R. v. Henry, 2015 ONSC 3905

CITATION: R. v. Henry, 2015 ONSC 3905 COURT FILE NO.: 14-7-0000132-0000 DATE: 20150617

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JERAMY HENRY Defendant

COUNSEL: Joanne Capozzi and Neville Golwalla, for the Crown Jaki Freeman, for the Defendant Jeramy Henry

HEARD: May 6 and 26, 2015

MOLLOY J.:

REASONS FOR SENTENCE

A. INTRODUCTION

1Jeramy Henry was jointly charged, along with Andrew Burnett, with first degree murder in the shooting death of Cory Mark Campbell on September 8, 2012. The jury acquitted him of that charge, but found him guilty of the included offence of manslaughter. The jury convicted Mr. Burnett of second degree murder. I heard evidence and submissions with respect to the sentencing of Mr. Henry on May 6, 2015 and reserved my decision until May 26, 2015. On the latter date, I sentenced Mr. Henry to four years’ imprisonment to be followed by two years’ probation. Given the period of time Mr. Henry had already spent in custody, this amounted to time served. I indicated at that time that written reasons would follow. Those reasons are set out below.

B. BACKGROUND and OVERVIEW

2The shooting occurred on the fifth floor of an apartment building at 11 Main Street in Toronto, just outside the elevators. Mr. Henry was present immediately before the shooting, but did not fire the fatal shot. Mr. Burnett acknowledged at trial that he was the one who shot Mr. Campbell, causing his death. Mr. Burnett’s defence at trial was that he acted in self-defence.

3Mr. Henry acknowledged that he drove Mr. Burnett to the building just before the shooting and went up in the elevator with Mr. Burnett, Mr. Campbell and a woman named Jayna Badger, who was Mr. Campbell’s girlfriend. Mr. Henry testified that while on the elevator, Mr. Campbell threatened to kill both him and Mr. Burnett. Therefore, he fled as soon as the elevator doors opened. He heard a shot behind him, but did not know what had happened. As he was running, Mr. Burnett caught up to him and the two of them ran to the car. Mr. Henry admitted driving Mr. Burnett home after the shooting, but denied knowing that Mr. Burnett had fired the shot until after they were underway. Further, he denied knowing that Mr. Burnett had a gun that night and denied knowing that Mr. Burnett was intending to harm Mr. Campbell. Mr. Henry maintained that he was worried about Jayna Badger, who he knew was having problems with Mr. Campbell, and said that he and Mr. Burnett had gone to the apartment building to make sure she was alright.

4The jury found Mr. Burnett not guilty of first degree murder, but guilty of second degree murder. It follows that the jury must not have been satisfied beyond a reasonable doubt that the murder was planned and deliberate, as urged by the Crown. It also follows that the jury did not believe Mr. Burnett’s evidence that he fired the fatal shot in self-defence, nor did they have a reasonable doubt about that fact.

5The jury found Mr. Henry not guilty of first degree murder, but guilty of manslaughter. I had instructed the jury that they should return a verdict of manslaughter if: (i) Mr. Campbell’s death was caused by an unlawful act (i.e. Mr. Burnett was found guilty of either manslaughter or murder); (ii) Mr. Henry subjectively foresaw that there was going to be some kind of physical confrontation in which Mr. Burnett would harm Mr. Campbell; (iii) with that knowledge Mr. Henry agreed to assist Mr. Burnett by driving him back and forth and attending with him at 11 Main Street; and (iv) any reasonable person would think that the type of confrontation Mr. Henry foresaw would likely put another person at risk of some harm or injury that was more than brief or minor in nature.

6Mr. Henry has been in custody since he was arrested on September 12, 2012. Both the Crown and defence agreed that this time should be credited at the rate of 1.5 to 1. I agree. The time served was credited at 1,476 days, just over four years.

7The Crown submitted that the appropriate sentence is six to eight years, less time served, which would amount to an additional two to four years. The defence submitted that the appropriate sentence is time served, plus a period of probation.

8The divergence in these two positions arises primarily from two sources:

(i) The Crown’s starting point is a four-year mandatory minimum sentence for manslaughter in which a gun was used, whereas the defence argues this provision does not apply on the facts of this case.

(ii) The Crown relies on a number of aggravating factors, which the defence argues are not established on the facts.

9I agree with the defence position that the mandatory minimum does not apply because Mr. Henry did not know Mr. Burnett had a gun that night. I also find against the Crown with respect to some of the factual issues said to be aggravating. In the result, I find four years to be the appropriate sentence (the equivalent of time served), to be followed by probation for two years.

C. GENERAL PRINCIPLES

10The Canadian Criminal Code provides that the fundamental purpose of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society.” The Code further provides that this is to be accomplished by imposing “just sanctions” bearing in mind the objectives of: denunciation of the conduct involved; specific deterrence of the individual offender from reoffending; general deterrence of others in the community who might be tempted to commit similar offences; separation of the offender from society, where necessary; rehabilitation of the offender; reparation for harm done; and the promotion of a sense of responsibility in offenders, while acknowledging the harm done to victims and the community.¹

11The Criminal Code also provides specific guidance as to general principles of overarching importance in sentencing. These general principles may have considerable impact on the sentence imposed, or have limited applicability, depending on the circumstances of the offence and the offender. Perhaps the most fundamental of these principles, and one which is always applicable, is the requirement of proportionality – the sentence imposed must be proportionate both to the gravity of the offence and the degree of responsibility of the offender.²

12Another principle of universal application is that the sentence to be imposed should be increased or decreased to reflect the aggravating or mitigating circumstances relating to the offence or the offender.³

13In every case the sentencing judge must strive to achieve parity in sentencing, such that similar offenders receive similar sentences for similar offences committed in similar circumstances.⁴ While this is an easy principle to articulate, it is one of the most difficult to apply in practice. In truth, all offenders are different, as are all offences and the circumstances in which they are committed. However, the principle is an important one. There is fundamental unfairness if individuals in similar circumstances are not treated in a similar manner. Further, without concerted efforts to achieve consistency in sentencing, there is a real risk of arbitrary penalties being imposed. That said, because of the wide range of potential conduct falling within the offence of manslaughter, the sentencing range is vast.⁵

14A sentencing judge is required to make use of all available sanctions, other than imprisonment, that are reasonable in the circumstances and to deprive an offender of his liberty only if there are no less restrictive sanctions that are appropriate in all the circumstances.⁶ This principle is of particular importance in sentencing a youthful first offender for whom rehabilitation is often the most important factor. However, for very serious crimes, particularly for those involving the loss of a human life, the importance of denunciation and deterrence will often outweigh rehabilitation and may mandate a term of imprisonment.

15Some of the factors affecting sentencing, in particular aggravating and mitigating factors, depend on findings of fact arising from the evidence at trial. Where those facts are clear or arise by necessary implication from the jury verdict, they must be taken as proven for the purpose of sentencing. However, factual findings are not always obvious from a jury verdict. In this case, some of the factors I must consider were not essential to the jury verdict. In those situations, I must make my own findings of fact based on the evidence at trial. Those findings must be consistent with the jury verdict and cannot be consistent only with a verdict rejected by the jury. However, if it is not possible to know what the jury must necessarily have concluded, my task is not to attempt to get into the minds of the jury and figure out what they likely concluded. If the jury’s factual findings are unclear, I must reach my own conclusion on the evidence. The burden is on the Crown to establish aggravating facts beyond a reasonable doubt. For any other relevant facts, including mitigating factors, the standard of proof is on the balance of probabilities.⁷

D. MITIGATING FACTORS

16Jeramy Henry was 25 years old at the time of this offence and is now 28. He has no criminal record, had no prior contact with the police, and had never been arrested before. He graduated from high school and then obtained a college diploma in business management. He had been working as a music producer at the time of this event and earning his own living. His long-term goal is to obtain a college degree in audio engineering, which would be useful in his chosen career.

