ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20140214

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KERON ALVAREZ

Aaron Del Rizzo for the Crown

Allan J. Lobel for Keron Alvarez

HEARD: January 24, 2014

Reasons for Sentence

MacDonnell, J

[1] On November 29, 2013 I found Keron Alvarez guilty of 11 offences arising out of an incident that spanned a 15-minute period shortly before midnight on the evening of July 22, 2011. On January 24, 2014 I heard submissions with respect to sentence. A decision with respect to the appropriate sentences was reserved until today.

A. The Circumstances of the Offences

[2] In the reasons that I delivered on November 29, I set forth the facts surrounding the incident that gave rise to the offences of which Mr. Alvarez has been found guilty. I will not repeat that exercise in its entirety at this point. I will, however, briefly summarize the material events.

[3] The complainant in this case was a young woman named Stacia Blackwood. At the time of the offences, she was living with her boyfriend, Abdirashid Adam, in a residential neighborhood in the southwest corner of Toronto. Shortly after 1:00 a.m. on July 22, 2011, they went to their neighbourhood Pizza Pizza store to get something to eat. As they were waiting for their food, Mr. Alvarez arrived and began socializing with some friends inside the store. For some reason Mr. Adam and Mr. Alvarez became involved in a brief verbal altercation. At the conclusion of the argument, Mr. Alvarez and his friends immediately left the store, taking their food with them, and congregated outside the front door. In an effort to defuse the situation, Ms Blackwood directed Mr. Adam to leave by a rear exit while she went out to try to calm Mr. Alvarez. She did not entirely succeed – Mr. Alvarez remained angry – but the conversation ended without further incident and she walked home alone.

[4] The following evening, sometime after 11 p.m., Ms Blackwood and Mr. Adam walked to a Rabba convenience store on the south side of Lake Shore Boulevard West to get some water and soft drinks. As they began the return trip home, Ms Blackwood noticed Mr. Alvarez across the street, his face covered with a blue bandana. When she realized that he was following them, she told Mr. Adam to run, and he did.

[5] Ms Blackwood, now alone, continued walking. Mr. Alvarez crossed the street, holding a small silver handgun in front of him. When he reached Ms. Blackwood, he put the barrel of the gun against her left temple, told her that if she screamed he would kill her, and began leading her into the townhouse and apartment complex on the north side of Lake Shore Blvd.

[6] Over the next 15 minutes or so, Mr. Alvarez continued to forcibly confine Ms Blackwood. He clearly felt that he had been disrespected by Mr. Adam the night before, and he intended to hold Ms Blackwood hostage in order to get to Mr. Adam. He told Ms Blackwood that he was going to kill both her and Mr. Adam.

[7] Eventually, Mr. Alvarez began leading Ms Blackwood into a laneway behind a row of townhouses, heading in the direction of the apartment Ms Blackwood shared with Mr. Adam. As they entered the laneway from the west, Mr. Adam appeared at the east end. Mr. Adam and Mr. Alvarez began shooting at each other.

[8] During the gunfire, Mr. Alvarez slipped and fell. Ms Blackwood took the opportunity to run. Mr. Alvarez and a friend chased her and when they caught up to her they pulled her to an area at the end of some townhouses. She testified that, at that point:

They were beating me up. Said suspect took the gun and tried to pull it again, and I’m assuming there was no more bullets inside of the weapon. They were beating me up. At that point I ran… He had the gun and was trying to shoot me and nothing came out so he and his friend were kicking me and beating me…

[9] Ms Blackwood was asked what she actually saw Mr. Alvarez do. She responded that “he had the gun and he was trying to shoot me with the gun and nothing was coming out of it”. She was asked “Did you hear anything? She responded: “All that was happening was I was lying on the floor and while the other one was kicking me [Mr. Alvarez] was trying to shoot me with the gun, nothing happened, this is when the Indian man comes running out…and the suspect threw the gun somewhere.” She was asked: “This is during the time you were on ground being beaten, he points the gun at you, you think he’s trying to shoot you, and then he throws the gun in the bushes…?” She answered “yes”.

