Court File and Parties

COURT FILE NO.: 13325/13 DATE: 20160420 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – TIN WAI HONG, MASON GILLARD-GATZA and NATHANIEL CAIN Defendants

Counsel: Ronald Davidson and Lucas O’Neill, for the Crown Michael Strathman for Tin Wai Hong Stephen T. Lyon for Mason Gillard-Gatza Anthony G. Bryant and Karen E. Symes for Nathaniel Cain

HEARD: February 29, March 1, March 31, April 1 and April 20, 2016

Reasons for Sentencing

RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

BOSWELL J.

[1] At 3 a.m. on October 20, 2011, two constables of the Ontario Provincial Police performed what is undoubtedly one of the worst functions of their job. With tears in their eyes they informed Debra Whyte that her only son, Ryan Kennedy, had been killed.

[2] It’s not as though Ryan had been engaged in reckless activity. He had left his parents’ home the night before to watch a hockey game at the home of his friend, Justin McKelvey. The Leafs were playing the Jets.

[3] Ryan and Justin both lived in Minden, a town of less than 6,000 people located in the Haliburton Highlands. Far removed from big city life, it is typically a serene and safe place.

[4] Justin McKelvey worked in landscaping. He was also a drug dealer. He supplied the locals with marijuana, generally in quantities of a pound on down. Drug dealing has its attractions I suppose. It can be lucrative. It doesn’t require much education. Nor is it hard work. All it really requires is a willingness to break the law and an equal willingness to accept the significant risk of harm that goes along with it. There can be no doubt about it. Drug dealing is a very dangerous business. This case is yet another example of the misery that is the constant companion of those engaged in it.

[5] It was his involvement in the marijuana trade that lured the defendants to the home of Mr. McKelvey. He was supposed to be a soft target. The defendants planned to steal his drugs and money and slip away under the cover of darkness, back to Scarborough where they had come from. They made a complete hash up of it. As a result of a combination of their greed, cowardice and stupidity, Ryan Kennedy ended up dead.

[6] On November 21, 2015, following an eight month trial, three defendants were convicted of culpable homicide in his death. Tin Wai Hong was convicted of second degree murder, while Mason Gillard-Gatza and Nathaniel Cain were convicted of manslaughter. A fourth defendant, Raphael Guerra, was acquitted.

[7] Sentencing submissions were heard over five days between February 29 and April 20, 2016. These reasons explain the sentences imposed on each of the offenders. I begin with a more detailed review of the offences.

The Offences

[8] Somehow word got to Scarborough that there was a “punk kid” up in Minden sitting on a large quantity of marijuana and cash. He was an easy mark. In the early evening of October 19, 2011 the three offenders boarded Mr. Guerra’s rented Lexus sedan and headed north from Scarborough, intent on separating Mr. McKelvey from his drugs and money.

[9] Mr. Guerra parked his car down a dark side road, about 300 metres from the McKelvey residence. The three offenders exited the car, put on facemasks and gloves and made their way towards the target home.

[10] Mr. Gillard-Gatza and Mr. Cain each testified in his own defence. My impression from their evidence is they believed this was a relatively risk-free operation. Mr. McKelvey was an unsophisticated hayseed according to their intelligence reports. Moreover, drug dealers, as a general rule, do not report the theft of their illicit drugs to the police. As Mr. Cain testified, he thought a little intimidation would be all they would need; a couple of guys in masks would do the trick.

[11] I would put myself in a different school of thought. I am part of what I suspect is a large majority of people who consider home invasions and drug rip-offs inherently very dangerous activities. Moreover, increased risk, as a matter of logic and human experience, tends to be positively correlated with poor planning. And this operation was, to say the least, ill-conceived.

[12] There appears to have been little, if any, consideration given as to the prospect that Mr. McKelvey might not be alone in his home; nor any anticipation that there may be resistance offered by the occupant(s).

[13] Three eyewitnesses testified about what happened inside the McKelvey residence after the three intruders entered: Mr. McKelvey, Mr. Gillard-Gatza and Mr. Cain. Their versions of events were consistent in some respects and different in others.

[14] The Crown went to the jury with the position that the murder of Ryan Kennedy was planned and deliberate. More particularly, that the offenders intended all along to steal Mr. McKelvey’s drugs and money and leave no witnesses alive. The jury clearly rejected that position, or at least had a reasonable doubt about whether death was planned and deliberate. Ultimately, only Mr. Hong was found to have had the requisite intent for murder.

[15] Alternate routes to a manslaughter conviction were available to the jury. It is not possible to know which route they followed, or whether some followed one route and others followed a different path. Juries do not give reasons for their decisions.

[16] In order to fix fit and just sentences for each individual offender, it is necessary that the court make determinations of the roles each played in the commission of the offences. The Supreme Court gave directions for the fact-finding function of the sentencing judge in R. v. Ferguson, 2008 SCC 6, [2008], S.C.J. No. 6. The judge is to be guided by the following principles:

(a) The sentencing judge must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand;

(b) The sentencing judge shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty and must not accept as fact any evidence consistent only with a verdict rejected by the jury;

(c) When the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts; and,

(d) To rely upon an aggravating fact the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities.

[17] With these principles in mind, I make the following relevant factual findings.

[18] The intruders approached the residence with stealth. They paused under the back deck to catch their breath and do a quick check of the residence. I find that one or more of them peered into a window to assess what they were up against. It is inconceivable that they would not have done so. Mr. Gillard-Gatza and Mr. Cain suggested otherwise but I do not accept that testimony. There is just no way that these intruders entered the home of a known drug dealer without gathering some intelligence about what they would encounter inside.

[19] Ultimately they entered, single file, through the kitchen door. Mr. Hong was first. He carried a can of bear spray. Mr. Cain was next. He carried a small, plastic oar that he had picked up off the ground on his way inside the home. Mr. Gillard-Gatza was last. He carried an aluminum baseball bat. They immediately – and without hesitation – walked through the kitchen and into the living room where the occupants of the residence were seated.

[20] Mr. Hong quickly moved to confront Mr. McKelvey where he sat. He punched him in the face. Mr. Kennedy rose from his seat to come to his friend’s assistance. Mr. Cain struck Mr. Kennedy with the plastic oar and it broke. Mr. Kennedy began to struggle with Mr. Cain. At this point, Mr. Gillard-Gatza sprang into action. He struck Mr. Kennedy several times with the bat, at least twice over the head. Mr. Kennedy was knocked unconscious and fell to the floor.

[21] The blows struck by Mr. Gillard-Gatza caused two full thickness lacerations to the top of Mr. Kennedy’s head, fractured his skull and caused fatal brain damage. Mr. Gillard-Gatza testified that he struck these blows and caused these injuries. I accept that testimony even though it is substantially different than the story he initially told the police. I find that he lied to the police in an attempt to minimize his involvement in the offences. I found his trial testimony, on this point at least, to be sincere and to fit with the probabilities of the case on the whole. I am satisfied beyond a reasonable doubt that he struck Mr. Kennedy with the baseball bat and caused fatal head injuries in the process.

[22] Once Mr. Kennedy was subdued, Mr. Gillard-Gatza turned his attention to Mr. McKelvey who was continuing to struggle with Mr. Hong. Mr. Gillard-Gatza subdued him by using the bat to strike him repeatedly on the back until he lay prone on the ground.

[23] Mr. Hong demanded to know where the money and drugs were. Acting on information he learned from Mr. McKelvey, he found about $350 in cash in a bedroom. As he rooted around for the money, Mr. Gillard-Gatza and Mr. Cain took steps to bind the hands of Mr. Kennedy and Mr. McKelvey with duct tape. Mr. Hong re-entered the living room. He was not satisfied with the $350 and again demanded to know where the money and drugs were. Mr. Kennedy, in the meantime, was lying on the ground, dying, and making moaning and snoring sounds.

