ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: 4-722/11
DATE: 20130228
B E T W E E N:
HER MAJESTY THE QUEEN
A. MacPherson, for the prosecution
- and -
JONATHAN CIOPPA
J. Falconer & J. Roy, for the defence
HEARD: February 22, 2013
Nordheimer J. (orally):
[1] On November 27, 2012, a jury convicted Jonathan Cioppa of manslaughter in the death of Justice Ferrigno, a sixteen year old male. I must now impose sentence following on that conviction. Given that the conviction was rendered by a jury, I do not have the benefit of express findings of fact underlying the conviction. Consequently, it falls to me to determine the facts that reasonably flow from the jury’s decision insofar as they are necessary for the purpose of imposing a fit and proper sentence. The nature of that process is set out in the Supreme Court of Canada’s decision in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. In that decision, McLachlin C.J.C. enunciated two principles that govern this fact-finding process. One is that the trial judge is “bound by the express and implied factual implications of the jury’s verdict” and the other is that where the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts. The following represents my determination of the facts that underlie the conviction.
The facts
[2] On June 12, 2010, Jonathan Cioppa had arranged to get together with three friends, two males and one female, for the purpose of drinking and consuming drugs. Jonathan Cioppa was eighteen years old at the time and was not legally permitted to drink alcohol nor were his three friends. Jonathan Cioppa and his friends met up at the home of one of his friends where some alcohol was consumed. Jonathan Cioppa had brought with him a bottle of Southern Comfort, a bottle that had been purchased for him by his older sister. The friend in whose home the group met, also provided some alcohol apparently taken from his parents’ supply.
[3] After drinking at the home, Jonathan Cioppa’s group went to a park that is adjacent to a school in the area of Bathurst Street and St. Clair Avenue West. It is a park that Jonathan Cioppa and his friends knew and had used before. Indeed, they had a particular spot in the park that they liked to congregate in because it was relatively secluded and out of sight.
[4] However, when Jonathan Cioppa and his friends arrived at the park, they discovered a group of three younger teenagers in that spot. Jonathan Cioppa’s group, with Jonathan in the lead, decided that they were going to make this other group of teenagers leave their spot.
[5] Jonathan Cioppa had with him a large hunting or military style knife. The blade of the knife was described as being six to eight inches in length. Jonathan Cioppa gave evidence at trial that he had purchased this knife at a military surplus store and the he carried it with him on different occasions because he thought it was “cool”. Indeed, he acknowledged that, in the past, he had used the knife to show off.
[6] On this particular occasion, Jonathan Cioppa had the knife with him in a bag that he carried over his shoulder. He took the knife out of his bag as he lead his group towards the other teenagers. Jonathan Cioppa and his group approached the teenagers. Jonathan Cioppa told them to leave because this was “their spot”. In doing so, Jonathan Cioppa had the knife in his hand in front of him and in plain view of these teenagers. Faced by a group of four older teenagers with Jonathan Cioppa brandishing a knife, it is not at all surprising that the three younger teenagers immediately got up and left the spot in the park when Jonathan Cioppa demanded that they do so. As subsequent events reveal, it appears that Jonathan Cioppa then placed the knife into the pocket of his military style jacket, not back into the bag in which the knife had originally been kept.
[7] Jonathan Cioppa and his group settled into the spot and started to drink again. The group also smoked marijuana that one of Jonathan Ciopppa’s friends had brought. While this was going on, the group of teenagers that had been evicted from the spot walked up to St. Clair and Bathurst. On their way, one of the teenagers called 911 and advised the police what had happened to them in the park, in particular that they had been confronted by a male armed with a knife. Police officers came to the area in response to this call.
[8] At Bathurst and St. Clair, the group of three young teenagers, who had been thrown out of the Park, encountered Justice Ferrigno and a friend of his. The group knew Justice Ferrigno and they told him what had happened to them in the park. Justice Ferrigno decided that the group should return to the park. It is obvious that it was the intention of Justice Ferrigno to locate and confront the Cioppa group arising out of their conduct towards this group of teenagers. On that point, I should mention that Justice Ferrigno and Jonathan Cioppa did not know one another. On their way back to the park, Justice Ferrigno picked up a large rock. His friend picked up a discarded metal bicycle fork. It is evident that they both did so as a way of arming themselves for an anticipated confrontation.
