COURT FILE NO.: CR-17-0336-0000

DATE: 20180620

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Anne-Marie Calsavara and Alex Cornelius, Counsel for the Crown

• and -

MANPREET SINGH

-and-

HAKEEM OTTLEY

-and-

DAVE RAMLOGAN

Edward Sapiano and Nabeel Sheiban, Counsel for Singh

Mary Cremer and Hailey Gladstone, Counsel for Ottley

Glen Orr Q.C. and David Shulman,

Counsel for Ramlogan

REASONS FOR SENTENCE

D. E. HARRIS J.

[1] Manpreet Singh, Hakeem Ottley, and Dave Ramlogan, charged with first degree murder on Joshua Hilario, were convicted by the jury of the included offence of manslaughter. These reasons are for the purpose of imposing sentence for the manslaughter convictions.

[2] The Crown position is 11 years incarceration for Singh and Ramlogan and 13 years for Ottley. The jury verdict necessarily implied that Ottley was the man who stabbed the deceased, Joshua Hilario, and that is why the Crown asks for a higher sentence for him.

[3] The defence recommendations were: For Singh, 9 years; For Ottley, 9-10 years; For Ramlogan, 8 and a half years.

FACTS OF THE OFFENCE

[4] This was a home invasion robbery gone wrong. Given what the men planned to do and how they planned to do it, it was not in the least surprising that it ended in disaster. The target, Chris Hilario, was a long time, mid-level cocaine dealer. The offenders got wind of this somehow. None of them knew Chris nor did they know his brother, Joshua Hilario. Tragically, they did not know that Joshua Hilario lived with his brother Chris.

[5] The offenders undertook a substantial amount of planning prior to the offence. They had extra cell phones for the purpose of the robbery. The day before the commission of the offence Ottley bought three hard hats at Home Depot for the purpose of disguising the perpetrators as construction workers if they were seen going in or out of the house in which the Hilarios lived.

[6] This is not the type of offence that is committed on the spur of the moment. Exactly how much planning and over what period of time is an open question.

[7] The robbery was botched from the outset. Singh knocked on the door of the house at 24 McGraw in which the Hilarios’ apartment was situated. Chris Hilario was just back from a drug transaction. The men likely saw him enter the side entrance of the house which went down to his basement apartment.

[8] According to Chris Hilario, when a knock came at his door and he opened the door, Singh immediately threw gasoline on him from a water bottle. At the time, Chris was morbidly obese, weighing 520 pounds. He struggled back down the steep staircase as fast as he could. Singh followed, hitting him over the head with a metal bar of some type. All three offenders entered the foyer of the brothers’ apartment and a scene of absolute mayhem broke out.

[9] Chris’ observations were made while being beaten over the head with the metal bar numerous times and stabbed repeatedly with a knife. Chris testified that nothing was said from start to finish until the end when Ramlogan said, “Let’s go.” Despite an unusually aggressive cross-examination by Mr. Sapiano, Chris never budged from this position.

[10] Chris said that at some point his brother Josh came out to help him ward off the attack. He did not see what Josh was doing.

[11] At one point in his evidence, Chris said that Ramlogan was on the stairs throughout the attack. When the men left, Chris, testifying that he did not know at the time how badly his brother was hurt, immediately went inside his apartment proper and moved his cocaine stash from his bedroom to the toilet tank.

[12] Returning, he saw his brother in great distress. Eventually, emergency personnel arrived but Josh Hilario could not be saved. He had suffered eight stab wounds, one of which went through the lung and the pulmonary artery. The pathology evidence was that Josh would have died within seconds or minutes.

[13] The evidence against the offenders putting them in the apartment at the time of the attack was overwhelming and prompted all defence counsel to concede presence and hence manslaughter in their closing addresses. The nucleus of the case was a parking ticket inexplicably left at the scene. It was covered in blood. The ticket was for Singh’s pick-up truck. The location of the vehicle as written on the ticket was an address in immediate proximity to Ramlogan’s house. The two were close friends.

[14] Evidence of DNA fixed all three at the scene. Singh must have drunk out of the water bottle used to throw the gasoline on Chris as it was found to have his DNA at the mouth. His DNA was also found on a glove and on some duct tape. It appears that the offenders intended to bind Chris Hilario during the robbery.