17There was considerable evidence at trial and at the sentencing hearing as to Mr. Henry’s prior good character. He has a strong and supportive family, many of whom filed testimonials at sentencing. I heard evidence from two of his cousins – one at trial and one at sentencing. At trial, there was also evidence from two witnesses (Troy Jeannis and Juaneta Gooden) who had known Mr. Henry over a period of years. All of the evidence from people who know Mr. Henry is uniformly positive. He is known to be a gentle, caring individual – a peace-maker who shuns violence and avoids conflict. I accept this evidence without hesitation.

18Dwight Henry was called as a defence witness at the sentencing hearing. Dwight Henry is Jeramy Henry’s first cousin. He is 33 years old and has known Jeramy his whole life. Dwight Henry is a Canadian citizen, has no criminal record, and is gainfully employed. He lives in Kitchener with his wife and daughter. They are prepared to have Jeramy live with them during the period of any probation. Their home is near Conestoga College, which has an audio engineering program that fits within Jeramy Henry’s career goals. Dwight Henry has spoken to his own employer about the prospects of employment for Jeramy. His employer has positions available, and is amenable to hiring Jeramy, subject to meeting him and verifying his suitability. I recognize this is not a solid offer of employment. However, it has some reasonable prospect of success. I found Dwight Henry to be a decent, impressive individual. The location of his home in relation to Conestoga College is ideal, as is the academic program in audio engineering. This is an exciting opportunity for Jeramy Henry, which also has the advantage of getting him out of Toronto and giving him a fresh start. I consider this to be a realistic plan for Mr. Henry’s re-integration into society and ultimate rehabilitation.

19Mr. Henry has been in custody since September 2012. During that period of time, there have been no disciplinary incidents or complaints of any kind.

20Thus, Mr. Henry is a youthful first offender with a blameless past and prior good character. He has a good record of work and education, strong roots in his family and community, and solid, achievable goals for his future. His prospects of rehabilitation are very high.

21At the conclusion of the sentencing hearing, I asked Mr. Henry if we wished to say anything to the Court before I imposed sentence. Mr. Henry took advantage of that opportunity. Although he was reading from a prepared text, I am fully convinced that these were his own words and that he was speaking directly from the heart. Mr. Henry was extremely emotional, weeping at times, his voice choking. There were also moments like this during his evidence at the trial itself. I feel his emotions are genuine. Mr. Henry spoke first to Mr. Campbell’s family, expressing his sorrow for Mr. Campbell’s death and saying how sorry he is for his part in it. He then thanked his own family for their support and love. He said that if he could start September 8, 2012 over again, he would never have left his house. He accepted that because of the choices he made, Mr. Campbell lost his life. Mr. Henry spoke of the difficulty he had coping in prison and of his commitment to never be in conflict with the law again. He said he planned to continue his education in the field of audio engineering upon his release from prison. He closed by stating that he cannot now change what happened to Mr. Campbell, but he can promise Mr. Campbell’s family, this Court, his own family, and himself that he will dedicate his life to making the world a better place.

22I am fully satisfied that Mr. Henry accepts responsibility for the role he played in Mr. Campbell’s death, and that he feels deep remorse for his actions.

23These are all very strong mitigating factors.

E. AGGRAVATING FACTORS

24The Crown seeks to rely on the following facts as aggravating factors. The onus is on the Crown to prove these aggravating factors beyond a reasonable doubt.

(i) Mr. Henry knew about the ongoing conflict between Cory Campbell and Jayna Badger. When Mr. Campbell arrived at Ms Badger’s apartment on the afternoon of September 8, 2012, Mr. Henry immediately advised Andrew Burnett, showing his willingness to involve himself in a confrontation between Mr. Burnett and Mr. Campbell.

(ii) Mr. Henry premeditated the confrontation between Mr. Burnett and Mr. Campbell.

(iii) Mr. Henry facilitated the shooting by picking up Mr. Burnett some distance away and driving him to the apartment, without which assistance this tragedy may not have happened.

(iv) Mr. Henry knew that Mr. Burnett had threatened Mr. Campbell with harm.

(v) Mr. Henry knew Mr. Burnett had a gun.

(vi) Mr. Henry knew Mr. Burnett had shot Mr. Campbell, but fled rather than rendering assistance.

(vii) Knowing that Mr. Burnett had shot Mr. Campbell, Mr. Henry assisted Mr. Burnett in his escape by driving him home.

(viii) After the offence, Mr. Henry took steps to avoid detection including fleeing to Ottawa, changing his phone number, and deleting his contacts and phone numbers that showed any connection to the people involved.

(i) Motive in telling Mr. Burnett that Mr. Campbell had arrived

25There was overwhelming evidence at trial as to the volatile nature of the relationship between Ms Badger and Mr. Campbell. Likewise, it was clear to me from the evidence that Ms Badger was trying to break off her relationship with Mr. Campbell and that Mr. Campbell was refusing to let go. I am persuaded of that fact by the text messages exchanged between Ms Badger and Mr. Campbell and the evidence of the individuals who were with them in Apartment 412 on the night of September 8, particularly Troy Jeannis. The question is the extent to which Mr. Henry knew about that and when he found out.

26Mr. Henry was not a close, personal friend of Jayna Badger. They were more like acquaintances. He testified that they had only sporadic contact prior to September 8, and this is corroborated by their cellphone records. Mr. Henry got together with Jayna Badger and Juaneta Gooden on September 4 at Jayna Badger’s apartment at 11 Main Street. Both Mr. Henry and Ms Gooden testified that the purpose of this get-together was to discuss music promotion ideas and both denied that the topic of Ms Badger’s relationship was discussed. I accept that evidence. There is nothing to support an inference that Ms Badger and Mr. Henry had the type of intimate friendship in which she would be expected to share such personal information with him.

27That said, there is a strikingly different pattern of communication starting in the hours just after midnight on September 8, 2012 and continuing throughout that day and night. Ms Badger had been receiving dozens of calls, voice messages, and text messages from Mr. Campbell throughout the days preceding September 8. Mr. Campbell was consumed with jealousy, believing Ms Badger was having an affair with another man. By September 8, if not earlier, Mr. Campbell had come to believe the other man was Andrew Burnett. Mr. Campbell’s calls to Ms Badger persisted through the night of September 7 and into September 8. Then, shortly before 1:00 a.m., Ms Badger called Mr. Burnett and the two of them exchanged a number of calls and text messages, including one call that lasted for 1,931 seconds. Following those communications, Mr. Burnett contacted Mr. Henry. They also made a number of calls and exchanged text messages back and forth, at the conclusion of which Mr. Henry called Ms Badger at 2:49 a.m. and spoke to her for 144 seconds. I am satisfied beyond a reasonable doubt that the purpose of these phone calls was to arrange for Mr. Burnett and Mr. Henry to attend at Ms Badger’s apartment on the afternoon of September 8. All of the evidence is consistent with that conclusion, including the testimony of Mr. Burnett and Mr. Henry, and the subsequent conduct of those two men and Ms Badger.

