R. v. Nicholson, 2017 ONSC 5244

CITATION: R. v. NICHOLSON, 2017 ONSC 5244

FRIDAY, AUGUST 11, 2017

R E A S O N S F O R S E N T E N C E

DiTOMASO, J. (Orally)

INTRODUCTION

(1) Joey Tanner was stabbed to death by Joseph Nicholson on June 16, 2007, on Strabane Avenue in the City of Barrie. Jeremy Rodgers was also stabbed by Joseph Nicholson at that time but, fortunately, Jeremy Rodgers survived.

(2) On June 2nd, 2010, after a lengthy trial with a jury, Joseph Nicholson was convicted of first degree murder in the killing of Joey Tanner and attempted murder of Jeremy Rodgers. Joey Tanner was 16 years old when he died. Jeremy Rodgers was 17 years old at the time that he was stabbed by Joseph Nicholson.

(3) On January 5th, 2017, the Ontario Court of Appeal substituted a conviction for second degree murder regarding the killing of Joey Tanner. The attempted murder conviction regarding Jeremy Rodgers was upheld.

(4) Mr. Nicholson faces a mandatory sentence of life imprisonment. The issue for me to decide is the period that he must serve before he is eligible to apply for parole.

THE PRINCIPLES GOVERNING THE INELIGIBILITY DETERMINATION

(5) In R. v. Arashvand, Fuerst J. concisely summarizes the principles governing the parole ineligibility determination.

(6) Section 745(c) of the Criminal Code provides that on conviction for second degree murder, the offender must be sentenced to life imprisonment, with no eligibility for parole for a fixed period ranging from a minimum of 10 to a maximum of 25 years. Section 745.4 specifically empowers the sentencing judge to increase the parole ineligibility period from the minimum of 10 years to the period that the judge deems fit, up to a maximum of 25 years.

(7) In exercising his or her discretion under section 745.4, the sentencing judge must have regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury. In this case, because of the jury verdict of first degree murder, there was no recommendation regarding parole ineligibility.

(8) As a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by the sentencing judge's determination that, according to the criteria set out in s. 745.4, the offender shall wait a longer period before having his suitability for release assessed. The determination of the parole ineligibility is "a very fact sensitive process". (See R. v. Arashvand, 2012 ONSC 5852, [2012] O.J. No. 5255 (Ont. S.C.J.) and R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at para. 18)

(9) An increased parole ineligibility period does not require unusual circumstances. (See Shropshire, at paras. 26 to 27)

(10) In assessing the s. 745.4 criteria and in deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing are relevant. Those objectives as set out in s. 718 are denunciation of unlawful conduct, deterrence, both general and specific, separation of offenders from society where necessary, rehabilitation, reparation for harm done to the victim or to the community, and promotion of a sense of responsibility in offenders and acknowledgment of harm done to victims and to the community. If there are circumstances that mitigate or aggravate possible sanctions for criminal conduct, the sentencing court must address them. The overall purpose of sentencing is described as being a contribution to respect for the law and the maintenance of a just, peaceful and safe society. (See Arashvand at para. 9 and R. v. Srun, [2013] O.J. No. 5931 (Ont. S.C.J.) at para. 46)

(11) The sentence remains one of life imprisonment, regardless of the period of parole ineligibility imposed. The sentencing judge does not decide when the offender should be paroled, but merely the period he must serve before parole can even be considered. (See Arashvand at para. 10, R. v. Trudeau, (1987) 24 O.A.C. 376 (Ont. C.A.)