[15] Ottley was identified on video buying the three construction hard hats at a local Home Depot the day before the offence. Two of them were left at the scene. The DNA of his girlfriend Monique Bartella was found on one of the hard hats. She testified before the jury that she had seen the hard hat in the back of Ottley’s car and had moved it to make room for her purse.

[16] Ottley confessed to Bartella soon after the offence. She testified against him. He told her that he had gone in for a robbery and ended up stabbing a guy.

[17] The evidence putting Ramlogan at the scene was Chris Hilario’s blood on the sun visor of the car he was driving at the time, a Chevy Impala.

THE JURY VERDICT

[18] The Crown’s position was that this was an amateur “hit” and hence a first degree premeditated murder. As the evidence was being adduced before the jury, this seemed a plausible, albeit puzzling explanation. The usual hallmarks of a contract killing were not present. Chris seemed the obvious target, being a drug dealer probably well known in the community. But it was Josh who was killed. There were eight stab wounds to his body. There were two to the face but there was only one very serious wound near his heart. Tragically, it proved fatal.

[19] The wounding seemed haphazard and not the focused brutal attack one would expect in an execution murder, even a rank amateur one. But, because Chris Hilario testified that there was no demand for money or drugs during the attack, there seemed no other plausible explanation.

[20] In most cases of this nature, the motive behind the offence is obvious. Here, because of the offenders’ extraordinary ineptitude, it was hard to read the forensic tea leaves and the other evidence.

[21] The last witness the Crown called and the last witness the jury heard was Ottley’s girlfriend, Monique Bartella. In one stroke, her evidence destroyed the Crown’s theory that this was an amateur hit. Her testimony left no doubt that the motive behind the crime was robbery, the conclusion the defence was vying for from the outset of this trial.

[22] Bartella testified about her boyfriend Ottley’s emotional confession to her one night. He said that he went in there for a robbery with two other guys. There was a guy they did not know who lived there. Ottley got into a fight with him. He was losing the fight. He felt trapped and felt he had no choice. He took out a knife and stabbed the man. When he left, he felt that the guy was not going to make it. It was an accident.

[23] Bartella said she felt nauseated. As summarized in the charge,

The conversation with Ottley was very emotional. Bartella was in shock and was crying. Ottley was upset but she could not remember whether he was crying. They hugged each other in the bathroom at the end of the conversation. Bartella said that she loved Ottley and would be there for him. He said he loved her too.

Ottley said to Bartella that the killing was an accident.

[24] She was devastated while at the same time somewhat protective of Ottley. Some days later, Bartella helped Ottley bury his bloody clothes at night somewhere near a river in London Ontario.

[25] Bartella--the Crown and all defence counsel agreed before the jury--was an utterly convincing witness. Her evidence hit the perfect emotional pitch. Bartella discovered to her horror that the man she loved had killed a person in cold blood. But she loved him nonetheless. In the internal struggle which ensued, her integrity and dedication to the truth were to prevail over her devotion to Ottley. The result was a level of credibility virtually impervious to challenge.

[26] There are only two ways to explain the three manslaughter verdicts in this case. Cynics might say that it was jury nullification of a kind. The deceased and his brother were drug dealers. On this theory, although the accused might have been guilty of murder, the jury did not follow the legal instructions in the charge because they felt that the Hilarios were thoroughly despicable human beings.

[27] I refuse to believe this. I am convinced it is false. The jury in this case was astute. They knew what they wanted to do. They only deliberated for about five hours, including dinner.

[28] If a finder of fact accepted all of Ottley’s confession to Bartella—including the accident comment--then manslaughter was the correct verdict for Ottley and the other two. That is what I believe happened here. It is consistent with the short deliberation time required to bring back the verdicts. The jury accepted the admission to Bartella in its entirety, perhaps surprisingly, even concluding that the killing was an accident and that there was no intention to kill.

[29] Ms. Cremer, counsel for Ottley, in her cross-examination of Bartella and in her closing address, did a fine job of sketching the emotional bonds between the two lovers. The relationship of the two was very strong and close.

[30] As summarized in the charge:

They had been dating for three years. They were very close and had few other friends. They spent a great deal of time together and spoke everyday on the phone. They called each other in the morning when they woke up and called again at night when they were going to bed.