28I am not satisfied beyond a reasonable doubt that there was a plan in place at that point to confront or harm Mr. Campbell. I am also not satisfied beyond a reasonable doubt that Mr. Henry knew at this point about the problems between Ms Badger and Mr. Campbell. However, it is an inescapable conclusion that Mr. Burnett knew about the situation by then, if not earlier.

29Regardless of what he knew the night before, it is clear that by September 8, 2012, when Mr. Henry was at Ms Badger’s apartment, he knew there were problems between Ms Badger and Mr. Campbell. He and Mr. Burnett spent the afternoon with her in her apartment. During that time she received numerous calls and texts from Mr. Campbell. On one occasion, she put her phone on speaker so that Mr. Henry and Mr. Burnett could talk to Mr. Campbell. According to Mr. Henry, they did not speak to Mr. Campbell as requested. Mr. Burnett testified that he was aware of the problems Ms Badger was having with Mr. Campbell and that she claimed to be afraid of him. It is hard to believe that Mr. Henry would not have known that Ms Badger was concerned about Mr. Campbell showing up there.

30In any event, Mr. Burnett left the apartment around 8:00 p.m. to go to the Bayview and 401 area where, according to him, he had reserved time at a recording studio at somebody’s apartment on Carluke Crescent. Mr. Henry drove Mr. Burnett to Carluke Crescent and then returned to Ms Badger’s apartment alone. He can be seen on the apartment lobby video footage entering the elevators at approximately 9:08 p.m. He did not have his laptop bag with him, although he clearly had it when he arrived at the apartment earlier in the afternoon. He testified that he had left his bag there when he drove Mr. Burnett to Carluke, intending to return. Mr. Henry testified that shortly after he arrived at Ms Badger’s apartment, Mr. Campbell arrived. He said Mr. Campbell looked agitated and said he wanted to speak to Ms Badger in the kitchen. Mr. Henry said he packed up his equipment and left. He denied being in any rush and denied that Mr. Campbell was angry with him. He said he merely wanted to give them some space. The video cameras recorded Mr. Henry leaving the building at 9:41 p.m. He does not appear to be agitated or in any kind of hurry. He is carrying his laptop case.

31Immediately after leaving the apartment building, Mr. Henry called Mr. Burnett and had a discussion with him for 49 seconds. He then drove up to Carluke, arriving there at approximately 10:15 p.m., and waited there for a period of time. Mr. Burnett then came out and got in the car and Mr. Henry drove back to the apartment building where Ms Badger lived. They left Carluke at approximately 10:49 p.m. At 11:12 p.m., Mr. Henry and Mr. Burnett entered Ms Badger’s apartment building. They met up with Ms Badger and Mr. Campbell in the lobby and all of them entered the elevator. At 11:16 p.m., Ms Badger called 911. Mr. Campbell had already been shot by that time. All of these times and locations are confirmed by cell phone and video surveillance records.

32Mr. Henry testified that when he called Mr. Burnett from the apartment building at 9:41 p.m., he merely wanted to know if Mr. Burnett was ready to leave, in which case he would swing by Carluke and pick him up before heading to the west-end neighbourhood where both of them lived. Mr. Henry acknowledged telling Mr. Burnett during that call that he had left Ms Badger’s apartment because Mr. Campbell had turned up there, looking agitated. He said Mr. Burnett asked him to come and pick him up at Carluke.

33Immediately after this call, Mr. Burnett began trying to reach Jayna Badger on her cell phone. I find this corroborates Mr. Henry’s evidence about telling Mr. Burnett that Mr. Campbell had arrived.

34Mr. Henry drove to Carluke and called Mr. Burnett at 10:15 p.m. to tell him he had arrived. He then waited for Mr. Burnett in the parking lot. Mr. Henry testified that while he was waiting he received a call from Jayna Badger. She told him she was in the apartment of her friend Juanita Gooden. He described her as being very upset, crying hysterically. She said she had been arguing and fighting with Mr. Campbell. She was angry and upset. Mr. Henry testified that he told Ms Badger he was waiting for Mr. Burnett to arrive at the parking lot and that they would then come back to check on her.

35I am satisfied beyond a reasonable doubt that Mr. Henry advised Mr. Burnett about Mr. Campbell’s presence at Ms Badger’s apartment because he was apprehensive about Ms Badger’s well-being. I do not believe he was part of any plot to harm Mr. Campbell prior to that time, nor do I believe he had any knowledge of any intention on Mr. Burnett’s part to do so. Mr. Henry was not a close friend of either Ms Badger or Mr. Burnett. He did not socialize with either of them on a regular basis. He had no romantic involvement with Ms Badger. He is a non-violent person who would not deliberately involve himself in a physical confrontation, particularly not for people with whom he had very little personal connection.

36That said, Mr. Henry knew enough about the dynamics of the situation and the persons involved to realize that a physical confrontation might well occur if he went back to the apartment with Mr. Burnett and Mr. Campbell was still there. I am satisfied beyond a reasonable doubt that he knew the risk of that occurring and nevertheless drove Mr. Burnett back to the apartment building. However, I do not believe that he actively sought out such a confrontation. I believe his testimony that he was concerned about Ms Badger’s safety and was going back to make sure that she and her children were okay. It would perhaps have been better to call the police, rather than to go there. However, I see that more as an error in judgment. It is not something I regard as an aggravating factor in sentencing.

(ii) Premeditation of the confrontation

37Mr. Henry could reasonably have expected a confrontation might occur. That is not the same as premeditation. I am not satisfied beyond a reasonable doubt that he planned a confrontation, or even intended for there to be a confrontation. Indeed, I am satisfied that he would have preferred that there be no confrontation. This is not an aggravating factor.

(iii) Facilitation of the shooting

38I accept that “but for” Mr. Henry picking up Mr. Burnett at Carluke and then driving him to Ms Badger’s apartment building, the shooting might never have happened. Mr. Burnett was quite some distance away and it would not have been a simple matter to get from Bayview and 401 to 11 Main Street by public transit. That said, if Mr. Burnett was determined enough to get there, he certainly would have been able to do so without Mr. Henry’s assistance. A delay in his getting there, even a lengthy delay, would likely not have made much difference. Mr. Campbell was not going anywhere; he was simply waiting.

39I do not accept the Crown’s argument that upon his arrival at the apartment building Mr. Henry facilitated the shooting itself by standing guard or keeping watch in the elevator lobby. I have watched the video footage of the interaction between Mr. Campbell and Mr. Burnett multiple times. I am not satisfied beyond a reasonable doubt that Mr. Henry had any involvement in it. On the contrary, I am satisfied beyond a reasonable doubt of the opposite proposition. Mr. Henry can be seen pacing back and forth, standing by with one arm behind his back, watching what is going on. He walks away from the elevator a few steps and looks down a hallway. That hallway does not lead to an exit or entrance. He specifically does not keep an eye on those areas from which other people might be arriving. He is not keeping a lookout. He is simply pacing nervously, avoiding the confrontation that is going on in the elevator. The only thing he does is push the elevator button as the doors close, causing them to reopen, and then gets on the elevator himself. I do not take from that one, almost reflexive, act that he was intending to facilitate an attack on Mr. Campbell. Mr. Henry denied that this was the case, and his evidence makes sense to me, given all of the other evidence. I am certainly not satisfied beyond a reasonable doubt and do not treat this as an aggravating factor.

