived with the uncle of a friend. He reconnected with his father, who was no longer using drugs and had stabilized his life.
Mr. Reid began living with his father when he was 14. By then, however, Mr. Reid had become an abuser of alcohol and drugs. He progressed from marihuana to harder drugs including cocaine and crack cocaine, to which he became addicted as a teenager.
Mr. Reid quit school after grade nine. He started working at the age of 16, mainly at short-term jobs as a labourer in the construction industry. He also sold marihuana, which funded his drug addiction.
Mr. Reid’s girlfriend became pregnant at the age of 18. Their daughter was born in 2007.
On February 20, 2009, Mr. Reid, while intoxicated, punched and kicked a stranger on the street when the man could not provide him with a cigarette. Mr. Reid was charged with robbery, and released on bail. He later reported that initially while on bail he drank 20 beers a day, but by the fall of 2009 he had reduced his consumption to four beers per week. He attended several sessions of an addiction support group in the spring and summer of 2009, and was in residential treatment for a few weeks that summer, but was removed from the program after an argument with staff. He did not continue to attend the support group, notwithstanding that a member of its team described his recovery needs as a “life long endeavour.” He attended Narcotics Anonymous and Alcoholics Anonymous meetings. In the fall of 2009 he completed a John Howard Society self-management program to address anger issues. He took a training program in wireless installation with a view to working in that field.
Mr. Reid told a pre-sentence reporter in early 2010 that he did not need further addiction counselling, but could benefit from support groups. He did not identify anger management as a problem with which he needed further assistance.
On October 20, 2010, Mr. Reid pleaded guilty in respect of the robbery to the included offence of assault causing bodily harm. He received a suspended sentence with probation for two years. The conditions of probation included that he keep the peace and be of good behaviour, attend substance abuse or other counselling as his probation officer recommended, and not possess or carry any weapon.
By that time, Mr. Reid was living with his girlfriend and their child at his father’s home. They moved out of his father’s home in November 2010 to be closer to his girlfriend’s parents. Although Mr. Reid attended appointments with his probation officer, it seems that no substance abuse counselling was arranged. He stopped attending Alcoholics Anonymous meetings and started to relapse. In December 2010 Mr. Reid’s younger brother was killed in a car accident. Mr. Reid resumed drinking excessively. He told the current pre-sentence reporter that from that time until his arrest in September 2010, he drank every day.
Mr. Reid currently has a relationship with both his parents and is on good terms with the mother of his child, but his relationship with his sister is strained as a result of his offence. While in pre-trial custody he enrolled in a high school education program. He hopes to pursue his education while serving his sentence. He has worked with an addiction counsellor at the jail, and expressed to her that alcohol is the major factor relating to his personal issues. Mr. Reid’s father reports that when Mr. Reid is under the influence of alcohol he behaves completely out of charter. The pre-sentence reporter characterized Mr. Reid’s alcohol use as “extremely problematic”.
The pre-sentence reporter found that Mr. Reid now acknowledges that he has a substance abuse problem, and that when under the influence of alcohol his emotion regulation is impeded, but he “lacks insight into the root cause of his rage.” He has unresolved abandonment and grief issues stemming from his father’s absence during his childhood, and the more recent death of his brother.
The pre-sentence reporter commented that Mr. Reid has expressed remorse and regret for his actions and the loss of Mr. Low’s life. In her words, “He is fully cognizant of the larger impact this has had and will continue to have for the victim’s family and his own future.” In court Mr. Reid said that he was terribly sorry for the loss of Mr. Low, although he added that it was a terrible accident and not a murder.
The Positions of the Parties:
On behalf of the Crown, Mr. Davidson submits that on the scale of culpability, this manslaughter falls closer to the murder end than it does to the accident end of the spectrum. While, because of intoxication and perhaps some element of provocation, Mr. Reid lacked the state of mind for murder, he completed the actus reus of murder when he stabbed Mr. Low in a vulnerable area of the body where vital organs are located. There are a number of aggravating factors including Mr. Reid’s prior recent conviction for an offence of violence; he was on probation when he killed Mr. Low and flagrantly disregarded important conditions by which he was bound; he had been warned earlier that day by the police to settle down; he used a weapon, and a knife in particular; Mr. Low was vulnerable in that he was unarmed and completely unsuspecting of Mr. Reid’s introduction of a knife into the fight; Mr. Low was only 19 years old; Mr. Low was a long-term friend of Mr. Reid; Mr. Reid knew that he had stabbed Mr. Low and the seriousness of Mr. Low’s condition, but he did not call for an ambulance or tell his father or sister that Mr. Low had been stabbed; Mr. Reid took steps to conceal his involvement including hiding his shorts; and Mr. Low’s death has had a devastating impact on his family. Mr. Davidson contends that Mr. Reid’s personal circumstances are unimpressive, he had serious issues with alcohol and anger long before his brother’s death which he did not address, and he lacks insight into his problems and behaviour. The remorse he expresses is not genuine.
