Reasons on Joint Submission

Court File No.: 1355-12 Date: 2016-08-23 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Ronald Albert Mitchell, Eric Shane Joseph Mearow and Dylan Albert Jocko, Defendants

Counsel: P. Zylberberg/K.A. Weeks, for the Crown C.A. Morrow, for R. Mitchell A. Herscovitch, for E. Mearow C.B. Willson, for D. Jocko

Heard: July 28, 2016

Before: McMillan J.

[1] On July 28, 2016 this court presided over the tendering of guilty pleas and the sentencing of the above-noted individuals pursuant to a joint submission advanced by the Crown and defence counsel.

[2] On January 7 or 8, 2011, Wesley Hallam was killed and his corpse dismembered at a local residence described as a flop house, inhabited by Eric Mearow and frequented by many for the purchase and consumption of illicit drugs.

[3] Following a lengthy police investigation, the accused, now offenders, were charged in respect to the unlawful death of Mr. Hallam. They were each charged with first degree murder and offering an indignity to his dead body; Jocko on April 20, 2011, Mearow on May 12, 2011 and Mitchell on May 3, 2011.

[4] A protracted preliminary hearing ensued. The original presiding justice withdrew by reason of health related issues well into the hearing and another justice was assigned to complete the matter. The three accused were committed to stand trial on charges of first degree murder and offering an indignity by dismemberment. The original indictment is dated October 30, 2013. An application to quash the committal was unsuccessful and the matter was pre-tried on two separate occasions; February 26, 2015 and March 1, 2016. An application for a change of venue of the trial was unsuccessful. Pre-trial and Charter- based motions were scheduled for June and August 2016, with an anticipated four-month jury trial to commence October 17, 2016.

[5] On July 28, 2016, the accused appeared before the court, each represented by counsel. The Crown was represented by Ms. Weeks, the local Crown Attorney, and Mr. Zylberberg, from the Sudbury Crown’s Office. The Crown advised the court that it would be proceeding on a replacement indictment charging each of the three accused with manslaughter in respect to the unlawful death of Mr. Hallam, and as parties to the indecent interference with his human remains by dismemberment. As well, Mr. Mitchell would also be the subject of a separate joint submission concerning a matter arising out of North Bay and to be disposed of by transfer to this court.

[6] The requisite consent of the Crown, pursuant to s. 561 of the Criminal Code of Canada, as well as a forbearance of the accused’s written notice, s. 561(5) of the Criminal Code of Canada, executed by all counsel, was filed as Exhibit 1. The three accused were arraigned on both counts and entered pleas of guilty, initially through counsel and then directly by each of them. The court queried each of the three offenders regarding the requirements of s. 606(1)(1.1)(a) and (b) and I was satisfied that all three accused’s pleas of guilty on each count fulfilled and satisfied the court’s obligations in that regard.

[7] Considering that the offenders had originally been charged with first degree murder and were now pleading guilty to manslaughter pursuant to the replacement indictment, the court queried the Crown regarding whether reasonable steps had been taken to inform the victims of the Crown’s altered intention and to which the Crown responded in the affirmative. The Crown also went on to inform on the basis for its revised position concerning a joint submission on the less serious charge of manslaughter, and I will address that further on in my reasons.

[8] The facts advanced in support of the pleas of guilty to be relied on by the court were comprised of a 19-page Agreed Statement of Facts executed by all counsel and entered as Exhibit 2 in the proceeding regarding the manslaughter and indignity charges. The contents thereof were also read into the record by the Crown, Mr. Zylberberg, who presented the Crown’s case throughout. The facts were sufficient to constitute evidence beyond a reasonable doubt of each of the elements comprising the offences charged. Convictions were entered against each of the three offenders on both counts set out in the replacement indictment. The Crown also read into the record sufficient facts to justify a conviction against Mr. Mitchell on the indictment for institutional assault occasioned in North Bay. The criminal records of the three offenders were filed as Exhibit 3 (Mitchell), Exhibit 4 (Mearow), and Exhibit 5 (Jocko). Defence counsel advised that none were requesting pre-sentence reports nor Gladue reports regarding Messrs. Mearow and Jocko.

[9] The court next heard from the victims who had submitted victim impact statements, including immediate family members and friends of the deceased, some of whom would have been witnesses at trial. Five victims read their statements in court and one chose not to personally present hers. All of the victims were obviously deeply troubled, not only by the event itself but by their respective struggles over the intervening period, including but not limited to unmeasurable grief, loss, depression, despair and deep-seated fear for the future, not only for themselves but also for those close to them.

[10] The court next heard the submissions of the Crown and defence counsel, all of whom addressed the involvement of each of the offenders respecting the two counts and the most unfortunate loss of the life of Wesley Hallam at the young age of 29 years.

