CITATION: R. v. E.K., 2017 ONSC 5204

COURT FILE NO.: 129/16

DATE: 20171004

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

E.K.

Meredith Gardiner, for the Crown

Elham Ellen Jamshidi, for the Defendant

HEARD: July 27 and 28, 2017

Grace J. (orally)

A. Introduction

[1] Jesse James’ life ended unexpectedly, suddenly, tragically and needlessly following two stab wounds to the chest inflicted by Isak (“Strapsz”) Adams shortly before 11:30 p.m. on May 15, 2015.

[2] Mr. Adams is not before the court today. Sometime ago he entered a plea. A conviction was entered and sentence imposed.

[3] E.K. is now before the court. She was what proved to be the unfortunate link between the two men. Ms. E.K. was romantically involved with Mr. Adams on the night in question. A similar relationship with Mr. James had ended beforehand.

[4] Ms. E.K. did not wield the knife that forever changed the lives of many. However, she was not an innocent bystander. Her role in the slaying of Mr. James led to her arrest after surrendering to the Toronto Police Service on June 1, 2015. She was charged with second degree murder.

[5] A trial date was never set. Three judicial pre-trials were held in this court. Counsel communicated before and after those attendances. On June 12, 2017 and with the consent of the Crown, Ms. E.K. re-elected the mode of trial. Thereafter, she entered a plea of not guilty to the charge as laid but guilty of the included offence of manslaughter contrary to s. 234 of the Criminal Code. By doing so, Ms. E.K. admitted that her conduct was unlawful and that she had contributed significantly to the death of Mr. James.

[6] Based on a lengthy agreed statement of facts, a finding of guilt was made and a conviction entered. A pre-sentence report was requested, prepared and transmitted. Document and case briefs were also filed.

[7] Video surveillance recovered from three London Transit Commission (“LTC”) buses and from cameras installed along the west side of Richmond Street near the front entrance of an establishment called the Grinning Gator was shown on July 27, 2017. Oral submissions were made on July 28, 2017. Decision on sentence was reserved until now.

[8] I begin with the circumstances of the offence.

B. The Circumstances of the Offence

[9] Ms. E.K. and Mr. James were no longer romantically linked when they encountered each other at a downtown bus stop shortly before 10 p.m. on May 15, 2015. Ms. E.K. had just finished her shift at a nearby delicatessen. Two female friends were in the company of Mr. James. After a short and unfriendly exchange, all four boarded an LTC bus.

[10] LTC buses are equipped with audio security cameras. Detective Constable MacLachlan of the London Police Service (“LPS”) prepared a transcript of the parties’ exchanges during the fifteen minute ride they shared.

[11] The accuracy of the transcript is, fairly, in issue. The quality of the picture vastly exceeded that of the sound except for approximately two minutes when there were no images at all.

[12] Ms. E.K. boarded the bus first. She sat alone on a sideways facing bench seat. The young women accompanying Mr. James entered next. They took positions facing Ms. E.K. in the bench seat across the aisle. Mr. James joined them soon afterward.

[13] Mr. James initiated the conversation that followed. Initially, Ms. E.K. tried to take a higher road. She told Mr. James that she did not want to talk to him. Soon afterward, she told him that she had her life together. Still later, Ms. E.K. said that she was simply going home after finishing work.

[14] Unfortunately, more things were said. Tension increased. The conversation shifted from negative comments allegedly made by Ms. E.K. to others, to alleged infidelity and then to Ms. E.K.’s alleged interest in and relationship with persons of colour. Any hope the friction would ease evaporated when Ms. E.K. perceived, rightly or wrongly, that Mr. James had threatened her.

[15] From that moment on, Ms. E.K. became much more aggressive in tone and content. She was clear that Mr. James would answer to her current boyfriend “Strapsz”. That was a challenge Mr. James readily accepted. The issue was not whether there would be a physical confrontation but where it would occur. Ms. E.K. said that Mr. Adams was waiting at the bus stop near her residence. Mr. James insisted that the altercation take place at the location of his choice: Manor Park, near the intersection of Emery Street and Winston Avenue.