Mr. Davidson submits that the paramount objectives of sentencing in this case are denunciation, deterrence, and the need to separate Mr. Reid from society. Rehabilitation plays a lesser role in the circumstances of this offence. He says that the applicable range of sentence is eight to ten years in jail. Mr. Davidson asks me to impose a sentence at the high end of that range, less credit for pre-trial custody calculated on a one for one basis. He also seeks a DNA order and a section 109 order for life.
On behalf of Mr. Reid, Mr. Richardson submits that the case does not fall at the bottom end of the manslaughter spectrum, but neither does it come close to the murder end. Mr. Reid stabbed Mr. Low once during an argument. No-one, including Mr. Reid, appreciated the seriousness of the injury. When Mr. Reid found out that Mr. Low was dead he called 911 to come and get him. He was drunk when he spoke to the 911 operator and the police. Mr. Richardson agrees with many of the factors that Mr. Davidson identified as aggravating, including the prior conviction, the fact that Mr. Reid was on probation, his use of a knife, Mr. Low’s vulnerability, Mr. Low’s age, and the devastating impact of Mr. Low’s death on his family. But he disagrees that Mr. Reid flagrantly violated his probation order. Mr. Reid attended his probation appointments, and the pre-sentence report does not indicate that any counselling program was set up for him. There are mitigating factors, including that Mr. Reid did not bring the knife to the fight but grabbed it during the fight; he was intoxicated and there was provocation in that Mr. Low kicked him; he did not flee the scene; he pleaded guilty; he explicitly expressed remorse; he is a young man; and this will be his first jail sentence. He has rehabilitative potential. He was on bail for about 18 months in 2009 to 2010. He completed an anger management program then, and almost all of a residential rehabilitation program. He relapsed when he moved out of his father’s house, and then the death of his brother put him over the edge. Now he is dealing with his issues and is amenable to treatment.
Mr. Richardson concedes that there is a need for denunciation and deterrence, but emphasizes that Mr. Reid is redeemable and should have a chance to rehabilitate himself. He says that the appropriate range of sentence in this case is six to eight years in jail, but asks me to impose a sentence at the lower end, less credit for pre-trial custody. That should be calculated on a one for one basis, except for the period of delay in preparation of the pre-sentence report, which should be the subject of enhanced credit. He does not oppose the ancillary orders sought by the Crown.
The Principles of Sentencing:
The objectives of sentencing are set out in section 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of reasonability in offenders and acknowledgement of the harm done.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.
The maximum sentence for manslaughter is life imprisonment. However, a diversity of circumstances will found a conviction for the offence, and there is a wide variation in the range of sentence. At one end of the manslaughter spectrum, the circumstances may approximate an unintentional and almost accidental killing, while there will be those approaching murder at the opposite extremity: see, R. v. Carrière (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C. (3d) 569(Ont. C.A.), at para. 10.
The determination of the fit sentence is a fact-specific exercise. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at para. 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in section 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction”. The facts of the offence, the circumstances of the accused, and his or her moral blameworthiness are all considerations.
Analysis:
Mr. Low’s death was a tragedy. He was still a teenager, 19 years old, with his entire adult life ahead of him. There was no history of animosity between him and Mr. Reid from which anyone could have predicted that Mr. Reid would take his life. It is clear from the victim impact statements that Mr. Low’s death has had and will continue to have a profound effect on his family and friends, most particularly his mother and father.
Nothing that I say today is intended to minimize the value of Mr. Low’s life, or the impact of his death on those who loved him. The sentence I impose, however, must be guided by the purpose and principles of sentencing, and not by vengeance.
As Mr. Davidson acknowledges, the basis for Mr. Reid’s guilty plea is that he lacked each of the intentions required for murder under section 229(a) of the Criminal Code, at least in part because of his consumption of alcohol. Nonetheless the aggravating factors in this case reflect a high degree of moral blameworthiness on Mr. Reid’s part. In particular:
Mr. Reid introduced a weapon, a knife, into what had been a relatively even fist fight between the two young men;
Mr. Low was vulnerable in that he was unarmed and unaware that Mr. Reid would use a knife against him;
While Mr. Reid was intoxicated by alcohol, and did not know that Mr. Low was fatally wounded, he did know that he had injured Mr. Low by stabbing him. He told Mr. Ferguson he had done so, and demonstrated the act. He told the police that Mr. Low was barely breathing when he left. Yet, Mr. Reid did not call 911 to get medical attention for Mr. Low, even when Mr. Ferguson told him to do so. He did not ask his father or sister to get help for Mr. Low when they arrived. He did not call 911 until after he learned that Mr. Low was dead;
Mr. Reid took some steps to deflect blame from himself, including hiding his shorts, telling the 911 operator that Mr. Low had assaulted him, and suggesting to Constable King that Mr. Low was injured at the fair and that they were not at the Ferguson home together;
Mr. Low and Mr. Reid were friends. Mr. Reid betrayed that friendship when he stabbed Mr. Low;
Mr. Low was only 19 years old;
Mr. Low’s death has had a devastating impact on his family;
Mr. Reid has a prior conviction for a crime of violence for which he was sentenced less than a year before he used violence against Mr. Low;
Mr. Reid was still on probation when he committed this offence, and bound by conditions including that he not “possess” any weapons;
Notwithstanding that Mr. Reid knew he had a problem with alcohol, he spent a good part of the day drinking, and indeed had been drinking every day for months before the offence, having abandoned earlier efforts to address his substance abuse. He demonstrated a lack of insight into the severity of his alcohol problem and his need for sustained professional counselling and treatment;
Mr. Reid lacks insight into his anger management problem, and its interrelationship with his use of alcohol.
