Court File and Parties

CITATION: R. v. Nicholls, 2015 ONSC 8136 Court File No. 15-4940

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN v. BRODIE NICHOLLS

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE C. BRAID on October 2, 2015 at HAMILTON, Ontario

APPEARANCES: J. McKenzie Counsel for the Crown

B. Bromberg Counsel for Brodie Nicholls

FRIDAY, OCTOBER 2, 2015

R E A S O N S F O R S E N T E N C E

BRAID, J. (Orally):

Fourteen year old Jesse Clarke died on August 18, 2014, after he was fatally stabbed, once in the heart, by Brodie Nicholls. Mr. Nicholls was 18 years old at the time.

Mr. Nicholls was charged with second degree murder. On June 26, 2015, he pled guilty to manslaughter. At that time, an agreed statement of facts was read into the court.

The Crown argues that a sentence of eight years is warranted, less time served. Defence counsel argues that a sentence of two years less a day, in addition to time served and three years' probation, would be appropriate in this case.

The Circumstances of the Offence

On August 18, 2014, at approximately 9:40 p.m. a group of approximately 10 youths, including the victim, Jesse Clarke, assembled in a residential area of Hamilton. The group of teenagers loosely described themselves as belonging to the BNA and LOM "gang". BNA was described by the teenagers as standing for "Black Native Association" or "Baddest Niggas Alive". LOM was described as standing for "Loyalty Over Money". According to some of the members of the group, the purpose of BNA/LOM was to stick together and watch out for each other. If one member called, the rest would come.

The group of teenagers walked together to the home of the accused, Brodie Nicholls. There is no consensus among the group about their reasons for attending at that residence.

One of the youths from the group told police that Jesse Clarke had stated that he had previously had a problem with Brodie, and Jesse called his friends in BNA/LOM to visit Brodie Nicholls. According to another youth in the group, who told police that he had been out in the early evening and heard other teenagers, likely Brodie Nicholls' foster brother, Cody"calling him out", so he called his friends in BNA/LOM to visit Cody that evening.

Other witnesses stated that there was talk that BNA/LOM was on its way to fight with another youth who was with Cody at a friend's house, just down the street from Brodie Nicholls' house. Other members of BNA/LOM have told police that they do not really know why they were there, only that they were called to attend.

As the group began making its way down Gordon Street towards the home of Brodie Nicholls, some residents took notice. Some of the males wore hoods on their heads, making it difficult for neighbours to identify them.

Charmaine Miller is the foster mother of Brodie Nicholls. She was outside in front of the house when the group approached. A verbal confrontation took place between Ms. Miller and several members of this group.

The youths came up to the driveway, yelling for Ms. Miller's kids. She told the group her kids were not there. She repeatedly ordered them to leave and told them she was calling the police. One of the youths replied that they would smash her phone.

Brodie Nicholls heard the confrontation, came off the porch, and approached the group. He had armed himself with a kitchen knife that he picked up from the porch, where it had been left after it had been used to eat. Nicholls later stated to police "I just wanted them to leave her alone. So I got off the porch, grabbed the knife, and walked up to them".

Once Brodie Nicholls approached the group, the confrontation escalated. The group partially circled Brodie Nicholls to the front and sides of him. Someone in the group swung a stick at Brodie Nicholls. Brodie Nicholls then began waving the knife. Another youth had a pole or curtain rod. At least two males from the group were swinging at Brodie Nicholls repeatedly, and another male threw his bike at him. Brodie Nicholls lunged at the group.

Brodie Nicholls wanted them to see the knife he was holding, and he wanted them to be scared. He was trying to prevent anyone from getting behind him, as they took swings at him. He later told police that he was swinging the knife and putting all his momentum in it, to make it look like he was trying to hit them.

At 9:47 p.m., Ms. Miller called 9-1-1 and stated"A group of guys is beating up my foster child. I'm trying to chase them away from my foster child. They are hurting my foster child". She was overheard telling the group to "get out of here" six times. It is believed that at least one of the members of the group had a knife.

Ms. Miller yelled to the group that she was on the phone with the police. Some members of the group began to retreat but the confrontation continued on Lincoln Street toward Gordon Street.

During the confrontation, Brodie Nicholls was struck by a pole or stick across the neck, leaving an abrasion. He was also struck in the arm and chest areas, causing bruises and abrasions. Brodie Nicholls later told police that after he was struck in the neck with the pole, he couldn't breathe. He stated that he "kind of lost it", and that he "snapped".

By this time, other people were outside and at least two of them began running after the group of teenagers. The last of the group to leave included Jesse Clarke and two others. Jesse Clarke was the last to begin running up Gordon Street and Brodie Nicholls was running behind him.