[16] While the future could not be foretold, hostility was the order of the day when Mr. James exited the bus with his two companions at approximately 10:10 p.m. Ms. E.K. continued on to the area of Westmount Mall where she met Mr. Adams.

[17] The narrative can fast forward to approximately 10:50 p.m. Unfortunately, emotions had not cooled in the intervening forty minutes. By that time, Mr. James had consumed some cocaine. Mr. Adams was intoxicated.

[18] The two young men engaged in an angry cell phone conversation. Downtown London was to be the location of their meeting. Mr. James and his companions were already at the Grinning Gator.

[19] At approximately 10:56 p.m. Ms. E.K. texted one of the persons accompanying Mr. James. “Jesse called it on” she wrote.

[20] At around 11 p.m. Ms. E.K. and Mr. Adams boarded a second LTC bus. Surveillance video captured a journey that ended at or near the intersection of Dundas and Richmond Streets. The Grinning Gator was less than a block from that location.

[21] Texting periodically continued during the twenty minute trip downtown. Ms. E.K. asked that the recipient “Tell Jesse to stay down there” at 11:04 p.m. At 11:22 p.m. Ms. E.K. received the confirmation she sought: Mr. James was still at her intended destination.

[22] The cameras installed along Richmond Street captured what happened next.

[23] Ms. E.K. and Mr. Adams walked along the east side of Richmond Street before crossing the road on a diagonal, slightly north of the Grinning Gator. Ms. E.K. stopped near a group of people standing on the sidewalk. Mr. Adams continued straight to where Mr. James was standing with others.

[24] A fight broke out instantly. After an initial exchange of blows, Adams moved to where E.K. was standing. There may have been a quick exchange of words. Adams handed her his hat. Adams then produced a knife and pursued James, who was unarmed, north along the sidewalk. James’ attention was on the blade Adams was swinging. He attempted to kick the knife out of Adams’ hand but was unable to do so.

[25] E.K. was seen handing her purse to one of the women present. She moved northbound too and struck James from behind after picking something up off the sidewalk. Adams was in front of James. Almost simultaneously Adams thrust the knife towards James. Briefly Mr. James’ head swivelled in the direction of Ms. E.K..

[26] Mr. James crumpled to the ground before she could strike him again. We now know that by then Mr. Adams had inflicted two stab wounds to Mr. James’ chest. Tragically, one penetrated his heart.

[27] Blood started to flow. Mr. Adams had already begun running north away from the scene. Ms. E.K. stopped her advance toward Mr. James. As others ran toward the obviously stricken victim, Ms. E.K. hurriedly retrieved her purse and then scuttled after Mr. Adams and out of camera range. The entire incident lasted barely two minutes.

[28] The LTC is also the source of the final video. At approximately 11:28 p.m. Mr. Adams and Ms. E.K. entered a third city bus. Barely five minutes had passed since their arrival downtown. Mr. Adams was breathing hard. He moved quickly to the rear door and leaned outside to vomit. Ms. E.K. assured the inquiring bus driver that Mr. Adams was able to travel. She sat down beside her boyfriend and put her arm around him. The two embraced for almost a minute.

[29] By then, a retired nurse was trying to administer to Mr. James before emergency services arrived. The serrated blade of a knife was found near his head.

[30] Mr. Adams and Ms. E.K. had been on the bus less than two minutes when the first sirens were heard. Clearly, something calamitous had happened nearby. Their expressions did not reveal what they both must have known, namely, that their actions were the reason first responders were reacting so frantically. Soon afterward Ms. E.K. removed her coat and let her hair down. Mr. Adams followed her lead.

[31] This final recorded journey lasted for approximately twenty five minutes. Words were not captured once the bus was in motion. The images reflect periods of solitude, others of quiet conversation and, occasionally and particularly from Ms. E.K., a spectrum of emotions including periods of animation.

[32] Despite the efforts of a Good Samaritan and emergency personnel, Mr. James was without vital signs when transported to hospital. As Mr. Adams and Ms. E.K. distanced themselves from the scene, unsuccessful attempts were made to repair the damage Mr. James’ heart had sustained and resuscitate him. Mr. James did not live to see another day.