12Aggravating factors must be established beyond a reasonable doubt. (See s. 724(3)(c) of the Criminal Code.) Mitigating factors must be established on the balance of probabilities. (See s. 724(3)(d) of the Criminal Code)

THE POSITIONS OF THE PARTIES

13On behalf of the Crown, Mr. Williams submits that parole ineligibility period should be increased to 16 years. He emphasizes the totality of the crimes committed by Mr. Nicholson, particularly in respect of Joey Tanner who was stabbed in the back three times by Mr. Nicholson. One of the wounds was controversial. Two were not. Joey Tanner bled to death. Jeremy Rodgers almost bled to death. Joseph Nicholson fled the scene, disposed of the knife and proceeded to deceive the police. The Crown submits that Mr. Nicholson is a violent recidivist with numerous previous convictions for violent crimes. Mr. Nicholson is not a first offender. The Crown submits that it has established aggravating factors in this case beyond a reasonable doubt. The aggravating factors outweigh any mitigating factors. The Crown submits that the period of parole ineligibility set at 16 years is appropriate in this case.

14On behalf of Mr. Nicholson, Ms. Dann acknowledges that while there is no issue that Mr. Nicholson stabbed both Joey Tanner and Jeremy Rodgers with reckless intent to murder, she disagrees that this was a planned and deliberate murder. It is submitted that the attack did not come out of the blue on unsuspecting bystanders.

15There is disagreement in respect of the aggravating features involved in this case. Nevertheless, Ms. Dann emphasized Mr. Nicholson’s youth at the time of the offence, his difficult personal circumstances and the possibility of rehabilitation and integration into society. Ms. Dann submits that having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, the range for parole ineligibility in this case is 12 to 14 years.

THE NATURE OF THE OFFENCE AND THE CIRCUMSTANCES SURROUNDING ITS COMMISSION

16On the morning of Saturday, June 16, 2007, two groups of young males, some fueled by alcohol and drugs, traded insults at an apartment building on Strabane Avenue in Barrie, Ontario. One group, the Hutton group, had travelled to Barrie in a stolen Lexus. Jeremy Rodgers and Joey Tanner were part of this group. They had come to visit Heather Dupe at her apartment and they were gathered on the front lawn of her apartment building. Mr. Hutton soon learned that Ms. Dupe had visitors which included Matthew Massey. Mr. Massey and Mr. Hutton did not like each other. A dispute arose between Hutton's group outside of the apartment and Massey inside the apartment. Hutton, Rodgers and Tanner remained outside, listening to music, drinking and using drugs. Massey called for help. As a result, Alan Deschamp and Tommy Gibbs arrived at the apartment building and went inside Ms. Dupe's apartment.

17Insults and threats were traded between the groups of young males with tension between

the two groups escalating throughout the morning.

18Joseph Nicholson came to the apartment after he received a call from the occupants. He was told about the conflict there. He hurried and took a cab to the apartment building. He entered the apartment building through the back door and went into Ms. Dupe’s apartment unit occupied by Massey and the inside group. Joseph Nicholson brought a knife with him.

19I find beyond a reasonable doubt, based on the evidence, that the stage was set for senseless acts of violence and bloodshed, which ultimately ended in the murder of Joey Tanner and the attempted murder of Jeremy Rodgers by Joseph Nicholson.

20I find beyond a reasonable doubt that when Joseph Nicholson entered the Dupe apartment, there was very little conversation. He put down a bag that he was carrying. He said, "Let's go deal with this" or words to that effect. What followed based on the evidence of a neighbor who observed these events is that Joseph Nicholson rushed out of the front door of the apartment building, followed by Massey, Deschamp and Gibbs. Prior to reaching the front door, Mr. Nicholson removed his shirt, readied his folding knife by opening it up and brandishing it, and thereafter rushing out of the building, leading his group outside. At the time, Ms. Dupe and her friend were attending to Ms. Dupe's baby who was crawling around outside.

21I find beyond a reasonable doubt that Joseph Nicholson was the aggressor who rapidly approached Hutton's group which included Joey Tanner and Jeremy Rodgers. Joseph Nicholson was described as the lead attacker and the foray outside the front of the apartment building was described by a neighbour as a "bull rush".

