ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-M7912
DATE: 20130607

B E T W E E N:

HER MAJESTY THE QUEEN

Robert Wadden, for Her Majesty the Queen

• and -

BENJAMIN TAYLOR

Patrick F.D. McCann and Ewan Lyttle, for the accused

HACKLAND R.S.J. (Orally)

SENTENCING DECISION

[1] Ben Taylor was 18 years of age at the time he fatally stabbed the victim Scott Ledoux. The incident occurred on March 18, 2011 in the circumstances discussed below.

[2] Mr. Taylor was tried by a jury on a charge of second degree murder and was convicted of manslaughter.

[3] Prior to this incident Mr. Taylor had no criminal record, although he had been charged with assault with a weapon (a beer bottle) and assault causing bodily harm and had been released pending trial. He has not been tried on these charges. He has remained in custody since his arrest on March 18, 2011 i.e. for a period of 2 years and 13 weeks, as of this date.

Circumstances of the Offence

[4] In March of 2011 Ben Taylor lived by himself in a small one bedroom apartment in the basement of a house in a residential area. He had moved into this apartment with his girlfriend several months earlier, but the couple had recently split up. He was in the habit of inviting friends over in the evening and the neighbours in the house had complained of recurring noise and parties and Mr. Taylor had been fined for violating the local noise by-law.

[5] On St. Patrick’s Day, March 17, 2011, Mr. Taylor invited several friends over in the early evening for “pre-drinks”, with the intention that everyone would go their separate ways later in the evening to separate parties in the area or to nightclubs in Gatineau. Mr. Taylor intended to leave to attend a St. Patrick’s Day party at one of his friend’s homes within walking distance of his apartment. As planned, several of his friends came over to his apartment in the early evening. This group, about ten in number, partied and drank and, judging from the photographs entered into evidence, an uneventful celebration took place in which everyone got along. A few of the young men present were invited friends and several others, including the victim, were friends of friends who Mr. Taylor did not know at all.

[6] When Mr. Taylor departed around 7:15 p.m. to attend another party, he left his apartment in the charge of one of his friends, Matt Aubin, on the promise that no one else would be let in and Mr. Aubin would look after things before the balance of the young people left to go to other parties.

[7] When Mr. Taylor returned to his apartment at about 15 minutes past midnight, he found his apartment trashed and full of intoxicated people, with a loud party in progress. Liquor and broken beer bottles and smashed furniture covered the floor. He immediately tried to get people to leave. He shouted out that only people he’d known for at least 2 years were allowed to stay. Only a few people left and Mr. Taylor became more upset. He confronted the victim and told him to leave. The victim replied that he had been invited and was not going to leave and asked Mr. Taylor “what the f... he was going to do about it?” At that point, Mr. Taylor punched the victim in the head in what was considered by the victim and his friends as a “sucker punch”. The sucker punch set off a vigorous but brief fist fight between Mr. Taylor and the victim, which was soon broken up by some of the other young men present.

[8] The victim then left the apartment and called out to Mr. Taylor to come outside and fight. At around this point, Mr. Taylor picked up a steak knife from the dish drainer in the sink and concealed it on his person. Two of Mr. Taylor’s friends heard him remark to the effect that if the victim did not stay out he would use the knife, no matter how much trouble he would be in.

[9] At around this point, Mr. Taylor also told one of his friends to call 911.

[10] Within minutes the victim came back into the apartment and ran at and attacked Mr. Taylor with his fists. He knocked Mr. Taylor down on to the floor and was, by all accounts, in the process of administering a beating. In particular, he was standing over Mr. Taylor and punching him in the head and face. The victim was several years older and approximately 30 pounds heavier than Mr. Taylor. Some of the victim’s friends were encouraging the fisticuffs and preventing others from intervening. It was Mr. Taylor’s evidence that he felt that he was being ganged up on and that the victim’s friends were siding against him. It was clear from the evidence, however, that no one other than the victim struck Mr. Taylor.

[11] Mr. Taylor was able to get up off the floor and briefly tangle further with the victim before both men were physically separated by the victim’s friends. At that point it was apparent that the victim had been stabbed, although none of the many witnesses to this fight actually saw the stabbing. One of the victim’s friends, who had assisted in breaking up the altercation, also had a slash wound on his hand. It is not clear if Mr. Taylor stabbed the victim initially while the victim was leaning over him on the floor punching him, or whether the stabbing occurred or continued after the 2 men returned to a standing position. Mr. Taylor testified that he flailed away with a knife as the victim stood over him, beating him with his fists and that he was attempting to defend himself from this attack.