The exact sequence of what happened next is not clear. As they got about 25 metres up Gordon Street, Jesse fell to the ground. Brodie grabbed Jesse. It is not clear if Brodie stabbed Jesse, causing him to briefly fall to the ground or if Jesse tripped and was immediately stabbed by Brodie as he got up.

What is clear is that it was during this brief encounter that Brodie Nicholls stabbed Jesse Clarke once in the chest. Jesse Clarke pushed Brodie and kept running up Gordon Street, while Brodie started walking home. Neighbours heard Brodie Nicholls shout"Tell Diana that I love her. I'm going to jail. I stabbed someone".

As Jesse Clarke was running up Gordon Street, he said to two members of the group that he had been stabbed. One of them picked Jesse up and carried him to a porch. He asked the owners to call 9-1-1, apply pressure to Jesse's wound and get help.

At 9:51 p.m. the owner of that home called 9-1-1 and requested an ambulance. Jesse was having difficulty breathing and he was in and out of consciousness. He was able to tell the witness on the porch that he had been stabbed by the guy with the red shirt.

A number of exhibits were seized, including a red sweatshirt worn by Brodie Nicholls. A blood stain on the left sleeve cuff of that sweatshirt was found to contain Jesse Clarke's DNA.

Brodie Nicholls suffered minor injuries during the altercation, including an abrasion to his neck, bruising and abrasion to his arm and chest. He was taken to hospital and was arrested at 1:48 p.m. for second-degree murder.

He was later cleared medically and taken to the Central Police Station where he provided a cautioned statement. During that statement he made several admissions and expressed remorse.

Jesse Clarke was stabbed once in the heart by Brodie Nicholls. The stab wound entered his chest in a manner consistent with a swing, right to left, rather than up and down. Despite aggressive resuscitation efforts, he died in hospital approximately one hour later.

Victim Impact Statements

Eight individual victim impact statements were provided by family members and friends of Jesse Clarke. The Crown also tendered a community impact statement that was prepared on behalf of Hamilton's East End community.

Jesse Clarke was described as a treasured son, brother, grandson and friend to many. The senseless loss of his life have left the family and friends feeling depressed and united in their grief.

The statements referenced anger and pain in their struggle to come to grips with the loss of a child in their community.

Circumstances Of The Offender

Mr. Nicholls was raised in an abusive and neglectful home. He was abandoned by his father shortly after birth. He was the victim of physical, sexual, and emotional abuse and deprived of basic needs from a very young age.

CAS had their first contact with Mr. Nicholls' family when he was one year old. His mother would abandon him with strangers or her male partners at various points in his young life.

While in his mother's care, he witnessed violence as a young child, and at many times felt as though his own life and safety were threatened. His mother subjected him to ongoing exposure to drug use and prostitution.

With no other suitable family supports, Mr. Nicholls was made a CAS Crown ward at age 11 and has spent most of his life trying to conform and adjust to new environments. The only stability that he appears to have had was for a period of four years while living with a foster family. This was short-lived and he was forced to move again at age 15.

As a result of his tragic background, Mr. Nicholls states that he has difficulty trusting people and identifying safety. He has feelings of anger, low self-esteem and has contemplated suicide in the past.

Mr. Nicholls has been diagnosed with an intellectual impairment, borderline fetal alcohol spectrum disorder and ADHD. He has struggled with school his whole life and has been assessed with lower cognitive functioning. As such, he is eligible for Ontario Disability Support and Programs (ODSP).

While awaiting sentencing, he has been receiving medication and support at the Brantford Jail for schizophrenia, ADHD and sleeping issues. The schizophrenia diagnosis was made after the arrest on this charge. Mr. Nicholls also suffers from depression and anxiety.

Mr. Nicholls' mother has been in and out of his life since birth. She has recently re-appeared since the current charge to visit him in custody. Despite her lack of parenting, he loves her and is concerned for her well-being.

In June of 2014, Mr. Nicholls was charged with break and enter. He was released on an undertaking and was subsequently charged with a breach of that undertaking. He was released on his own recognizance and was on release at the time of this offence.

Mr. Nicholls has been in custody since his arrest for this offence. He has no criminal record.

Sources interviewed for purposes of preparing the presentence report described Mr. Nicholls as a shy, polite, well-intentioned individual who has experienced some very difficult personal circumstances and disadvantages. The author of the presentence report commented that Mr. Nicholls expressed remorse for his actions and does not seek to deny or minimize the severity of what has transpired.

Prior to his arrest, Brodie Nicholls worked for five months for a landscaping company. He has also been participating in a specialized schooling program.