[11] Defence counsel spoke to the antecedents of the offenders and the various factors considered in arriving at the joint sentencing submission including, inter alia, disadvantaged backgrounds, Aboriginal heritage of Messrs. Mearow and Jocko, and pre-trial custody. The court canvassed the three offenders, pursuant to the provisions of s. 756 of the Criminal Code, as to whether they had anything to say. Mr. Mitchell spoke words of remorse and the other two expressed no comment. In the final result, the court accepted the joint submission of the Crown and defence counsel with regard to both plea and sentence.

The Facts

[12] As stated earlier, the facts hereof are set out in Exhibit 2, the 19-page Agreed Statement of Facts. In its consideration of the joint submission, the court accepts those facts as an accurate and replete account of the relevant factors underlying the offenders’ pleas of guilty to the offences charged.

[13] The facts can be summarized as follows. The deceased and the three offenders were in attendance at Mearow’s residence, “a flop house”, during the late evening hours of January 7, 2011. Drugs and alcohol were consumed by various individuals in attendance. Mr. Hallam possessed a double bladed knife engraved with a swastika and housed in a metal sheath. The offenders also possessed knives.

[14] Hallam, Mearow and Mitchell attended Mearow’s bedroom where lines of cocaine were drawn on Mearow’s dresser and the three consumed cocaine. Mearow left the room to retrieve Jocko from downstairs. Hallam became upset over the search for Jocko and questioned his participation and called him a “goof”. Mitchell took issue with that characterization which was a viewed as a serious insult and equated the person to be a “rat” or a child molester.

[15] Hallam and Mitchell raised their voices and argued. Hallam called Mitchell a “goof”. The exchange escalated and became very heated. Hallam was larger and more muscular. He forcefully pushed Mitchell’s chest causing him to stumble backwards. Mitchell took a swing at Hallam. A fight ensued with Hallam pinning and punching Mitchell repeatedly. Observers shouted at Hallam to stop. Mearow reappeared; shouting stop and he separated the two combatants. Hallam produced his large knife and directed himself at Mitchell who said, “Wes, you pulling a knife on me?”

[16] Mitchell produced his folding knife and he and Hallam began flailing their knives at each other. Jocko burst into the bedroom, saw the knife fight and jumped onto Hallam’s back, pushing him into Mitchell. Jocko was attempting to disarm Hallam. Mitchell joined the melee and the three struggled on the floor. Jocko knocked the knife from Hallam. Mearow joined the fray and kicked and punched Hallam.

[17] All three offenders participated in the fight. Mearow and Jocko knew that Hallam had been disarmed and that Mitchell still had his own knife. Mearow grabbed Hallam from behind and punched him on the side of the head. Hallam resisted, pushing away from Mearow and falling towards Mitchell. Mitchell swung at Hallam with his knife. A witness, Roxie Davison, witnessed the fight from across the hall and saw Hallam fall backwards and heavily to the floor. The fight stopped and she saw Hallam sit up with blood on his head and neck. She thought he looked unsteady and disoriented. She asked if he was okay and he said he was fine and that he wanted a beer and a smoke. She thought his response was odd. Mitchell told his mother later that he fought with Hallam, armed with a knife, and that Hallam said he was fine.

[18] Mearow swore at Hallam asking if he’d had enough. There was no response. Mearow noticed blood now soaking past Hallam’s jacket; pooling on the floor but not appearing to come from Hallam’s head. Mearow became agitated and commanding; directing Mitchell and Jocko to help him move Hallam to the bathroom. He yelled at the others to go downstairs and stay put. Hallam was unable to stand and was held upright by the offenders and dragged to the bathroom. Near the bathroom, Hallam began to convulse and shake and the three offenders put him down on the floor.

[19] While removing Hallam’s jacket, they saw the stab wound bleeding heavily. Mearow told the other two to put Hallam in the bathtub. Mitchell was complaining of his swollen and sore right hand. The three dragged Hallam fully into the bathroom. Hallam was momentarily combative then fell into unconsciousness. The three placed Hallam in the bathtub. Mearow checked Hallam’s eyes and throat looking for a pulse. He told the other two that he believed Hallam to be dead. Their voices were raised as they argued what to do. Significant amounts of blood were seen on the hallway floor from the bedroom to the bathroom and it appeared smeared as though someone had been dragged.

[20] The evidence of forensic pathologist Dr. Queen confirmed that Wesley Hallam had succumbed to one fatal stab wound on the left side of his neck below his ear. No hilt mark was observed and a single edged blade had pierced the skin with little force and passed through soft tissue unimpeded. The wound track was 3 centimetres (1.18 inches) wide and 6 centimetres (2.36 inches) deep. The carotid artery and jugular vein had both been severed.

