R. v. Brown, 2017 ONSC 1441

CITATION: R. v. Brown, 2017 ONSC 1441

COURT FILE NO.: CR 12-2072

DATE: 2017-03-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHAUNE ROBERT BROWN

Defendant

K. Eberhard & S. Humphrey, for the Crown

C. Hicks, for the Defendant

HEARD: February 27, 2017

Justice B.A. Glass

Reasons for Sentence for Second Degree Murder

[1] The Defendant was found guilty of second degree murder on February 2nd, 2017. He had been accused of stabbing Cory Fleetwood to death with about 30 stab wounds. Twenty of those stab wounds were to the back of Mr. Fleetwood.

[2] The Defendant and the deceased had known each other since school days and maintained an online contact.

[3] On August 30, 2012, Mr. Brown travelled to Peterborough by Go Train and bus and went to the residence of Mr. Fleetwood. Some alcoholic beverages were consumed and Shaune Brown had one marihuana cigarette.

[4] The residence of Cory Fleetwood was very messy at least after the events and Mr. Fleetwood’s death. Mr. Brown commented about the state of organization and cleanliness of the residence. Mr. Fleetwood became annoyed with Mr. Brown for his comments about the state of orderliness he saw. The deceased got a knife and scratched the cover of an Xbox hard drive of Mr. Brown who then broke the hard drive of Mr. Fleetwood’s hard drive.

[5] As Mr. Brown considered that all was not well, he went upstairs to retrieve his property intending to return to Toronto. He had come to Peterborough for a week-long visit. Cory Fleetwood suddenly approached Mr. Brown yelling at him. He startled Mr. Brown who pushed Cory Fleetwood forcefully by pushing his chest. The deceased man lost his balance and fell over his computer and down to the floor.

[6] When Cory Fleetwood got up from the floor, he appeared to be swinging at Shaune Brown. To his surprise, Shaune Brown grabbed at the hand of Mr. Fleetwood whom he expected was projecting a punch. It turned out that Mr. Fleetwood had a knife in his hand. Shaune Brown grabbed the knife blade with his hand and sustained a significant cut to his hand.

[7] Mr. Brown testified that he was defending himself and was surprised by the attack from Cory Fleetwood. He underwent plastic surgery to his hand at a hospital in Toronto when he returned to the city on August 30th.

[8] He then went to Montreal with his father and uncle and was arrested in Montreal subsequently.

Position of the Crown

[9] The Crown requests that the sentence be life imprisonment without parole for 14 years, that there be a non-communication order with members of Cory Fleetwood’s family and friends, a lifetime firearms prohibition pursuant to s. 109, and a DNA order pursuant to s. 487.04(a) of the Criminal Code of Canada.

[10] The Crown submits that the facts of this case demonstrate that the death of Cory Fleetwood was not one for which a minimal sentence should be imposed. The way the death was effected in the residence of the deceased man with efforts to avoid detection by the Defendant by a person who demonstrated virtually no mitigating factors is a solid foundation for a life imprisonment sentence without parole ineligibility for more than 10years.

Position of the Defence

[11] The Defence recommends that the court give considerable attention to the unanimous jury recommendation of 10 years incarceration before being able to apply for parole. The case of R. v. McKnight, 1999 CarswellOnt 1979 dealt with a doctor who stabbed his wife to death with multiple stab wounds. In McKnight, the parole ineligibility period was fixed at 17 years by the trial court and was reduced to 14 years by the Court of Appeal.

[12] The Defence takes no position with the ancillary order requests advanced by the Crown.

Parole Ineligibility Recommendation by the Jury

[13] The jury unanimously recommended 10 years be served prior to Mr. Brown being able to apply for parole.

Victim Impact Statements

[14] With Victim Impact Statements, people who have become victims of crimes committed by a defendant are asked to explain to a court how the actions of a defendant have impacted on their lives.

[15] Several members of Cory Fleetwood’s family as well as friends presented Victim Impact Statements explaining how the loss of Cory has impacted each of them. They are very sincere and express their sense of loss of a person who was a positive influence on the lives.

[16] Jo-Anne Thiele is Cory’s mother. The loss of a child is often described as extremely difficult and that a parent should not outlive her child.

[17] Brothers Mark and Adam Fleetwood told how they had a positive relationship with their brother.