See: R. v. Cleyndert, 2006 CanLII 33851 (ON CA), [2006] O.J. No. 4038(C.A.), at para. 11; R. v. Devaney (2006), 2006 CanLII 33666 (ON CA), 215 O.A.C. 253, at para 32; R. v. Clarke (2006), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133, at para. 7; R. v. Kokopenace, [2008] O.J. No. 4582 (S.C.J.), at para. 44.
There are, however, mitigating factors which must be taken into account. In particular:
Mr. Reid did not bring the knife to the Ferguson house, or even obtain it there and keep it concealed on his person for a period of time;
There is no evidence of any prior hostility or animus on his part toward Mr. Low, or any element of premeditation to harm Mr. Low that day;
Mr. Reid inflicted a single stab wound. This is not a case of a prolonged attack involving the infliction of multiple injuries to the victim;
Mr. Reid pleaded guilty, which is a sign of his remorse and willingness to accept responsibility for taking the life of Mr. Low;
He expressed remorse to the pre-sentence reporter and to some extent in court as well;
He is the product of a dysfunctional childhood and was denied the advantages of stability and structure in his formative years;
While he is not a youthful first offender, he is still a young man;
He has some degree of family support at present, and he has taken some steps while in pre-trial custody to work with an addiction counsellor and resume his high school education. This is important to his rehabilitative prospects.
See: R. v. Jiwa, [2012] ONCA 532, at para. 43; R. v. Borde, 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417, at para. 37; R. v. Cleyndert, above at para. 5; R. v. Hermiz, [2007] O.J. No. 1589, at para. 16.
In light of Mr. Reid’s failure to take steps to address his obvious alcohol problem after his sentencing in October 2010, I do not treat his intoxication on September 2, 2011, as a mitigating factor.
I recognize that the principles of denunciation and deterrence are not always paramount in manslaughter cases, nor is the goal of rehabilitation always subordinate to those objectives: see R. v. Jiwa, above. In the circumstances of this case, however, the objectives of denunciation, deterrence both general and specific, and the need to separate Mr. Reid from society are paramount. Rehabilitation cannot be ignored, particularly because of Mr. Reid’s age and the fact that this is his first jail sentence, but it must assume a subordinate role.
The various decisions referred to by Crown and defence counsel demonstrate that sentences as low as six years and has high as twelve years in jail have been imposed in manslaughter cases where there are factors that significantly aggravate the offence. After weighing all the relevant factors, and having regard to the applicable objectives of sentencing, I conclude that the appropriate sentence falls at neither the bottom nor the top end of that range. A sentence closer to the bottom end of the range would not reflect the moral blameworthiness of Mr. Reid’s offence, while a sentence closer to the top end of the range would accord insufficient weight to the mitigating factors.
Conclusion:
Mr. Reid, please stand. I sentence you to eight years in the penitentiary. Against this I credit you with 16 months for pre-sentence custody calculated on a one for one basis with some enhanced credit for the delay that resulted because the pre-sentence report was not prepared when ordered. This leaves a sentence to be served of six years and eight months. I make an order that you provide samples of bodily fluids for DNA examination. I agree that a lifetime weapons prohibition is appropriate and make an order under section 109 of the Criminal Code prohibiting you from possessing the firearms and other items specified for life.
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Shannon Trainor, certify that this document is a true and accurate transcript of the recording of proceedings in the matter of
R. v. Raymond Reid
in the Superior Court of Justice, held at 440 Kent Street West, Lindsay, Ontario, on December 12, 2012, taken from Recording Number # 4311-02-20121212_091355 which has been certified in Form 1.
_January 23, 2013 ____________________________
Date Shannon Trainor
Certified Court Reporter
Transcript Ordered: December 12, 2012
Transcript Completed: January 23, 2013
Ordering Party Notified: January 23, 2013
Court File No. 11-G1092
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
RAYMOND REID
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE M. FUERST
on December 12, 2012, at LINDSAY, Ontario.
APPEARANCES:
R. Davidson Counsel for the Crown
R. Richardson Counsel for Raymond Reid