Mr. Nicholls wrote a letter of apology to the family of Jesse Clarke and read it out loud in court. In a letter that is very child-like in the printing, grammar and spelling, Mr. Nicholls expressed his remorse and shame for what he did and for the pain that he has caused.

Gladue Report

Mr. Nicholls is recognized as a Non-Status Indian. He inherits his Aboriginal heritage from his maternal grandmother who was adopted to a non-Aboriginal family when she was a young child.

Through research, the family believes that their Aboriginal community is with the Huron people of the Midland area of Ontario. Unfortunately, the family knows very little about their Aboriginal culture but have made attempts over the last 30 years to gather more information wherever possible. Mr. Nicholls knows that his grandmother was a Huron native but was not able to communicate what that means in terms of culture or identity.

Mr. Nicholls' grandmother, Iris, found out that she was adopted in 1971, after making an application for a passport. Iris was informed via her birth certificate that her birthday was actually one day later than she had celebrated her entire life. She tried to find information about her birth family but was informed that her birth records were sealed and that she could not get that information. Iris did not want to pursue finding out more information about her Aboriginal community. Family member say"It was like she was ashamed of who she was". It is not clear why or in what circumstances Iris was adopted into a non-Aboriginal family.

The Gladue report prepared in this case states that the adoption or apprehension of Aboriginal children with subsequent placement into a non-Aboriginal home or institution is recognized as a stain on Canada's history. The statistics are quite alarming. In 2005 it was estimated that of the 76,000 children and youth in foster or group homes in Canada, 40 percent were Aboriginal.

The Royal Commission on Aboriginal People recognized that:

Removal of Aboriginal children from their communities through cross-cultural foster placement and adoption is the second major cause of family disruption. Children removed from their families are severed from their roots and grow up not knowing what it is to be Inuit, Metis, or a First Nations member. Yet, they are set apart from their families and communities by visible differences, often made to feel ashamed of their origins. At the same time, their home communities and extended families are robbed of part of the next generation.

Until the 1950s, the provisions of the Indian Act prohibited provincial Children's Aid Societies from entering First Nations Communities. However, amendments to the Indian Act in the 1950s allowed for such interventions

which then precipitated the mass apprehension of Aboriginal children. The Gladue report prepared in this case outlines, in great detail, the impact that this trend has had on the Aboriginal community.

Children and youth in and from care struggle compared to other Ontario youth. Only 44 percent of youth in and from the care of the Children's Aid Society graduate from high school; compared to 82 percent of Ontario youth. Youth in and from care are over-represented in the youth justice system and more likely to experience homelessness. Aboriginal children and youth in care often face additional challenges and are more likely to come into contact with the child welfare system in the first place. Although only two percent of Ontario's population is Aboriginal, Aboriginal children and youth make up 22 percent of Ontario's Crown wards.

Mr. Nicholls' grandmother and grandfather were alcoholics. Mr. Nicholls' aunt tells us of her mother Iris drinking heavily and of occasions when she and her siblings sat in a car, in a parking lot, while their parents sat inside a bar. Unfortunately, Mr. Nicholls' mother developed addictions of her own when she became an adult. This history has had a profound effect on Mr. Nicholls.

During his time at the Brantford Jail, Mr. Nicholls has connected with Kelly Curley, a native inmate liaison officer. Mr. Nicholls has participated in regular smudging ceremonies at the facility. Mr. Curley recommended that Mr. Nicholls should connect with an elder as he has not had a positive role-model in his life. Mr. Nicholls would like to continue learning more about his Aboriginal heritage and expressed a desire to continue on a healing journey.

Use Of Victim Impact Statements

The Crown has tendered eight individual victim impact statements and a community impact statement. As a result of recent amendments to the Criminal Code, the court shall consider any community impact statement.

A victim impact statement can describe a physical or emotional harm, property damage or economic loss suffered by the victim as a result of the commission of the offence and the impact of the offence on the victim. A community impact statement can describe the harm or loss suffered by the community as a result of the commission of the offence and the impact of the offence on the community. Pursuant to s.722(8) of the Criminal Code, the court is entitled to disregard any portion of the statements that are not relevant.

The matter before the court is fraught with high emotion. The family and friends have used the victim impact statements to express how they offence has affected them but at times have strayed into areas that they are not permitted to do.

The concept of a community impact statement is fairly new. In this case, a representative of the community collected various anonymous statements from the community. This was particularly problematic in this case because the court cannot verify the source of the comments, some of which are improper.