[18] Mark Fleetwood explained that he found the experience of being a family member watching the trial a very troubling ordeal because he could not do or say anything while he listened to people describe his brother. He felt that the court process is not kind to families of homicide victims. Mark reflected how he could not come to Cory’s aid as he listened to Mr. Brown testify.

[19] Fiona Thiele is an aunt of Cory and she too described how he was born on her birthday and that her daughter was born just three months after Cory’s birth. There is always a very natural bond with Cory as she recalls his birth annually on her own date of birth.

[20] Diane Tamlin is an aunt of Cory Fleetwood. Diane recalls Mr. Fleetwood as a kind and generous person who did not hesitate to help others in need of assistance. When she hears some music that brings back memories of her nephew, she too experiences much sadness.

[21] Brad Tamlin is an uncle who told of Cory being one to take time to play games with Mr. Tamlin’s children as an example of Cory being a kind person toward others. Mr. Tamlin described how Cory would help with such tasks as helping replace the roof at his residence.

[22] Curtis Stark worked with Cory at the Tim Hortons store in Peterborough. He recalled how Mr. Fleetwood was one of those people with whom one might work and have great memories. A pleasant sense of humour and a love of music, Cory was a person who appears to have created a warm sociable aura about him.

[23] John Watson-George roomed at the same apartment with Cory and had enjoyed his company. Mr. Watson-George described Cory as a person who loved to cook, who welcomed others to his home, who would lend money to help friends including Mr. Watson-George, who made everyone feel welcome and never became angry. Mr. Watson-George had an unfortunate delay with his education at community college the fall that Cory died because his identification documents were seized and held by the police at the time of Cory’s death and he was delayed in commencing his school year as a result.

[24] Lee and Shauna Schubert managed the Tim Hortons store at which Cory Fleetwood worked when he passed away. They told of the stressful experience of informing over 60 fellow employees know that Cory had been killed. He did not miss work.

[25] Kirsten Schultz was a friend who was commencing her last year of high school when Cory Fleetwood died. She described fond memories of a kind person who made people feel good. Ms. Schultz saw part of the trial and found that experience difficult to watch because of the many memories that came to her mind.

Support Letters for Shaune Brown

[26] In addition to Victim Impact Statements related to Cory Fleetwood, Shaune Brown filed three letters from his brother, his mother and a long-time friend.

[27] Aaron Joyce is a brother of the Defendant and he provided an in-depth explanation of his life with Mr. Brown describing how Mr. Brown had times in which he had to live away from home with Children’s Aid. Mr. Joyce explained that Shaune Brown helped family members at times with money. Aaron appears to have endured legal problems and then his brother had encountered his own legal problems. Aaron Joyce says that Shaune Brown is missed by the family members and further that the sentence to be assigned to Shaune is also a sentence to family members.

[28] Gale Brown is the mother of Shaune Brown. She describes her son as a loving person who is good with children. Ms. Brown is a patient with Chronic Obstructive Pulmonary Disease, heart and thyroid problems, osteoporosis and a history of strokes. She says that her son was helpful cooking, cleaning and helping around her house. Gale loves her son and says that this case has been very tough on her.

[29] Curtis White is a long-time friend of Shaune Brown. He says that Mr. Brown helped him pay his bills and rent when he was in his early twenties. He calls Shaune Brown his best friend.

Mitigating Factors

[30] Mr. Brown has not had an easy life, having been raised partially through the child protection system in Ontario.

[31] He does not have very extensive education.

Aggravating Factors

[32] Mr. Brown has a criminal record much of which was not presented to the jury. The serious parts of the record are drug related.

[33] Criminal records are not meant to be used as double punishment for a person but rather to broaden the actions of a defendant so that the sentencing court has a more comprehensive understanding of the person.