[21] He further testified that the severance of the artery and vein was a fatal injury that defied emergency treatment. There would have been a brief delay in bleeding and the absence of arterial spurting was not uncommon. Heavy internal bleeding would follow. Blood loss and decreased blood pressure could result in unsteadiness, disorientation and/or cognitive confusion. Unconsciousness and swift death would follow.

[22] All three offenders were heavily intoxicated by drug and alcohol that evening and Jocko was emotionally unstable and reactive. Mearow instructed the other two to dismember Hallam and they relented. Mearow and Mitchell retrieved an electric saw and returned upstairs. Mitchell stood watch at the top of the stairs. Mearow directed Jocko in the dismemberment of Hallam. The three offenders continued to consume cocaine. Mitchell vomited repeatedly. Jocko severed Hallam’s head, hands and feet which were placed in garbage bags and disposed of in a nearby dumpster. The torso was wrapped in a blanket, placed in the trunk of a vehicle under Mearow’s control and deposited in a creek in a rural area on the outskirts of the City.

[23] The clean-up of the scene of the homicide was undertaken by Mr. Mitchell and three female friends at the direction of Mr. Mearow. The three offenders left the City and were eventually arrested in relation to the homicide. On January 11, 2011, the deceased’s torso was discovered and identified to be that of Wesley Hallam. The forensic pathologist, Dr. Queen, confirmed that Mr. Hallam was deceased prior to his dismemberment. Other injuries noted on his torso were incapable of being fatal. Dr. Fairgrieve, a forensic anthropologist, and tool specialist, Dr. Menard, examined the torso and Dr. Menard confirmed that an electric saw had been used.

[24] On March 11 and 13, 2011, the deceased’s right foot and head were recovered. The foot was unscathed, but not so the head which was reconstructed and examined by Dr. Queen. On the left side and at the base of the head was the fatal stab wound. Dr. Queen noted and recorded other stab wounds and cuts to the head consistent with the use of one single edged knife and one double edged knife. Scalp cuts were not capable of being fatal.

The Joint Submission

General

[25] The value of resolution discussions was characterized in the Martin Report as being “inherently desirable” and expressed that a court ought only to depart from a joint submission where not to do so would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. A joint submission comprises an agreement struck between the Crown and defence counsel whereby they will jointly request that the court impose a particular sentence in exchange for a guilty plea by the accused, usually a lesser sentence, with the inherent assurance of certainty. Although the court is not bound to accept the sentence component of a joint submission and retains its discretion to reject it, a plea bargain is to be given serious consideration.

[26] The concept was more pointedly addressed by Finlayson J.A. in R. v. Cerasuolo, 2001 ONCA 445, 151 C.C.C. (3d) 445, (Ont. C.A.) at paras 8 and 9 where the court stated as follows:

[8] This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute: e.g. R. v. Dorsey (1999), 1999 ONCA 1340, 123 O.A.C. 342 at 345. This is a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge.

[9] The Crown and the defence bar have cooperated in fostering an atmosphere where the parties are encouraged to discuss the issues in a criminal trial with a view to shortening the trial process. This includes bringing issues to a final resolution through plea bargaining. This laudable initiative cannot succeed unless the accused has some assurance that the trial judge will in most instances honour agreements entered into by the Crown. While we cannot overemphasize that these agreements are not to fetter the independent evaluation of the sentences proposed, there is no interference with the judicial independence of the sentencing judge in requiring him or her to explain in what way a particular joint submissions is contrary to the public interest and would bring the administration of justice into disrepute.

The Pleas of Guilty

[27] The Attorney General represents the public interest in the prosecution of crime through the Crown prosecutor as its agent in accordance with the oath of office and duties set out in the Crown Attorney’s Act, R.S.O. 1990 C. 49, s. 8 and 11. The Crown Attorney exercises unfettered discretion concerning criminal prosecutions instituted and pursued in the district, often referred to as “prosecutorial discretion”.

[28] It may be of assistance in appreciating the rationale behind prosecutorial discretion to quote from a passage in Krieger v. Law Society of Alberta, [2002] 2 S.C.R. 372. Iacobucci and Major J.J. held, at para 31, pp. 388-390 in dealing with an issue of delayed Crown disclosure:

[31] This side of the Attorney General’s independence finds further form in the principle that courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision-making process. In R. v. Power, [1994] 1 S.C.R. 601, L’Heureux-Dubé J. said at pp. 621-23:

It is manifest that, as a matter of principle and policy, courts should not interfere with prosecutorial discretion. This appears clearly to stem from the respect of separation of powers and the rule of law. Under the doctrine of separation of powers, criminal law is in the domain of the executive....