That said, I am prepared to recognize the clear message that is portrayed in all of the victim impact and community impact statements: the friends, family and community of Jesse Clarke are suffering. The statements are poignant expressions of their grief. The family and the entire community are profoundly devastated. This offence has, and will continue to have, life changing consequences. The community weeps for their loss.

With respect to the statements, I am guided by the Ontario Court of Appeal decision in R. v. Taylor 2004 7199 (ON CA), [2004], O.J. No. 3439:

Victim impact statements, like criminal records, do not justify double punishment – once for the crime against society, and again to counterbalance the harm done to the victims (a sort of criminal revenge in lieu of civil damages).

Parliament has provided, in s. 722 of the Criminal Code, however, that the court shall consider such statements for the purpose of determining the sentence to be imposed on an offender. The court must therefore take them into account; otherwise, there is no point in having them. They help the judge to understand the circumstances and consequences of the crime more fully, and to apply the purposes and principles of sentencing in a more textured context.

As Justice Hill stated in R. v. Gabriel 1999 15050 (ON SC), [1999], O.J. No. 2579, S.C.J. at paragraph 22:

Without in any fashion diminishing the significant contribution of victim impact statements to providing victims a voice in the criminal process, it must be remembered that a criminal trial, including the sentencing phase, is not a tripartite proceeding. A convicted offender has committed a crime – an act against society as a whole. It is the public interest, not a private interest, which is to be served in sentencing.

Retribution remains an important sentencing objective in sentencing the moral culpability of the offender. Vengeance, however, has no place in a humane sentencing regime. (R. v. M.(C.A.) 1996 230 (SCC), [1996], 105 C.C.C. (3d) 327 (S.C.C.) at 365 to 369).

In the case before the court, it is clear that the family, friends and community of friends of Jesse Clarke are very sad and angry and grieving. However, to the extent that the victim impact statements speak to a wish for an increased penalty, or even go so far as to express a desire for vengeance, they are not appropriate and have been disregarded by this court.

The community impact statement speaks of the raw emotion that the teenagers are feeling at this time of loss. Some of the anonymous comments, clearly made by teenagers in the community, are shocking. At least three of them speak to the need to carry a weapon at all times for protection. Another speaks of his anger and the need to "gang-bang". Yet, another speaks of wanting to fight and hurt people.

It must be said, in no uncertain terms: Violence begets violence. What happened on the night of August 18, 2014, was a tragedy by all accounts, and is a tragedy that could easily repeat itself. Teenagers in the community must reject the notion that carrying a weapon for "protection" will solve the problem. As we can see from this case, when a knife or other weapon is introduced to a verbal confrontation, events can quickly escalate and turn deadly. These teenagers must put down their weapons and encourage others to do the same.

The impact that the loss of a 14-year old boy would have on his family and friends is something that would be very real and very understandable to most people. I sympathize with the loss that the friends and family of Jesse Clarke have experienced, and the pain and sorrow and, indeed, the anger that they feel. The sad reality is that violence does not discriminate in the harm that it spreads. It is harm that impacts our entire community; particularly when someone so young is lost to us.

At the same time, there is another reality that the friends and family of Jesse Clarke must realize: whatever decision I make respecting Brodie Nicholls will not change their lives or the world in which they now must live. The penalty that I decide upon will not serve to remove the loss that they have experienced, nor lessen the sadness that they feel.

The justice system has a role to play in redressing the damage that has been caused but it is a very narrow and limited role. Nothing the justice system can do or might ever do could ever relieve such a terrible loss. No system of laws could ever realistically achieve such a result, nor is it reasonable to expect that it could.

What the law does require me to do is try and reach a fair and just conclusion within the parameters laid down by Parliament as they have been interpreted in our appellate courts. It is a difficult task at any time but especially difficult in the circumstances that present themselves here.

Evidence Re Suitability of Correctional Facilities

Defence counsel has submitted that Mr. Nicholls is vulnerable and that his mental health and learning disability needs would be best met at the St. Lawrence Valley Correction and Treatment Centre in Brockville. She urged the court to impose a sentence of two years less a day, in addition to time served, with a recommendation that Mr. Nicholls be sent to that facility.

In response to questions from the court regarding whether similar programming is available in the federal penitentiary setting, the Crown called Patrina Lemieux, Regional Program Manager at Correctional Service Canada. Ms. Lemieux provided a helpful overview of the programming that is available at the federal institutions. Ms. Lemieux testified about how inmates, who are newly sentenced, are assessed by an institutional parole officer for 90 days. Mental health and other assessments will be performed. The parole officer will consider documents from the inmates' prior institution, recommendations made by the sentencing judge, and any other documents that are available. The parole officer will determine whether the inmate will be classified as low, medium, or high security. They will also determine the offender's level of need for intervention and what type of programming would best suit their rehabilitation.