[24] Mr. Hong yelled something to the effect of “shut that fucking kid up”. As Mr. Gillard-Gatza struggled to duct-tape Mr. Kennedy’s arms behind his back, Mr. Cain took a heavy pellet rifle and drove the butt end into Mr. Kennedy’s head twice. Mr. McKelvey described these as extremely violent blows. Mr. Gillard-Gatza described them as a nudge. Based on the volume and nature of the blood spatter around the water cooler, I am satisfied that at least one of the blows struck by Mr. Cain was significant.

[25] Mr. Cain denied that he struck Mr. Kennedy in the head with the pellet gun, but I find that he did. This is an aggravating factor, so I must be satisfied of it beyond a reasonable doubt. I am. I so say for the reasons which include the following:

(a) Mr. Cain was an extraordinarily evasive witness in my view. His evidence tended to be self-serving in terms of his ability to remember important features of the events of October 19, 2011. I put almost no reliance on any of his testimony;

(b) Each of Mr. Gillard-Gatza and Mr. McKelvey testified that Mr. Cain struck Mr. Kennedy with the butt end of the pellet rifle. I accept and rely upon their evidence, which is not only consistent with one another, but also consistent with other facts of which I am satisfied;

(c) There was significant bruising on the right side of Mr. Kennedy’s head, which is the side that was exposed to the room and would have been contacted by the blows struck by Mr. Cain; and,

(d) The blood spatter near the water cooler is only explained by multiple blows to a wet blood source. One of those blows was the golf-like swing of the rifle by Mr. Hong, which I will come to momentarily. But there were others. I find they were inflicted by Mr. Cain.

[26] The blows struck by Mr. Cain did not silence Mr. Kennedy. Mr. Hong exclaimed that he would show him “how to fucking do it”. He grabbed the pellet rifle from Mr. Cain and swung it like a golf club into the side of Mr. Kennedy’s head. This blow broke Mr. Kennedy’s jaw bilaterally. Mr. Kennedy went entirely limp and silent. Though he was already dying from the blows struck by Mr. Gillard-Gatza, the strike by Mr. Hong accelerated his death.

[27] Mr. Hong did not testify. Mr. McKelvey described an Asian-eyed male, whom I conclude was Mr. Hong, swinging the stock end of the pellet rifle into Mr. Kennedy’s head with tremendous force. Mr. Cain also said that Mr. Hong struck Mr. Kennedy in the head with the rifle. I accept this part of Mr. Cain’s evidence because it is consistent with Mr. McKelvey’s evidence, as well as with the blood spatter evidence and the evidence of Mr. Kennedy’s broken jaw.

[28] Dr. Polanen said that he did not think the blow that caused the broken jaw contributed to Mr. Kennedy’s death. The jury obviously found otherwise, as I would.

[29] Following the golf-swing blow, Mr. McKelvey revealed that there was marijuana under the dog house outside. Mr. Hong went and found it. He returned and began punching Mr. McKelvey in the head. Mr. McKelvey was, at the time, lying face down on the living room carpet, with his hands taped behind his back. He was entirely defenseless. He would later require stitches to the top of his head, over one eye and inside his upper lip. I accept Mr. McKelvey’s evidence about these blows. It is entirely consistent with his injuries.

[30] As Mr. Hong was beating Mr. McKelvey, a car unexpectedly pulled into the driveway. Someone yelled “lights”. The intruders fled. The invasion was at an end.

The Impact of the Offences

[31] The impact of the offences on the victims is in no way surprising.

[32] Ryan Kennedy lost his life. The messenger of misery visited his family, who are left shattered. His parents collapsed upon hearing that their only son was dead. While they have recovered physically, they have never fully regained their footing emotionally. There is a hole in their lives that will never be filled in. Ryan was a son, a brother, a friend, a fishing buddy, a work colleague. The loss to his family is immeasurable. For those fortunate enough not to know the nature of their acute misery, no explanation is possible.

[33] Justin McKelvey was left beaten and bruised. Those injuries were minor but his guilt over the death of his friend will be a cross he bears for the rest of his life. He is a victim of these offences. At the same time he understands that the intruders came to his home looking for illicit drugs. In the result he lost his friend. He lost his home. He is left with the image of his friend being beaten to death just a few feet away from him, as he was pinned down, unable to come to Ryan’s aid.

[34] The community has suffered as well. Many knew Ryan and his family and shared in their sadness and loss. People thought they lived in a quiet, rural, safe area. Now questions have to be asked. Doors have to be locked. Extra precautions taken.

[35] And finally, the families of the offenders have suffered as well. Knowing the harm and pain that their sons, brothers, or friends have inflicted. Seeing them brought into court in chains. Knowing that they are essentially passing their days now living in a cage. All of that must be enormously difficult for them to bear.

The Legal Parameters

[36] Section 235(1) of the Criminal Code requires the court, on a conviction for second degree murder, to impose a sentence of life imprisonment. Section 745(c) requires the court to impose a period of parole ineligibility of between 10 and 25 years.

[37] Section 236(b) of the Criminal Code provides for a maximum penalty of imprisonment for life upon conviction for manslaughter. There is no minimum penalty.

[38] Section 267(b) of the Criminal Code provides for a maximum penalty of 10 years imprisonment upon conviction for assault causing bodily harm. Again, there is no minimum penalty.

Fundamental Principles of Sentencing

[39] Section 718 of the Criminal Code codifies the fundamental purposes of sentencing, long recognized by the common law. Those purposes include 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 and the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[40] Section 718.1 expresses the fundamental principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[41] Section 718.2(a) provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances.

[42] Section 718.2(b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[43] No one sentencing principle or purpose trumps the others. In each case, the weight to be put on the individual objectives varies depending on the facts and circumstances of the offence and of the offender. In this instance, there is no dispute that deterrence and denunciation are of particular importance. While rehabilitation is of less significance in cases of culpable homicide, it must not be entirely discounted. This is particularly so in Mr. Gillard-Gatza’s case, given his youthful age at the time of the offences.

Discussion

[44] Over the course of more than four days, counsel to the Crown and each of the offenders set out their positions in terms of sentencing and each marshalled case law in support of those positions.

[45] I intend to review counsel’s positions, the case law, and any applicable sentencing ranges in the context of the facts of this case and the unique circumstances of each of the offenders.

[46] It is important to recognize that sentencing is an individualized exercise. There is no “one size fits all” sentence. Trial judges have considerable discretion in fashioning sentences. As former Chief Justice Lamer stated in R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, “Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.”

[47] Moreover, as the Court of Appeal has frequently reinforced, sentencing ranges, while helpful in ensuring the principles reflected in s. 718.2 of the Criminal Code are respected, are not meant to be fixed or inflexible. Justice Moldaver, in R. v. D.D., 2002 ONCA 44915, [2002] O.J. No. 1061 (C.A.), said the following, at para. 33:

[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

[48] With these comments in mind, I will discuss the sentencing of each offender individually. I begin with Mr. Hong.

Tin Wai Hong

[49] Mr. Hong has been convicted of second degree murder. I must and do impose the mandatory life sentence required by the Criminal Code. At issue is the length of his parole ineligibility. The trial judge has a discretion to fix the period of parole ineligibility at between 10 and 25 years. Some of the factors to be considered by the court in the exercise of that discretion are set out in s. 745.4 of the Code. They include the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendations, if any, made by the jurors.