[12] The evidence of the pathologist was that the victim received 8 stab wounds, 3 of which were to the torso. These wounds would have involved moderate force. One of the stabs to the torso, the lethal stab, was 12 ½ centimetres in depth and plunged into the heart wall causing massive bleeding, followed by a brief period of consciousness and then death. The other 2 torso injuries were life threatening, but could have been treated with emergency medical intervention.

[13] Immediately following the stabbing and prior to the arrival of the police and ambulance, Mr. Taylor ran away. He spent the rest of the night at a friend’s house and intimated to her that he was in serious trouble. Mr. Taylor learned of the victim’s death early the following morning and turned himself into the police, accompanied by his mother.

[14] It would appear from the verdict of the jury that they had a reasonable doubt that Mr. Taylor intended to kill the victim or they recognized the obvious provocation arising from the significant assault suffered by Mr. Taylor at the time he used the weapon.

The Pre-Sentence Report

[15] Mr. Taylor is an only child from his parents union. His parents separated before he was born and he was brought up by his mother. Nevertheless, he maintained a positive on-going relationship with his father and extended family. On the whole, he had a relatively normal up-bringing. Mr. Taylor moved out on his own when his mother relocated to a rural location, with his father expressing concerns as to Mr. Taylor’s maturity to live on his own. His parents reported that they were not comfortable with some of the people he associated with in his new apartment. It also appears Mr. Taylor was suffering emotionally at the time of the offence from a recent break up with his girlfriend and was drinking to excess in the evenings.

[16] Mr. Taylor has not completed high school but has earned 3 grade 11 credits while in custody awaiting trial. The court was provided with a positive letter from the educational instructor in this facility. During his high school years Mr. Taylor had issues with anger management and for a period was diagnosed with attention deficit disorder and treated with Ritalin. To his credit, Mr. Taylor’s current short term goal is to complete his high school education.

[17] The pre-sentence report confirms that Mr. Taylor has excellent family support. He has job offers from 2 former employers who are supportive and he also has the opportunity of residing with his father or relocating to live with his brother in another city where he could pursue an apprenticeship.

[18] In terms of alcohol abuse, according to the Pre-Sentence Report, in the weeks leading up to the incident, Mr. Taylor was using marijuana regularly and was drinking a bottle of vodka or rum, 3 to 4 times weekly. He was highly intoxicated when he assaulted the victim. The probation officer expressed the concern that Mr. Taylor does not show much insight into his alcohol problem. Similarly, Mr. Taylor has an anger management problem which he does not recognize. This combination of factors is, in my view, concerning.

Position of the Parties

[19] The position of the Crown is that an appropriate sentence in this case is 8 years less time served. Mr. Wadden argues persuasively that the present case falls within a range of 6 to 12 years imprisonment when a knife is used on an unarmed victim. He submits that the court should focus on the actus reus of the crime in order to determine the moral blameworthiness of Mr. Taylor. When a single stab wound is inflicted the lower end of the range is normally invoked, but when multiple stab wounds are involved the sentences are in the 8 to 12 year range.

[20] The Crown relies in particular on a series of cases on comparable facts: R. v. Cleyndert, 2006 33851 (ON CA), [2006] O.J. No. 4038 (C.A.); R. v. Reid, [2012] O.J. No. 6313 (S.C.J.); R. v. Mohammed, [2008] O.J. No. 4716 (S.C.J.); affirmed [2009] O.J. No. 3100 (C.A.); R. v. Cioppa, 2013 ONSC 1242, [2013] O.J. No. 904 (S.C.J.); and R. v. Hermiz, [2007] O.J. No. 1589 (S.C.J.).

[21] In R. v. Reid, Fuerst J., on a guilty plea to manslaughter, sentenced the 23 year old offender to 8 years imprisonment. The offender and victim were intoxicated and engaged in a fistfight during which the offender grabbed a steak knife that was at the scene and stabbed the victim once in the stomach. Following the stabbing the offender attempted to avoid detection and did not aid the victim. In R. v. Mohammed, on a guilty plea to manslaughter, Nordheimer J. sentenced the 19 year old offender, with no prior criminal record, to 9 years imprisonment. The offender was intoxicated and engaged in a physical and verbal altercation with the victim who had assaulted the offender’s father. The offender pulled a knife and stabbed the victim 8 times and then fled the scene. He later surrendered to police. This sentence was upheld on appeal, see 2009 ONCA 586.