[31] In the jury’s eyes, the trust between the two meant that the confession had to be truthful. Furthermore, the credibility of the confession was fortified by the fact Ottley was making an admission of killing a man to a woman who loved and respected him. It must have been difficult to divulge the terrible secret. The admission gained credit by virtue of it being profoundly against his interest. There did not seem to be an ulterior motive for opening his heart to her. The jury did not buy the Crown argument that Ottley lied to Bartella.

[32] There is a compelling irony to this. It is not an exaggeration to say that Ottley’s damning admission won these manslaughter verdicts for the three accused men. Remorse brought a measure of redemption.

[33] Previous to Bartella, all the defence had to show it was a robbery was the fact that Chris Hilario was a drug dealer and would likely have drugs and money in his apartment. There had been some suggestion in his cross-examination that he had a motive to lie about the men not demanding anything from him. This was based on rather obscure reasoning and was not persuasive. Furthermore, Chris lacked the mental nimbleness to produce a lie spontaneously.

[34] I should also mention that the statement by Ottley to Bartella that it was a robbery was strictly speaking only admissible for and against him. This raised a conundrum. The most pivotal evidence supporting the defence position in this trial could only go in for the killer but not for the other two accused. I thought Ms Calsavara was very fair in agreeing that Ottley’s saying it was a robbery could be used as circumstantial evidence for the other two as well. By itself, a traditional instruction without pointing out the circumstantial force of the admission would have been untenable and would have caused the jury great confusion. And it would have been fundamentally unfair.

ADDITIONAL FINDINGS

[35] I cannot find, nor was I urged to do so, who the person was that stabbed Chris Hilario multiple times. Chris said he could not say who stabbed him. It probably was Singh as he was with him at the outset, beating him over the head with a metal pipe according to Chris. But it could also have been Ramlogan. The Ramlogan alternative prevents proof beyond a reasonable doubt that Singh was the stabber.

[36] I find beyond a reasonable doubt as Chris testified that Singh was the person who threw the gas on Chris Hilario and then beat him over the head with the pipe. This was at the very beginning of the incident and so Chris’ observations were not compromised by the stabbing and beating. Of course, Singh’s DNA was found on the bottle that contained the gas.

[37] There was a contest between the Crown and Mr. Orr with respect to Ramlogan’s role in this sordid affair. The Crown argued that Ramlogan was the ringleader. He said “Let’s go” and the other two obeyed and they all left together. For this, and other reasons, I agree that Ramlogan was likely the ringleader. However, I cannot make this conclusion to the beyond a reasonable doubt degree of certainty. It therefore cannot be used on sentencing.

[38] On the other hand, Mr. Orr, argued that as Chris Hilario said at one point in his evidence, Ramlogan was on the stairs the whole time during the incident. There was no other evidence from Chris about what Ramlogan did. Mr. Orr said that I should find that he did essentially nothing.

[39] I cannot agree with Mr. Orr’s argument. The stairs evidence is weak because Chris was under full attack with a metal bludgeon and a knife at the time. Needless to say, these are less than ideal conditions in which to make accurate and reliable observations.

[40] The defence has a burden on this issue and I find they have failed to fulfill it: see Section 724(3)(d) of the Criminal Code. On the other hand, I cannot find with any degree of certainty what Ramlogan did besides the parting statement and being on the stairs for at least part of the incident. I definitely do not accept, however, that he had a minor role in this home invasion and manslaughter. The suggestion from Mr. Orr that Ramlogan caught a case of cold feet upon entering the apartment finds no support in the evidentiary record, aside from Chris Hilario’s enfeebled stairs evidence, which I have rejected.

AGGRAVATING FACTORS

[41] There are several aggravating factors which are beyond dispute. This was meant to be a robbery in which violence was not only threatened but was actually inflicted. The men did not intend to go in, threaten Chris with serious harm, and then coerce him under pain of harm to hand over the drugs and money. Violence was to be inflicted from the beginning. And it was. In the extreme.

[42] There were two knives, and a metal bar. There was gasoline which was to be used to set the victim on fire or at least to threaten to do so. Duct tape was for the purpose of tying him up if it came to that. Chris was stabbed multiple times and beaten over the head many times, the stab wounds requiring sutures and the fractures to his skull requiring multiple staples. Violence was not contingent; it was a planned certainty. The foyer area where the attack took place was a scene of carnage with blood everywhere.