[33] Meanwhile, Ms. E.K. and Mr. Adams cancelled their cell phone service and left the city.

[34] A search warrant was executed at the defendant’s apartment by members of the LPS on May 17, 2015. Documents connecting Ms. E.K. and Mr. Adams to the unit were recovered. A glass bowl containing three knives was located on a shelf in a bedroom closet.

[35] As mentioned, the occupants of that apartment surrendered in Toronto about two weeks later. Mr. Adams provided a video recorded statement to the police. He admitted being the person depicted on videotape engaged with Mr. James near the Grinning Gator. Ms. E.K. exercised her right to silence.

[36] I turn to the personal details of Ms. E.K..

C. The Circumstances of the Offender

[37] Born [...], 1997, Ms. E.K. was eighteen years old at the time of the offence. A native of Serbia, she was only two when her family moved to Canada.

[38] The offender has seven younger siblings. Thus far, she has set an example of behaviour that should never be emulated. The wheels started to come off in high school. Her attendance during grade nine was poor. Suspensions were frequent. Her attitude was confrontational. Drug use started. A teen pregnancy followed. According to the author of the pre-sentence report, Ms. E.K.’s behaviour caused her to be expelled from the family home. She was on probation following a youth conviction when this offence was committed. Her employment at the delicatessen was brand new and provided a brief moment of optimism. Unfortunately, as it turned out, both the position and hope were short-lived.

[39] As evidenced by what transpired, Ms. E.K.’s relationship with Mr. Adams was as, if not more, unhealthy than any that preceded it.

[40] Ms. E.K.’s daughter E. is now four. It appears she is in the care of her maternal grandparents as a result of proceedings initiated by the Children’s Aid Society. The telephone has been the primary – perhaps exclusive – means of recent communication between mother and daughter. I do not know much about the current relationship between Ms. E.K. and her parents and siblings. Undoubtedly, it has been tested further.

[41] In the letter of apology filed with the court, Ms. E.K. said she repelled her parents’ efforts to help turn her life around. She acknowledged that her actions have made her parents cry. They are not alone.

[42] Ms. E.K. has been in custody since she yielded. The court has received some information with respect to Ms. E.K.’s time in the Woodview program offered by Craigwood Youth Services. She received counselling as outlined by Kayla Janes and Dr. Rida Mirza of the London Family Court Clinic. Matthew Galizia, Child and Youth Worker at the facility, characterized Ms. E.K.’s time there as “productive”. Dr. Mirza’s diagnosis included an unspecified depressive disorder and ADHD. She had prescribed various medications and recommended the continued use of some of them.

[43] More recently, Ms. E.K. has been housed at the South West Detention Centre. While there the offender has taken advantage of the opportunity to further her education.

[44] Kristin Kainz, a teacher with the Greater Essex County District School Board, confirmed Ms. E.K.’s participation in the institution’s education program in a May 31, 2017 letter. She said the offender’s attendance had been “fairly consistent” and that she was working diligently. Several high school credits have been earned in pursuit of an Ontario Secondary School Diploma.

[45] Ms. E.K. has also obtained several Certificates of Completion of other programs offered by that facility including anger management, mothers in recovery and maintaining employment. She helped raise money in the aftermath of the fires that destroyed much of Fort McMurray, Alberta in 2016.

[46] On the other side of the ledger, Ms. E.K. was said to have failed to report as required by and to comply with the non-communication order contained in the youth probation order made in April, 2014. The pre-sentence report also mentions a June 9, 2017 finding of institutional misconduct although the circumstances are unclear.

[47] Ms. E.K. promises to change. She communicated a desire to teach her daughter right from wrong and to avoid becoming a follower. Instead, she pledged to encourage E. to be a good person who is a positive role model for others.

D. The Victim Impact Statement

[48] The passage of time has not dulled the resulting pain, anguish and anger that was on display in court. Members of Mr. James’ family were and are present. His mother’s Victim Impact Statement was read aloud on July 27, 2017.

[49] She described the impact of the premature death of her son: tears, loss of the ability to laugh, endless grief, anger, bitterness, the desire for solitude, depression, the anguish caused by caring for a dog left behind who still looks hopefully for his master. Many of those feelings are shared by other family members and friends left behind. Ms. Belanger described herself as a ghost of the person she used to be.