[34] The criminal record for the Defendant is as follows:

Date

Offences

Sentence

Feb. 8, 1999 (Youth court)

1. Fail to attend court
2. Fail to attend court
3. Attempt theft over $5000

1-3) 30 days open custody and 12 months probation on each charge concurrent

March 8, 2004

1. Fail to comply with recognizance
2. Fail to comply with recognizance

1-2) 1 day custody on each charge concurrent (11 days pre-sentence custody)

June 24, 2004

1. Traffic in schedule I substance
2. Possession of proceeds of property obtained by crime

1-2) 8 months on each charge concurrent (4 months pre-sentence custody) and 18 months probation and s. 109 mandatory prohibition order

Sept. 23, 2005

1. Possession schedule I substance for the purpose of trafficking
2. Obstruct peace officer

1-2) 1 days on each charge concurrent (137 days pre-sentence custody) and s. 109 mandatory prohibition order

Dec. 9, 2008

1. Possession schedule I substance for the purpose of trafficking

2. Possession of a prohibited or restricted weapon with ammunition

3. Unauthorized possession of a firearm in motor vehicle

4. 100 days and s. 109 mandatory prohibition order 2-3) 100 days on each charge concurrent

June 16, 2011

1. Possession schedule I substance for the purpose of trafficking
2. Carrying concealed weapon

1-2) Time served (credit for the equivalent of 2 years) and s. 109 mandatory prohibition order

[35] The injuries sustained by Cory Fleetwood were about 30 stab wounds, 20 of which were to his back. Mr. Brown testified that he did not see the stab wounds after he first stabbed Mr. Fleetwood in the chest because he had great pain in his injured hand and he closed his eyes because of the pain. He had been swinging his hand with the knife without knowing the location of Cory Fleetwood for the subsequent stab wounds. I conclude that Shaune Brown inflicted that many stab wounds being able to see the location of Mr. Fleetwood.

[36] He ran away from the crime scene without calling for medical assistance. His evidence had been that when he left the apartment of Mr. Fleetwood, he thought the other man was dead.

[37] The victim of the homicide was reported by witnesses as not being a violent physically confrontational person. He liked to consume beer and at times he might express himself in a verbally expansive way that might aggravate another, but for that he does not deserve to be dead.

[38] During the past 4 years, Mr. Brown has been detained in custody and has on several occasions been involved with discipline problems in the custodial institutions ranging from assaults and homemade weapons. Some hearings have been completed and there are some outstanding. The position of the Crown is that this is further evidence of Mr. Brown not being prepared to follow rules at custodial facilities. These factors reflect on the character of Mr. Brown within the sentencing considerations for parole ineligibility. See R. v. Arashvand, [2012] O.J. No. 5225 paragraphs 27-40. Further, this might be considered when the sentencing court reflects on whether the Defendant might be open for rehabilitation.

Analysis

[39] Shaune Brown comes to this sentence hearing not having had many good experiences during his life. When a person has such a foundation for his life, he often has a constant struggle moving through his life.

[40] Section 718 of the Criminal Code provides the outline for courts to consider when sentencing a person for any offence for which he or she has been found guilty. General deterrence, specific deterrence, denunciation, possible incarceration for serious offences, restitution in some cases coupled with mitigating and aggravating factors all play an important role in the sentencing process.

[41] Here, Mr. Brown has been involved with the criminal justice system since his youth days. He has experienced some custodial sentences.

[42] Specific deterrence is not likely to flow from this sentence, but general deterrence to the public at large may benefit our society. Denunciation is a given consideration for this homicide.

[43] The Defendant has not had a lifetime of having positive factors in his life.

[44] He would appear to have inflicted the wounds to Cory Fleetwood in a flurry of activity but not in the way he told the court. By that, I mean self-defence was not accepted by the jury. There is some other explanation for his actions and physical confrontation with Cory Fleetwood.

[45] The deceased had 20 stab wounds to his back and 10 to his front. The jury rejected the evidence of Mr. Brown that he had his eyes closed but for his first stab to the middle of the chest of Mr. Fleetwood at a time when the deceased man was moving around. The account of the actions of the two men did not make sense because its acceptance would require the jury to conclude that Cory Fleetwood did not move much while being stabbed often by Shaune Brown who would not have been able to see the location of the deceased because he was blind having closed his eyes in pain.

[46] The evidence from others who knew Cory Fleetwood was that he was not a combative person so that the attack upon Mr. Brown would have been out of character. There was evidence that the deceased liked to drink beer and sometimes talked to people whereby the other person might become annoyed with him.

[47] I find that Mr. Fleetwood was not the attacker as explained by Mr. Brown. Rather, with the jury rejecting the evidence of Shaune Brown, I conclude that Shaune Brown was the aggressive person with this physical confrontation.