Donna C. Morgan in “Controlling Prosecutorial Powers – Judicial Review, Abuse of Process and Section 7 of the Charter” (1986-87), 29 Crim. L.Q. 15, at pp. 20-21, probes the origins of prosecutorial powers:

Most [prosecutorial powers] derive ... from the royal prerogative, defined by Dicey as the residue of discretionary or arbitrary authority residing in the hands of the Crown at any given time. Prerogative powers are essentially those granted by the common law to the Crown that are not shared by the Crown’s subjects. While executive action carried out under their aegis conforms with the rule of law, prerogative powers are subject to the supremacy of Parliament, since they may be curtailed or abolished by statue.

In “Prosecutorial Discretion: A Reply to David Vanek” (1987-88), 30 Crim. L.Q. 378, at pp. 378-80, J.A. Ramsay expands on the rationale underlying judicial deference to prosecutorial discretion:

It is fundamental to our system of justice that criminal proceedings be conducted in public before an independent and impartial tribunal. If the court is to review the prosecutor’s exercise of his discretion the court becomes a supervising prosecutor. It ceases to be an independent tribunal. [Emphasis in original.]

[32] The court’s acknowledgement of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant’s decision-making process – rather than the conduct of litigants before the court – is beyond the legitimate reach of the court. In Re Hoem and Law Society of British Columbia (1985), 1985 BCCA 447, 20 C.C.C. (3d) 239 (B.C.C.A.), Esson J.A. for the court observed, at p. 254, that:

The independence of the Attorney-General, in deciding fairly who should be prosecuted, is also a hallmark of a free society. Just as the independence of the bar within its proper sphere must be respected, so must the independence of the Attorney-General.

We agree with these comments. The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict.

[29] In this matter, the decision to proceed on charges of manslaughter as opposed to the previous murder charges lies entirely within the Crown Attorney’s prosecutorial discretion.

[30] At the court’s prompting, the Crown offered its explanation for proceeding on the less severe offence of manslaughter by stating:

MR. ZYLBERBERG: Yes, Your Honour. I can indicate that in agreeing to accept the plea of guilt to manslaughter, with a joint submission on sentence, rather than proceeding to trial for murder, the Crown has taken into consideration that there are potential frailties in its evidence and triable issues as to whether the accused persons had the necessary mental element needed for murder, considering, among other factors, provocation and their level of intoxication. In those circumstances, and after broad consultation with the Criminal Law Division, we have decided that it is appropriate to proceed as we are proceeding today.

[31] In presiding over a joint submission the court does not have any discretion to go behind or inquire into the negotiations that culminate in the offence(s) to which the accused is pleading guilty. The court’s function is limited to satisfying itself that the agreed and admitted factors comprise evidence necessary to establish the accused’s culpability on the essential elements of the offence charged and that the plea(s) of guilt that are being advanced are both voluntary and informed in accordance with the requirements of s. 606(1) of the Criminal Code. Upon the court being satisfied that the facts admitted proves the offence being pleaded to and that the offender appreciates the significance of the guilty plea, including that the court is not bound by any joint sentencing submissions, the court is not at liberty to reject a guilty plea. There is no such discretion.

[32] In a decision involving the issue of whether a Crown’s repudiation of a plea agreement was an abuse of process, R. v. Nixon, 2011 SCC 34, 2011 S.C.C. 34, 566, Charron J., while distinguishing the analogy thereof to rejecting a joint submission on sentencing, nevertheless offered insight into the basis for the absence of circumstances and considerations behind the resolution agreement being placed before the court. At paragraph 53, writing for the court, Charron J. stated:

[53] Quite apart from this fundamental difficulty with the reasonably defensible test, I would add that, conceptually, the analogy to the trial judge’s rejection of a joint submission on sentencing is not particularly helpful in determining the standard against which to measure the repudiation conduct. The sentencing judge who is faced with a joint submission is engaged in a qualitatively different process than the prosecutorial authority faced with the decision of whether or not to resile from a plea agreement. The role of the sentencing judge is to impose a fit sentence, that is, one that “fits” the circumstances of the offence and of the offender as presented to the court. When there is a trial, these circumstances are largely defined by the findings of the court based on the evidence adduced at trial and at the sentence hearing. When the accused pleads guilty, the circumstances of the offence and of the offender are generally determined on the basis of agreed facts. This is particularly so if the plea of guilty is entered pursuant to a resolution agreement. All contentious issues will usually have been ironed out between the Crown and the defence prior to the plea. Counsel certainly have an ethical obligation not to mislead the court about those circumstances, but the fact remains that the judge is presented with the end product of the plea negotiations, not with the entire set of circumstances or considerations that went into the mix. By contrast, the prosecuting authority who is faced with the decision whether to honour or to resile from a plea agreement must consider the entirety of circumstances, including the public interest, in proceeding to trial. Thus, sentencing principles relating to joint submissions cannot usefully be transposed in this context.