The Character of the Offender

[50] Mr. Hong was born March 10, 1984. He was 27 at the time of the offences. He is 32 years old at the time of sentencing.

[51] Mr. Hong has three siblings, all older than him. His parents and two oldest siblings came to Canada in 1981, part of a wave of “boat people” fleeing Vietnam. Mr. Hong was born in Canada and grew up in Toronto, including in an area around Broadview Ave. and Gerrard St. known as China Town East. His parents worked long hours trying to make ends meet for their family. The children were left largely on their own to integrate into Canadian society.

[52] Mr. Hong moved out of his parents’ home when he was 16 or 17. He left high school, having completed only parts of it. He began to work. He worked as a roofer, a mover and on a garment assembly line.

[53] Many individuals wrote letters of support for Mr. Hong. They include his parents and siblings, his cousins, and many friends. Virtually every one of them expressed shock upon hearing of Mr. Hong’s involvement in these offences. They appear to know him as a kind, caring and gentle person; wonderful with children; incapable of committing a violent offence. Many speak of their views about the remorse he feels. They seek leniency for Mr. Hong, offer him their unwavering support upon his release and express confidence that he will turn his life around.

[54] Mr. Hong has a criminal record. It contains just one offence, from November 2006, for possession of a scheduled substance. He received a suspended sentence. He had enrolled himself in an alternative program of education not long before these offences, in an effort to finish his high school diploma. To his credit, he has completed that diploma while in jail.

[55] None of Mr. Hong’s family and friends appears to have recognized his capacity for violence. Mr. Hong was one of the principal organizers of this violent home invasion. In other words, he bears increased moral blameworthiness for being an integral part of the brain trust that organized this excursion to Minden for the purpose of invading another person’s home and committing a violent robbery. He took the lead in the McKelvey residence. He commenced the gratuitous violence when he punched Mr. McKelvey immediately upon entry into his home. He took a very heavy pellet rifle and swung it like a golf club into the head of young man who, at the time, was lying unconscious on the floor, bleeding profusely from the head, with his hands bound behind his back. He broke the young man’s jawbone bilaterally. He contributed to the young man’s death. While most people would recoil in horror at that sight, Mr. Hong carried on. A short time later he began to beat Mr. McKelvey about the head with his fists, though Mr. McKelvey was bound and defenseless at the time as well. His rampage was stopped only by virtue of the unexpected arrival of a vehicle in the driveway of Mr. McKelvey’s home.

[56] One of Mr. Hong’s older sisters wrote, “It is not in Tin Wai to deliberately harm another”. Yes it is. His actions were extremely violent and, in my view, utterly despicable.

The Circumstances of the Offence

[57] I have already described the circumstances of the offences in some detail. Given that Mr. Hong was the only defendant convicted of murder, the jury must have concluded that his actions contributed significantly to the death of Mr. Kennedy and that he had the requisite state of mind for murder. He is the only one of the offenders whom the jury fixed with that state of mind.

[58] I would summarize the aggravating and mitigating circumstances here as follows:

(a) Aggravating factors include: (i) This was a violent home invasion. Courts have repeatedly recognized that a home is a place where individuals should feel safe, comfortable and secure; (ii) The offence was drug-related; (iii) The intruders were masked and armed. Mr. Hong carried a can of bear spray but he knew that Mr. Gillard-Gatza carried a bat and that there was a risk, of course, that the bat may be used; (iv) The victims were unlawfully confined and indeed restrained with duct-tape; (v) Mr. Hong was one of the organizers and planners of this violent home invasion/robbery. He led the invasion when it occurred; (vi) Mr. Hong persuaded Mr. Gillard-Gatza to participate as well, on the promise of eliminating a drug debt; (vii) Mr. Hong’s violence was gratuitous; (viii) His violence was largely committed against helpless individuals who were bound. In the case of Mr. Kennedy, he was bound and unconscious. Mr. Hong appears to have been enraged by the fact that he was making groaning and snoring sounds while dying. Mr. Hong demonstrated a callous indifference to Mr. Kennedy’s suffering; (ix) He struck a blow to Mr. Kennedy’s head violent enough to break his jaw bilaterally and accelerate his death; and, (x) While the murder may not have been planned and deliberate, the home invasion/robbery certainly was. It was a considered business venture, motivated by greed.

(b) Mitigating factors include: (i) Mr. Hong offered a guilty plea to manslaughter and assault causing bodily harm, which demonstrates at least some level of acceptance of responsibility; (ii) Mr. Hong has substantial support from his family and friends; and, (iii) Mr. Hong has demonstrated some level of remorse. He expressed remorse directly to the court and to the victims. His family and friends have also expressed that he is remorseful.

[59] I note that Mr. Hong has been incarcerated since his arrest on October 20, 2010. He has spent that time at the Central East Correctional Facility (“CECC”). The CECC has been plagued with problematic issues for some time. During the course of this trial, which ran approximately eight months including pre-trial motions, the offenders were delivered to the court house late, or not at all, on almost forty occasions. There were many days when the court and the jury were kept waiting until 11:00 a.m. or later due to the failure of the CECC to deliver prisoners for transport in a timely way.

[60] During Mr. Hong’s time at CECC, he has been subjected to lockdowns for 266 days. The circumstances associated with pre-trial detention have long been accepted as a factor having the potential to mitigate sentence. I consider the number of lockdown days as a mitigating factor in Mr. Hong’s sentence. I do not suggest that it has strongly influenced me in terms of the ultimate sentence, but it is certainly one factor to consider, amongst others, in arriving at a fit and just sentence for Mr. Hong. He is not entitled to enhanced credit for pre-trial custody, obviously, given his mandatory life sentence. The only meaningful way this factor can be accounted for is in relation to the appropriate period of parole ineligibility.

The Recommendations of the Jury

[61] When asked for their recommendations with respect to the issue of parole ineligibility, two jurors recommended a period of 15 years. Six others recommended 10 years. Three jurors made no recommendation. One juror was discharged prior to the end of the trial.

The Positions of the Parties

[62] The Crown seeks a 22 year period of parole ineligibility. Mr. Davidson argued that the constellation of aggravating factors here is so egregious that only a substantial period of parole ineligibility will do justice to the case.

[63] Mr. Strathman, on behalf of Mr. Hong, argued that the minimum period of 10 years ineligibility ought not to be increased. He did not attempt to minimize the seriousness of what happened inside the McKelvey residence but pointed out that murder is always egregious on some level. Mr. Hong, he submitted, is a good person who has the support of a network of loving friends and family. He lost his way and acted in uncharacteristic fashion. The events of October 19, 2011 were a tragic event for which Mr. Hong is now answering.

Discussion

[64] Each side provided the court with substantial case law in support of their respective positions.

[65] The jurisprudence makes it clear that the decision regarding parole ineligibility is a very fact specific exercise. It is a part of, and subject to, the same discretion as the sentencing exercise as a whole. The discretion must be exercised having regard to the fundamental purpose of sentencing and the sentencing objectives that I referred to earlier.

[66] The standard to be applied when exercising the court’s discretion was described by Iacobucci, J. in R. v. Shropshire (1995), 1995 SCC 47, 102 C.C.C. (3d) 193 at para. 27, where he said the following:

… [A]s a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be "unusual", although it may well be that, in the median number of cases, a period of 10 years might still be awarded.

[67] Justice Iacobucci also noted that the only difference in punishment between first and second degree murder is the duration of parole ineligibility.

[68] First degree murder is one of the most serious offences found in the Criminal Code. It is an offence associated with an elevated level of moral blameworthiness. A conviction for first degree murder mandates a life sentence with a period of parole ineligibility fixed at 25 years. A conviction for second degree murder similarly mandates a life sentence. But the sliding scale of parole ineligibility – between 10 and 25 years – reflects the fact that there can be varying levels of moral culpability associated with second degree murder.

