CITATION: R. v. Triolo, 2017 ONSC 4726
COURT FILE NO.: CR-17-10000040-0000
DATE: 20170804
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JOSEPH TRIOLO, EMANUEL LOZADA, VICTOR RAMOS AND TERELLE HOLDER
Robert Wright and Jennifer Stanton, for the Crown
Michael Quigley, for Joseph Triolo
Ari Goldkind, for Emanuel Lozada
Richard Litkowski, for Victor Ramos
HEARD: June 19 and July 19, 2017
M. DAMBROT J.U:
BACKGROUND
[1] Joseph Triolo was tried by me, sitting with a jury, on one count in an indictment alleging that he committed the second degree murder of Rameez Khalid. Emanuel Lozada, Victor Ramos and Terelle Holder were tried jointly with Triolo on another count in the same indictment alleging that they committed manslaughter in connection with the same event. Triolo, Lozada and Ramos were each found guilty of the offence charged against him. Holder was found not guilty.
[2] On June 19, 2017, I sentenced Lozada to three years imprisonment, less credit for five years and four months of pre-trial custody, for an effective sentence of time served, and Ramos to three years imprisonment less nine months credit for six months of pre-trial custody, for an effective sentence of two years and three months. In each case, I also imposed an order pursuant to s. 487.051 of the Criminal Code authorizing the taking of samples of bodily substances from the offender for the purpose of forensic DNA analysis and an order pursuant to s. 109 of the Criminal Code prohibiting the offender from possessing any firearm or other things listed in that section for life.
[3] On July 19, 2017, I sentenced Triolo to life imprisonment without eligibility for parole for twelve years, and imposed an order pursuant to s. 487.051 and an order pursuant to s. 109 for life.
[4] I did not give reasons for imposing these sentences on either June 19, 2017 or July 19, 2017, because I was occupied in another trial, but promised to provide short reasons for imposing those sentences later. These are those reasons.
The Evidence at Trial
[5] On October 5, 2013, Rameez Khalid attended a rave around the monument in the median south of the intersection of Queen Street West and University Avenue in Toronto, which was organized as part of the Nuit Blanche festivities. In the course of the evening, Mr. Khalid was stabbed to death a short distance from the location of the rave. The three offenders participated in his killing.
[6] Based on the findings of fact necessarily made by the jury in reaching their verdicts, and my own findings of fact beyond a reasonable doubt from the evidence adduced at trial that were not inevitably made by the jury, but which are not inconsistent with the verdicts, I reach the following conclusions.
[7] Triolo committed the second-degree murder of Rameez Khalid by stabbing Mr. Khalid on Richmond Street in the early morning hours of October 6, 2013. The jury reached this conclusion based on the evidence of security video from the Four Seasons Hotel and the evidence of Tristan Nagy, Michelle Andrikopoulos, Stavros Panagiotopoulos, Travis Galliah and Akshay Jagtap.
[8] Nuit Blanche is an all-night contemporary art event held annually in Toronto and elsewhere. In 2013, a rave was held as part of the festivities at the location I mentioned. Amongst the persons attending the rave were two sets of friends, one that included Triolo, Ramos and Lozada, and one that included Khalid and Galliah.
[9] Triolo and Khalid had a verbal and physical altercation at the rave around 2:00 a.m. While the reason for the altercation is unknown, and the details of the altercation are unclear, I am satisfied that Lozada and Ramos, along with others, pulled Triolo out of that altercation, while Galliah took a hold of Kahlid, pulled him out of the altercation and told him that they were going home. Triolo was angry because Khalid got the better of him during the altercation. Kahlid was also angry and initially wanted to finish the fight, but calmed down to some extent and allowed Galliah to take him away from the rave, with the intention of going home. Galliah and Khalid walked south from the rave down University Avenue to Richmond Street, and then walked east along Richmond.
[10] Within a short period of time, Triolo and a large group of his friends followed after Khalid. I find as a fact that although they did not give the appearance of being in any hurry, they were intent on catching up to Khalid and settling the score. I said in my short remarks when imposing sentence on Triolo that unfortunately, Mr. Khalid shared the intention to continue the fight, and came back to meet the group of men when he became aware of them. In saying this, I expressed myself inartfully. I did not mean to imply that the ensuing fight was a consensual one. While the jury’s verdict does not preclude a finding by me that by returning to meet the larger group Khalid was consenting to a fistfight, I do not reach that conclusion. Instead, I conclude that when Khalid, still angry, became aware that Triolo and his friends were pursuing him to continue the fight, instead of attempting to flee, he bowed to the inevitable and returned to meet them head on. When I said that he shared an intention to continue the fight, I meant no more than that when he realized that a further fight was inevitable, he chose to re-engage with his pursuers rather than run from them.