[33] Ample justification exists for registering convictions against the three offenders on both counts. Paragraph one of the Agreed Statement of Facts is an unequivocal admission of the unlawful act of manslaughter of Wesley Hallam as charged. The particulars of Exhibit 2 describe how Wesley Hallam was killed by a fatal stab wound that severed his carotid artery and jugular vein, administered by Ronald Mitchell, during their collective assault upon him knowing that a risk of serious bodily harm was foreseeable. They knew Hallam had been disarmed and that Mitchell continued to possess his knife. Unfortunately, the impromptu altercation resulted in the tragic and brutal death of young Wesley Hallam. The court also satisfied itself that the verbal guilty pleas entered by both counsel on behalf of their clients and by the offenders directly themselves fulfilled the requirements of s. 606(1) of the Criminal Code. Accordingly, the court accepted their pleas on Count 1, manslaughter, and convictions were entered against each of them.

[34] The same can be said with respect to Count 2, indecently interfering with the human remains of the deceased Wesley Hallam by the dismemberment of his head, hands and feet. Paragraph 2 of the Agreed Statement of Facts sets forth a clear admission by each of the three offenders of their participation therein. Exhibit 2 sets out in greater detail the precise participation of each of them. Their verbal pleas of guilt were unequivocal, voluntary and sufficiently informed to satisfy the court that the requirements of s. 606(1) of the Criminal Code were met. The court entered convictions against all three on Count 2.

[35] The evidence upon which the court relies as set out in the Agreed Statement of Facts is consistent with and not inconsistent with findings of guilty against all three offenders on Counts 1 and 2.

The Joint Sentence Submission

[36] The second component of the joint submission advanced by the Crown and defence counsel concerns the sentence to be imposed by the court for the offences upon which the offenders have been convicted, namely, manslaughter and the indecent interference with the human remains of the deceased.

[37] On this branch of the joint submission, the court retains its discretion and the jointly proposed sentence is not binding on the presiding judge. However, by reason of the pleas of guilty having been secured pursuant to a resolution agreement struck between the Crown and defence counsel, the sentencing judge is somewhat constrained pursuant to the jurisprudence that has evolved on the issue.

[38] As noted above, a joint submission should not be rejected unless it is considered to be contrary to the public interest and if followed would bring the administration of justice into disrepute. An unreasonable joint submission would be contrary to the public interest. A reasonable joint submission could not be said to bring the administration of justice into disrepute. In Ontario and in other provinces, the conceptual foundation is that the interests of justice are well served by the acceptance of a joint submission on sentence accompanied by a negotiated plea of guilty – provided, of course, that the sentence jointly proposed falls within the acceptable range and the plea is warranted by the facts admitted. (See: R. v. Douglas, 2002 QCCA 1002, [2002] 162 C.C.C. (3d) 37, at para. 51, per Fish J.A. (as he then was) (Que. C.A.).

[39] The lofty threshold to be met in rejecting a joint submission on sentence was addressed by Berger J.A. on behalf of a unanimous Alberta Court of Appeal panel in R. v. C.(G.W.) (2000), 2000 ABCA 333 , 150 C.C.C. (3d) 513 at pp. 519-520:

The obligation of a trial judge to give serious consideration to a joint sentencing submission stems from an attempt to maintain a proper balance between respect for the plea bargain and the sentencing court’s role in the administration of justice. The certainty that is required to induce accused persons to waive their rights to a trial can only be achieved in an atmosphere where the courts do not lightly interfere with a negotiated disposition that falls within or is very close to the appropriate range for a given offence. “The bargaining process is undermined if the resulting compromise recommendation is too readily rejected by the sentencing judge.” R. v. Pashe (1995), 1995 MBCA 195 at para. 11.

[40] There continues to be a requirement that the sentence imposed not be unfit having regard to facts and circumstances acknowledged with regard to both the offence and the offender. In my view, the sentence must be so unacceptably lenient or so excessively onerous to reach the high threshold of becoming contrary to public interest and thereby bringing the administration of justice into disrepute. In R. v. R.W.E., 2007 ONCA 461, at para. 31, Weiler J.A. held that a sentence which is manifestly inadequate [emphasis mine] satisfies the high threshold:

[31] Here, the trial judge held that an appropriate sentence lay “outside the range of sentence suggested to me” and he used the term “error in principle” in rejecting the joint submission. I take his comment to mean that, on his interpretation of R. v. D.(D.) (2002), 2002 ONCA 44915, the proposed sentence was so far outside the range that it demanded rejection and that an appellate court would find the sentence to be manifestly inadequate. While the sentencing judge did not specifically address the question of whether it would be contrary to the public interest or bring the administration of justice into disrepute if effect was given to the joint submissions, a sentence that is manifestly inadequate meets that test. I would not interfere with the exercise of the sentencing judge’s discretion simply because he failed to articulate the requisite words in rejecting the joint submission.