22I find beyond a reasonable doubt on the evidence that Mr. Nicholson's first victim was Jeremy Rodgers. Mr. Rodgers was 17 years old at the time. Mr. Nicholson rushed to Rodgers without a word and stabbed him in the upper chest with his knife. Rodgers had two lacerations in his upper left arm, which were treated at hospital. The blade of Mr. Nicholson's knife almost reached the heart of Mr. Rodgers. Jeremy Rodgers underwent lifesaving surgery at the hospital and but for that treatment, Mr. Rodgers would have died. I find beyond a reasonable doubt that on the evidence of the surgeon who treated Jeremy Rodgers that the surgery was a significant undertaking. A segment of Mr. Rodgers’ left lung was removed. During the surgery, Mr. Rodgers had a heart injury and heart damage. He remained in hospital for four days. Only after he was attacked did Mr. Rodgers pull out his own knife, open it and drop it on the ground upon realizing he was bleeding.

23Joey Tanner was not so fortunate. After attacking Jeremy Rodgers first, I find beyond a reasonable doubt that Mr. Nicholson danced from one victim to another and went from Mr. Rodgers to Joey Tanner.

24At the time, I find beyond a reasonable doubt that both Jeremy Rodgers and Joey Tanner were unsuspecting victims of Mr. Nicholson's attack. I find beyond a reasonable doubt on the evidence that Joseph Nicholson stabbed Joey Tanner in the back three times, in the upper left back, in the right lower back, and in the lower back closest to the buttocks. According to medical evidence, the fatal stab wound would have required Mr. Nicholson's knife to have been fully submerged into Joey Tanner's back. Joey Tanner lost a great deal of blood and his heart went twice into cardiac arrest. A team of doctors worked on Joey Tanner. However, Joey Tanner's condition never stabilized and he died on the operating table at the Royal Victoria Hospital. This was the tragic outcome of the violent confrontation between these two groups. As quick as the violence on the part of Mr. Nicholson started, that violence ended. Chris Hutton gathered up Jeremy Rodgers and Joey Tanner, dropped them off at a nearby plaza, where Rodgers and Tanner were eventually transported to the Royal Victoria Hospital by ambulance where Joey Tanner died and where Jeremy Rodgers almost died.

25I find beyond a reasonable doubt on the evidence that after the stabbings, Joseph Nicholson and his group returned to the Dupe apartment and, shortly after that, filed out of the apartment building through the back door. I find beyond a reasonable doubt that while running away, Joseph Nicholson disposed of his knife by dropping it into a manhole cover. The Nicholson group took a cab to Mr. Nicholson's apartment where they changed their clothing.

26According to the evidence, Joseph Nicholson came to learn that Joey Tanner had passed away. I find beyond a reasonable doubt that Mr. Nicholson’s reaction was one of perverse satisfaction. He was reported to have said, “I’ve got my first body under my belt.”

27I also find as an aggravating factor that Mr. Nicholson deceived the Barrie Police. When he gave his statement, Mr. Nicholson was aware that one of the young men had died and a second had survived. I find beyond a reasonable doubt that Mr. Nicholson deceived the police. He first claimed that he did not know the name of the person he was with, referring to him as "Maybe a Mike" although he later acknowledged that Massey was a friend of his. Mr. Nicholson said that he went outside the building but he did not have a knife. Mr. Nicholson said that once he got outside, he spoke with Hutton's group and tried to reason with them - only to get attacked by them. Mr. Nicholson claimed that he was the one attacked by a male with a knife. Mr. Nicholson said he simply defended himself by punching the male and somehow took the knife and stuck the male with his own knife.

28Mr. Nicholson’s position at trial was that he stabbed Jeremy Rodgers in self-defence and denied that he stabbed Joey Tanner. The jury rejected Mr. Nicholson’s position and, based on all the evidence, so do I.

29I find beyond a reasonable doubt on all the evidence that Joseph Nicholson stabbed Joey Tanner to death. While Jeremy Rodgers was also stabbed by Mr. Nicholson, he went on to survive his attack.