[9] On their way back to the park, this group, that now numbered five persons, encountered Jonathan Cioppa and his friends. While the witnesses varied in their descriptions of exactly what happened, I am satisfied that Justice Ferrigno said to Jonathan Cioppa “are you the guy that pulled a knife on my youths?”. Jonathan Cioppa responded with an apology of sorts at which point Justice Ferrigno slapped Jonathan Cioppa across the face. In response to this slap, Jonathan Cioppa withdrew the knife, which, I repeat, he then had in his pocket, and stabbed Justice Ferrigno once in the chest. The wound that was inflicted was fatal.
[10] Justice Ferrigno stumbled back and fell to the ground. He called out that he had been stabbed. His friends tried to help him while others called 911. Because of the earlier 911 call, the police were already on patrol in the area. They arrived at the scene of the stabbing almost immediately.
[11] As the police arrived, Jonathan Cioppa, and the one female friend, had started to walk away from the scene. A police officer told the two of them to stop and wait. Jonathan Cioppa and his friend did stop. Indeed, they sat down on the sidewalk. However, once the police officer passed by them to go to the site where Justice Ferrigno lay bleeding, Jonathan Cioppa got up and ran. On his own evidence, Jonathan Cioppa ran to Bathurst Street, up to St. Clair Avenue and then home. On his way, however, Jonathan Cioppa stopped in an alley and disposed of the knife.
[12] At his trial on a charge of second degree murder, Jonathan Cioppa claimed that, in stabbing Justice Ferrigno, he ahd acted in self-defence – a claim that was clearly rejected by the jury. However, the jury found Jonathan Cioppa not guilty on the charge of second degree murder but guilty on the lesser included offence of manslaughter. I will discuss later what I have concluded lead to that result because it has some relevance to the issue of the appropriate sentence.
Analysis
[13] At the sentencing hearing last Friday, the Crown sought a sentence of 10 to 11 years before any credit for pre-sentence custody. The defence submitted that a sentence of 5 years was more appropriate, again prior to any credit for pre-sentence custody. In that regard, I should mention that Jonathan Cioppa was released on bail on September 14, 2010 or approximately three months after his arrest. His bail was revoked upon his conviction. Since then, he has spent approximately three additional months in custody pending his sentence.
[14] As I earlier mentioned, Jonathan Cioppa was eighteen years old at the time of the offence. He has no criminal record. I have received two psychiatric reports regarding Jonathan Cioppa. I have also received a number of letters of support from friends of the Cioppa family and others regarding Jonathan Cioppa. The psychiatric reports conclude that there are no psychiatric issues regarding Jonathan Cioppa. They conclude that he is not a risk for re-offending. The reports conclude, as do all of the letters of support, that the events of June 12, 2010 were an isolated incident that was entirely out of character for Jonathan Cioppa.
[15] The reports and the letters of support also record the fact that Jonathan Cioppa has accepted responsibility for his actions on the evening and that he has been, and is now, remorseful for what he did.
[16] Victim impact statements from Justice Ferrigno’s mother, his grandparents, a cousin, his godmother, his former girlfriend and two other friends were read in court. I listened carefully to each of those victim impact statements. Each of them spoke in very personal and moving terms about the impact that these events have had, and continue to have, on the friends and family of Justice Ferrigno. The impact that the loss of a sixteen year old boy would have on his family and friends is something that would be very real and very understandable to most people. The impact on a mother of losing her only son carries with it a much greater loss and one that is likely much less easy for others to truly comprehend. I sympathize with the loss that the friends and family of Justice Ferrigno have experienced and the pain and the sorrow and, indeed, the anger that they feel. The sad reality is that violence does not discriminate in the harm that it spreads. It is harm that impacts on our entire community, particularly when someone so young is lost to us.