B. The Impact of the Offences on the Victim

[10] Not surprisingly, the events of the evening of July 22 have had a significant impact on Ms Blackwood. In her Victim Impact Statement, she stated, in part:

Because of what I endured it is difficult for me to be as open with people as well [as] I would have before. I no longer go out at night unless accompanied by another person. I struggle to sleep due to graphic nightmares/terrors. I experience high levels of paranoia, which sometimes results in me running frantically because I believe that someone is following me or out to get me. Due to the level of trauma I sometimes even withdraw from friends and family. Many times I just feel completely isolated from everything else that’s going on around me.

C. The Circumstances of the Offender

[11] Mr. Alvarez was 27 years of age at the time of the offences. He is now 30. He was born in Trinidad. His parents separated when he was a child, and he came to Canada to live with his mother when he was 11 years old. His mother has worked continuously for the Hilton Hotel in downtown Toronto for over 20 years. He has had no contact with his father since he was 14. He did not finish high school, but he has almost completed Grade 11. He worked as a painter for a while in his early 20s. For about five months prior to the events in this case he had been working for a barber. He has a son who is now 11 years of age, and he has maintained contact with him notwithstanding the more than two years he has been in custody. He speaks to him every weekend on the telephone.

[12] Mr. Alvarez has a prior criminal record that began in 2001, when he was about 18 years of age. The bulk of the record is for drug trafficking and failing to comply with court orders, but there is also a conviction for resisting arrest. Subsequent to the events with which this case is concerned, Mr. Alvarez was convicted of breaching a firearms prohibition order. His longest prior sentence – effectively a sentence of 15 months – was imposed in 2006 for drug trafficking. Weapons prohibition orders had been imposed on Mr. Alvarez on three separate occasions prior to the events of July 22, 2011.

[13] At the conclusion of the sentencing hearing Mr. Alvarez was asked if he had anything to say. He stated that he did not.

D. The Positions of the Parties

[14] The position of the Crown is that the global sentence that should be imposed on Mr. Alvarez, subject to credit for pre-sentence custody, is a term of imprisonment of not less than 15 years.

[15] The position of the defence is that the appropriate global sentence before credit for pre-sentence custody would be a term of imprisonment of 8 years. Mr. Lobel submits that Mr. Alvarez should receive 6 years for the attempted murder, 18 months consecutive for the forcible confinement, and 6 months consecutive for the breaches of the firearms prohibitions. He submits that all the other sentences should be served concurrently with those terms.

E. Discussion

[16] While each of the eleven offences of which Mr. Alvarez has been found guilty must receive a separate sentence, the most sensible way to approach the task of determining the individual sentences is to first consider what sentence would be appropriate for the overall course of conduct. In R. v. Gramlick and Jewell (1995), 1995 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.), a case that involved the sentencing of two offenders for multiple related offences, Finlayson J.A. stated:

In my view, the appropriate approach in cases such as the two under appeal is to first identify the gravamen of the conduct giving rise to all of the criminal offenses. The trial judge should next determine the total sentence to be imposed. Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed.

[17] The most serious of the offences committed by Mr. Alvarez was the attempted murder of Ms Blackwood. All of the other offences were essentially features of the course of conduct that culminated in that offence. The question, therefore, is what sentence would be appropriate for an attempted murder that was accompanied by those features.

[18] Attempted murder is an inherently grave offence, and the sentence imposed for it must reflect that gravity. In R. v. McArthur (2004), 2004 8759 (ON CA), 182 C.C.C. (3d) 230 (Ont. C.A.), Doherty J.A. stated at paragraphs 47 - 48:

Under our law, a person can only be convicted of attempted murder if he or she intended to kill. The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed. A conviction for attempted murder will almost inevitably result in a lengthy penitentiary term.