[69] The cases submitted by the Crown were offered to support the assertion that the facts and circumstances here merit the imposition of a period of parole ineligibility at the upper end of the range; a range reserved for cases that are the close cousin of first degree murder in terms of moral culpability.

[70] The cases relied upon by the Crown have a common theme. They are all instances where the court recognized the combination of a worst class of offender committing the worst class of offence.

[71] In R. v. Salah, 2015 ONCA 23, the accused set fire to an occupied townhouse in the middle of the night, intending to kill the female occupant. She escaped, but her two little children did not. She was forced to stand by and helplessly watch as her home burned with her little children inside it. The trial judge imposed a period of parole ineligibility of 23 years. The Court of Appeal upheld the sentence.

[72] In R. v. Bettencourt, 2008 ONCA 337, the accused attacked a man in his car, stabbing him. The man escaped and Mr. Bettencourt pursued him, ultimately shooting him twelve times. In upholding a twenty year period of parole ineligibility, the Court of Appeal described the murder as one of “extraordinary violence, cruelty and inhumanity”. Moreover, there was no evidence of good character and no mitigating factors in Mr. Bettencourt’s background.

[73] R. v. E.B., 2011 ONCA 194 was a particularly horrific case. There, four children had been removed from their parents’ care by the Children’s Aid Society. They were placed in their grandparents’ home. The two youngest children were mistreated in a particularly inhumane fashion. They were kept locked in a squalid room with no heat for 12 hours a day. When they were let out, they were forced to sit on a mat. They were fed scraps of food. One of the children died at age five, essentially of starvation. His little body was bruised and battered and covered with filth. He had suffered beyond imagination. The Court of Appeal commenced its written decision with the line, “The circumstances underlying this appeal are abhorrent beyond description.” They upheld periods of parole ineligibility of 22 and 20 years imposed by the trial judge on the grandparents, emphasising the cruelty, inhumanity and callousness of the offenders.

[74] The opening line of the Court of Appeal in R. v. Olson, 1999 ONCA 1541, [1999] O.J. No. 218 is thematically similar. Laskin J.A. began, “This case reveals the depths of human depravity”. This was another case of abuse and cruelty inflicted on a tiny and vulnerable victim. Olson was the mother of a six month old girl. Podniewicz was her boyfriend. He physically abused the baby. He violently shook her on at least two occasions, causing multiple fractures to her ribs and other bones. She eventually died of acute pneumonia. Olson helped cover up for her boyfriend. Podniewicz had, a number of years earlier, brutalized his young son, leaving him deaf, blind, paralyzed and severely brain damaged. The appeal court upheld periods of parole ineligibility of 25 and 15 years for Podniewicz and Olson respectively. Podniewicz was, in short, in an elite category of depraved offenders.

[75] The cases cited by Mr. Strathman also have a common theme. They are instances where seemingly reprehensible killings have resulted in more conservative increases in the period of parole ineligibility.

[76] R. v. Hall, 2001 ONSC 7281 involved a man dousing his friend in gasoline and setting him ablaze for no apparent reason, following an afternoon of drinking. The victim died a horrific, painful death. The accused was convicted of second degree murder and the trial judge imposed a period of 14 years ineligibility for parole. The Court of Appeal upheld the sentence.

[77] R. v. Zekarias and Paredes, 2014 ONCA 910 involved the murder of an innocent bystander, struck by a bullet intended for someone else. The two accused had been shown the door by bouncers at the Brass Rail strip club on Yonge Street in Toronto. Paredes was offended and pulled out a handgun and shot at the bouncers. He missed and struck the victim – an unfortunate, but otherwise entirely decent young guy who just happened to be walking up Yonge Street at the time. The trial judge imposed a 15 year period of parole ineligibility. It was reduced on appeal to 12 years on the basis that Paredes was 22 at the time of the shooting, the offence was out of character for him and he had strong, family support. Doherty J.A. concluded that he could one day be a responsible and productive member of the community – a factor overlooked by the trial judge.

[78] In R. v. Boukhalfa, 2013 ONSC 1255 the accused murdered his mother, ostensibly because she would not provide him with medication he perceived he required. He stabbed her 30 times. He was 26 years old at the time of the killing; a student at Humber College. He had a criminal record that included offences of violence. He was serving a conditional sentence when the murder occurred. The trial judge concluded that the offence was akin to a domestic homicide and that a range of 12-17 years of parole ineligibility applied. She imposed a 15 year period of ineligibility.

[79] Sometimes it can be difficult to discern the dispositive differences between cases. R. v. Bettencourt, 2008 ONCA 337, a case I mentioned a moment ago, involved extraordinary violence and justified a 20 year period of parole ineligibility. R. v. Lewis, 2012 ONSC 2488 is a case cited by defence counsel that I would say was equally violent. The victim was lured to a vacant apartment on the pretext that he could acquire a firearm. He was ambushed, beaten and shot 11 times. The accused was 20 years old, engaged in a high risk criminal lifestyle and on probation at the time, one of the conditions of which was a weapons prohibition. The trial judge imposed a period of 12 years ineligibility for parole.

[80] The different results in these cases highlights the individualized and fact specific nature of sentencing, as well as the broad discretion exercised by sentencing judges.

[81] In R. v. Ariaratnam, 2012 ONSC 5301, the accused drove his SUV onto a sidewalk and intentionally ran down another man. He was 26 years old, with a significant criminal record that included offences of violence. A 12 year period of parole ineligibility was imposed by the trial judge, who observed that all murders are reprehensible, yet in many cases the period of parole ineligibility is not increased. This observation is the central theme of Mr. Strathman’s submissions.

[82] There is no doubt that the actions of Mr. Hong were reprehensible and that they have had devastating consequences for the family and friends of Ryan Kennedy. One of the things I find most difficult about sentencing in cases of culpable homicide is the practice of comparing one horrific case to another, searching for distinguishing features. Every case is the worst possible situation for the victims and to suggest that one case is less serious or egregious than another is a troublesome exercise, capable of inflicting further harm on the victims.

[83] That said, the proportionality principle of s. 718.2(b) requires parole ineligibility orders to be similar to such orders imposed on similar offenders for similar offences, committed in similar circumstances: R. v. Salah, 2015 ONCA 23, as above, at para 268. Comparisons are, in the result, inevitable.

[84] There are definitely aggravating factors present here that justify, indeed necessitate in my view, an enhanced period of parole ineligibility. I am particularly concerned about the fact that this was a violent home invasion by masked and armed intruders. Mr. Hong’s violence was gratuitous and the blow he inflicted on Mr. Kennedy was entirely unnecessary. Though I have found that Mr. Kennedy was fatally wounded already, Mr. Hong’s strike was almost incomprehensibly violent and inflicted on a defenceless and struggling victim. I agree with the Crown’s submission that Mr. Hong’s actions reflect a callous disregard for the well-being of Mr. Kennedy.

[85] On the other hand, I found the Crown’s submissions to be over-reaching. This case is not on the same footing as cases like R. v. E.B., 2011 ONCA 194, R. v. Olson, 1999 ONCA 1541 or R. v. Salah, 2015 ONCA 23. The Crown vigorously pursued a first degree murder conviction for all offenders. The jury did not agree. Candidly, I perceive the Crown’s submissions on sentence here to be an attempt to obtain indirectly that which they were unable to obtain directly. There is substantial moral culpability on Mr. Hong’s part. I do not want to be heard to be saying otherwise. But he is not in the class of worst offender and the circumstances do not fall within the worst offence class.