[17] At the same time, there is another reality that the friends and family of Justice Ferrigno must realize, and that is that whatever decision I make respecting Jonathan Cioppa will not change their lives or the world in which they must now live. The penalty that I decide upon will not serve to remove the loss that they have experienced nor lessen the sadness that they feel. The justice system has a role to play in redressing the damage that has been caused, but it is a very narrow and limited role. Nothing the justice system can do, or might ever do, could ever relieve such a terrible loss. No system of laws could ever realistically achieve such a result nor is it reasonable to expect that it could.
[18] What the law does require me to do is to try and reach a fair and just conclusion within the parameters laid down by Parliament as they have been interpreted by our appellate courts. It is a difficult task at any time but especially difficult in the circumstances that present themselves here.
General principles
[19] In terms of general principles, Parliament through the Criminal Code has directed sentencing judges to arrive at a just sanction with the intent of achieving a variety of objectives. Those objectives include to express denunciation for the conduct; to deter others from engaging in similar acts; to separate offenders from society, where necessary; and to assist in the rehabilitation of offenders. There is always a certain degree of tension or conflict between these objectives because they are directed at different aspects of the events that underlie the conviction and their differing consequences.
[20] The difficulty that determining an appropriate sentence in a manslaughter case is well-recognized. It was aptly described by the Manitoba Court of Appeal in R. v. C.C. 2003 MBCA 51, [2003] M.J. No. 101, where the court said, at para. 6:
It has often been stated by sentencing courts and by appellate tribunals that the imposition of the correct sentence in a case of manslaughter is one of the most difficult tasks that a court faces. There is a reduced blameworthiness to be attributed to an offender because of a lack of intent or because of provocation, but the result of the offender’s actions still culminate in a death in circumstances that absent that lack of intent or because [of] that provocation would otherwise result in murder.
[21] In considering the appropriate sentence in this case, I note the presence of certain aggravating circumstances:
(1) Jonathan Cioppa was armed with a knife. It was not a small pen or pocket knife but a large military style knife expressly designed to inflict maximum damage;
(2) Jonathan Cioppa chose to carry this knife with him in public and chose to do so even though he knew that he was going to be drinking and consuming drugs that evening;
(3) Prior to the stabbing, Jonathan Cioppa showed this knife to a fourteen year old boy. Later he used the knife to scare off three younger teenagers from being in a part of a public park that Jonathan Cioppa and his friends wanted to occupy;
(4) Jonathan Cioppa did not make any effort to avoid the impending confrontation with Justice Ferrigno nor did he attempt to retreat from that confrontation;
(5) After the stabbing, Jonathan Cioppa did not attempt to render assistance to Justice Ferrigno or otherwise alert anyone to his condition;
(6) Jonathan Cioppa fled the scene and, in the course of doing so, he disposed of the knife that he had used to stab Justice Ferrigno.
[22] In terms of mitigating circumstances, I note the following:
(1) Jonathan Cioppa was eighteen and a half years old at the time of the stabbing;
(2) Jonathan Cioppa has no criminal record and no known prior involvement with the law;
(3) Jonathan Cioppa enjoys the support of his family. There is no reason to believe that that support will not still be available to Jonathan Cioppa when he is eventually released from prison;
(4) I have received a number of letters of support from teachers, people who have worked with Jonathan Cioppa and family members. They all attest to the fact that the conduct of Jonathan Cioppa that underlies his conviction was entirely out of character;
(5) I also have two psychiatric reports. They also offer the view that Jonathan Cioppa’s actions were out of character and, perhaps more importantly, they say that he is at a very low risk of reoffending. Those reports also explain some extraneous items relating to Jonathan Cioppa and upon which the Crown placed some reliance at the sentencing hearing but which I view as being immaterial to my analysis;
(6) Jonathan Cioppa has, throughout the time between the stabbing and his sentencing, expressed remorse for his actions including publicly at his sentencing hearing last week.