[19] While, for the reasons stated by Doherty J.A., a lengthy penitentiary term will almost always be imposed for attempted murder, the range of sentence remains fairly broad. In R. v. Tan, 2008 ONCA 574, Laskin J.A. observed:

The sentences for attempted murder imposed or upheld by this court have varied widely. At the lower end of the range is R. v. Campbell, 2003 48403 (ON CA), [2003] O.J. No. 1352 (C.A.), where this court upheld the sentence of nine years’ imprisonment. Reflecting an even lower sentence is R. v. Boucher (2004), 2004 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.), where, on a Crown appeal of a sentence of two years less a day (in addition to the 28 months the accused had spent in pre-trial custody), Simmons J.A. said that the appropriate sentence was six years’ imprisonment less credit for time served. As Mr. Boucher had already served the custodial portion of his sentence, the court did not impose the higher sentence because it was not in the interests of justice to reincarcerate him. At the highest end of the range, this court has upheld life sentences for attempted murder in R. v. Charlebois, [1987] O.J. No. 886 (C.A.); R. v. Lieug, 1995 1393 (ON CA), [1995] O.J. No. 2424 (C.A.); and R. v. Mesgun (1997), 1997 623 (ON CA), 121 C.C.C. (3d) 439 (Ont. C.A.).

[20] In support of his position that a sentence of 15 years imprisonment should be imposed on Mr. Alvarez, Mr. Del Rizzo analogized this case to Tan, where a sentence of that length was upheld by the Court of Appeal.

[21] Mr. Tan had no prior record, he pleaded guilty early in the proceedings, and he expressed remorse. In those respects, he was in a better position for sentencing purposes than Mr. Alvarez. However, the circumstances of his offence were much worse. Mr. Tan and the victim were acquaintances. He asked her to be his girlfriend. When she declined, he became enraged, bound her hand and foot, taped her mouth, brandished a knife and threatened to kill her. He then drove her into cottage country, walked her into the bush and tried to sexually assault her. He put her in a chokehold, told her he was going to kill her and slit her throat with a knife. He then kneeled on her back and stabbed her, collapsing her right lung. He took all of her identifying documents, asked about her bank accounts, and obtained her PIN number. When she lost consciousness, he covered her with a tarp, dragged her 40 feet into the bush, covered her with dirt and leaves and left her to die. Miraculously, she regained consciousness, struggled to a roadway and was assisted by a passerby. Not surprisingly, she had suffered severe psychological and physical injuries.

[22] The Court of Appeal considered that seven circumstances justified the sentence of 15 years imposed by the trial judge: (i) the domestic-like context; (ii) the specific intent to kill; (iii) the elements of planning and deliberation; (iv) the prolonged duration of the attack; (v) the theft of the victim’s identification and the concealment of her body; (vi) the victim was left to die; and (vii) the victim suffered permanent physical and psychological injuries. The majority of those aggravating circumstances are absent in the present case: this was not a “domestic-like” attack, the attempt to kill was not planned and deliberate, the entire incident lasted no more than 15 minutes, the victim suffered no physical injury, and the victim was not left to die.

[23] Mr. Del Rizzo also referred to the decision of the Court of Appeal in R. v. Chevers, 2011 ONCA 569. In Chevers, the 24-year-old offender attempted to kill the victim in what the Court of Appeal described as “an unprovoked, premeditated, cold-blooded manner” by shooting him in the head. Fortunately, the shot missed. The offender had a troubled background and a criminal record that included a prior offence of possession of a prohibited firearm with ammunition. The trial judge imposed a sentence of 15 years. The Court of Appeal’s endorsement upholding that sentence made very little reference to the facts of the case, but it is telling that the Court observed that “double digit prison sentences for attempt murder have been imposed in cases of planned executions involving the use of loaded firearms…” [emphasis added].