[86] Mr. Hong was not a youthful offender at the time of the offence but he was still a young man. He has substantial support from his family and friends. He has a minor criminal record and no history of violence. He may yet become, in the words of Justice Doherty, a responsible and productive member of the community.

[87] I find that an appropriate range of sentence in this instance would include a period of parole ineligibility of 12-14 years. All things considered, in respect of count one, I impose a sentence of life imprisonment, with a period of parole ineligibility fixed at 13 years.

[88] Very limited submissions were made in respect of the conviction for assault causing bodily harm in relation to the assault on Mr. McKelvey. These limited submissions are explained by the fact that whatever sentence I impose will run concurrent to the life sentence for murder.

[89] Mr. Hong was responsible for the majority of Mr. McKelvey’s injuries. He beat him about the face at a time when Mr. McKelvey’s hands were bound behind his back. Beating helpless and vulnerable victims appears to have been his specialty on this night. Many of the aggravating and mitigating circumstances described above are applicable to this sentence as well.

[90] I impose a four year custodial sentence on count two, for the conviction of assault causing bodily harm. This sentence is concurrent to the sentence on count one.

[91] There will be some ancillary orders imposed as well, but since they are common to all three offenders, I will leave them to the end of these reasons.

[92] For now, I move on to consider the case of Mr. Gillard-Gatza.

Mason Gillard-Gatza

[93] Mr. Gillard-Gatza is 23 years old. He was 19 at the time of the offences. He was employed as a roofer and lived with his step-father in the fall of 2011. He was also attending a special school in an effort to obtain his high school diploma. He has no criminal record.

[94] His mother provided the court with some information about his background. When he was a young teenager his mother and stepfather bought a home in a neighbourhood his mom described as “less than desirable”. Mr. Gillard-Gatza began to hang out with unsavoury characters whom he sought to impress. Nevertheless, she expressed shock and sadness upon the realization that Mr. Gillard-Gatza had been involved in the offences that bring him before the court. She said they are entirely out of character for him.

[95] Mr. Gillard-Gatza played a significant role in the death of Mr. Kennedy. He was enticed by Mr. Hong to participate in what he understood was a home invasion/robbery. He invaded Mr. McKelvey’s residence, masked and armed with a weapon. He used that weapon to kill Mr. Kennedy.

[96] I accept that when he saw Mr. Kennedy come to Mr. McKelvey’s aid, he panicked and swung the bat. I accept, as the jury did, that he did not do so with the intention of killing Mr. Kennedy. But that said, he knowingly participated in an objectively dangerous offence. He invaded the home of a known drug dealer, intending to rob him. He knew the home was occupied. He knew he was carrying a weapon and must have known that he was prepared to use it.

[97] Mr. Gillard-Gatza caused the death of a young man, just 21 years old. An entirely innocent victim who had just been enjoying watching sports on television with a friend. The consequences of the offence have been devastating.

[98] Manslaughter is an offence that covers a broad range of circumstances. The moral culpability of offenders can vary significantly. The circumstances of the offence can range from the near accidental killing to killings that are more akin to murder. See R. v. Jimmy, 2009 SKQB 124, at para. 22.

[99] Crown counsel submits that there are significant aggravating factors here that place the circumstances of this offence in the most serious category. He argues that Mr. Gillard-Gatza committed the actus reus of murder and had a state of mind close to the requisite mens rea for murder. He knew, the Crown submits, that he was carrying a potentially lethal weapon. When he swung it, he aimed for the head of Mr. Kennedy and knew that this put Mr. Kennedy at significant risk of serious harm. He seeks a sentence for this “near murder” of 12-14 years.

[100] Mr. Lyon, on behalf of Mr. Gillard-Gatza, submitted that the usual range in cases of manslaughter with aggravating circumstances, is 8-12 years. He asked the court to consider a sentence at the low end of the range, such that it would net out to a reformatory sentence once Mr. Gillard-Gatza’s pre-trial custody has been taken into account. Mr. Gillard-Gatza was taken into custody on October 20, 2011. As of today he has exactly 4.5 years of pre-trial custody to be credited, which is the equivalent of 6.75 years when credited at the rate of 1.5:1.

[101] Counsel again provided me with significant case law in support of their positions.

[102] In the recent case of R. v. Jones-Solomon, 2015 ONCA 654, the Court of Appeal confirmed again that the “loose range” for manslaughter with aggravating factors is 8 to 12 years. The Court also reminded trial judges that while it is appropriate to consider the usual range of sentence for a particular offence committed in particular circumstances, he or she may deviate from that range after considering the unique circumstances of the particular offence and offender in issue.

[103] Jones-Solomon, 2015 ONCA 654 involved a home invasion. A woman and at least two males broke into the home of the former boyfriend of the woman. They beat him and shot him. The trial judge was not convinced that the appellant was the shooter, but was satisfied that he had participated in the beating of the victim. A sentence of 13 years was imposed and upheld by the Court of Appeal.

[104] Numerous other cases were cited by the Crown in support of the usual range of 8-12 years, all of which involve instances where sentences at the upper end of the range were imposed: R. v. Worm, 2014 SKCA 94; R. v. Jimmy, 2009 SKQB 124, as above; R. v. Jiwa, 2012 ONCA 532; R. v. Cleyndert, 2006 ONCA 33851, [2006] O.J. No. 4038 (C.A.); and R. v. Clarke, 2003 ONCA 28199, [2003] O.J. No. 1966 (C.A.). Mr. Lyon does not disagree with the Crown’s position that the usual range is 8-12 years. He argues, however, that the facts here justify a sentence at the low end of the range.

[105] The Crown’s position, of course, is that the court should find that the aggravating circumstances of this case are such that the appropriate sentence falls at the top end of the usual range, or even a little above it. There are certainly cases where the aggravating circumstances are such that sentences above the usual range are warranted.

[106] R. v. Atherley, 2009 ONCA 195, for instance, was a case of a brutal killing that warranted, in the trial judge’s view, a sentence of 15 years for each of two offenders. The Court of Appeal agreed. Atherley was, like this case, an example of a home/invasion robbery gone bad. The victim was vulnerable. The accused inflicted gratuitous violence on him and left him bound and gagged in his apartment. The accused both had lengthy criminal records including convictions for other violent offences. Both were on parole at the time of the offence.

[107] On the other hand, there are cases where sentences below the usual range may be warranted. R. v. Kwakye, 2015 ONCA 108, is one such example. There, the Court of Appeal varied a 10 year sentence imposed for manslaughter occurring during the course of a home invasion. The offender’s co-accused used a firearm during the course of a robbery. The Court of Appeal held that the trial judge had failed to give sufficient credit to the appellant’s rehabilitative potential, given that he was just 18 at the time of the offence. Further, that the appellant had only an objective, not a subjective, foresight that his co-accused would use the gun. A sentence of 7 years was substituted for the 10 years imposed by the trial judge.

[108] All this is to say that, as is invariably the case, the aggravating and mitigating circumstances of the case heavily influence the sentence to be imposed.