[50] Ms. Belanger acknowledged that her son had a past and was less than perfect but observed, fairly, that Mr. James did not deserve his fate and that all lives do, indeed, matter. While sometimes temperamental, her son was also generous: a person who helped those in need. Whatever his future held will be unrealized and unknown.

[51] I will next deal with the applicable legal principles.

E. The Applicable Principles

[52] A minimum sentence for the offence of manslaughter is not prescribed. However, the maximum sentence that may be imposed is imprisonment for life.

[53] The statutory purpose and principles of sentencing are not in dispute.

[54] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct and the harm done to victims; to deter the offender and others from committing offences; where necessary, to separate offenders from society; to assist in rehabilitating offenders; to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

[55] The court shall also take into account the following principles: (i) a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; (ii) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances including evidence that the offence had a significant impact on a victim; and (iii) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[56] I have reviewed the bound volumes of cases supplied by counsel. After reading those decisions I make these observations:

a. The range of sentences in cases involving manslaughter is very broad because the circumstances of the offence can vary widely from actions straying close to negligence at one end to near murder at the other: R. v. Clarke, 2003 28199 (ON CA), [2003] O.J. No. 1966 (C.A.) (“Clarke”), at para. 7; R. v. Henry, 2015 ONSC 3905 (S.C.J.), at para. 63;

b. The challenge facing sentencing judges in such prosecutions is well-recognized. As the Manitoba Court of Appeal said in R. v. C.C., 2003 MBCA 51, [2003] M.J. No. 101 (C.A.), at para. 6:

It has often been stated…that the imposition of the correct sentence in a case of manslaughter is one of the most difficult tasks that a court faces. There is a reduced blameworthiness to be attributed to an offender because of a lack of intent or because of provocation, but the result of the offender’s actions still culminate in a death in circumstances that absent that lack of intent or because of that provocation would otherwise result in murder.[^1]

c. Further, as the British Columbia Court of Appeal wrote in R. v. Eneas, [1994] B.C.J. No. 262 (C.A.), at para. 53:

…it matters not if the deceased is young, promising and much loved, or old, deranged and despised by all who knew him. The law ought not to measure the value of the life taken, for to do so would diminish every person’s essential right to live out his or her appointed span.

d. Not surprisingly, a lengthy sentence is ordinarily imposed “to reflect society’s concern for the sanctity of life”: R. v. McFarlane, 2012 ONCA 82, at para. 8;

e. Nonetheless, it is important to remember the words of Watt J. (as he then was) in R. v. Costa, [1996] O.J. No. 299:

No sentence will ever breathe life into the deceased person or restore him to his…family and friends. Would that it were that simple;

f. Incidents that carry substantial moral culpability are often referred to as cases of “aggravated” manslaughter: Clarke, supra, at para. 7; R. v. Cleyndert, 2006 33851 (ON CA), [2006] O.J. No. 4038 (C.A.) (“Cleyndert”), at para. 12;

g. While each case must be decided on its own facts, the appropriate range for such cases has been said to be 8 to 12 years’ imprisonment: Clarke, supra, at para. 7;

h. Lesser sentences have been imposed in other cases where the offender’s role in the victim’s death was more limited: R. v. Thompson, 2010 ONCA 463 (“Thompson”), at para. 41;

i. Ultimately, of course, the court’s task is to impose a sentence that is fit and just taking into account all relevant considerations and the purpose and principles of sentencing to which I have just referred: Thompson, supra, at para. 33.

[57] I turn to the positions of the parties.

F. The Parties’ Positions

[58] The corollary orders are not the subject of debate. I will deal with them at the end of these reasons.

[59] Disagreement revolves around the custodial term that is to be imposed. The Crown seeks a term of six years and ten months in addition to credit for the time Ms. E.K. has served since June 1, 2015. During the last attendance, I was told that would yield an effective sentence of ten years.

[60] The Crown submits this case fits within the category of aggravated manslaughter; one far closer in the spectrum to murder than negligence.