THE CHARACTER OF JOSEPH NICHOLSON

30At the time that Joey Tanner was killed, Mr. Nicholson was 20 years of age. Now, some ten years later, he is 30 years old.

31Joseph Nicholson was not a first-time offender. He had a lengthy criminal record. At the time of the murder, Joseph Nicholson had 29 total convictions. He now has 32 convictions. Some of those convictions are for the following offences: ten assaults, one assault with a weapon, one assault causing bodily harm, one criminal harassment, ten breaches of court orders.

32For all but one conviction, Joseph Nicholson served some period of time in custody.

33On June 16, 2007, Joseph Nicholson was bound by three separate probation orders as follows: August 16, 2006, probation for 18 months; December 21, 2006, probation for two years; May 2nd, 2007, probation for one year.

34By June 16, 2007, I find beyond a reasonable doubt that Mr. Nicholson’s criminal record disclosed he was a violent young man, ungoverned by and non-compliant with court orders.

35Marked as Exhibit 1 on the Sentence Hearing was Mr. Nicholson's Pre-Sentence Report. Prior to the murder and attempted murder, the report related Mr. Nicholson's tragic upbringing with dysfunctional parents. From an early age, he was prone to violence. His mother and ex common-law partner look for conditions that prohibit Mr. Nicholson from

contacting them "as they fear for their safety". (Pre-Sentence Report at page 9).

36After the murder and attempted murder, Mr. Nicholson was convicted of another violent offence, assaulting a peace officer on July 12, 2010. Since his conviction in 2010, Mr. Nicholson has had to be relocated to several Federal penitentiaries due to behavioural issues and "known enemies". While in custody, "There have been numerous incidents, including fights, a stabbing where he was stabbed, drug possession, possession of a shank, failure to follow orders, an assault on an officer; these have diminished over the years". (Pre-Sentence Report at page 7).

37The Pre-Sentence Report indicates that Mr. Nicholson’s compliance is improving. “At the time, he was deemed to present a genuine and substantial commitment with respect to his correctional plan, although his institutional functioning was not flawless.” (Pre-Sentence Report at page 7.)

38I have ignored unproven allegations made by Mr. Nicholson’s ex common-law partner regarding his alleged threats against her when armed with a gun.

39On the Sentencing Hearing, a number of victim impact statements from Joey Tanner's family (Exhibit 2, Christine Bowman, Exhibit 3, Nancy Ratthe, Exhibit 4, Liz Hoage - his aunts and mother) were filed. The victim impact statements were also read by Ms. Bowman, Ms. Ratthe and Ms. Hoage. Even ten years after Joey Tanner's death, the pain and loss they felt was ever present and palpable. They expressed pain, anger and despair. They expressed the ache in their hearts. They expressed sadness - a loss of promise and a future robbed - as a result of Joey Tanner's death. There was a sense of guilt and constant daily reminders of Joey Tanner's absence in their lives. The impact of what Mr. Nicholson has done has forever left a gaping hole in the Tanner family that can never be repaired.

ANALYSIS

40I am satisfied that there are many aggravating factors in this case established by the Crown beyond a reasonable doubt.

41As for Joseph Nicholson’s character, he had a substantial and related criminal record for crimes of violence. Mr. Nicholson had not been deterred by prior periods of incarceration. His criminal record demonstrated not only the number of convictions but the seriousness of those offences over the years. At the time Joey Tanner and Jeremy Rodgers were stabbed by Mr. Nicholson, he was on three separate probation orders which made no difference to him. I find the evidence is clear that Mr. Nicholson had a record for non-compliance with court orders which is a serious aggravating factor.

42Even while in jail, he had a propensity for violence. After his convictions in this case, he assaulted a police officer and received a further concurrent jail sentence. While in custody, he had to be relocated to several different Federal penitentiaries due to behavioural issues and "known enemies". While in jail, he was involved in numerous incidents, including fights, stabbing where he was stabbed, drug possession, possession of a shank, failure to follow orders and an assault on an officer.