[109] The aggravating circumstances here include:

(a) This was a planned and organized home invasion/robbery. As Blair J.A. noted in R. v. Wright (2006), 2006 ONCA 40975, 83 O.R. (3d) 427, home invasions represent a violation of the sanctity of the home and of the sense of security people feel when in their homes. It is a significant aggravating circumstance; (b) The home invasion was drug-related. The offenders were in search of marijuana and money; (c) Mr. Gillard-Gatza was masked and armed with a baseball bat when he entered the home. He must have had a subjective appreciation that he was prepared to use the bat if need be. The jury did not find that he had the requisite intent for murder, but he must have foreseen a significant risk of injury to the occupants of the home as a result of his use of an aluminum bat; (d) Mr. Gillard-Gatza struck fatal blows to Mr. Kennedy; (e) He was callously indifferent to Mr. Kennedy’s suffering and the precarious position he put him in. I accept that he recoiled in horror at the site of all of the blood when he was attempting to bind Mr. Kennedy, but he still did nothing to summon help for him, nor did he intervene to prevent Mr. Cain and Mr. Hong from delivering additional blows to Mr. Kennedy; (f) He participated in the offence out of greed; (g) After he put Mr. Kennedy to the ground with the bat, he continued to utilize it to strike Mr. McKelvey so as to subdue him; and, (h) He assisted in the binding of both Mr. Kennedy and Mr. McKelvey.

[110] The Crown asked that the court find that Mr. Gillard-Gatza struck Mr. Kennedy at least once while he was on the ground. I am unable to find that as a fact on this record, much less to the reasonable doubt standard as required for aggravating factors.

[111] The Crown also asked that I find that Mr. Gillard-Gatza kicked Mr. Kennedy when he was incapacitated on the ground. This is based on something Mr. Gillard-Gatza said in his statement to the police. He disavowed it in this trial testimony. His statement was rife with lies. I am not satisfied, beyond a reasonable doubt, that he actually did kick Mr. Kennedy. Even in his statement, which is entirely unreliable, he said it wasn’t Mr. Kennedy he kicked but rather the homeowner.

[112] The mitigating circumstances include:

(a) Mr. Gillard-Gatza’s young age at the time of the offences. In a home invasion/robbery like this one, resulting in the death of an occupant and a manslaughter conviction, rehabilitation takes a back seat to the sentencing objectives of denunciation and deterrence. That said, it remains a consideration given Mr. Gillard-Gatza’s young age: see R. v. Jiwa, 2012 ONCA 532, as above; (b) The absence of a prior criminal record; (c) His supportive family. He will have a job waiting for him with his father when he is released from prison and the support of his mother and step-father, as well as their network of friends; (d) The fact that he offered guilty pleas to manslaughter and assault causing bodily harm at the arraignment, which were rejected by the Crown; and, (e) He is, in my view, genuinely remorseful and made what I consider to have been a sincere apology to the family and friends of Mr. Kennedy.

[113] Mr. Lyon noted that Mr. Gillard-Gatza has spent some 243 days in lockdown while incarcerated and awaiting the conclusion of his trial. It is agreed that the appropriate credit for his pre-trial custody is 1.5:1. No further mitigation of the sentence is sought on account of the conditions of pre-trial custody.

[114] Mr. Lyon did seek some credit for Mr. Gillard-Gatza’s co-operation with the police. He correctly pointed out that information provided by Mr. Gillard-Gatza led to the arrest of Mr. Guerra and Mr. Cain. He did not name them, but provided information about gas stations where they had filled up, which led the police to Mr. Guerra’s vehicle.

[115] There is authority to support the proposition that credit may be given against sentence to an offender who provides meaningful assistance to the police. See for instance, R. v. John Doe (1999), 1999 ONSC 15051, 142 C.C.C. (3d) 330 (S.C.J.); and R. v. X.Y., 2007 ONCA 189. There are no particular tariffs applicable to such assistance and Mr. Lyon did not articulate what particular discount he thought appropriate.

[116] While I agree that some parts of Mr. Gillard-Gatza’s statement to the police proved helpful to them in their investigation, I must consider the whole of Mr. Gillard-Gatza’s statement. The main thrust of it was that he had only a peripheral role to play in the invasion and death of Mr. Kennedy. He attributed the swinging of the bat to an unnamed black man (Mr. Cain). He did not admit his actual role until he took the stand in the late stages of this long trial. For all the time prior to then, he left Mr. Cain exposed to culpability as the person who swung the bat. I am confident that this is not the type of meaningful co-operation that the jurisprudence recognizes as deserving of a credit against sentence.

[117] This was a very serious offence, with very serious consequences. I suspect Mr. Gillard-Gatza expected he would play only a minor supporting role when he entered the McKelvey residence, third in line. As events played out, he played a major role in the death of Mr. Kennedy. It was his idea to bring the bat in the first place. He had sole control of it and must be held accountable for its use against both of the occupants of the home.

[118] While I do not think the circumstances here justify a sentence outside of the usual range, I do think it warrants a sentence near the upper end. I must take due regard, however, to the age of Mr. Gillard-Gatza at the time of the offences. I cannot ignore the fact that he has no history of violence and the expectation that he will become a responsible member of society upon his release.

[119] On count one, in respect of the conviction of manslaughter, I impose a sentence of 11 years in custody. I deduct from that a credit of 6.75 years for pre-trial custody, for a net sentence of four years and three months.

[120] On count two, in respect of the conviction for assault causing bodily harm, I impose a sentence of 2 years, concurrent to count one.

[121] Again, there are some ancillary orders that I intend to impose on all offenders and I will summarize them shortly. In the meantime, I turn to Mr. Cain.

Nathaniel Cain

[122] Mr. Cain is 31 years old. He was 27 at the time of the offences. He has a grade 9 education and a limited work history. He has three children: two daughters and a son. His father was absent from his life. He expresses deep regret that he is perpetuating the cycle of children growing up without a father present in their lives. He hopes to rectify that in the future.

[123] Mr. Cain has a criminal record. It includes prior convictions for violence, but clearly the index offence is in a different bracket altogether. His record of prior convictions was accumulated in a relatively brief period between January 2006 and February 2008. He has five convictions for assault (all between January 2006 and October 2007), one conviction for uttering threats, one for possession of marijuana, and four breach convictions: two breaches of an undertaking, one breach of recognizance, and one breach of the conditions of a probation order.

[124] Mr. Cain was born with congenital heart disease. His treating cardiologist, Dr. Jack Colman, testified during the trial and explained the nature of his disease. There are, in short, substantial defects in the structure of Mr. Cain’s heart. The upshot of the defects is that Mr. Cain’s heart pumps blood to his organs and tissues that is significantly less oxygenated than would normally be the case. His resting oxygen is in the range of 85% or less, compared to normal values of 98-100%. He suffers from severe hypoxia, which manifests in poor exercise tolerance, poor energy and an inability to concentrate that interfered with his schooling. His heart defect has reduced his life expectancy to about age 50.

[125] Crown counsel argued quite earnestly about the validity, or lack thereof, of Mr. Cain’s health defect as a mitigating factor on sentence. The Crown is very troubled by its impression that Mr. Cain attempted to use his disability to avoid culpability for a very serious criminal offence. I am not in a position to say whether he did or did not. But I am able to say, without a doubt, that Mr. Cain has a very serious heart defect that impacts profoundly on his life expectancy.

[126] Crown counsel urged the court to consider the fact that there is great uncertainty about how long any given person will live. That is so. There will always be some people who live longer than expected. Others will die prematurely. Dr. Colman, who I found to be a very sincere and highly qualified witness, testified during a pre-trial voir dire that it would be unusual for Mr. Cain to live beyond 50. I accept that evidence and conclude that Mr. Cain’s life expectancy is in the range of 50 years.

[127] The Crown’s position with respect to Mr. Cain is that he has a higher level of moral culpability than Mr. Gillard-Gatza. Whereas the Crown sought a sentence of 12-14 years for Mr. Gillard-Gatza, they urge the court to impose a sentence in the range of 15-17 years for Mr. Cain.

[128] Mr. Cain’s counsel submit that the Crown is overshooting the mark; that the usual range for manslaughter with aggravating circumstances is 8-13 years; and that there is not only no reason to exceed the range in this case, but that a sentence at the low end of the range is justified in all the circumstances.