(iv) Knowledge of threat by Mr. Burnett against Mr. Campbell

40For purposes of this analysis, I will assume, without deciding, that Mr. Burnett threatened to kill Mr. Campbell. The issue for me in this sentencing is whether Mr. Henry had knowledge of that threat prior to entering the Main Street apartment with Mr. Burnett. I am not satisfied beyond a reasonable doubt that he did.

41It is certainly possible that Mr. Burnett told Mr. Henry that he had threatened Mr. Campbell. However, Mr. Burnett denied telling him that. Indeed, he denied even making the threat. Mr. Henry also denied knowing anything about a threat. Mr. Henry testified that Mr. Burnett told him he had spoken to Mr. Campbell and that angry words had been exchanged, including that Mr. Campbell had accused him of having an intimate relationship with Ms Badger. However, he testified that he knew no more than that about what had passed between Mr. Burnett and Mr. Campbell.

42Mr. Burnett and Mr. Henry were not confidantes. There is no reason to believe that Mr. Burnett would have confided this information to Mr. Henry. Indeed, given Mr. Henry’s lifestyle and reputation for non-violence, Mr. Burnett might have chosen not to pass on the information for fear that Mr. Henry would not drive him to the apartment if he knew about the threat.

43This alleged aggravating factor has not been proven beyond a reasonable doubt.

(v) Knowledge of the gun in Mr. Burnett’s possession

44It is clear that Mr. Burnett was in possession of a handgun that night and that he used it to shoot Mr. Campbell at 11:15 p.m. It is equally clear that when Mr. Burnett entered the building at 11:12 p.m. he had the gun on him. He admitted he had it in his pocket. On the footage from the security camera, the bulge from the gun in Mr. Burnett’s right pocket is clearly visible. It follows that Mr. Burnett also had the gun in his pocket when he was in the car with Mr. Henry driving to the apartment building.

45The Crown’s theory at trial was that this was a planned and deliberate murder and that Mr. Burnett’s purpose in going to Carluke Crescent was to pick up the gun. In my view, there is no evidence to take this theory beyond speculation. It is possible Mr. Burnett went to Carluke Crescent in order to acquire a gun. It is also possible that he went there to record music as he testified to at trial. There is no other evidence to support one theory over the other. If he did go to Carluke to get a gun, I think it unlikely that Mr. Henry knew about that plan. If that was the whole purpose of the trip, why would Mr. Henry have driven all the way back to Main and Danforth rather than simply wait for Mr. Burnett to conclude his business?

46It is also possible that Mr. Burnett picked up the gun at Carluke, but only after hearing that Mr. Campbell had shown up at Jayna Badger’s apartment, or perhaps only after speaking to Mr. Campbell on the phone. Either way, it does not necessarily follow that Mr. Henry would have known anything about it unless Mr. Burnett told him afterwards as they were driving back to the apartment. For the same reason as the information about the threat, there is no particular reason to conclude that Mr. Burnett would have told Mr. Henry he had a gun. Mr. Henry denied it, as did Mr. Burnett. Mr. Burnett, in his evidence, was dismissive of the idea, indicating that this was not the type of information he would ever share with Mr. Henry, because he just was not into that kind of lifestyle. While much of Mr. Burnett’s evidence was patently untrue, that particular detail seems plausible.

47There is nothing else in the evidence from which I could draw an inference that Mr. Henry knew about the gun. Mr. Burnett had it in his right pocket. He was a passenger in the car while Mr. Henry was driving. The bulge in Mr. Burnett’s pocket was not likely to have been visible from the driver’s seat. They did not walk into the building side-by-side. There is simply no basis for concluding that Mr. Henry knew about the gun.

48Mr. Burnett testified that he had the gun with him the whole day because he always carries a gun. That might be one of the few truthful statements Mr. Burnett uttered. However, I am not able to tell if it is true. He did not have the gun on him when he was arrested on September 10, 2012. He testified that he had secreted it in a parking lot on the way to the plaza where he was arrested. That is unlikely to be true. He was under observation by police officers the entire way and was not seen to hide anything. Nothing was found in the parking lot where he claimed to have thrown the gun. However, nothing really turns on that. This was the gun Mr. Burnett used to shoot Mr. Campbell just two days earlier. The fact that he was not carrying it around afterwards may simply be because he dumped it before he was caught with it. It might still be true that his habit prior to that time was to carry a gun everywhere he went.

49I have viewed the video footage of Mr. Burnett from the afternoon of September 8 when he entered the Main Street apartment building. I cannot tell from that video whether the same bulge is present in his pocket as is visible in the video from shortly before the shooting that night. If Mr. Burnett had the gun on him the whole afternoon in Ms Badger’s apartment, it might be more likely that Mr. Henry would have known about it. However, I note that Mr. Burnett entered the building and went upstairs while Mr. Henry was still parking his car across the street. It would therefore have been possible for Mr. Burnett to place the gun somewhere out of sight in the apartment and retrieve it again before he left for Carluke. There is no corroborative evidence either way.

50I cannot be satisfied beyond a reasonable doubt that Mr. Henry knew about the gun. Based on Mr. Henry’s evidence, Mr. Burnett’s evidence, and the evidence of numerous witnesses as to Mr. Henry’s character and reputation, I find it is more likely than not that Mr. Henry had no knowledge of the gun when he drove Mr. Burnett back to the Main Street apartment building that night.

(vi) and (vii) Mr. Henry knew Mr. Campbell had been shot, but fled without offering assistance, and then drove Mr. Burnett home

51Mr. Henry testified that he fled as soon as the elevator doors opened and only heard the shot as he was running down the corridor near the exit door. Mr. Burnett testified to the same effect. There was no video camera on the fifth floor. Ms Badger fled the country to avoid testifying. Therefore, there is no corroboration of the testimony of the two accused persons. After the shooting, Mr. Burnett also fled down the corridor and down the same set of stairs to the exit. There is a video camera at that exit. Mr. Burnett was the first one out the door, with Mr. Henry following close behind. However, Mr. Burnett is considerably taller than Mr. Henry and is physically more fit. It is plausible that he could have caught up to Mr. Henry and passed him in the stairwell.

52I am not satisfied beyond a reasonable doubt that Mr. Henry knew Mr. Campbell had been shot when he fled. The shooting might have happened behind him, and he might have run without looking back. There is a turn in the hallway not far past where the shooting occurred, so he would not have to be very far ahead to have his view of the crime scene blocked. It also might have happened in the manner described by both Mr. Henry and Mr. Burnett. I also find it possible that the whole thing happened right in front of Mr. Henry – that he panicked and ran and then lied about it at trial. I cannot say which is the more likely scenario. However, I cannot be sure of that particular alleged aggravating factor beyond a reasonable doubt.