[43] Some robberies are planned with the object of minimizing violence. Care is taken to threaten without the actual infliction of harm. This robbery was planned to maximize violence. Very serious harm, including bludgeoning, stabbing and burning, was planned. In this atmosphere of extreme violence it was no surprise that a man was killed.

[44] Another important aggravating factor was that this was a home invasion. It was argued by Mr. Sapiano that because the men dealt drugs out of their apartment it was a “business or commercial invasion” not a home invasion. That is absurd. It was their home. It was an invasion of their home.

[45] The home is the citadel of personal privacy. It is a personal refuge from the outside world. True to this, when the fatal knock came at his door, Chris Hilario was resting in bed. Josh Hilario was likely in his bed as well. The quiet repose of their home was violently rent a sunder, becoming within seconds a place of bloody carnage at the hands of these offenders.

[46] The Court of Appeal in R. v. Wright 2006 40975 (ON CA), [2006] O.J. No. 4870, 216 C.C.C. (3d) 54 per Blair J.A. said:

14 As this court also noted in S. (J)., supra, at para. 34, home invasion offences are particularly troubling “because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes — highly cherished values in our society — and because they are frequently perpetrated against vulnerable individuals.” They must therefore be dealt with sternly by the courts.

[47] The high range for aggravated home invasion cases not involving a killing is 11 to 13 years, the sentence range suggested by the Crown in this case: see Wright at para. 23.

[48] Furthermore, the attack was planned over a period of time. Hard hats and construction vests were worn so that people seeing the men going in and out of the house would think they were construction workers and would pay them no mind. The men received “intelligence” from some source about Chris Hilario but the intelligence missed it seems, drawing from Ottley’s admission, that his brother lived with him as well.

[49] Planning is aggravating because it shows that the accused took time to think about what they were going to do, highlighting their ability to choose right from wrong which is at the heart of moral blameworthiness: R. v. Ruzic, [2001] S.C.R. 687 at para. 45.

[50] The men were acquitted of attempt murder on Chris Hilario for good reason. The attack on him was horrific but it was not life-threatening. There was no offence included by the wording of the attempt murder count in the indictment so the jury could not be given the alternative of aggravated assault. Nonetheless, all three men planned and helped carry out an attack on Chris. No counsel argued that the men should not be jointly culpable for the attack on Chris. It is a major aggravating factor for all of them.

[51] It was argued by Mr. Sapiano that Chris and his brother were not vulnerable victims. I strenuously disagree with this submission. Not only was Chris vulnerable, he was chosen exactly for this reason. First, as emphasized during the trial and touched on during the sentencing hearing, because he was a drug dealer, Chris Hilario could not call the police and complain about being robbed of drugs and money. The men could rob and beat him with almost complete impunity.

[52] The offenders must have known that Chris Hilario was a careless drug dealer. They likely knew that he dealt drugs from his apartment and did not have a safe house for his drugs or money. They probably also knew that he did not carry a firearm or other weapon for protection. In other words, he was the perfect mark.

[53] Besides this, Chris’ size severely hindered his mobility and his ability to defend himself. The men obviously knew this and intended to exploit it. Moreover, they outnumbered him three to one. A group enterprise of this nature is inherently aggravating. Finally, they brought multiple weapons all of which they intended to use. He had nothing.

[54] These vulnerabilities highlight the cowardly, cynical nature of this crime. Some may feel that because these two men were drug dealers the law is indifferent towards them. I think it important to push back hard against this sentiment. It is true that these two, particularly Chris, were not contributing members of society; drug dealers are a scourge. The Hilarios were not “sympathetic.” However, I do not believe sympathy or a lack of sympathy for the victims has anything to do with this sentencing. The focus must be on the offence and the offenders’ moral blameworthiness.

[55] In any case, there was some hope for these men, they were still young. They themselves were not violent men, unlike most drug dealers. No firearms or other weapons were found in their apartment. They had none of the usual accoutrements of drug dealing. There was no ostentatious display of wealth in the form of fancy cars or jewellery.