[129] One of the core elements of the Crown’s position is the submission that Mr. Cain struck blows to the head of Ryan Kennedy that contributed in a significant way to his death.

[130] I have found that all three offenders struck blows to Mr. Kennedy’s head. The pathologist who examined Mr. Kennedy, Dr. Polanen, testified that he died of a combination of blows. In these circumstances it may very well be that the blows struck by Mr. Cain contributed to Mr. Kennedy’s death. This is an aggravating circumstance, however, which means I must be satisfied beyond a reasonable doubt that Mr. Cain’s actions contributed to Mr. Kennedy’s death. I am not so satisfied. They might have. They might not have.

[131] There were two deep lacerations on Mr. Kennedy’s head, associated with skull fractures. The Crown’s position is that one was caused by the bat wielded by Mr. Gillard-Gatza. The other was caused by the butt end of the pellet rifle, when wielded by Mr. Cain. I do not accept this position.

[132] The two strikes to the top of the head are very similar in appearance. They are aligned and in the same general area of Mr. Kennedy’s head. They have a shelved appearance and the shelving is in the same direction, supporting the conclusion that they were the result of similar strikes. Mr. Gillard-Gatza admitted to striking Mr. Kennedy in the head twice. The Crown does not dispute that he did. I accept that he did. It seems unlikely to me that one strike caused a deep laceration and skull fracture, but the other strike left no obvious injury. It seems far likelier that they caused similar injuries.

[133] Having found that it was Mr. Gillard-Gatza’s use of the bat that caused the scalp lacerations and skull fractures and Mr. Hong’s use of the rifle that caused the broken jaw, there are no markedly obvious injuries left that correlate with the blows inflicted by Mr. Cain. There was bruising to the side of Mr. Kennedy’s face that is, in my view, consistent with being struck by the butt end of the rifle. But there are no other fractures or lacerations that might be expected with a severe blow. Moreover, Mr. Kennedy was still alive and making moaning sounds after being struck by Mr. Cain, unlike the situation after the blow inflicted by Mr. Hong.

[134] All this is to say that I am not able to find, as an aggravating factor, that the blows inflicted by Mr. Cain contributed to Mr. Kennedy’s death.

[135] I would summarize the aggravating factors that I do find in relation to Mr. Cain as follows:

(a) This was a violent home invasion/robbery; (b) Mr. Cain was one of the principal planners of the operation; (c) The invaders were masked and armed. Mr. Cain initially took only a plastic paddle into the house, but he made use of a heavy pellet rifle as well; (d) The offence was drug-related and motived by greed; (e) Mr. Cain has a criminal record including numerous other convictions for violent offences; (f) Mr. Cain participated in the binding of both occupants of the home; and, (g) He also participated in the assault on Mr. Kennedy. In fact, he struck him twice in the head with the butt end a heavy pellet rifle at a time when Mr. Kennedy was lying on the ground, incapacitated, bleeding profusely from the head and obviously in serious distress. I am not prepared or able to find that Mr. Cain had one of the requisite states of mind for murder, but certainly Mr. Cain would have known that his actions created a serious risk of harm to Mr. Kennedy. Yet he persisted anyways. His conduct is distinguishable from that of Mr. Gillard-Gatza, who struck out at Mr. Kennedy in the midst of a sudden confrontation. Mr. Cain’s actions were more considered and deliberate.

[136] I consider the following factors to have a mitigating impact on sentence:

(a) Mr. Cain gave a statement to the police upon his arrest where he admitted being involved in the offences and accepted responsibility to some extent, though I find he did downplay his involvement somewhat; (b) He also offered a guilty plea to manslaughter and aggravated assault at the first arraignment. Though he entered a not guilty plea in the arraignment at this retrial, he had earlier deposed in an affidavit filed on a pre-trial application, that he was guilty of manslaughter. He did not take any different position when the case went to the jury; (c) Mr. Cain has expressed remorse for his involvement. Crown counsel urges the court to find that Mr. Cain’s purported remorse is disingenuous. I cannot entirely agree or disagree with that submission. In my view, Mr. Cain’s expressions of remorse have been a complex mixture of authentic remorse and self-serving manipulation; and, (d) His reduced life expectancy.

[137] I note, again, the Crown’s opposition to a shortened life expectancy as a mitigating circumstance. Ms. Symes referred the court, however, to a passage from former Chief Justice Lamer’s ruling in R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, that I find applicable in these circumstances. The passage is found at para. 74 and provides as follows:

…In the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender's remaining natural life span. Accordingly, in exercising his or her specialized discretion under the Code, a sentencing judge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender's expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value. But with that consideration in mind, the governing principle remains the same: Canadian courts enjoy a broad discretion in imposing numerical sentences for single or multiple offences, subject only to the broad statutory parameters of the Code and the fundamental principle of our criminal law that global sentences be "just and appropriate".

[138] Obviously this is not a case where the Crown is seeking a sentence that greatly exceeds Mr. Cain’s expected remaining life span. But the notion that the court should consider the age of the offender in the context of his or her life expectancy has general application when fashioning a fit and just sentence. A sentencing judge is required to fashion a sentence that is appropriate to the particular circumstances of the offence and of the offender. Those particular circumstances will always include the personal characteristics of the offender, including his or her age and, in certain circumstances, his or her life expectancy. The principle of parity requires similar, not identical sentences. It requires that there be a rational basis for imposing a sentence that is dissimilar from what other similar offenders have received in similar circumstances. A reduced life expectancy may, in certain circumstances, provide such a rational basis.

[139] That said, the court must not lose sight of the fact that the gravity of the offences here is high, as is Mr. Cain’s moral culpability. Moreover, he knew of his health difficulties and his reduced life expectancy when he made the decision to engage in serious, not to mention risky, criminal behavior. In R. v. Nasogaluak, 2010 SCC 6, Justice LeBel observed that sentences imposed by trial judges express, to some extent, society’s legitimate shared values and concerns. The compassion and concern that society may have for Mr. Cain’s health condition and his reduced life expectancy tends to take a back seat in cases of premeditated, serious criminal conduct: see R. v. Mercer, 1993 NLCA 7755, [1993] N.J. No. 198 (N.L.C.A). I do not suggest that the death of Mr. Kennedy was premeditated, but certainly the home invasion/robbery was.

[140] While I am prepared to take Mr. Cain’s reduced life expectancy into account in mitigation of his sentence, its impact is, in my view, modest in the circumstances of this case.

[141] Mr. Cain’s counsel filed evidence at the sentencing hearing regarding Mr. Cain’s experience in pre-trial custody. Like Mr. Hong and Mr. Gillard-Gatza, he has been held in custody at the CECC. And like Mr. Hong and Mr. Gillard-Gatza, he has been subjected to a high number of incidents of lock downs. Some 310 days in total.

[142] Counsel are agreed that it is appropriate that Mr. Cain receive a credit of 1.5 days for each day of pretrial custody. He was arrested about 10 days after Mr. Gillard-Gatza. He is entitled, by my calculation, to a credit of 6.7 years for his pre-trial custody.

[143] His counsel argue, however, that the difficult conditions of his pre-trial custody should be taken into account in further mitigation of his sentence. I did consider harsh pre-trial conditions as somewhat mitigating in the case of Mr. Hong. But there are differences of course. Mr. Cain is already receiving enhanced credit for pre-trial custody. Mr. Hong is not.