Every federal institution has programming to educate inmates about problems that have led them to crime and how to address those areas in the future. Every federal institution has a mental health department with psychiatric care and medical prescriptions available.

Aboriginal supports and services are offered if the offender identifies as Aboriginal and wishes to take part in those programs. An elder will provide spiritual guidance and support. She will also provide education about Aboriginal history and how it has impacted them.

A new program called the Adapted program, which is a subset of the Bath Institution, helps inmates with mental health and cognitive impairments. This program would be made available to the inmates who cannot function in the regular stream programming.

The Crown and defence both acknowledge that any recommendation or consideration of special programming for this offender, will be subject to the assessment conducted by the correctional authorities. Determinations will be made after sentencing in terms of placement. That will be dependent on the needs of the inmate population and there is no guarantee that Mr. Nicholls would qualify or be admitted to the St. Lawrence Treatment Centre in the provincial system or to the Adapted program in the federal system.

Gladue Principles

In its substantive reform of the Criminal Code in 1996, Parliament significantly changed the landscape of criminal sentencing. Two of the principle objectives of Parliament in 1996 were to reduce the use of imprisonment as a sanction and to expand restorative justice principles in sentencing. Judges are therefore required to consider all available sanctions other than imprisonment that are reasonable in the circumstances. These are considerations apply to all offenders with particular attention to the circumstances of Aboriginal offenders.

Among other things, Parliament was attempting to address a disproportionate number of Aboriginal persons incarcerated in the country's prisons.

In Gladue, the Supreme Court of Canada laid out guidelines as to special concerns judges should explore and consider in sentencing Aboriginal offenders. As with all sentencing decisions, the sentencing of Aboriginal offenders must proceed on an individual or case-by-case basis. For this offence committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contribute to this particular offender coming before the courts for this particular offence? How is the offender who is being sentenced being affected by, for example, substance abuse in the community or poverty or overt racism or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender or the community, or are prior prevention or other goals better achieved through healing? What sentencing options present themselves in the circumstances?

Judges are therefore required to approach the sentencing of Aboriginal offenders using an analytical method, sensitive to the conditions, needs, and understandings of offenders and their communities. But this does not mean that sentences for Aboriginal offenders will necessarily focus solely on restorative objectives or give less weight to conventional sentencing objectives, such as deterrence and denunciation.

Notwithstanding what well maybe different approaches to sentencing between Aboriginal and non-Aboriginal conceptions of sentencing, it is reasonable to assume that for some Aboriginal offenders, and depending on the nature of the offence, the goals of denunciation and deterrence are fundamentally relevant to the offender's community. The more violent and serious the offence, the more likely, as a practical matter, that the appropriate sentence will not differ as between Aboriginal and non-Aboriginal offenders, given that under these circumstances, the goals of denunciation and deterrence are accorded increasing significance.

Principles Of Sentencing

In the case of R. v. Reid, Justice Fuerst said the following, 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 responsibility in offenders and acknowledgment of the harm 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 or 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 and 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. Carrier 2002 41803 (ON CA), [2002], 164 C.C.C. (3d) 569 (ON CA).

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 as set out in s. 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.

The taking of a life is always a terrible tragedy and a most serious offence, no matter the circumstances. (R. v. Simcoe 2002 5352 (ON CA), [2002], O.J. No. 884, Court of Appeal at para. 24.)

It has long been recognized that the crime of manslaughter attracts a broad range of sentence depending on the circumstances of the offence and offender. (R. v. Clarke 2003 28199 (ON CA), [2003], O.J. No. 1966 (Ont. C.A.); R. v. Clemons 2003 MBCA 51, [2005] M.J. No. 101, 2003 MBCA51.

At para. 6 of the Clemons decision, the court observed:

It has often been stated by sentencing courts and by appellate tribunals that the imposition of the correct sentence in a case of manslaughter is one of the most difficult tasks that a court faces. There is a reduced blameworthiness to be attributed to an offender because of a lack of intent or because of provocation, but the result of the offender's actions still culminate in a death in circumstances that, absent that lack of intent or because that provocation, would otherwise result in murder.

An appropriate sentence for manslaughter must reflect our society's concern for the sanctity of life and ordinarily a lengthy sentence must be imposed having in mind the gravity of the crime. R. v. Head, [1985], O.J. No. 153 (C.A.).

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 invites a sometimes difficult balancing of the goals of denunciation and deterrence and rehabilitation. This is particularly so when first offenders are involved.