[56] Josh did work on and off; he did contribute. He was a cocaine addict most probably and in that aspect is deserving of our compassion, not our condemnation. In the end, these were sad, weak men.

[57] We do not value a human life based on how much a person has accomplished or how much they are “worth”: R. v. Costa 1996 CarswellOnt 341, [1996] O.J. No. 299 (S,C.) at para. 42 per Watt J. The death of Josh Hilario is to be mourned like the death of any other person who is killed. His mother came to court for the sentencing hearing and erupted in tears. She was overcome by grief. Who would not be? She loved her son Josh. She was devoted to both sons, coming regularly to clean up their apartment and help them with their laundry. She has lost a son because of the maleficence of these three men. It is a tragic, tragic senseless waste of a human life.

[58] Mr. Sapiano also argued that this was an “unsophisticated and poorly planned and poorly executed” crime and that this is a mitigating factor because it indicates they are unlikely to commit a similar crime in the future.

[59] However, if anything, the unsophisticated nature of this crime is an aggravating factor, not a mitigating one. I read “inept” or “botched” for counsel’s use of “unsophisticated.”

[60] The ineptitude was remarkable. All three defence counsel went to the jury disparaging their clients’ planning and execution of this scheme. This was good advocacy. Mr. Sapiano, in a moment of unintentional irony, called his client “not the sharpest knife in the drawer.” Mr. Orr referred to the scheme as “harebrained” and spent a good deal of time talking about the accused’s’ foolishness which he was probably right in attributing at least partly to youth. He argued convincingly at the sentence hearing that they were young, stupid and greedy. Ms. Cremer told the jury in closing that the acts of the accused were “abjectly stupid.”

[61] The advocacy advantage of these submissions was that “abject stupidity” on this level made premeditation and an intention to kill less likely to have been present.

[62] The general foolhardiness of this crime contains two related aggravating features. One is the result of the poor planning; the other, is the psychology at the root of the poor planning.

[63] First, the recklessness towards human life created an atmosphere which greatly increased the risk that someone would be killed. This generates substantial moral blameworthiness. Justice Boswell said in R. v. Hong, 2016 ONSC 2654 at paras. 11 and 12:

11 … I am part of what I suspect is a large majority of people who consider home invasions and drug rip-offs inherently very dangerous activities. Moreover, increased risk, as a matter of logic and human experience, tends to be positively correlated with poor planning. And this operation was, to say the least, ill-conceived.

12 There appears to have been little, if any, consideration given as to the prospect that Mr. McKelvey might not be alone in his home; nor any anticipation that there may be resistance offered by the occupant(s).

[64] In my view, the same can be said in this instance. The men did not contemplate anyone else being in the apartment besides Chris. The “intelligence” the men had did not tell them that Josh Hilario lived there too. His presence led to the entire thing going further awry. It was manifestly dangerous and exceedingly foolish for the men to bank on no one else being at the scene. Besides Josh, it is quite conceivable that the landlady who lived upstairs or a member of her family, including her young daughter, could have been there whether to access their food storage cellar or to do laundry.

[65] The centrepiece of the poor planning and execution was the Singh parking ticket inexplicably dropped at the scene. The accused left their calling card. But in a home invasion robbery, the accused are eager to conceal their presence, not flaunt it.

[66] The parking ticket made the task of the police much easier as did the DNA generously left at the scene and in Ramlogan’s car. The cell phone use and the videos of the offenders’ vehicles travelling to and from the scene of the killing were more examples of the foolishness of these men.

[67] Failing to avoid detection and leaving tell-tale evidence is not rare amongst criminals. But the ineptitude in this case went beyond the common failure to cover their tracks.

[68] The most astonishing aspect was that the men never announced to their victims that this was a robbery or that they were after money and drugs. This leads to the consideration of the second aggravating aspect.

[69] Greed and naked opportunism thoroughly permeated this offence. Because of their focus on the easy score, the men failed to play through what would happen once they started beating and stabbing Chris Hilario. At some point, they would have to tell the victim why there were there. They likely never thought of this as their planning was so thoroughly overtaken by the lust for easy money and drugs.