43As for the nature of the offence and the circumstances surrounding the commission of the offence, I am satisfied on the evidence beyond a reasonable doubt that Joseph Nicholson armed with a knife ambushed both Jeremy Rodgers and Joey Tanner. Jeremy Rodgers was stabbed repeatedly as was Joey Tanner. As a result of Mr. Nicholson's brutal attack on two unsuspecting victims, both were hospitalized. Jeremy Rodgers barely survived his attack. Joey Tanner did not.

44The attack by Mr. Nicholson on both Jeremy Rodgers and Joey Tanner can only be described as vicious and deadly. Both his victims were taken by surprise. Both were vulnerable and unsuspecting. Both were younger than Mr. Nicholson. Joey Tanner was particularly vulnerable. He was only 16 years old. He was much smaller than Joseph Nicholson. Joey Tanner was five foot five inches tall and weighed 150 pounds. Joey Tanner had his back to Mr. Nicholson when he was stabbed repeatedly. Joey Tanner was unarmed. Joey Tanner was stabbed three times in the back. According to Dr. Doucette, the fatal stab wound would have required the knife to be fully plunged into Tanner’s body. Joseph Nicholson also stabbed Jeremy Rodgers who was only 17 years old at the time. He was stabbed in the upper chest and remained in hospital for four to five days. He was fortunate that the knife wound did not penetrate his heart. He nearly died.

45In R. v. Shropshire at para. 6 the court held:

“I further note that the Manitoba Court of Appeal in R. v. Ley, supra, held that the period of parole ineligibility could be increased when the murder is committed in the course of another crime, particularly a crime of violence.”

46That is what happened in this case. Joseph Nicholson danced from his first victim, Jeremy Rodgers, to his next victim, Joey Tanner, without warning and without provocation. I find beyond a reasonable doubt that the location of the stabbings is also an aggravating factor. Joey Tanner and Jeremy Rodgers were attacked by Joseph Nicholson in a peaceful, residential neighbourhood, across from a public park. His senseless attack occurred in broad daylight with young women and a baby crawling around outside the apartment building.

47I also find beyond a reasonable doubt that Mr. Nicholson’s after-the-fact conduct is significant. After stabbing both Rodgers and Tanner, Joseph Nicholson fled from the scene, disposed of the murder weapon down a manhole cover and changed clothes at his apartment. He was dishonest with the police when he was interviewed.

48A highly aggravating factor is that when Mr. Nicholson was called to help the Massey group, he brought a knife with him. He was prepared to deal with the matter. Without any advance warning, Mr. Nicholson rushed at the Hutton group, said nothing as he did so, stabbed his two unsuspecting victims and then ran away. All while he was on multiple probation orders, the most recent of which was dated May 2, 2007, just over a month before Jeremy Rodgers and Joey Tanner were attacked.

49The Crown submits that beyond a reasonable doubt it has established elements of planning behind the murder as an aggravating factor. While this is controversial, I am not satisfied that what Mr. Nicholson did in arming himself, arriving at the apartment building and rushing out to confront the Hutton group rises to the level of planning and deliberation of a murder. Nevertheless, I have considered Mr. Nicholson's conduct in dealing with the nature of the offence and the circumstances surrounding its commission. I have also considered any mitigating factors. At the time of the stabbings, Joseph Nicholson was 20 years of age. His Pre-Sentence Report suggested some change in him and his commitment to cooperate at the institution. However, his Pre-Sentence Report was not flawless and did indicate that Mr. Nicholson's problems in various institutions had not ceased but had only diminished.

50The Pre-Sentence Report does not disclose the support of his family. To the contrary, the report tells us that the behavioural issues and present offence have further divided his family as it appears that they have taken sides. The Pre-Sentence Report indicates that Mr. Nicholson was raised in an unstable and unsupportive background evidenced by his behaviours and eventual placement in various group homes. He had behavioural issues evidenced by anger and violence which continued in his family relationship and life as he grew older. This resulted in a very unstable relationship and life, both marred by violence. His mother and ex common-law partner want nothing to do with him as they fear for their safety.