[61] Ms. E.K.’s guilty plea, young age and attempts to further her education and gain additional coping skills are acknowledged. However, the Crown submits their effect is limited.

[62] Crown counsel pointed to the fact Ms. E.K. escalated, rather than de-escalated, the argument with Mr. James. She was an active participant prior to and during the confrontation that occurred. A knife was used. Fatal wounds were inflicted. Medical assistance was not procured. Instead, Ms. E.K. and Mr. Adams took flight from the scene and later, the city. The consequences have devastated Mr. James’ mother and others.

[63] Courts imposed effective sentences ranging from seven to fourteen years in the cases on which the Crown relies. Many, Crown counsel submits, feature similar circumstances, particularly those that have imposed greater custodial terms because of the offender’s higher degree of moral responsibility for what transpired.

[64] The prosecution emphasizes the need for denunciation and deterrence. While important, the Crown submits rehabilitation is a secondary consideration: see R. v. Docherty, [2010] O.J. No. 2728 (S.C.J.), at para. 38; R. v. Henry, supra, at para. 64.

[65] Notice was taken of the fact Mr. James’ pleaded guilty to manslaughter in 2016 on the basis that his ability to form the specific intent for murder was impaired by self-induced intoxication by alcohol. A ten year sentence was the subject of a joint submission which was accepted and imposed by the court.

[66] The Crown submits that Ms. E.K. is no less responsible for what transpired even though she did not wield the knife. The State seeks an effective sentence exactly equal to what Mr. Adams received.

[67] Counsel for Ms. E.K. maintains that an effective sentence of ten years is well outside the appropriate range. Four years less pre-sentence custody is the disposition sought.

[68] While acknowledging that the events of May 15, 2015 were tragic, the defence argues the chain of events unfolded as it did because the offender was provoked. Furthermore, it is argued, the objective was a one on one fight between Mr. Adams and Mr. James, nothing more. The presence, let alone use, of a knife during the confrontation was not, the defence submitted, something known to the defendant.

[69] The defence relies on cases it says are factually analogous. They include R. v. Henry, supra and R. v. Thompson, supra. In both cases the offender was a party, not the person whose actions were the direct cause of another person losing their life. Four year custodial sentences were imposed.

[70] Submissions on behalf of Ms. E.K. emphasized her young age, her remorse and acceptance of responsibility as evidenced by her guilty plea and letter of apology. The court was asked to recognize that self-improvement has been a goal pursued during the period of pre-sentence custody she has served; through counselling, academic courses and life skills programs. All of that leads to this conclusion the defence argues: while the past is out of her control, Ms. E.K. has demonstrated a commitment to a better future. Rehabilitation is likely. A return to a criminal courtroom as a defendant is not.

[71] Reference was also made to Ms. E.K.’s family. Despite the lack of family input into the pre-sentence report, Ms. E.K.’s mother was present in court during the sentencing phase along with some of her siblings. Ms. E.K.’s father was said to be providing care to another child. The court was told the offender will be allowed to return home upon her release. Reconciliation is said to be in progress.

[72] In the final analysis, the offender’s counsel argues that equating the roles of Ms. E.K. and Mr. Adams is inappropriate and imposition of the same or a similar penalty would be unjust.

[73] Having considered all that I have written I turn to my observations and conclusions.

G. Analysis and Decision

[74] I start with a few comments to the family and friends of Mr. James. I do not pretend to know the depth of your pain. However, no person could live as long as I have without having experienced loss and without having to imperfectly grapple with its aftermath.

[75] When a life ends too early, unexpectedly and at the hands of another, the depth of despair seems bottomless and range of unhealthy emotions virtually boundless. It is clear that Mr. James was much loved by many. His occasionally rough exterior concealed qualities you admired and valued. He is missed, every day. No penalty the court can impose will bring him back. Nothing anyone can do will ever right such a wrong because the only remedy you truly wish for is the return of the person you have lost.

[76] For all of that, all of us connected with the justice system express our heartfelt regret and sympathy.

[77] Vengeance may seem attractive and appropriate. However, as this tragic case illustrates, it is a trap. Revenge destroys the perpetrator as well as the target.