[23] On the subject of mitigating circumstances, two other factors deserve mention. One is that Jonathan Cioppa had consumed some quantity of alcohol on the evening in question and he had consumed some drugs. How much alcohol Jonathan Cioppa drank and how much marijuana he smoked is impossible to determine on the evidence. However, I am satisfied that Jonathan Cioppa was definitely impaired at the time although not so impaired as not to be responsible for his actions as the jury’s verdict clearly indicates.
[24] The other is that there may have been a measure of provocation giving rise to Jonathan Cioppa’s actions given that the stab occurred immediately after Justice Ferrigno had slapped Jonathan Cioppa and slapped him rather hard, I would add.
[25] It is not clear whether the jury convicted Jonathan Cioppa of the reduced offence of manslaughter because of his degree of intoxication or because of the provocation or because of a combination of both. I would conclude that it was the combination of the impairment by drugs and alcohol and the sting of the slap that lead to Jonathan Cioppa’s action. The combination of those factors would lead to the conclusion that Mr. Cioppa, in so acting, did not have either of the requisite mental elements necessary for a murder conviction.
[26] That said, in my view, the degree of provocation in this case was slight. Jonathan Cioppa received a slap across the face. It was not a punch or other more serious blow. There was no physical injury incurred. There is no reason to believe that matters would have escalated to greater violence given, among other things, the reality that Jonathan Cioppa had two male friends with him. I reject the defence suggestion that this was an armed conflict. On the evidence, I do not accept that Jonathan Cioppa knew that Justice Ferrigno had a rock in the pocket of his hoody that might have been used as a weapon against him. The fact is that Jonathan Cioppa’s response to being slapped, taken with the surrounding circumstances, was out of all proportion to the insult that had been visited upon him. The small degree of provocation involved in this situation would not justify any reduction in the sentence to be imposed.
[27] The consumption of drugs and alcohol is a more difficult issue. I have already said that the act of carrying a weapon when a person knows that they are going to consume intoxicants is an aggravating factor. At the same time, the consumption of drugs and alcohol have served to reduce what would otherwise have been a conviction for murder to one of manslaughter. There has already then been a mitigating effect arising from that result. While I accept that those facts can give rise to some further mitigating effect,[^1] because they can establish that Jonathan Cioppa was impaired and therefore not thinking in a sober and rational fashion when he reacted, when that effect is matched against the aggravating effect of being armed with a weapon while intoxicated, in my view, the two effects tend to balance each other out.
Credit for pre-sentence custody and bail terms
[28] Having reviewed the aggravating and mitigating factors, I must address two other matters before turning to my conclusion on the appropriate sentence to be imposed. One is the appropriate credit to be given to Jonathan Cioppa for his pre-sentence custody and the other is what weight should be accorded to him for the time that he spent on house arrest under his conditions of release.
[29] The defence asks for a total credit of one year for the six months of pre-sentence custody plus the house arrest calculated either by allowing nine months of the pre-sentence custody at a rate of 1.5:1 and three months for the house arrest or, if no enhanced credit is given for the pre-sentence custody, that six months credit be allowed for the house arrest.
[30] I will deal with these issues separately. On the pre-sentence custody, it is submitted that enhanced credit should be given either for the lack of reduction in parole eligibility or because of the conditions under which Jonathan Cioppa was housed in the detention facilities. On the first submission, and contrary to some existing decisions of this court and the Ontario Court of Justice, I do not agree that the lost reduction in parole eligibility is a proper consideration for enhanced credit under s. 719(3.1) of the Criminal Code.