After weighing all the factors in this case, I am led to the conclusion that this is a very serious act of violence that cost a young man his life and requires a sentence in which considerations of general deterrence must predominate, although not to the extent of standing in the way of rehabilitative goals.

I am also assisted by a number of cases of remarkably similar facts which suggest a sentencing range of six years and up, when a knife wound is caused in the context of a fist-fight, even by youthful first offenders.

I have considered, in this case, the provocation which reduces the moral blameworthiness surrounding the use of the knife. I also emphasize Mr. Nicholls' youth, age 18 at the time of the offence, and his prospects for rehabilitation.

The Crown relies in particular on a series of cases comparable in its 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 by the Court of Appeal, 2009 O.J. No. 3100; 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.).

In R. v. Reid, Justice Fuerst, on a guilty plea to manslaughter, sentenced the 23-year old offender to eight years imprisonment. The offender and victim were intoxicated and engaged in a fist-fight 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, Justice Nordheimer sentenced the 19-year old offender, with no prior criminal record, to nine 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 eight times and then fled the scene. He later surrendered to police. This sentence was upheld on appeal.

In R. v. Cioppa, Justice Nordheimer, on a conviction for manslaughter, sentenced the 18-year old offender, with no prior record, to eight years imprisonment. The offender had been carrying a knife and in the course of a fist-fight, 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 being in a low risk to reoffend.

In R. v. Hermiz, Justice Hill, on a guilty plea to manslaughter, sentenced a 19-year old offender, with no prior record, to eight years imprisonment. The offender having been struck in the head with a full beer bottle, rose to his feet and stabbed the attacker once, killing him.

These cases are all very similar on their facts to the present case and support the Crown's position that a sentence in the range of 8 to 12 years imprisonment is appropriate for a stabbing resulting in death. The case of R. v. Taylor, [2013] O.J. No. 2616 (Ont. S.C.J) was also provided by the Crown. In that case, the offender was sentenced to 6 years.

Defence counsel has provided cases where the court has sentenced an offender to a sentence as low as two years less a day for manslaughter. Counsel argues that in addition to the Gladue factors, the court must consider the abilities and deficits of Mr. Nicholls.

Defence counsel relies on R. v. Ramsey, [2012] ABCA 257 in saying that sentencing should be an individualized process where an accused suffers from brain abnormalities and has mental health issues. The defence argues that the accused has problems with impulse control. However, there is no evidence that this was previously an issue for Mr. Nicholls, nor of it contributing to this offence.

I have reviewed the authorities provided by the defence. Many of the cases pre-date R. v. Clarke and the cases that follow. The facts of those cases are mostly different from the case at bar. Although those cases do not provide much assistance in terms of establishing the range of sentence in this case, I have considered the analysis in those cases in terms of assessing the impact of the Gladue factors in this case.

Analysis

Jesse Clarke's death was a tragedy. He was still a child; only 14 years old, with his entire life ahead of him. It is clear from the victim impact statements that Jesse Clarke's death has had and will continue to have a profound effect on his family and friends; most particularly his mother, father and brother.

Nothing that I say today is intended to minimize the value of Jesse's life or the impact of his death on those who loved him. The sentence I impose, however, must be guided by the purpose and principles of sentencing and not by vengeance.

As the Crown acknowledges, the basis for Mr. Nicholls' guilty plea is that provocation was a consideration in the acceptance of the plea to manslaughter. Nevertheless, the aggravating facts in this case reflects a high degree of moral blameworthiness on Mr. Nicholls part. In particular:

1. At the time of the initial confrontation on the front lawn, none of the boys had physically assaulted Ms. Miller. Mr. Nicholls did not need to step off the porch and enter the fray.

2. The group of boys on the lawn were younger than Mr. Nicholls. He did not need to engage in the altercation.

3. Although at least one of the group on the lawn had a stick and one had a rod or pole, Mr. Nicholls introduced a knife to the altercation. The fight quickly escalated at that point. Mr. Nicholls began swinging the knife and putting all his momentum into it to make it look like he was trying to hit them.

4. Mr. Nicholls was struck across the neck, on the arm, and in the chest area with the stick or pole. This caused bruising and abrasions, which were superficial injuries. Mr. Nicholls brought the knife, which is a much more dangerous weapon.

5. Ms. Miller yelled that the police were on their way and the group started to retreat. Jesse Clarke was the last one of the group to leave. Mr. Nicholls chased Jesse Clarke up Gordon Street after everyone else had left.

6. Even after other adults had arrived to assist Mr. Nicholls and the police were on their way, Mr. Nicholls continued to pursue Jesse Clarke.

7. Jesse Clarke was in retreat and was now alone. The series of events are not clear, however, it is clear that Mr. Nicholls grabbed Jesse and stabbed him.