53What is clear, however, is that Mr. Henry knew a shot had been fired. He also knew that Mr. Burnett had not been shot. I do not find it plausible that he did not immediately ask Mr. Burnett what had happened. Why was he not concerned for Jayna Badger? Why was he not worried that it was Mr. Campbell who had the gun? He expressed none of those concerns. In my view, the only rational conclusion is that he did not have those concerns because he knew what had happened, either because Mr. Burnett told him, or he saw it for himself. Mr. Henry did not go back to help Mr. Campbell or Ms Badger. He did not call 911. He got into the car with Mr. Burnett and fled the scene. Mr. Henry testified that he only found out from Mr. Burnett that he had shot Mr. Campbell after they were already driving away. I do not find that to be plausible or credible. I also do not believe Mr. Henry’s evidence that there was no further discussion of it on the way home because he was concentrating on his driving. Earlier that night he had been talking on his cell phone while driving on the Don Valley Expressway. There was definitely discussion in the car about what had occurred. Further, I am satisfied beyond a reasonable doubt that Mr. Henry already knew what Mr. Burnett had done when he drove him away from the scene and delivered him safely home. It may have been that Mr. Henry was simply too afraid of Mr. Burnett to do anything else. However, he did not testify to that fact and I am not taking it into account. I find Mr. Henry’s conduct immediately after the shooting to be an aggravating factor. That said, his conduct did not contribute to Mr. Campbell’s death. The shot fired by Mr. Burnett went through Mr. Campbell’s heart; he died within minutes. Mr. Campbell was not simply abandoned – Jayna Badger was with him and he was on the fifth floor of an apartment building with many people able to summon emergency help.

(viii) Fleeing to Ottawa and other steps to avoid detection

54On September 9, the day after the shooting, Mr. Henry changed his phone number. He deleted all phone numbers and contact information that might connect him to the shooting, including everything connected to Mr. Burnett, Jayna Badger and Juaneta Gooden. This information was later retrieved by police forensic analysis.

55On September 10, Mr. Henry searched the internet and read information about Mr. Burnett being arrested and police information released about the shooting. He deleted his search, but it was recovered by forensic analysis.

56Upon learning of Mr. Burnett’s arrest, Mr. Burnett arranged to leave Toronto and to stay with his cousin Devin in the Ottawa area. Having set this up, he then deleted all contact information for his cousin Devin. He told at least one person that he was moving permanently to Ottawa and setting up business there. However, he also told someone he was coming back to Toronto the next weekend for his birthday.

57There were many things Mr. Henry did that were not fully consistent with trying to hide from the police. For example:

• He went no further than Ottawa.
• He stayed openly with his cousin who had the same surname as he does.
• He stayed in contact with other friends and associates and told them where he was.
• He kept his phone and left it registered in his own name and under the same account, although with a different number.
• He kept his car and plates.
• He parked his car openly in front of his cousin’s apartment building.

58If Mr. Henry was trying to evade the police, he certainly was not very efficient about it. It only took the police two days to find him and arrest him in Ottawa. After his arrest, he freely gave police the password to his phone.

59Mr. Henry testified that he was traumatized by what had happened, panicked, and tried to disconnect himself from all of the people connected to the incident. I accept that this was part of his motivation. I believe he was also trying to at least avoid detection from the police for a while.

60To a certain extent, this conduct is aggravating. It certainly is not mitigating. However, to the extent it is aggravating, it is on the less serious end of the spectrum. It certainly does not fall into the same category as other alleged aggravating factors such as premeditation, knowledge of the threat, or knowledge of the gun.

F. PROPORTIONALITY

61A fit sentence is required to be proportionate to the seriousness of the offence and the degree of responsibility of the offender.

62Mr. Henry is convicted of manslaughter. Obviously, the offence is very serious. Another human being lost his life as a result, at least in part, of what Mr. Henry did. There can be nothing more serious than causing or contributing to the death of another person. Mr. Campbell’s mother testified at the sentencing hearing. Her grief was palpable and heart-wrenching. Mr. Campbell’s father testified at the trial itself. He also is wracked with grief over the loss of his child, his only son.

63On the other hand, every manslaughter conviction involves the loss of a life. Proportionality in this case is therefore more about the degree of Mr. Henry’s responsibility for Mr. Campbell’s death. He contributed to that death by bringing Mr. Burnett to the scene, knowing that injury or harm to Mr. Campbell would likely result. In that sense he assisted Mr. Burnett to accomplish the shooting of Mr. Campbell. However, he was not the shooter; he did not plan for the death to happen; he did not know Mr. Burnett had threatened to kill or harm Mr. Campbell; and he did not know Mr. Burnett had a gun. Conduct that can constitute manslaughter covers a wide spectrum, from actions very close to murder at the high end, to actions not much beyond negligence at the low end. Mr. Henry’s degree of responsibility for this tragic death is at the lower end of the spectrum.

H. DENUNCIATION, DETERRENCE and REHABILITATION

64In crimes of violence, particularly where an individual is killed, deterrence and denunciation will almost invariably be the primary factors in sentencing. In this case, specific deterrence is not as much a factor as it might be in other cases. Mr. Henry has never been involved in a life of crime. I am persuaded that he has learned an important lesson from his experience in this case, including the time he has spent in custody, which he found very difficult. I do not think he needs any further time in prison in order to bring home to him the importance of avoiding this type of conduct in the future.

65General deterrence and denunciation, however, remain important factors, as they do in any case involving the tragic and senseless loss of a life.

66That said, even in the most serious cases, the prospects of rehabilitation cannot be ignored, particularly for a youthful first offender such as Mr. Henry.⁸

I. THE MANDATORY MINIMUM

67The Crown’s position is that the starting point in determining a fit sentence for Mr. Henry is the mandatory minimum sentence of four years as stipulated in s. 236(a) of the Criminal Code. That section provides:

236. Every person who commits manslaughter is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years;

68The defence submits that the mandatory minimum has no application unless Mr. Henry had knowledge of the gun. There is no question that this provision applies where a person who uses a firearm is convicted of manslaughter. Further, in my view, the mandatory minimum also applies where the person convicted of manslaughter did not himself use the firearm, but was a party to the offence knowing that a firearm was in the possession of others and could be used. However, in this case I have found that Mr. Henry did not know Mr. Burnett had a gun. The difficult question that arises is whether, in that situation, he is subject to the mandatory four-year minimum sentence. I was not referred to, nor am I aware of, any case that has dealt directly with this issue.

69The Crown relies upon several cases in which offenders were sentenced to more than four years for manslaughter in circumstances where a firearm was used by another party, but not by the offender himself. In some of those cases, the offender was found to have no knowledge that the other person had a gun. However, none of those cases refer to the four-year mandatory minimum as a starting point.

70In R. v. Dhak,⁹ the accused Dhak was the driver of a vehicle. His co-accused, Mr. Nguyen, was a passenger. The vehicle was approached by a man (Mr. Vu) who began pounding on the window in the aftermath of an earlier confrontation inside a nightclub. Mr. Nguyen had a firearm. Mr. Dhak positioned the vehicle so that Mr. Nguyen could have a line of fire towards Mr. Vu. Mr. Nguyen shot and killed Mr. Vu. Both accused were originally convicted of second degree murder and sentenced to life, but the British Columbia Court of Appeal reduced Mr. Dhak’s conviction to manslaughter because the trial judge neglected to advise the jury that it was open to them to conclude that Mr. Dhak’s intent in positioning the vehicle as he did was so that Mr. Nguyen could threaten Mr. Vu with the gun or fire the weapon to merely scare him. In considering the appropriate sentence for manslaughter, the sentencing judge referred to the submission of defence counsel that the usual range for manslaughter is from the statutory minimum of four years to a high of eight years. It is therefore apparent that the sentencing judge had the mandatory minimum in mind when he imposed a sentence of seven and a half years on Mr. Dhak. However, it is also apparent that it was taken as a given in that case that Mr. Dhak knew about the firearm and actively assisted in its use. The facts in the case before me are quite different.