[48] The jury recommended that parole ineligibility be for a period of 10 years. The members of the jury did not have information about all of the criminal record of Shaune Brown. The deletion of some of the criminal record from the jury’s consideration removed from them some greater understanding of the character of the Defendant when they made their recommendation for parole ineligibility. I find that the Defendant was the aggressor here so that this was not a modest physical confrontation between two men who had known each other for years. The circumstances surrounding the fight and the killing of Mr. Fleetwood were greater than Shaune Brown stated in his evidence from the perspective that he was the protagonist.

[49] This was not a one stab wound flowing from anger. Rather, this was a two and a half dozen stab fight. A person might become angry and lose self-control thereby stabbing another human being many times if provoked, but provocation was rejected by the jurors. The removal of provocation from the equation leaves the murder as a more deliberate action.

[50] The death of Cory Fleetwood did not flow from an accident.

[51] The person who stabbed Mr. Fleetwood to death was found by the jurors to have meant to cause death or meant to cause bodily harm knowing such activity was likely to cause death and was reckless whether or not death ensued. His conduct after the fight was not very admirable. He left the dead man and did all he could to avoid being caught including going to another province. He spread cleaning powder through much of the apartment including onto the body of Cory Fleetwood. That conduct could be interpreted as desecration of the body of Mr. Fleetwood.

[52] As the jury had the opportunity to view the video recording of Shaune Brown after the fight with Cory Fleetwood walking to the taxi at the bus station in Peterborough and later coming from the GoTrain at Union Station in Toronto, they could see a person walking in a non-attention gathering way. The taxi driver did not have any impression that the Defendant was influenced by substances or alcohol.

[53] These factors lead to a conclusion that the sentence should not be a minimal one. Rather, the period of time to be served in a custodial institution prior to being able to apply for parole ought to be more than 10 years.

[54] The character of Mr. Brown, the nature of the offence and the egregious facts of this homicide at the residence of the deceased man draw the sentencing court to assess a proper sentence as one in which Shaune Brown comes to the court with many strikes against him after taking the life of a friend in a brutal manner. His criminal record tells the court that he is no stranger to the criminal justice system. He has had chances in the past to alter his ways of life but does not appear to have done so. Mr. Brown has been sentenced previously for serious offences as he has progressed through the courts. His prior sentences have stepped up gradually as his conduct has increased in criminal responsibility. One cannot help but conclude the need to denounce serious criminal conduct which reaches peak levels by taking the life of a friend.

[55] In R. v. McKnight, 1999 CarswellOnt 1079, the Court of Appeal at paragraph 54 noted an observation that there was a reasonable range of 12 to 15 years parole ineligibility when the court reduced the sentence to 14 years.

[56] In R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227 at paragraph 18, the court stated that parole ineligibility involves a determination that is a fact sensitive process.

[57] Rehabilitation of an offender is an important feature for anyone being sentenced to a lengthy custodial sanction. There are significant educational programs for persons serving long custodial sentences. Mr. Brown has not completed high school. If he does so while in custody, he may also qualify for a career or a specialized trade. Hopefully, while in custody he will take advantage of that opportunity.

[58] Commensurate with the provisions for sentencing of section 718 of the Criminal Code, there is a need to remove Mr. Brown from society for an extensive period of time.

Conclusion

[59] The sentence for being found guilty of second degree murder of Cory Fleetwood is a life sentence of imprisonment without being eligible to apply for parole for 13 years. That time began when Mr. Brown was arrested and detained for this offence.

[60] There will be a weapons prohibition order for life pursuant to section 109 the Criminal Code prohibiting Mr. Brown from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substances.

[61] There will be a DNA sample order complied with pursuant to section 487.04(a) of the Criminal Code. Murder is a primary designated offence for which such an order is to be provided.

[62] Pursuant to section 743.21 of the Criminal Code, there will be an order prohibiting Mr. Brown from communicating or associating with the family and friends of Cory Fleetwood now added to this document. They are:

[1] Jo-Anne Thiele

[2] Adam Fleetwood

[3] Mark Fleetwood

[4] Fiona Thiele

[5] Diane Tamlin

[6] Brad Tamlin

[7] Curtis Stark

[8] John Watson-George

[9] Lee & Shauna Schubert

[10] Kirsten Schultz

Note: This decision in writing is the official Reasons for Sentence and takes precedence over the oral reasons read into the record in court.

Justice B.A. Glass

Released: March 2, 2017