[22] In R. v. Cioppa, Nordheimer J., on a conviction for manslaughter, sentenced the 18 year old offender, with no prior criminal record, to 8 years imprisonment. The offender had been carrying a knife and in the course of a fistfight during an altercation in a park, withdrew the knife and stabbed the victim once in the chest, causing his death. Reports assessed the offender as having good rehabilitative prospects and as being low risk to reoffend. In R. v. Hermiz, C. Hill J., on a guilty plea to manslaughter, sentenced a 19 year old offender, with no prior criminal record, to 8 years imprisonment. The offender, having been struck in the head with a full beer bottle, rose to his feet and stabbed his attacker once, killing him.

[23] These cases, all very similar on the facts to the present case, support the Crown’s position that a sentence in the range of 8 years imprisonment is appropriate for a stabbing resulting in death.

[24] The position of the defence is that Mr. Taylor should be sentenced to time served (2 years, 3 months), plus a period of probation. Reliance is placed on the fact that Mr. Taylor, 18 years old at the time with no criminal record, and who committed this offence in circumstances of significant provocation. In particular, he was being viciously punched about the head and face by a very angry and intoxicated larger man who was violently resisting Mr. Taylor’s efforts to get him to leave the apartment. Mr. Taylor has an excellent potential for rehabilitation and it is submitted that rehabilitation must be the primary sentencing goal for this first offender. Reliance is placed on R. v. Jason Priest, 1996 1381 (OCA).

Principles of Sentencing

[25] The principles of sentencing for the offence of manslaughter in circumstances similar to this, are clearly set out by Fuerst J. in R. v. Reid, in terms which I respectfully adopt:

43 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 hard done.

44 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.

45 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 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10.

46 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

[26] In my view there were a number of aggravating factors in relation to the conduct of Mr. Taylor. I note the following in particular:

(a) Mr. Taylor chose to use a knife in what everyone present understood was a fist fight.

(b) While not carrying a knife over the course of the evening, he did choose to conceal a knife on his person at a time when he was not being assaulted. He was overheard by 2 friends saying something to the effect that if the victim did not leave he would use the knife even if that got him into serious trouble. The use of the knife therefore had an element of premeditation and was not spontaneous.

(c) The knife was used surreptitiously and viciously, without giving the victim any chance to assess his peril and potentially to withdraw or have others intervene. Seven or eight stab wounds were inflicted, three of which were serious penetration wounds to the torso and one of which penetrated the victim’s heart. The weapon was not used defensively or for protection.

(d) The victim was a guest in Mr. Taylor’s home, at least until he was told to leave – he was not an intruder.

(e) Mr. Taylor initiated the fight with the victim by sucker punching him without any real provocation for such an assault.

(f) After the stabbing Mr. Taylor fled the scene and hid out from the police until the following morning.

(g) Mr. Taylor was at the time of this offence released pending trial on another assault charge.

(h) Mr. Taylor lacks insight into his culpability for this death and the role that his alcohol abuse and anger management issues played in it.

[27] On the other hand, there were a series of mitigating factors, in particular:

(a) When Mr. Taylor used the knife he was being severely beaten about the head and face and was not in a position to give any real consideration to his actions.

(b) Mr. Taylor was in his own home and was confronting a group of intoxicated men who were refusing his request to leave.

(c) Mr. Taylor asked one of his friends to summons the police (call 911) in the obvious hope of avoiding violence.

(d) Mr. Taylor grabbed a steak knife out of the sink in his apartment and briefly concealed it – he was not in the habit of carrying a knife.

(e) Mr. Taylor was confronted with a wild party and a trashed apartment upon his return.

(f) Mr. Taylor was an immature 18 year old at the time of this offence and his judgment was impaired by an evening of heavy drinking.

(g) I accept the probation officer’s observation, in Mr. Taylor’s own statement to the court, that Mr. Taylor is very remorseful for his conduct and understands the trauma he has caused to the victim’s family (the victim’s family chose not to file a victim impact statement although they were present throughout the trial).

(h) Mr. Taylor is a first offender and represents an excellent prospect for rehabilitation given his family support, his own committal to furthering his education and the available job and training opportunities.

[28] The offence of manslaughter can be made out in a wide ranging set of factual circumstances ranging from serious negligence to near murder and which invite a sometimes difficult balancing of the goals of denunciation and deterrence and rehabilitation. This is particularly so when first offenders are inv