[11] Triolo and his group encountered Khalid and Galliah just west of the intersection at Richmond and York Streets. Ramos pushed Khalid up against the wall, and someone, probably Ramos, said, “Is this the guy?” The response was “Yeah.” These words were a reference back to the male who had fought with Mr. Triolo minutes earlier at the rave. Triolo, Lozada, Ramos and others immediately began what was at least a five on two assault on Khalid and Galliah.
[12] The altercation spilled toward the street. After Khalid was made vulnerable by the group assault, Triolo stabbed him in the chest with a knife, striking him directly through the heart, an action that he knew would cause serious bodily harm likely to cause Mr. Khalid’s death, thereby committing second degree murder.
[13] Lozada and Ramos committed manslaughter by engaging in a joint unlawful assault on Khalid with Triolo and others, during which Khalid was unlawfully killed, in circumstances where each of Lozada and Ramos should have foreseen that a probable consequence of the group assault would be bodily harm to Mr. Khalid. In joining in this assault, the acts of each man – surrounding and punching Khalid, surrounding and punching Galliah so that he could not support Khalid or help him flee, knocking Khalid to the ground, continuing the assault while he was on the ground – were significant contributing causes to the death of Khalid. They left Khalid vulnerable to the stabbing. They foreclosed any chance of escape or aid. They aided the stabber in providing him the opportunity to inflict the lethal blow.
Victim Impact
[14] I heard eloquent statements of the impact of this crime on the family and friends of the deceased. The loss of the life of Rameez Khalid has had, and continues to have a profound effect on his family. His death has occasioned an enormous emotional loss that still deeply impacts on the lives of his loved ones.
The Offenders
Ramos
[15] Ramos is 24 years of age. He was 20 at the time of the offence. He was born in Argentina, and immigrated to Canada with his mother when he was eight. He is a permanent resident of Canada. He did not complete high school, but has worked with his older brother, who owns a painting company, since he was 13. He is in a longterm relationship. He has no criminal record. He spent six months in custody on this matter before he was released on bail.
Lozada
[16] Lozada is 26 years of age. He was 22 at the time of the offence. He came to Canada on his own as a teenager, and will suffer immigration consequences if he is sentenced to six months imprisonment or more. He was working in construction at the time of the offence, but has been in custody since his arrest – a period of three years, six months and 19 days as of the date I imposed sentence. He has a criminal record that includes a conviction for robbery with violence in 2010, and a conviction for robbery in 2012, as well as four convictions for breaches of court orders, and he was on probation at the time of the commission of this offence.
Triolo
[17] Triolo is 23 years of age. He was 19 at the time of the commission of the offence. He has no criminal record. Character letters written on his behalf reflect a young man who is a loving, productive member of a family and who apparently has never exhibited any characteristics that would be consistent with the offence that was committed in this case.
The Positions of the Parties
[18] Crown counsel submitted that sentences in the range of five to seven years, less credit for pre-trial custody would be fit for both Ramos and Lozada, and that life imprisonment without eligibility for parole for 13 to 15 years, depending on my findings of fact, would be fit for Triolo. Counsel for Ramos submitted that a sentence of three years imprisonment less credit for pre-trial custody was appropriate for Ramos. Counsel for Lozada submitted that a sentence of six months less one day, less credit for pre-trial custody (effectively a sentence of time served) was appropriate for Lozada. Counsel for Triolo argued that I should not increase the minimum period before parole eligibility beyond ten years.
Analysis
Ramos and Lozada
[19] In sentencing offenders for a crime, all of the pertinent considerations in sections 718, 718.1 and 718.2 must be considered. But in cases of violence, emphasis must be placed on denunciation and deterrence. In cases of unlawful killing, a sentence must make apparent the society’s concern for the sanctity of life, and its revulsion that anyone would take the life of another.