[144] Mr. Cain’s counsel rely on the decision of Justice Melvyn Green in R. v. Doyle, 2015 ONCJ 492. Doyle is a carefully considered and reasoned decision that holds that sentencing courts may take harsh pre-sentence custodial conditions into account by way of mitigation above and beyond the pre-trial credit provided for in s. 719 of the Criminal Code. That section, and in particular, subsection 719(3) provides that a court may take into account any pre-trial custody but shall limit any credit for that time to a maximum of 1 day for each day spent in custody. Subsection (3.1) increases that maximum to 1.5 days “if the circumstances justify it”.

[145] Section 719 was considered by the Supreme Court recently in R. v. Summers, 2014 SCC 26. Justice Karakatsanis, writing for a unanimous court, described the two historical rationales for enhanced pre-trial credit. One is quantitative. The other is qualitative. The quantitative rationale is aimed at achieving fairness between offenders who are held in custody and those who are released on bail while awaiting trial. Statutory release and earned remission provisions apply to post-sentence custodial time, but not pre-sentence custodial time. Absent enhanced credit for pre-sentence custody, a person held in custody prior to being sentenced will spend more time, often significantly more time, in actual custody than a person released on bail pending trial.

[146] The qualitative rationale is aimed at recognizing the often more onerous conditions that exist in remand facilities as opposed to longer term detention centres.

[147] Justice Karakatsanis concluded that the circumstances referred to in subsection (3.1) need not be exceptional to warrant enhanced credit. Indeed, the simple loss of eligibility for early release may be a circumstance justifying the enhanced credit provided for in subsection (3.1). In the post-Summers era, pre-trial custody has been routinely credited at a rate of 1.5 to 1.

[148] Justice Green went beyond the enhanced credit provided for in subsection (3.1). He allowed for further, undefined, mitigation based on the particularly harsh conditions of Mr. Doyle’s pre-trial custody, including frequent lock downs.

[149] Justice Green relied on the Supreme Court’s decision in R. v. Nasogaluak, 2010 SCC 6, as above. Nasogaluak was a case where the police used excessive force when arresting the accused for impaired driving and flight from police. At issue was the ability of the sentencing judge to take into account the breach of the accused’s section 7 Charter right when crafting a fit and just sentence.

[150] Justice LeBel, for a unanimous court, summarized the court’s ruling as follows, at para. 55:

…[A] sentencing judge may take into account police violence or other state misconduct while crafting a fit and proportionate sentence, without requiring the offender to prove that the incidents complained of amount to a Charter breach. Provided the interests at stake can properly be considered by the court while acting within the sentencing regime in the Criminal Code, there is simply no need to turn to the Charter for a remedy. However, if a Charter breach has already been alleged and established, a trial judge should not be prevented from reducing the sentence accordingly, so long as the incidents giving rise to the breach are relevant to the usual sentencing regime. Of course, as we shall see, as a general rule, a court cannot reduce a sentence below a mandatory minimum or order a reduced sentence that is not provided for by statute. That said, circumstances of a Charter breach or other instances of state misconduct, in exceptional circumstances, do allow a court to derogate from the usual rules to which its decisions are subject.

[151] Green J. expressed the view that neither s. 719(3.1) of the Code, nor the decision in Summers, 2014 SCC 26, restricts a sentencing judge from taking state misconduct or other particularly harsh treatment of an offender into account as a mitigating factor when fashioning a fit and just sentence for a particular offender in particular circumstances. I agree with Green J. to that extent. The Crown does not take issue with this view.

[152] There is some concern of course that providing further mitigation for harsh treatment in pretrial detention is nothing more than an end run around the cap provided for in s. 719(3.1). Some caution is warranted to ensure that Parliament’s intention in imposing a maximum credit for pretrial detention is respected. Courts should not routinely add credit for harsh pretrial conditions when clearly a qualitative component already exists in the capped pretrial credit.

[153] Where the dividing line lies between harsh conduct already accounted for in s. 719(3.1) and particularly harsh conduct that merits further mitigation of a sentence is not clear. State misconduct could certainly fall on the side warranting additional mitigation. That was the case in Nasogaluak, 2010 SCC 6. Other circumstances that are particularly harsh may also cross the threshold. Here is where I part ways with the reasoning in R. v. Doyle, 2015 ONCJ 492. Green J. concluded that exceptional circumstances are not required before a court may take account of harsh presentence custodial conditions as mitigating a sentence. I disagree.

[154] Summers, 2014 SCC 26 makes it clear that one of the rationales for the enhanced credit traditionally afforded to offenders in terms of pretrial custody is that there is a qualitative difference between time spent in a remand facility and time spent in a more permanent facility. In other words, it is generally accepted that pretrial custody will be, by nature, harsher. Harsher pretrial conditions are already accounted for in the enhanced credit provided for and capped by s. 719(3.1) of the Code. Karakatsanis J. was clear that s. 719(3.1) does not require exceptional circumstances before the enhanced credit provided for in that subsection is triggered. But that does not mean that exceptional circumstances are not required before supplemental credit is tacked on under the rubric of mitigation. Where Parliament has seen fit to cap credit for pretrial custody at a ratio of 1.5:1, it seems to me that additional credit by way of mitigation should be the exception, and not the commonplace.

[155] In this case, I am not persuaded that the significant number of lockdown days amounts to state misconduct. Nor am I persuaded that they justify additional mitigation beyond the enhanced credit provided for in s. 719(3.1) of the Code. There have been some very troubling problems in the CECC in the past year, if not longer. But I have an insufficient record before me to make a credible determination about the reasons for those problems. While the circumstances here are concerning, they do not, in my view, rise to a level of particularly harsh treatment that calls for a remedy above and beyond the enhanced credit set out in the Code.

[156] Ultimately I conclude that the appropriate range of sentence in this instance is the range established in the cases for manslaughter with aggravating circumstances, namely 8-12 years.

[157] There are aggravating features here that, in my view, justify the imposition of a sentence close to the upper end of that range. The home invasion aspect; the callous disregard for Mr. Kennedy’s well-being; the fact that Mr. Cain was one of the instigators of the invasion; and Mr. Cain’s criminal record all point to a lengthier sentence. On the other hand, there are mitigating circumstances that are unique to Mr. Cain. Unlike the other offenders, he is not subject to the aggravating factor of having contributed to the death of Mr. Kennedy. And, of course, there is the modestly mitigating factor of his reduced life expectancy.

[158] I am also not entirely discounting his prospects for rehabilitation. Though he was not as young as Mr. Gillard-Gatza at the time of the offences, he was still relatively young and I have some confidence that he will ultimately live out his remaining years in a more responsible fashion for the sake of himself and his children.

[159] On balance, my view is that it is appropriate that Mr. Cain and Mr. Gillard-Gatza receive similar sentences. They went into this joint venture together. If their participation was unequal, it was only slightly so. Their moral culpability is very similar. Each has unique aggravating and mitigating circumstances that in my view tend to balance out. Accordingly, I sentence Mr. Cain on count one to 11 years in prison, less a credit for 6.7 years in pretrial custody, for a net sentence of 4.3 years, or the equivalent of 4 years, plus 110 days. On count two I sentence Mr. Cain to two years imprisonment, concurrent to the sentence on count one.

Ancillary Orders

[160] Certain ancillary orders were sought by the Crown and, by and large, not opposed. I order, against each offender, the following:

(a) A weapons prohibition order for life under s. 109 of the Criminal Code; (b) An order that he provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code; and, (c) An order that he not communicate, directly or indirectly, with Justin McKelvey, Debra Whyte, James Kennedy and/or Heather Kennedy.

[161] The Crown sought an order that the offenders be restrained from communicating with Nick Gillingham, a non-party to this proceeding. I am not persuaded there is a sufficient basis to make that order and I decline to do so.

Boswell J.

Released: April 20, 2016