8. Mr. Nicholls stabbed Jesse Clarke once in the chest, which is a vital area of the body. The nature of the weapon used, the depth and positioning of the wound demonstrates an intention to kill or cause bodily harm and with the intention to cause death or with indifference as to whether death ensued or not.

9. Brodie Nicholls did not give assistance to Jesse Clarke after he stabbed him; but started walking home instead. The knife was never recovered.

10. Jesse Clarke was only 14 years old. Since he was under the age of 18 years, this is recognized as a specified aggravating factor within s. 718.2 of the Criminal Code.

11. Jesse Clarke's death has had a devastating impact on his family and the community.

12. Although this factor does not carry a lot of weight, it is still noteworthy that Mr. Nicholls was on a form of release for break and enter at the time of this offence.

There are mitigating factors which must be taken into account. In particular:

1. There is no evidence of any prior hostility or premeditation.

2. Mr. Nicholls inflicted a single stab wound. This is not a case of a prolonged attack involving the infliction of multiple injuries to the victim.

3. Mr. Nicholls is the product of a dysfunctional childhood and was denied the advantages of stability and structure in his formative years. He never knew his biological father. He was rejected by his mother. He was neglected and abused and was a Crown ward in various foster homes.

4. The neglect that Mr. Nicholls suffered as a child may have had a direct impact on the events of August 18, 2014. A group of approximately 10 teenagers were yelling at Ms. Miller, who was Brodie Nicholls' foster mother. When Mr. Nicholls stepped off the porch, the teenagers surrounded Brodie Nicholls and struck him with a stick and pole. There was provocation. The Crown acknowledges that given his unstable upbringing that was fraught with abuse and abandonment, Brodie Nicholls may have had a misplaced loyalty to a mother figure and a desire to be a hero to Ms. Miller.

5. Mr. Nicholls pled guilty, which is a sign of his remorse and willingness to accept responsibility for taking the life of Jesse Clarke.

6. Mr. Nicholls expressed remorse immediately after his arrest, and to the author of the presentence report. He wrote an apology letter to Jesse Clarke's family and read it in court. I accept that this apology is heartfelt, and that Mr. Nicholls truly feels remorse.

7. Mr. Nicholls is a youthful first offender.

8. While awaiting his sentence at Brantford Jail, Mr. Nicholls took part in counselling, weekly smudging ceremonies, and school programming. The social worker at the jail describes him as shy and polite.

9. He has the support of member of the Aboriginal community and has expressed a desire to work with elders in the future. He also appears to have other supports in the community. These last two points are important to his rehabilitative prospects.

The court has been advised that Mr. Nicholls suffers from cognitive difficulties and fetal alcohol spectrum disorder. However, there is no medical evidence or forensic report that would assist the court to determine how these deficiencies may have contributed to the offence. It is unknown where he falls on the fetal alcohol spectrum or how that may affect his impulse control. Courts have recognized that, to the extent that fetal alcohol spectrum disorder is demonstrated to have attenuated or diminished the moral blameworthiness of the offender, it must be taken into account.

In assessing the offender's moral culpability, this court should have regard to the cognitive deficit of the particular offender. (See R. v. Ramsay [2012], ABCA 257).

In this case, however, there is no medical evidence of the extent of Mr. Nicholls' cognitive defects nor how these deficits may have impacted on the events of August 18, 2014. It is clear, however, that Brodie Nicholls immediately understood the severity of what he had done and the consequences of those actions. After he stabbed Jesse Clarke, Mr. Nicholls shouted"Tell Diana that I love her. I'm going to jail. I stabbed someone".

I have considered Mr. Nicholls' cognitive difficulties but in the absence of evidence, I am unable to find that they reduce his moral culpability in this case.

The defence has sought to rely on cases regarding offenders with mental illness and the offender's diminished responsibility. Again, there is no evidence that Brodie Nicholls suffered from any specific mental illness at the time of the offence, or that it contributed to the offence.

I recognize that the principles of denunciation and deterrence are not always paramount in manslaughter cases; nor is the goal of rehabilitation always subordinate to those objectives. See R. v. Reid.

In the circumstances of this case, however, the objectives of denunciation, deterrence (both general and specific) and the need to separate Mr. Nicholls from society, are paramount.

Brodie Nicholls and Jesse Clarke both lived in the East End of Hamilton. The sentence must send a message to the community where these young men lived, that carrying knives for "protection" is a fallacy. The cohesiveness and support that the members of Jesse's group provided to each other, in any other context, would be admirable, but only if it were for a positive purpose.