71Similarly, in R. v. Harris,¹⁰ defence counsel submitted that the bottom of the applicable range for Mr. Harris, who had been convicted of manslaughter, was the four year minimum sentence. The trial judge sentenced him to nine years. Mr. Harris had been charged with first degree murder along with a co-accused, Mr. Griffin, in the execution style shooting of the victim, Mr. Poirier. Mr. Griffin was the shooter. He was convicted of first degree murder. The victim, Mr. Poirier, owed a substantial sum of money to Mr. Griffin in connection with a drug deal that had gone wrong. Mr. Griffin had been searching for Mr. Poirier. Mr. Harris knew this and was assisting Mr. Griffin over the course of ten days. During that time, Mr. Harris witnessed Mr. Griffin in a rage inflicting violence on a third party in an attempt to extract information about Mr. Poirier’s whereabouts. When information was later obtained from another source about where Mr. Poirier was going to be, Mr. Harris went to that location to scout it out, acted as a lookout, was in communication with Mr. Griffin by cellphone and told Mr. Griffin the victim’s exact location. Mr. Griffin walked straight to Mr. Poirier and fatally shot him. The sentencing judge accepted from the jury’s verdict of manslaughter that the jury was not satisfied beyond a reasonable doubt that Mr. Harris knew Mr. Griffin intended to murder Mr. Poirier. Although there was reference to the four-year minimum sentence, there was no discussion in that case as to whether Mr. Harris knew Mr. Griffin had a firearm. It is therefore of no assistance on the issue now before me.

72In R. v. G.L. and K.L.,¹¹ Trafford J. of this court considered the appropriate sentence for K.L., a young accused who was convicted of manslaughter after he participated, along with three others, in a planned revenge assault, in the course of which the victim was shot by one of the other participants. Justice Trafford found that K.L. did not know about the firearm, which he took to be a mitigating factor. However, this was a particularly heinous offence where a group of four young men deliberately set out to inflict a revenge beating on somebody else, supposedly in retaliation for a perceived insult to one of their group at a party some time before. In the result, an innocent man, who it emerged had no connection to the prior incident at the party, ended up dead. K.L. was 19 years old at the time of this killing and had a prior record in Youth Court for breach of recognizance in October 2000, possession of property obtained by crime in November 2000, and possession of cocaine in January 2001, as well as a conviction as an adult for robbery and possession of marijuana in June 2002. He was sentenced to two years less a day, in addition to time served of 27 months. However, the 27 months was credited at five years because of the harsh conditions under which it was served, such that the effective sentence was seven years. No reference was made to the four-year minimum, perhaps understandably given the aggravating factors that would take the sentence beyond that length of time in any event. The application of the minimum sentence simply did not arise, or would appear to have not been argued, in that case.

73The Ontario Court of Appeal decision in R. v. Phillips,¹² cited by the Crown, is another example of a case in which it is crystal clear that the offender knew about the firearm involved in a shooting death, even if he was not the one who actually used it. In that case, Mr. Phillips pleaded guilty to manslaughter and his counsel argued that he should receive the four-year minimum sentence. The trial judge sentenced him to 12.5 years, which was reduced on appeal to nine years. There were many aggravating factors that distinguish this case from the one before me, chief among them being that Mr. Phillips actually loaded the gun that his girlfriend then used to commit the murder, while he was watching. Later, he helped her cover up the crime, including burying the body.

74Finally, the Crown relies on the recent decision of C. McKinnon J. of this Court in R. v. Dourhnou.¹³ Again, I find the facts of that case to be quite different from the one before me, and there is no direct consideration of the applicability of the mandatory minimum. Mr. Dourhnou pleaded guilty to one count of manslaughter and two counts of aggravated assault. He acted as the getaway driver for another man, Mr. Majed, who went to a home and shot three people in retaliation for the robbery of a phone used in drug dealing. One of the three victims died. Mr. Dourhnou knew that Majed had entered the residence and that his purpose was retaliation. He parked close by, intending to pick up Mr. Majed when he left the home. He heard the three shots and immediately went to the residence, picked up Mr. Majed, and sped away. In considering the appropriate sentence for Mr. Dourhnou, McKinnon J. noted that the defence had not admitted that Mr. Dourhnou knew Mr. Majed had a gun when he forcibly entered the residence by himself, seeking retribution against three other individuals. However, McKinnon J. observed at para. 28:

. . . I must express feeling a keen sense of suspicion surrounding Mr. Dourhnou’s knowledge, particularly given the fact that Mr. Majed was entering the premises alone. Mr. Dourhnou knew that Mr. Majed was entering the premises to retaliate for the theft of the “chopping” phone. The fact that Mr. Majed was alone speaks volumes, in my view. The very least one can conclude is that as soon as gunshots were heard ringing out, Mr. Dourhnou had to know that these shots had been fired by Mr. Majed. Had he any suspicion that shots had been fired at Mr. Majed rather than by Mr. Majed, he would likely not have proceeded to pick up Mr. Majed but would have probably exited the scene by turning right on Burns Street instead of proceeding straight along Borthwick Avenue to pick up Mr. Majed. Mr. Dourhnou knew that Mr. Majed was entering 829 Borthwick Avenue with intent to cause serious bodily harm. He agreed to be Mr. Majed’s “wheel man” and help him escape the scene of the crime. No thought was given to tending to the victims. His was a serious crime.

75There were other aggravating factors in Mr. Dourhnou’s case, including a serious criminal record despite his relative youth, and the fact that he was on probation at the time of this incident. He was sentenced to seven years for manslaughter and two years’ concurrent on each of the aggravated assaults.

76I do not find any of the cases cited to be of assistance in interpreting s. 236(a) of the Criminal Code, which is not surprising since none of them deal with the issue and all of them are markedly different cases on their facts from the case before me. In these circumstances, I agree with Ms Freeman’s submission that it is important to return to first principles.

77What can be the purpose of a mandatory minimum sentence? In other cases dealing with mandatory minimum sentences for offences involving firearms, the Supreme Court of Canada has pointed to Parliament’s desire to address the pressing problem of gun-related deaths. In R. v. Morrisey,¹⁴ the Supreme Court considered the constitutionality of the four-year minimum sentence for criminal negligence causing death when a firearm was used in the commission of that offence. The Supreme Court noted (at para. 43) the importance of determining “whether Parliament was responding to a pressing problem, and whether its response is founded on recognized sentencing principles.” The “pressing problem” aspect was easily met based on statistics of gun-related deaths. On the sentencing principles issue, the Court held that that the mandatory sentencing regime focused on the sentencing principles of general deterrence, denunciation, and retributive justice, and was justifiable on that basis.