[78] My task is to levy a penalty which is just and appropriate in the circumstances recognizing, fully, that some will take issue with it no matter what sentence is imposed.

[79] The existence of mitigating circumstances is undisputed. Ms. E.K. was only three and a half months removed from her eighteenth birthday when the events of May 15, 2015 unfolded. She is now twenty years old.

[80] Her youth record was for theft, not an act of violence. Her earlier breaches of a youth probation order were disappointing but did not foretell what would happen later.

[81] Ms. E.K. deserves credit for entering a plea of guilty before a trial date was scheduled. She has saved the family of Mr. James the additional anguish and uncertainty inherent in a trial. She has expressed remorse to those who loved the victim, although I recognize that to some it seems hollow, insincere and in any event, unsatisfying.

[82] Ms. E.K.’s desire to re-establish a relationship with her child, parents and siblings seems genuine. She has apologized to her own parents for so profoundly dashing their hopes and expectations. What a shame that it took this for Ms. E.K. to appreciate what she had and frittered away.

[83] I am not in a position to comment on the likelihood of strong family bonds re-forming. Suffice to say, the road ahead is destined to be a challenging, although not impassable, one.

[84] The pre-sentence report was reasonably positive although the author’s third party sources were primarily those involved with Ms. E.K. since June 1, 2015.

[85] I note that Ms. E.K. has already spent more than two years in custody. She has used some of the time spent in custody productively. Counselling, further education and completion of programs designed to help Ms. E.K. address deficiencies in her character are commendable.

[86] I am optimistic the principle of individual deterrence would be satisfied at either end of the range of sentence proposed by the parties’ lawyers. The prospect of rehabilitation is, at worst, fair if Ms. E.K. is able to exercise restraint, commitment and maturity that eluded her for most of her teenage years.

[87] The gravity of the offence and degree of blameworthiness must be addressed. It should be self-evident that Ms. E.K. has been convicted of a very serious offence. As mentioned earlier, her unlawful actions contributed materially to the death of Mr. James.

[88] I part ways with the defence on the issue of responsibility. What happened here cannot be said to have been provoked. To be sure, Mr. James said things that have no place in society. For the first few minutes of the initial bus ride, Ms. E.K. made three attempts to bring an uncomfortable and inappropriate conversation to an end. Maturity seemed to be overtaking a somewhat rebellious past.

[89] Unfortunately, more comments were made. Arguably, Ms. E.K.’s initial response was provoked. She reached out to her then boyfriend Mr. Adams. She ensured that Mr. Adams would be at her intended bus stop. She asked Mr. James to meet him there. While willing to answer the challenge, Mr. James sought a different location. Soon afterward he exited the bus. That should have been where things ended.

[90] However, her desire for retribution did not dissipate despite the fact the effects of any verbal provocation should have long passed. A reasonable person, even at the age of eighteen, would have regained their self-control.

[91] In the case of Ms. E.K., the things said to her flipped a dangerous switch that then locked into a position that did not allow for sober second thought, restraint or regard for a course of conduct that was destined to destroy the lives of many.

[92] Ms. E.K.’s determination on the return ride downtown with Mr. Adams in tow was palpable, independent of the texts she authored while en route.

[93] While not in a position to say for certain all that Ms. E.K. knew, I can say this. Mr. Adams was her champion. When Ms. E.K. said that Mr. James “called it on”, she knew the Grinning Gator was not going to be the scene of a discussion. That was also apparent when she stopped while Mr. Adams walked purposefully to the intended target. Injury to Mr. James was the objective of the entire exercise.

[94] Nothing that followed seemed unexpected. The knife appeared after Mr. Adams returned, briefly, to Ms. E.K.’s side. It was clearly visible from the vantage point of the surveillance camera when she, albeit briefly, joined the fray. Furthermore, the fact that a willing combatant suddenly took flight, was clearly suggestive of the power imbalance that arose once Mr. Adams produced a weapon.

[95] Ms. E.K.’s actions escalated the situation even more. Mr. James was already at a disadvantage. He was unarmed and rightfully concerned at his obvious vulnerability.