Jesse and his friends went to Brodie Nicholls' house and called him out for a fight. The situation quickly spiralled out of control because of the introduction of the knife. A strong message must go out to the community that knives are not to be used for protection; that these young men must put down their knives and their weapons or this situation will repeat itself.

Rehabilitation cannot be ignored; particularly because of Mr. Nicholls' age and the fact that this is his first jail sentence, but it must assume a subordinate role.

In this case, I must turn my mind to the Gladue factors. The Crown argues that Mr. Nicholls knows very little about his culture and cannot communicate what his grandmother's history means for his culture or identity. It is argued that there is no evidence that the grandmother was forcibly taken from her Aboriginal parents or that trauma resulted from that. Respectfully, I disagree with the Crown's position.

In the case of Gladue and Ipeelee, the court has specifically stated that there is no requirement on an accused person to provide evidence. Quoting from Ipeelee at para. 81:

...some cases erroneously suggest that an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by a sentencing judge.

This [judgment] displays an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples. It also imposes an evidentiary burden on offenders that was not intended by Gladue. As the Ontario Court of Appeal states in R. v. Collins [2011] ONCA 182, at paras. 32-33:

There is nothing in the governing authorities that places the burden of persuasion on an Aboriginal accused to establish a causal link between the systemic and background factors and commission of the offence.

As expressed in Gladue, Wells and Kakekagamick, s. 718.2(e) requires the sentencing judge to give attention to the unique background and systemic factors

which may have played a part in bringing the particular offender before the courts: Gladue at para. 69. This is a much more modest requirement than the causal link suggested by the trial judge.

As the Ontario Court of Appeal goes on to note in Collins, it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86:

Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government's treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated.

Despite the absence of evidence that the grandmother was forcibly taken from her Aboriginal parents, it is clear that Mr. Nicholls' grandmother was a Huron native who was adopted by a non-native family. She was embarrassed about her heritage and made no effort to explore it. She clearly struggled with alcohol addiction and displayed poor parenting skills. This had a profound effect on Brodie Nicholls' mother who perpetuated the life-style of addiction and poor parenting. There is a direct link between the grandmother's loss of identity and the impact on Brodie Nicholls.

The various decisions referred to by the Crown and defence counsel demonstrate the sentences can be as low as two years and as high as 12 years in jail, in a manslaughter case where there are factors that significantly aggravate the offence.

After considering the case law that has been provided, I am of the view that the appropriate range for this type of offence is 6 to 12 years. I have turned my mind to the sentencing principles enunciated by the Supreme Court of Canada in Gladue and subsequent cases. I have considered and balanced all of the factors that I have mentioned.

This was a stupid and senseless loss of a young life; a result that is occurring with disturbing frequency in this city. Issues that in the past would have led to a fist-fight, now lead to death because young people are armed with deadly weapons, whether they be guns or knives. The tragedy that resulted in this case is a chilling example of that reality. It arose mainly, if not entirely, from the fatal decision of Brodie Nicholls to arm himself with a lethal weapon.

The sentence in this case must reflect the moral blameworthiness of Mr. Nicholls' offence while recognizing the mitigating factors in the Gladue analysis.

Mr. Nicholls, would you please stand? Mr. Nicholls, I sentence you to six years in a penitentiary. You shall be given credit for the 410 days that you have already served on a 1.5:1 basis. You shall therefore be credited with 20 months' time served. This leaves a sentence to be served of 4 years and 4 months.

I will endorse the warrant of remand with a strong recommendation that you be considered for the Adapted program at the Regional Treatment Centre.

Manslaughter is designated as a primary compulsory offence under s. 487.04 of the Criminal Code, and I therefore make an order that you provide a sample of your DNA.

There will also be a mandatory prohibition order under s. 109 of the Criminal Code, prohibiting you from possessing a firearm, crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years and prohibiting you from possessing any firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

I note that Mr. Nicholls has shown a recent interest in the traditional Aboriginal teachings. I encourage him to continue his pursuit of those teachings, in the hope that they direct him towards his journey of healing. I recommend that native programming be made available to him while incarcerated. I also direct that a copy of the Gladue report and presentence report be forwarded to the institution where Mr. Nicholls is incarcerated.

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Sheree Chantler, certify that this document is a true and accurate transcription of the recording of R. v. B. Nicholls in the Superior Court of Justice held at 45 Main Street East, Hamilton, Ontario taken from Recording(s) No. 4799_700_ 20151002_085026__30_BRAIDC which has been certified in Form 1 by Alison De Graff.

December 2, 2015 ________________________________

(Date) (Signature of authorized person)

ACT #2701137114

This certification does not apply to Reasons for Sentence which were judicially edited.