The Sentence

[41] The joint submission in this case for each of the offenders is imprisonment for a term of 10 years on Count 1 (manslaughter), and 3 years concurrent on Count 2 (indecent interference with human remains), less adjustments for time served in pre-trial custody, and, in the case of Messrs. Mearow and Jocko, for unique factors pertaining to their Aboriginal heritage. In addition, the offenders are to be the subject of ancillary or collateral orders requiring them to provide DNA sampling, pursuant to s. 487.051(1) of the Criminal Code, having committed a primary designated offence, and mandatory lifetime weapons prohibition orders, pursuant to s. 109 of the Criminal Code. The offence of manslaughter in this case bears a maximum sentence of imprisonment for life, pursuant to s. 236 (b) of the Criminal Code, and the offence of indecently interfering with human remains provides for imprisonment for a maximum term of 5 years. On this indictment, neither offence carries a minimum sentence.

[42] Arguably, the offence of manslaughter carries the broadest range of discretion in sentencing as it may involve circumstances that are marginally beyond inadvertence at one end of the spectrum and those approaching murder at the other end. There exists a plethora of jurisprudence concerning manslaughter cases that demonstrate the very broad range of penalty and the endless variety of circumstances leading to the victim’s death. The significance of the extensive case law relates to the requirement in s. 718.2 (b) of the Criminal Code for parity in sentencing although cognizant that a uniform sentence does not exist for any particular crime.

The Law

[43] In the case of R. v. Clarke, 2003 ONCA 28199, the offender was convicted by a jury of manslaughter in relation to a brutal killing, the death of a particularly vulnerable acquaintance by stabbing him seven times, two of which were likely fatal, in the deceased’s residence. The 14-year sentence less 2 years pre-trial custody was reduced on appeal from 12 years to 9 years imprisonment. The Court of Appeal considered the brutal killing to constitute an “aggravated” manslaughter and that the proper range for that offence and offender was 8 to 12 years imprisonment. In R. v. Cleyndert, 2006 ONCA 33851, [2006] O.J. No. 4038 (Ont. C.A.), the Court of Appeal confirmed that the appropriate range of sentence for manslaughter was 8 to 12 years imprisonment.

[44] However, in R. v. Devaney, 2006 ONCA 33666, [2006] O.J. No. 3996 (Ont. C.A.), Justice Feldman clarified what the Court of Appeal meant by “aggravated manslaughter” in R. v. Clarke:

[33] The first question is whether it is appropriate to label a subcategory of manslaughter as “aggravated manslaughter” for the purpose of sentencing. In my view, it is not useful to attach a label to a subcategory of the offence, then to try to pigeonhole the facts of any case into the label. Adding a descriptive label to a set of facts within the defined offence adds a level of complexity to the sentencing exercise that is both unnecessary and potentially diverting for the court and could lead to errors. Nor do I read this court’s decision in Clarke as adopting that approach. In that case, after considering all of the aggravating factors, the court concluded: In light of these aggravating factors, we agree that the proper range for this offence and this offender is 8 to 12 years imprisonment.

[34] The exercise in each case is to impose a sentence that fits the facts and circumstances of the particular case and the particular offender. Part of that exercise is to impose similar sentences for similar offences and offenders. However, I would reject the concept of naming subcategories of manslaughter for the purpose of comparing cases and imposing similar sentences, and instead compare the circumstances of each situation on a case-by-case basis.

[45] Justice Hackland reviewed manslaughter cases involving fatal stabbings in his decision in R. v. Taylor, 2013 ONSC 3370. The decision reviewed sentences for manslaughter arising from single and multiple stab wounds. The sentences were imposed by colleagues in this court, and while involving various degrees of violence and a diversity of backgrounds of offenders, served to reinforce the range of sentence to be within the 8 to 12-year term of imprisonment.

[46] With respect to the proposed three-year term of imprisonment on Count 2, to be served concurrently to the 10-year sentence proposed on Count 1, the Crown and defence submit that both the length and concurrent nature of the sentence on Count 2 were a “component” of the aggregate sentence of 10 years agreed to for the manslaughter conviction. Counsel submitted that the term of incarceration for manslaughter could have reasonably been determined to rest in the lower end of the range of 8 to 12 years and that the mid-range of 10 years took into account what could have otherwise been a consecutive sentence on Count 2. This consideration accords with the recognition of s. 718.2 (c) of the Criminal Code in sentencing concerning the totality principle. In further support of the concurrent aspect of the sentence on Count 2 is the submission of counsel that the unlawful acts comprising Counts 1 and 2 can be reasonably viewed as one continuous occurrence or transaction.