78More recently, the Supreme Court of Canada confirmed in R. v. Nur¹⁵ that the sentencing purposes underlying mandatory minimums are denunciation, general deterrence and retribution, stating at paras. 44 and 45:

[44] Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.

[45] General deterrence — using sentencing to send a message to discourage others from offending — is relevant. But it cannot, without more, sanitize a sentence against gross disproportionality: “General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual” (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 45, per Gonthier J.). Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending.

79The Supreme Court of Canada held in R. v. Wust¹⁶ that mandatory minimum sentences must be interpreted in accordance with the general principles and purposes of sentencing wherever possible. The Court held at para. 22:

Consequently, it is important to interpret legislation which deals, directly and indirectly, with mandatory minimum sentences, in a manner that is consistent with general principles of sentencing, and that does not offend the integrity of the criminal justice system. This is entirely possible in this case, and, in my view, such an approach reflects the intention of Parliament that all sentences be administered consistently, except to the limited extent required to give effect to a mandatory minimum.

80I accept that mandatory minimum sentences serve to address pressing social problems by focusing on the sentencing principles of deterrence, denunciation and retribution. However, if an individual has no knowledge that a gun is going to be used, or that a gun is even present, during the commission of an offence, I do not see how imposing a mandatory sentence can further any of these principles of sentencing. You cannot deter a person from doing something he knows nothing about. Nor can you fairly denounce him for a specific aspect of the circumstances of an offence about which he had no knowledge and over which he had no control. Likewise, how can retribution be just if the individual is wholly ignorant of the circumstance for which he is being given additional punishment? You can fairly punish the offender for what he did know and what he did do, but there can be no justification for punishing him for something he did not do himself and about which he knew nothing.

81In my view, it is possible to interpret the four-year mandatory minimum sentence at issue in this case in a manner that reflects Parliament’s intention to emphasize deterrence, denunciation and retribution, while at the same time respecting the central sentencing principle of proportionality. Such an interpretation would allow an offender to be punished for something he did personally, and for being a party to an offence perpetrated by another, where he has knowledge of the particular aggravating circumstance involved. It is not in accordance with proportionality in sentencing, nor with the integrity of our justice system, to impose a four-year minimum sentence on Mr. Henry because Mr. Burnett had a gun, unless Mr. Henry knew about the gun and went ahead anyway. In the absence of such knowledge, it is not in accordance with principles of justice to punish him for another man’s wrongdoing.

82Accordingly, I find that the four-year minimum sentence has no application to Mr. Henry in the circumstances of this case.

J. DETERMINING THE APPROPRIATE SENTENCE

83I turn then to determining a fit sentence for Jeramy Henry in all of the circumstances of this case.

84Generally speaking, similar sentences should be imposed for similar offenders who commit similar offences. This is an ideal that is always difficult to achieve in practice due to the infinite variety of circumstances in which even similar offences are committed. The truth is that no two offences and no two offenders are ever exactly alike. Nevertheless, parity in sentencing is an important principle and best efforts must be employed to achieve consistency in sentencing. This is a task that is even more difficult in cases of manslaughter. Numerous courts have commented on this difficulty given the broad range of conduct that can fall within manslaughter. Sometimes the conduct is only a shade beyond negligence; other times it is near-murder. In the case before me, both counsel have conceded that they have been unable to find any case that is similar in all, or even, substantial respects to the one before me.

85Much of the case law dealing with shooting deaths will not be useful. It is well-recognized in the case authority that a mandatory minimum has an inflationary effect on sentencing. If the floor is four years for the least serious of circumstances fitting within the offence, then offences involving more serious circumstances will necessarily demand higher sentences. Justice Arbour described this effect in Morrisey in the following terms at para. 75:

By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called “best” offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [Emphasis added.]

86For that reason, in determining the fit sentence for Mr. Henry, it is necessary to exercise caution in applying precedents involving firearms, which will have been affected by the inflationary floor.

87I have considered the cases cited by the Crown, including the ones referred to above. None of those cases are like this one. None of those offenders are in circumstances similar to Mr. Henry.

88Of all the cases I have reviewed, the closest I have found to the circumstances of this case are some of the decisions referred to by McKinnon J. in Dourhnou. The circumstances in Dourhnou itself are not that similar, in that Mr. Dourhnou had a criminal record, was on probation at the time of the shooting, and (notwithstanding his guilty plea) did not demonstrate the degree of remorse I have seen in Mr. Henry. Further, I am satisfied on a balance of probabilities that Mr. Henry had no knowledge of the gun, whereas McKinnon J. expressed a “keen sense of suspicion” that Mr. Dourhnou knew about the gun used in the shooting. Also, this was a case that was affected by the mandatory minimum and the sentence might well have been less but for that fact.

89The circumstances in R. v. G.L. and K.L. are also somewhat similar, particularly with respect to K.L. However, K.L. had a criminal record and, although he had no knowledge of G.L. having a gun, he readily agreed to play an active role in a four-person assault on another man for the purpose of exacting revenge out of gang-type loyalty. These are aggravating factors not present in Mr. Henry’s case.

90In R. v. McFarlane,¹⁷ (one of the cases referred to in Dourhnou), the Ontario Court of Appeal upheld a four year sentence for manslaughter. Mr. McFarlane and his friend, Mr. Pepping, attacked and assaulted another man who Mr. MacFarlane believed had been involved in stealing a bicycle from him in the past. They punched the victim with their fists. Then Mr. Pepping fatally stabbed the victim with a knife. Mr. McFarlane was not involved in the stabbing, but he did know that Mr. Pepping was armed with a knife. The Court of Appeal noted at paras. 8-9:

. . . The offence committed by the appellant was a very serious manslaughter offence, calling for a significant penitentiary term. The appellant had just been released from custody and was on probation; he had been drinking; he knew his co-accused had a knife; the attack consisted of a two-on-one beating of an unarmed 18-year-old whom the appellant did not know; and the deceased was left bleeding in the street.

At the same time there are some mitigating factors. The appellant was 21 at the time; he had no prior convictions for violent crime; he did not stab the victim; he pleaded guilty and expressed remorse; he fully cooperated with the police; and he was beaten in jail as a consequence of pleading guilty.

91Mr. Henry did not plead guilty, but has nevertheless demonstrated remorse. He had a difficult time in prison, but was not beaten. Mr. Henry did not cooperate with police other than by giving them the password for his phone. However, he has the benefit of other mitigating factors. Furthermore, he was not on probation, has no criminal record, did not know about the presence of a weapon, and did not himself participate in an assault. His circumstances are more favourable than Mr. MacFarlane’s. I do note, however, that in MacFarlane the Crown and the defence had agreed before the trial judge that four years was an appropriate disposition; where they differed was on the credit for time served.