[20] The emphasis on denunciation and deterrence applies to offences of manslaughter, but the range of sentences imposed in manslaughter cases is necessarily broad because manslaughter can occur in a wide variety of circumstances. As a result, in imposing a sentence for manslaughter, the moral blameworthiness of the offender must be assessed. This involves consideration of: the nature, quality and gravity of the act; the method and manner by which the act was committed; the offender's awareness of the risk; and what should have been in the offender's mind, had he or she acted reasonably.
[21] I conclude, again based on the findings of fact necessarily made by the jury in reaching their verdicts, and my own findings of fact beyond a reasonable doubt from the evidence adduced at trial, that both Ramos and Lozada, through their participation in a premeditated and unbalanced physical attack on Khalid and Galliah, made possible the murder of Khalid. Their actions made Khalid vulnerable, enabling Triolo to stab and kill him.
[22] It is true that the precise actions of Ramos and Lozada were different. While the involvement of each contributed to the killing of Khalid, the moral blameworthiness of Ramos’s conduct exceeds that of Lozada.
[23] I am satisfied to the requisite standard that Ramos, in addition to being a part of a group that set out to exact revenge on Khalid, initially pushed Khalid up against the wall as part of the effort to identify him as the person who had earlier gotten the best of Triolo, then participated directly in the beating of Khalid, striking him repeatedly, the last time when Khalid was on the ground just before he was stabbed.
[24] Lozada was also part of the group that set out to exact revenge on Khalid, but he did not physically attack Khalid. His role, initially, along with others, was to surround Khalid and Galliah, and then, while some of the group assaulted Khalid, he and others assaulted Galliah. Lozada can be seen in the video lunging at Galliah and punching him. Lozada and the part of the group with him prevented Galliah from aiding Khalid or helping him escape the beating he was being subjected to. Like Ramos, Lozada, by his actions, made Khalid more vulnerable to being stabbed. It must be said, however, that Lozada was the first of his group to withdraw from the fight.
[25] Having regard to their participation in a senseless crime of violence to settle a score that ended in a death, penitentiary sentences are necessary for both offenders to protect the public, to denounce the crime and for purposes of general and specific deterrence.
[26] In the case of Ramos, the sentence of five to seven years recommended by the Crown would be appropriate, but for the fact that Ramos was a youthful first offender when he committed this offence, and that, as in the case of Lozada, there is no evidence that he was aware that anyone in his group was carrying a knife.
[27] In the case of Lozada, I would ordinarily impose a shorter sentence on him than on Ramos because his involvement in the offence, and therefore his moral blameworthiness are not as great. But this consideration is offset by his personal circumstances. He was older than Ramos at the time of the commission of the offence, he had a serious criminal record, which included two robbery convictions, and he was on probation.
[28] Applying the pertinent principles of sentence enumerated in secions 718, 718.1 and 718.2 of the Criminal Code, and taking into account the aggravating and mitigating ircumstances, I conclude that a three-year sentence of imprisonment is appropriate for both Ramos and Lozada, less credit for pre-trial custody as indicated above.
Triolo
[29] I must of course, sentence Triolo to life imprisonment. The only question for me to decide is the number of years of imprisonment greater than ten, if any, that he must serve before he is eligible for parole. Again, I view the recommendation made by the Crown for a 13 to 15 year minimum as appropriate, except that Triolo was a youthful first offender and that the offence appears to be out of character for him. As a result, I set the mimimum period at twelve years.
Disposition
[30] Lozada was sentenced to three years imprisonment, less credit for five years and four months of pre-trial custody, for an effective sentence of time served. Ramos was sentenced to three years imprisonment less nine months credit for six months of pre-trial custody, for an effective sentence of two years and three months. Triolo was sentenced to life imprisonment without eligibility for parole for twelve years. I also imposed an order pursuant to s. 487.051 of the Criminal Code authorizing the taking samples of bodily substances from each of the three offenders for the purpose of forensic DNA analysis and made an order pursuant to s. 109 of the Criminal Code prohibiting each of them from possessing any firearm or other things listed in that section for life.
M. DAMBROT J.
RELEASED: August 4, 2017
CITATION: R. v. Triolo, 2017 ONSC 4726
COURT FILE NO.: CR-17-10000040-0000
DATE: 20170804
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JOSEPH TRIOLO, EMANUEL LOZADA, VICTOR RAMOS AND TERELLE HOLDER
REASONS FOR SENTENCE
M. DAMBROT J.
RELEASED: AUGUST 4, 2017