[47] On the issue of the propriety of the composition of the aggregate sentence, the agreed facts establish a sufficiently close nexus in time to justify the imposition of a concurrent sentence on Count 2.

[48] Further, the nature of a joint submission is a factor at play in this case. Ordinary sentencing principles that would reasonably call for the imposition of a consecutive sentence in a multiple offence indictment may not be appropriate having regard to the considerations that underlie the joint submission. Authority for this proposition can be found in R. v. Barrett, 2011 NLCA 5 at pp. 258 and 259 where the unanimous could held:

[19] ... The jointly proposed three year sentence could also be said to reflect a one year sentence for each offence, or a two year sentence for the most serious assault and six months consecutive for each of the others. Such “mathematical” approaches, however, are not appropriate when considering a joint submission, for it is the very fact that there is a joint submission which calls for an adjustment downward from what would otherwise be a sentence based on ordinary principles. Much like an adjustment based on the totality principle, an adjustment downward is logically applicable to any and all of the component parts of a total sentence. It is the total sentence for the three offences in the context of the joint submission which is at issue in this case.

[20] In our view, the sentencing judge ought to have recognized that sentences which would run consecutively on the application of ordinary sentencing principles could be characterized as concurrent in order to achieve a proper sentence in the context of the proposed joint submission. The sentencing judge’s analysis did not acknowledge or consider the quid pro quo and the overall context of the joint submission when he reached his conclusion that informed and reasonable persons would view running the sentences concurrently as “ludicrous”.

[21] In summary, the sentencing judge, though purporting to follow the Druken test, failed to focus on the discrete inquiries mandated by that test and in particular, failed to give proper weight to the considerations underlying the joint submission. For that reason also the sentencing decision should be set aside.

[49] Counsel alluded to various aggravating and mitigating factors pertaining to the three offenders. The following are of particular note:

Aggravating Factors (a) The assault was three on one; (b) All accused have criminal records; (c) The fatal wound was caused by a knife; (d) Efforts were taken to conceal body parts; (e) Fleeing the scene and the City in efforts to avoid detection; (f) The brutality and violence of the dismemberment; and (g) The fatal stabbing was administered after the victim had been disarmed.

Mitigating Factors (a) Guilty pleas albeit late in the proceedings avoided a lengthy jury trial; (b) The victim initiated the altercation and was first to draw a knife; (c) Significant intoxication; (d) Expressed remorse by Mitchell; and (e) Agreed statement of facts resolved acknowledged frailties in the evidence and the specific roles of the offenders.

Credit and Adjustments to 10-Year Sentence

[50] The offender Mearow is an Ojibway from the Batchewana First Nation, born January 20, 1985 to Rhonda Mearow, a member of the same band. He has never known his father. At approximately 18 months of age, he was placed in the care of a family member and was mistreated and abused for two years before being retaken by his mother and grandmother who jointly raised him. At age 13, the offender was in the custody of the Children’s Aid Society. He never returned home. His formal education concluded with grade 7. Mr. Mearow was diagnosed with bi-polar disorder and ADHD. He has completed a majority of high school credits at various times during incarceration. He was a drug dealer. On the night of January 7, 2011, he had consumed alcohol, marijuana, Oxycontin and cocaine, and was heavily intoxicated by both drug and alcohol.

[51] The offender Jocko was born August 19, 1984 in Sault Ste. Marie. His formal education ceased at grade 7. He is of Aboriginal heritage. His mother is a status Ojibway/Algonquin raised on the Golden Lake First Nation reserve near Renfrew, Ontario. His grandmother is from the Batchewana First Nation. Jocko and Mearow are cousins. He too experienced a tumultuous upbringing that involved alcohol and drug abuse, domestic violence and was left to fend for himself at times. He began doing drugs at age 8. From age 12 to 15, the Children’s Aid Society was involved and their records indicate his resentment of his neglect and abandonment which caused him to act out in defiance at home, school and in the community. By age 11 he was active in the drug trade. From age 16 he has fathered 8 children. He has been diagnosed with ADHD and may suffer from alcohol spectrum disorder. He has suffered depression and idealization of suicide. He is in the process of securing his Aboriginal status credentials. At the time of the offence he was addicted to crack cocaine.

[52] In cases concerned with offenders having Aboriginal heritage, the court is required by statute, s. 718.2 (e) of the Criminal Code and applicable jurisprudence, R. v. Gladue, 1999 SCC 679 per Lamer C.J. at para. 80; and R. v. Ipeelee, 2012 SCC 13, where Le Bel J., for the majority, wrote:

[87] The sentencing judge has a statutory duty, imposed by s. 718.2 (e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.