92Even closer to the mark is R. v. Thompson¹⁸ (also referred to in Dourhnou), another manslaughter case in which the Ontario Court of Appeal upheld a four year sentence. In that case, a group of people who had been partying returned to an apartment to continue the party. The victim, Mr. Monroe, was asleep on the couch when the partygoers arrived and he awoke to find them going through his belongings looking for cigarettes. Mr. Monroe reacted by pushing several of these people, including Mr. Thompson’s former girlfriend, who he knocked to the ground. The group then set upon Mr. Monroe, inflicting 27 blunt force injuries and three stab wounds, two of them fatal. Mr. Thomson inflicted one stab wound. The trial judge found that his was a wound to the liver and was not fatal. The trial judge listed the mitigating and aggravating circumstances as follows at para. 11:

(a) Aggravating circumstances

• The respondent had a youth record, though not for this sort of conduct;

• The respondent’s family had urged him to stay away from Mr. Clark’s apartment on prior occasions;

• The respondent used a knife in the attack, though it was one obtained without much planning;

• The respondent stabbed the deceased, who was his friend, while he was being attacked by a group of others;

• The deceased had been sleeping when the group encountered him;

• The respondent used a knife when there was no apparent need to do so;

• Following the attack, the respondent fled the scene;

• The respondent never attempted to act as a peacemaker during the attack on the deceased;

• The respondent did not call 911 following the attack;

• The respondent initially denied involvement;

• The deceased was vulnerable when the respondent stabbed him;

• The death of the victim caused a significant loss to his family and close friends; and

• The respondent, who considered the deceased to be a friend, might have been expected to act differently towards him.

(b) Mitigating circumstances

• The respondent was only 19 at the time of the attack, nearly a young offender;

• The respondent suffers from an ill-defined mental illness, though not one that influenced his actions in the attack;

• The respondent was under the influence of alcohol and possibly illegal drugs;

• The respondent had recently broken up with his girlfriend;

• The respondent’s plea saved Mr. Monroe’s family and friends the need to experience a trial;

• The respondent offered a guilty plea at a very early stage, prior to the preliminary inquiry;

• The respondent’s conduct might have been influenced by Monroe’s attack against his former girlfriend. Although this would not likely have given rise to a viable self-defence claim during a trial, it might have approached provocation;

• The respondent did not intend for Mr. Monroe to die, but rather sought to “give him stitches”; and

• The respondent has few real skills and a limited education.

93The Ontario Court of Appeal held that four years was at the low end of the range, but was nevertheless a fit sentence given the mitigating factors and the fact that Mr. Thompson was a party, rather than a principal to the offence.

94Again, I see Mr. Henry as being in a more favourable position. He did not participate at all in any assault on Mr. Campbell. Not only did he not use a weapon (as Mr. Thomson had done), he did not know Mr. Burnett had one. Notwithstanding his plea of Not Guilty, he has demonstrated true remorse. His prospects of rehabilitation are excellent, another factor cited by the Court of Appeal as supporting a sentence on the more lenient side.

95I have not lost sight of the fact that this is a serious offence, as a result of which another person lost his life. Nor have I forgotten that general deterrence, denunciation and retribution are of paramount importance where serious crimes of violence are involved. Of course, manslaughter, by definition, always involves somebody’s death. The conduct in this case must be looked at within a range of conduct that can constitute the offence. Mr. Henry’s conduct is not the least serious of conduct within that broad range. He did not render assistance to the victim; he fled the scene. Not only that, he took with him the perpetrator of the shooting, also shielding him from the police. Mr. Henry did not immediately come forward and did not assist the police. Instead, he fled the city and attempted to erase from his cell phone all references to individuals involved in the incident. None of these things caused any additional harm to Mr. Campbell and did not hinder the police investigation for more than a few days. Nevertheless, they are aggravating factors. He was not an actual participant in violence and caused no harm to Mr. Campbell directly. Although not the least blameworthy, his conduct is towards the low end of the spectrum.

96The range of sentence available for manslaughter is from a suspended sentence to a life sentence. In my opinion, given the importance of deterrence and denunciation, Mr. Henry’s conduct warrants a penitentiary term. However, I must balance against that the prospects of rehabilitation. Mr. Henry has a good attitude and considerable family support. He has talents and ambition. It is important to ensure that his prospects for a productive future are not squashed by a prison term that removes hope. I have no real concerns that Mr. Henry will re-offend. He is not a danger to our community. Both Crown and defence accept that the time already served by Mr. Henry should be credited at a rate of 1.5 to 1. I agree. Based on that calculation he has already served the equivalent of just over four years. In my view, it would be counter-productive to impose further punishment at this stage.

97A four-year sentence is not out of line with sentences upheld by the Ontario Court of Appeal for offenders whose conduct was somewhat worse than that of Mr. Henry.¹⁹ The Crown sought a sentence of between six and eight years for Mr. Henry. However, that submission was based on a number of aggravating factors (which I have found are not proven) and a mandatory minimum of four years (which I have found does not apply). When adjusted for those factors, the four-year sentence is also within the range suggested by the Crown.

98Accordingly, I sentenced Mr. Henry to a term of imprisonment of four years. He had at that point already served 979 days, which I credited at 1476 days, slightly in excess of four years.

99Although Mr. Henry has no criminal record, he has spent nearly three years in jail. He has experienced considerable psychological suffering and may have difficulty coping with life once released. In these circumstances, I consider it advisable to impose a period of probation of two years. I have suggested that he pursue counselling if recommended by his probation supervisor.

K. CONCLUSION

100For the reasons stated above, I sentenced Mr. Henry to a term of imprisonment of four years, against which he is entitled to a credit for time served, which exceeds four years. Therefore, he was released from custody on the date of his last appearance before me.

101He is also subject to a period of two years’ probation. During this time, he is to live with his cousin, Dwight Henry, and either seek employment or attend school. He shall have no contact, direct or indirect, with members of Mr. Campbell’s family. Other probation terms are set out in the probation order I approved on May 26, 2015.

102I also ordered a s. 109(2)(a) order for 10 years, a s. 109(2)(b) order for life, and a DNA order, none of which were opposed by the defence.

MOLLOY, J.

Footnotes

1. 1Criminal Code, R.S.C., 1985, c. C-46, s. 718.
2. 2Criminal Code, s. 718.1.
3. 3Criminal Code, s. 718.2 (a).
4. 4Criminal Code, s. 718.2 (b).
5. 5R. v. Creighton, [1993] 3 S.C.R. 346, at p. 375; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 48; R. v. Alexander, 2014 ONCA 22, [2014] O.J. No. 111, at para. 41.
6. 6Criminal Code, ss. 718.2 (d) and (e).
7. 7R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18; R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 407.
8. 8R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.); R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452; R. v. Dubinsky, [2005] O.J. No. 862 (C.A.).
9. 9R. v. Dhak, 2003 BCSC 595, [2003] B.C.W.L.D. 678.
10. 10R. v. Harris, [2005] Q.J. No. 2994 (Que. S.C.).
11. 11R. v. G.L., [2005] O.J. No. 855 (S.C.J.).
12. 12R. v. Phillips, 2008 ONCA 688, [2008] O.J. No. 3912.
13. 13R. v. Dourhnou, 2015 ONSC 839, [2015] O.J. No. 542.
14. 14R. v. Morrisey, [2000] 2 S.C.R. 90, 2000 SCC 39 at paras. 43-48; R. v. Ferguson, [2008] 1 S.C.R. 96, 2008 SCC 6
15. 15R. v. Nur, 2015 SCC 15.
16. 16R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455.
17. 17R. v. MacFarlane, 2012 ONCA 82, [2012] O.J. No. 447.
18. 18R. v. Thompson, 2010 ONCA 463, [2010] O.J. No. 2614.
19. 19R. v. Thompson; R. v. MacFarlane, supra