[24] If I were satisfied beyond a reasonable doubt that Mr. Alvarez had planned and premeditated the execution of Ms Blackwood, Chevers would be a helpful indication of where along the sentencing spectrum Mr. Alvarez should fall. In my view, however, the most reasonable inference is that the true target of Mr. Alvarez’s anger was Mr. Adam, not Ms Blackwood. While Mr. Alvarez did form the intent to kill Ms Blackwood, that intention was not formed until shortly before the attempt occurred. While it was undoubtedly a grave offence, the attempted murder of Ms Blackwood does not fall into the category of a planned execution.

[25] Finally, Mr. Del Rizzo referred to the decision of Gray, J. in R v. Adamson, 2013 ONSC 2365, [2013] O.J. No. 2100 (Ont. Sup. Ct.). In that case, a sentence of 13 years was imposed for an attempted murder arising from a planned and deliberate attack on a woman who was pregnant with the offender’s child. After breaking into the victim’s residence, the offender slit her throat. Most of the features of the offence that Gray J. found to be aggravating – the domestic nature of the offence, the breach of a position of trust, the planning and deliberation, the invasion of the sanctity of the home – were not present in the situation in which Mr. Alvarez attempted to kill Ms Blackwood. And even with those aggravating features, it should be said, the sentence imposed in Adamson was two years less than what the Crown is seeking in the case at bar.

[26] In my view, the authorities relied upon by the Crown do not support the submission that a sentence of 15 years should be imposed on Mr. Alvarez. In my search for guidance as to what the appropriate range of penalty is, I have reviewed a substantial number of other sentencing decisions of the Ontario Court of Appeal in attempted murder cases. I would briefly mention five.

[27] In R. v. Campbell (1977), 1977 1191 (ON CA), 38 C.C.C. (2d) 6 (Ont. C.A.), the offender shot his wife several times before pouring gasoline on her and setting her alight. The victim managing to escape and to survive. The offender was 28-years-old with virtually no prior criminal record. There was evidence that he was previously of a non-violent character, and he was gainfully employed. The trial judge imposed a sentence of 25 years imprisonment. The Court of Appeal varied the sentence to one of 15 years. Speaking for the Court, Martin J.A. stated at pp. 32-33:

[T]he crime was accompanied by great brutality and was committed under circumstances that indicate deliberation. Indeed, it is right to say that the crime itself was as grave an offence of attempted murder as can be imagined… While we are of the view that the crime was a grave one, calling for a severe sentence, the sentence of 25 years does not give adequate weight to the appellant's previous crime-free pattern of behaviour. We are all of the view that in the circumstances the sentence was too long, and that a sentence of 15 years would not deprecate the gravity of the crime committed, and would give appropriate weight t the previous good character of the appellant and his previous lack of involvement in any violent conduct.

[28] In R. v. Currie (2002), 2002 44973 (ON CA), 166 C.C.C. (3d) 190, the offender shot the victim in the back of the head at close range in broad daylight outside of a court house. The shooting arose out of a gang war, and the particular motive was revenge for the shooting of the offender by the victim a year earlier. Remarkably, the victim did not suffer any serious injury from the bullet into his head – the trial judge characterized that as a “medical miracle”. The offender was 28 years old with a prior conviction for aggravated assault. After factoring in the pre-sentence custody, the sentence imposed at trial was just short of 12 years. An appeal by the offender against that sentence was dismissed.

[29] In R. v. Guedez-Infante, 2009 ONCA 739, the trial judge imposed a ten-year sentence for a shooting that caused serious injury to the victim. The Court of Appeal stated: “We are of the opinion that having regard to all the circumstances, the sentence imposed was not outside the appropriate range of sentence for this offence and this offender. Although the appellant is a young man with no prior criminal record, the shooting took place in a public place, the injury was serious and the victim has been left with a disability to his bowel that requires him to wear adult diapers for the rest of his life. Accordingly, while leave to appeal sentence is granted, the appeal as to sentence is dismissed.”

[30] In R. v. Gordon, 2009 ONCA 170, the offender, a drug dealer was assaulted by the victim. The offender returned to the scene with a sawn-off shotgun and fired at the victim, who was standing at th