51I have read Exhibit 5, the statement of Reverend Bruce Stickley about Joseph Nicholson’s troubled and unstable background.

52Reverend Stickley has had regular contact with Joseph Nicholson before and since his conviction. He sat through the trial and visited Joseph Nicholson in Federal penitentiaries, along with Mr. Nicholson's grandmother. Reverend Stickley notes that Joseph Nicholson is making progress while incarcerated. In the view of Reverend Stickley, Joseph Nicholson will most likely succeed regarding rehabilitation.

53This court also heard from Joseph Nicholson who expressed remorse for what he had done. He did not express any remorse at trial. He stated that he was trying to progress with rehabilitation and that he takes responsibility for his actions. He is truly sorry for the pain that he has caused and that he never intended the confrontation to escalate the way that it did. At the time, he was young and stupid but now realizes that he has caused irreversible damage. He said that he was sorry for it all forever. He was very sorry for what he did. He asked for another chance to achieve and told the Tanner family that their son did not deserve to die.

54While Joseph Nicholson states that he is trying to progress with rehabilitation, I am not satisfied that he has changed while in jail. His institutional record would indicate otherwise. While I do not say that Joseph Nicholson has no rehabilitative potential, I cannot conclude at this time that whether and to what extent he has moved towards rehabilitation.

55I should also state that it is not an aggravating factor that Joseph Nicholson pleaded not guilty and had a trial. That having been said, he cannot benefit from the mitigation that flows from a plea of guilty and the expression of remorse that it carries. While Joseph Nicholson expresses remorse now, he cannot explain away what he did as the actions of an immature and stupid young man. His assertion that he takes responsibility for his actions is cold comfort to the Tanner family and will not bring Joey Tanner back to them.

56I have considered the character of Joseph Nicholson, the nature of the offence, the circumstances surrounding its commission in deciding the period that Joseph Nicholson must serve before he is eligible to apply for parole.

57Further, I have reviewed and considered the case law provided by the Crown and defence counsel in their respective Book of Authorities. I have noted the positions taken by the Crown and Defence counsel as to the period of parole eligibility.

58I find the aggravating features to which I have referred reflect the seriousness of Joseph Nicholson's offence and the serious degree of responsibility and moral blameworthiness that goes with it. There is no question that a significant increase in his parole ineligibility period is warranted. The period sought by the defence of between 12 and 14 years is not sufficient in this case. The period sought by the Crown of 16 years is also inappropriate. Upon consideration of the totality of the factors I have considered in this case, as the sentencing judge, the period of parole ineligibility shall be 15 years.

59Joseph Nicholson, please stand. I sentence you to life imprisonment without parole eligibility for 15 years.

60The Warrant of Committal will be endorsed to reflect that Joseph Nicholson's life sentence began to run on the date of his arrest, June 16, 2007.

form 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)

Evidence Act

I

Phyllis Torrance

(Name of Authorized Person)

certify that this document is a true and accurate transcript of the recording of

R. v. JOSEPH NICHOLSON

in the

SUPERIOR COURT OF JUSTICE

(Name of Case)

(Name of Court)

held at

75 Mulcaster Street, Barrie, Ontario L4M 3P2

(Court Address)

taken from Recording

3811-03-20170811-092409-20-DITOMAG

, which has been certified in Form 1 by B. McCarthy.

September 5, 2017

PHYLLIS TORRANCE, ACT ID 4026163594

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

JOSEPH NICHOLSON

P R O C E E D I N G S

[REASONS FOR SENTENCE]

BEFORE THE HONOURABLE JUSTICE G.P. DiTOMASO

on August 11, 2017 at Barrie, Ontario

APPEARANCES:

R. Williams Counsel for the Crown

J. Shanmuganathan Agent for Erin Dann, Counsel for Joseph Nicholson

ONTARIO

SUPERIOR COURT OF JUSTICE

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