[96] She ceased being an interested observer and became a third combatant. Ms. E.K.’s actions drew Mr. James’ attention away from Mr. Adams at a crucial time. Mr. Adams’ nearly simultaneous thrusts had devastating consequences. That serious, potentially fatal, damage had been inflicted was obvious to everyone who watched as evidenced by the rush of people to Mr. James’ side.

[97] Mr. Adams’ immediate flight spoke volumes. That Ms. E.K. paused, turned, fetched her purse and then ran after him did too. The embrace on the bus was almost sickening: seemingly one of congratulations for a job well done rather than an expression of regret for a situation that had gotten completely out of hand. As the outside world reacted to a horrible tragedy, steps were calmly taken by Ms. E.K. and Mr. Adams to avoid detection. While peace reigned within the confines of public transit, pandemonium had erupted outside.

[98] The Crown’s characterization of Ms. E.K. as the instigator of the confrontation that resulted in the senseless death of Mr. James is an accurate one. She did not suddenly lose control as a result of the words uttered. She played a central role in the planning and execution of the ultimate fight. Her actions are directly linked to events that ended one life and destroyed the lives of many. Her conduct was entirely and grossly disproportionate to the perceived wrong. I simply do not agree that this case is factually similar to R. v. Henry or R. v. Thompson. In my view, Ms. E.K. bears a high level of responsibility for the untimely death of Mr. James, notwithstanding the fact she did not wield a knife or inflict a fatal blow.

[99] Principles of general deterrence and denunciation are also engaged.

[100] “Sticks and stones may break my bones but words will never hurt me” may be an old, simplistic and unrealistic idiom. However, meting out vigilante justice in response to inappropriate verbal comments, even if perceived to constitute a threat, is never justified. Those who consider imposing their version of street justice must know they do so at their peril.

[101] I have also taken into account Mr. Adams’ custodial term. Apart from his role in the offence, I know nothing of his personal circumstances or of any other considerations that played a role in the parties’ joint submission or the court’s acceptance of it. While a consideration, it was only one of many.

[102] Having considered the nature and circumstances of the offence, the personal situation of Ms. E.K., the purpose and principles of sentencing as drawn from the Criminal Code and the case law and the submissions of counsel, I am of the view the following is a just and appropriate sentence:

a) Ms. E.K. shall serve a custodial sentence of eight years (2,920 days);

b) Pursuant to s. 719(3) of the Criminal Code, the offender shall receive credit for each day of pre-sentence custody at the rate of 1.5:1. By my calculations, based on a start date of June 1, 2015 Ms. E.K. has now served 856 days. Consequently, Ms. E.K. will receive credit for 1,284 days (856 x 1.5) which equals 3 years, 6 months and 7 days, leaving a balance of 4 years, 5 months and 24 days (1,636 days) to be served;

c) While continuing in custody, the court recommends that Ms. E.K. have made available to her: (i) counselling in relation to anger management; (ii) an opportunity to continue and complete her high school education and further self-improvement classes; and (iii) an assessment for the purpose of determining the need for continued assistance from a psychologist or psychiatrist;

d) During the custodial sentence and as permitted by s. 743.21 of the Criminal Code, Ms. E.K. is prohibited from communicating, directly or indirectly, with Sherry Belanger;

e) Prohibition orders are hereby made pursuant to ss. 109(2)(a) and (b) of the Criminal Code for a period of ten years and life respectively;

f) Ms. E.K. has been convicted of a primary designated offence within the meaning of s. 487.04 of the Criminal Code. Consequently, as required by s. 487.051(1), an order in Form 5.03 is hereby made authorizing the taking of the samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis; and

g) As required by s. 737 of the Criminal Code, Ms. E.K. shall pay a victim surcharge of $200 within six months of her release from custody.

“Justice A.D. Grace”

Justice A. D. Grace

Released: October 4, 2017 (Orally)

CITATION: R. v. E.K., 2017 ONSC 5204

COURT FILE NO.: 129/16

DATE: 20171004

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

E.K.

REASONS FOR sentence

Grace J.

Released: October 4, 2017 (Orally)

[^1]: Quoted with approval in R. v. Cioppa, 2013 ONSC 1242, [2013] O.J. No. 904 (S.C.J.), at para. 20.