[53] It should be noted that in R. v. Ipeelee, the court held at para. 83 that an Aboriginal offender is not required to establish a causal link between his antecedents and the commission of the offence in order for the sentencing court to give consideration thereto. The court continued, at para. 83:

Furthermore, the operation of s. 718.2 (e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence.

In a recent decision of our Court of Appeal, R. v. Kreco, 2016 ONCA 267 the court reduced the offender’s 13-year global sentence from 13 to 9 years in consideration of, inter alia, the offenders related Aboriginal background and systemic factors and the possibility of rehabilitation. The approximate 5-month adjustment factored into the residual aggregate or global sentence of 2 years less 1 day for Messrs. Mearow and Jocko in recognition of their Aboriginal background and systemic factors and segregation confinement is not unwarranted.

[54] With regard to Mr. Mitchell, suffice it to say that he as well is the product of a disadvantaged upbringing. Born in Sault Ste. Marie on October 4, 1984, he was exposed to domestic violence by his father against his mother, sister and himself. The home was destroyed by alcohol, drugs and violence. His last formal education was grade 7. He turned to the streets and struggled with alcohol and drugs. He was largely unemployed. By the time of this occurrence he had an alcohol abuse problem and was addicted to both crack cocaine and heroin. He twice attempted suicide. This event has created a profound turning point in his life and within the constraints of his incarceration; he has taken various core rehabilitation programs and intends to continue his efforts at self-improvement.

[55] Each of the offenders is entitled to credits for pre-trial custody. Mr. Mitchell, at a rate of 1.5 days per day served, is to be credited with 3030 days. The net result when adding a further 45 days to be served leaves him yet to serve a further 22 months going forward and he is so sentenced. Mr. Mearow, at the same 1.5:1 ratio is to be credited with 7 years and 7 months towards his 10-year sentence leaving him with 2 years and 5 months yet to be served. Mr. Jocko has a similar period of 2 years, 5 months and 24 days yet to be served. In keeping with the joint submission, each of Mearow and Jocko are to receive a further credit, effectively reducing the remainder of their 10-year sentence to 2 years less 1 day in recognition of factors relating to their Aboriginal ancestry and time served in segregation, which in this case involved being locked in a cell for 23 of 24 hours and not being permitted to access facilities available to inmates in general population.

Conclusion

[56] Based on the forgoing narrative, the circumstances of the offences and the offenders, I find that the joint submission advanced by both Crown and defence counsel in this matter is neither manifestly inadequate nor can it be said to be, considered in its entirety, demonstrably unfit.

[57] As gruesome and morally reprehensible as the dismemberment of Mr. Hallam’s remains may be to all of us, it is the killing of Wesley Hallam that is the predicate and paramount offence in this case that was administered by Mr. Mitchell and for which all three offenders are guilty in law having regard to the circumstances thereof.

[58] The Crown submitted and defence counsel endorsed, that the lengthy preliminary hearing where the anticipated evidence for trial was introduced under oath and tested under cross-examination served to expose potential prosecutorial frailties and triable issues including the specific intent to kill required for murder and other factors such as provocation and degree of intoxication of the offenders. The quality of the evidence of witnesses in view of the ongoing consumption of alcohol and/or illicit drugs by those present that evening would have been a factor. Further, and of considerable significance is the broad consultation conducted within the Criminal Law Division by the prosecution. The conclusion reached by them was that the joint submission represented the appropriate disposition in this case.

[59] The abhorrent events of January 7 and 8, 2011 should serve to demonstrate the inherent hazards and risks of the culture and lifestyle arising through the abuse of illicit drugs in a subculture that all too often ends in violence and tragedy. Some lives do not get to be lived; some are irreversibly shattered; some are permanently lost in the depths of despair; while others simply put forward a brave front to mask their inner turmoil. In this case, the tumultuous effects were evident from the Victim Impact Statements presented to this court regarding the event and the fallout to the surviving victims.

[60] For completeness, I should repeat that I have found the joint submission here to be reasonable in all of the circumstances presented through the Agreed Statement of Facts, counsels’ submissions and the applicable law. As Fish J. (as he then was) espoused at para. 51 in R. v. Douglas, “...a reasonable joint submission cannot be said to ‘bring the administration of justice into disrepute’ but that an unreasonable one ‘is surely contrary to the public interest.’” Here, the joint submission falls within the acceptable range and the pleas are “warranted by the facts admitted” and accordingly, not contrary to the public interest.

[61] Therefore, the offenders were sentenced in accordance with the rationale hereof and the terms of the joint submission presented to this court.

McMillan J.

Released: August 23, 2016

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – RONALD ALBERT MITCHELL, ERIC SHANE JOSEPH MEAROW and DYLAN ALBERT JOCKO REASONS on joint submission McMillan J. Released: August 23, 2016