[70] They thought it was a foolproof crime. There were three of them, heavily armed, against one person--an obese drug dealer whose mobility was severely restricted. With this imbalance to their advantage, what could go wrong? The offenders’ inability to see the possibilities led to the harrowing scene that followed. It is not that they should be penalized for not committing a better engineered crime. It is that their greed was so profound that it flooded and blinded them to the realities. Malevolence and greed led to the death of Josh Hilario.

[71] In summary on this issue, poor planning and execution created a scene in which the risk to human life was exceedingly high. Furthermore, the reason for the poor planning was greed and malevolence which prevented the offenders from seeing what any reasonable person would have seen. These two aspects are significant aggravating factors.

[72] I am satisfied that this crime fits into the category of aggravated manslaughter as discussed in the authorities: see R. v. Clarke 2003 28199 (ON CA), [2003] O.J. No. 1966 (C.A.). The Crown went further and argued that this manslaughter was “close to murder.” This concept is used occasionally in the manslaughter sentencing jurisprudence.

[73] There are three potential meanings: 1. the elements of the offence make it virtually equal to murder; 2. the seriousness of the offence places it on a similar level to murder; or 3. Manslaughter of the highest degree of culpability lies just below murder on the blameworthiness scale.

[74] With respect to the first potential meaning, the difference between manslaughter and murder is the intention to kill. Subjective intent to kill or foresight of death is constitutionally required: R. v. Vaillancourt 1987 2 (SCC), [1987] 2 S.C.R. 636. It is simply inaccurate in law to say in reference to the elements of the offence that manslaughter is ever close to murder.

[75] Similarly, in the second sense, as an expression of seriousness, it complicates rather than clarifies. The intention to kill constitutes such a critical distinguishing feature between murder and manslaughter that it prevents useful comparisons.

[76] With reference to the third sense, the Alberta Court of Appeal in placing a manslaughter offence along a spectrum of seriousness, deemed the manslaughter offence at issue there as “near murder” see R. v. Varga 2000 ABCA 72, [2000] A.J. No. 220 at paras. 22-24.

[77] Situating the offence on the culpability spectrum is an important task for a trial judge as illustrated by R. v. Kwakye. 2015 ONCA 108, [2015] O.J. No. 707. In that case the appellant was a party to the offence of manslaughter, not the principal. The trial judge failed to determine the appellant’s foresight of the risk that the shooter would use a gun in the robbery. The Court of Appeal found that objective foresight of that risk was proven but could not find that the appellant actually foresaw the risk in the subjective sense. This lowered the appellant’s moral blameworthiness and led to the trial sentence being reduced.

[78] In our case, the jury in convicting of manslaughter, found in accord with the Supreme Court decision in R. v. Jackson 1993 53 (SCC), [1993] 4 S.C.R. 573, [1993] S.C.J. No. 134 at para. 20-21 that a reasonable person would have appreciated that bodily harm was a foreseeable consequence of the unlawful, dangerous act of a home invasion with the use of weapons. This was conceded by counsel at trial.

[79] Clearly the offenders’ conduct would also satisfy the higher standard of subjective foresight of bodily harm even though this level of culpability exceeds what is required to make out the offence. The men entered with the fixed intention of causing harm. In the context of the fault element for manslaughter, this was a high level of blameworthiness.

[80] I would prefer to describe and situate the offence within the bounds of manslaughter as opposed to comparing it to murder. It is both more accurate and more helpful for the purpose of sentence to say it is an aggravated manslaughter than to say it is close to murder.

[81] Finally, with respect to aggravating factors, Ramlogan has a previous criminal record for possession of a prohibited or restricted firearm with ammunition for which he received the equivalent of three years in custody. He was on parole for that offence when he committed this offence. He was wearing an ankle monitoring bracelet and was virtually confined to his home by his parole conditions. Of course he left home in violation of parole to rob the Hilarios.

MITIGATING FACTORS

[82] The men were all young at the time of the offence: Singh was 22 and is now 25. He had moved out of his parent’s house a few months before. He has support from his long-time girlfriend Nisha Bagree and from the community. His parents were both witnesses in the trial, in order primarily to demonstrate that his vehicle was in fact the white pick-up, the vehicle which was written up for a parking violation on the ticket left at the scene. His father and his mother came to court quite regularly to observe the proceedings as did his girlfriend.