[31] Not too long ago, Parliament amended the provisions of the Criminal Code that permit credit for pre-sentence custody. Parliament has now said that enhanced credit can be given only “if the circumstances justify it”. While on their face those words would appear to provide a broad discretion to give additional credit for pre-sentence custody, one must be conscious of the circumstances in which this amendment came into being when interpreting the language used in the amendment. The amendment was clearly enacted to restrict the quantity of credit that was being given for pre-sentence custody, that is, to eliminate what had become the norm of allowing 2:1, and in some instances even higher, credit for pre-sentence custody. It would reasonably follow from that fact that the circumstances referred to in s. 719(3.1) were not intended to be ones that routinely or commonly arise but rather were intended to be more exceptional or extraordinary circumstances. On this point, I find myself in agreement with other authorities of this court such as R. v. D.A.J., 2011 ONSC 5330, [2011] O.J. No. 4026 (S.C.J.); R. v. Morris, 2011 ONSC 5206, [2011] O.J. No. 3995 (S.C.J.) at para. 31; R. v. Velez-Lau, 2011 ONSC 4805, [2011] O.J. No. 3710 (S.C.J.) at para. 35 and R. v. Morris, [2011] O.J. No. 3995 (S.C.J.) at para. 44, all of which have reached this same conclusion. The lack of parole ineligibility does not constitute an exceptional or extraordinary circumstance since it impacts on every accused person who awaits sentencing and it is therefore not appropriate to give enhanced credit for that result within the exception now provided in s. 719(3.1).
[32] On the subject of the conditions in the detention facilities, there is evidence that Jonathan Cioppa spent some time being the third man in cells designed for two. However, of the eighty-two days when this occurred, Jonathan Cioppa slept on the floor for only thirteen such days. While such overcrowding is problematic for any number of reasons, the very short time in which Jonathan Cioppa was subject to such conditions does not, in my view, constitute exceptional or extraordinary circumstances. I would not therefore accord any enhanced credit for the time that Jonathan Cioppa has spent in pre-sentence custody. He is though entitled to a credit of six months for the actual combined time he has spent in detention awaiting sentencing.
[33] Turning then to the issue of house arrest, the Court of Appeal in R. v. Downes (2006) 2006 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.) said that an accused person is entitled to “some weight” for time spent on strict terms of release when determining the appropriate sentence. The Court of Appeal added that the amount of credit is within the discretion of the trial judge and that there is no formula to be applied.
[34] Unlike the situation in Downes, where there was a strict house arrest with no exceptions, Jonathan Cioppa was permitted to leave his home to do volunteer work or to meet with counsel. There is no evidence before me that the restrictions on Jonathan Cioppa were especially harsh in terms of interfering with specific activities such as employment or education or family relationships or other activities. Undoubtedly any restriction on his movements placed Jonathan Cioppa in a different position than ordinary citizens enjoy but that is to be expected when one is charged with a very serious criminal offence. No one would suggest that a person charged with murder, if released, should be able to conduct him or herself in the same manner as any other member of the public. Some restrictions on their liberty and monitoring of their activities is necessary and entirely to be expected. I do not read the Court of Appeal’s decision in Downes as mandating that credit must be given in every case where a person is on a release pending their trial. Rather, it appears that any favourable consideration would normally arise where there are very strict terms of release that have a demonstrable and negative impact. That impact is not present here and I therefore decline to give any specific credit for the time that Jonathan Cioppa was on bail. Nonetheless, the time that Jonathan Cioppa spent on bail and his conduct while on bail are matters that I have considered in determining the overall sentence, as I shall mention later.
[35] I make one final comment on the issue of reductions to any sentence whether one calls them mitigating factors or credits. Defence counsel submitted that some consideration should be given to the fact that the trial in this matter was conducted in an efficient and sensitive fashion. I agree that both Crown and defence counsel conducted the trial as I would hope that all trials would be conducted. In doing so, both counsel performed their roles in the best traditions of good advocates and as would be expected of them as officers of the court. Counsel performing their obligations properly and professionally is not a result, however, that should be considered unusual or worthy of some form of special treatment for the accused in terms of a reduction in the sentence that is otherwise appropriate. Whether the failure of counsel to conduct themselves in that fashion, on the instructions of an accused person, might be treated as an aggravating factor is an issue that I leave for another day.
Case law
[36] I have been referred to a number of authorities by counsel. I do not consider it necessary to review all of those authorities. I have already mentioned the difficult task that sentencing in manslaughter cases poses. As with most matters of sentencing, the result in any given case is very much determined by the individual facts of that case. No two cases are the same nor are any two accused persons.
[37] That said, I will mention three cases. In R. v. Clarke, 2003 28199 (ON CA), [2003] O.J. No. 1966 (C.A.), the Court of Appeal established that the appropriate range for sentence in a case of what was referred to as “aggravated manslaughter” was eight to twelve years. That is the range that the Crown submitted should apply in this case. This range was confirmed in R. v. Cleyndert, 2006 33851 (ON CA), [2006] O.J. No. 4038 (C.A.). I agree that this is the appropriate range.
[38] In response, the defence places great reliance on the decision in R. v. Amakon (unreported, Ontario Superior Court of Justice, June 26, 2012, M. Brown J.). I do not find that decision to be of much assistance principally for the reason that there is no reference in that decision to the range of sentence I have mentioned or to the Court of Appeal decisions establishing that range. As a result, the sentence imposed in Amakon does not mirror the vast majority of sentences that have been imposed in other cases when dealing with aggravated manslaughter, some of which were provided to me by counsel.
The appropriate sentence
[39] I have considered and balanced all of the factors that I have mentioned. In the end result, this was a stupid and senseless loss of a young life – a result that is occurring with disturbing frequency in this city. Issues that in the past would have lead to a fist fight now lead to death because young people are armed with deadly weapons whether they be guns or knives. The tragedy that resulted in this case is a chilling example of that reality. It arose mainly, if not entirely, from the fatal decision of Jonathan Cioppa to arm himself with a lethal weapon. That was a decision that Jonathan Cioppa made consciously and prior to any consumption of alcohol or drugs. Jonathan Cioppa said that he bought this knife and carried it with him because it thought it was “cool”. He showed it off to people in an obvious effort to make himself look to be strong or tough or important.
[40] This attitude is not unique to Jonathan Cioppa. It is evident that too many young people think that carrying deadly weapons, whether they are knives or firearms, is “cool” or, worse, they have the misguided notion that carrying such weapons will make them safe. Carrying a dangerous weapon, the use of which is likely to lead to fatal results, is about as far from “cool” as one can possibly imagine. It does not make a person important nor does it keep them safe. To the contrary, it exposes such persons to the destruction of their own lives and the lives of those upon whom they chose to use those weapons. And in the aftermath of their use, they leave nothing but tragedy and ruin.
[41] In summary, Jonathan Cioppa chose to arm himself with a deadly weapon. He chose to use that weapon in response to what might otherwise have been a relatively minor confrontation. Unlike all of the others, he chose to flee from the scene without even knowing the state of the harm that he had caused and he attempted to protect himself by disposing of the weapon that he had used.
[42] At the same time, Jonathan Cioppa is a young man. His life prior to this terrible event was unmarked by any form of misbehaviour. He was, at the time, somewhat intoxicated and his thinking was impaired. Since the offence, he has obeyed all restrictions placed upon him and he has taken steps to address whatever issues lead to his actions. Throughout these events, he has expressed remorse for his actions. He is capable of being rehabilitated and returning to society as a contributing member and one who may be able to make some amends for what he has done.
[43] In my view, when one balances all of the circumstances of this case, the actions of Jonathan Cioppa place him a the lower end of the established range of sentence. I conclude therefore that the appropriate sentence in this case is one of eight years.
Conclusion
[44] Jonathan Cioppa, will you please stand.
[45] On the count of manslaughter, I sentence you to a period of imprisonment of 7 years and 6 months. This sentence takes into account the period of time that you have spent in pre-sentence custody for which I have accorded you a credit of 6 months. The total effective sentence is therefore one of 8 years.
[46] There will be an order under section 109 of the Criminal Code prohibiting you from the possession of any firearm or weapon as defined therein for life.
[47] There will also be an order requiring you to provide a DNA sample for the DNA databank.
NORDHEIMER J.
Released: February 28, 2013
COURT FILE NO.: 4-722/11
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JONATHAN CIOPPA
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: see R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290 at para. 237