[83] Singh was a few credits short of his High School diploma. He has worked repairing and installing balconies, working for a landscape company and working in a warehouse. He moved out of his parent’s home three months before this offence.

[84] Ottley was 20 and is now 23. He was a first offender in law but was convicted while in pre-trial custody of possession of a weapon and possession of a controlled substance. He was sentenced to a total of six months custody. The sentence to be imposed upon him in this proceeding will be made consecutive to any sentence he is currently serving.

[85] His parents wrote a letter for sentencing as did two brothers, three aunts, two uncles and a cousin. They all expressed strong support and faith in him.

[86] He went to Sheridan College in the electrician program for one semester but found it too challenging. He then shifted into the tool and die program but did not complete this program. He has done temp work and factory and warehouse work. Before this offence, he was working as a cable puller for Bell Canada. At the time of these offences, he was living at home and was supported by his parents.

[87] Ramlogan was 22 years old and is now 25. He has his high school equivalency. He was training before his arrest to become a gas technician and has an open ended offer of employment to do that work when he is released from custody. He is in a common law relationship with Julie Hoang. She gave birth to their child not long after he was arrested and incarcerated. He has support of his family.

[88] In mitigation, these men with the exception of Ramlogan, are all entitled to the mitigation due youthful first offenders. Denunciation and general deterrence are of reduced importance although for a serious crime like this, less so than for a routine criminal offence: R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538 (C.A.) at paras. 17, 21-22; R. v. Borde (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.) at para. 36; R. v. Brown, 2015 ONCA 361, [2015] O.J. No. 2655; R. v. Thurairajah, 2008 ONCA 91, [2008] O.J. No. 460 at para. 41-42.

[89] All three defence counsel argue that mitigation is due by reason that they did not contest a manslaughter verdict. This was likened to guilty plea mitigation. I do not agree. A guilty plea is mitigating because it may indicate remorse and hence be a precursor of optimistic rehabilitation prospects. Moreover, a guilty plea saves valuable court resources and, for pragmatic reasons, ought to reduce a sentence: R. v. Johnston and Tremayne 1970 281 (ON CA), [1970] 2 O.R. 780, [1970] 4 C.C.C. 64, [1970] O.J. No. 1489 (C.A.) at para. 9; R. v. de Haan, [1967] 3 All E.R. 618.

[90] In this case, the saving resources rationale does not apply. A full trial was held. With respect to signalling remorse, this too is unconvincing. These men all conceded manslaughter because they had no choice. Once they were all fixed in the Hilarios’ apartment based on the forensic evidence and Ottley’s confession, as I have already said, manslaughter was inevitable on the basis of the Jackson case. Succumbing to the inevitable does not demonstrate anything other than the fact the offenders received good legal advice and wisely acted upon it. The Court of Appeal has held that a plea when a conclusion of guilt is inevitable does not by itself demonstrate remorse: R. v. Faulds (1994), 1994 770 (ON CA), 20 O.R. (3d) 13 (Ont. C.A.) at para. 14; R. v. Daya (2007), 2007 ONCA 693, 227 C.C.C. (3d) 367 (Ont. C.A.) at para. 15.

[91] Putting this aside, I do accept that there is some remorse, at least on the part of Singh and Ottley. Singh wrote a letter which was filed on the sentencing hearing. It seemed to have sincerity to it, but that is hard to evaluate with any rigor as the incentive to exhibit remorse whether sincere or manufactured is powerful in the aftermath of a trial.

[92] Ottley’s remorse is palpable. Monique Bartella’s evidence proved this beyond any question. Of course, he had the most to be remorseful about, having stabbed Josh Hilario to death. The letters filed on his behalf from a wide cross-section of family and friends were powerful evidence of both his remorse and the broad-based support for him. Although his acts were by far the worst of the three, in my view he has reasonably good prospects for rehabilitation.

[93] I confess to being somewhat unsettled with respect to Ramlogan, in view of his record for firearms, another violent offence. It seems that there is a good amount of defiance in him. Yet he comes from what appears to be a good family. His girlfriend Julie Hoang testified and appeared supportive and not without a sense of the seriousness of these proceedings.

[94] It makes sense for our jails to do real rehabilitative work with inmates as most will eventually be released. I am somewhat skeptical whether this is taking place. It will be up to Ramlogan and the other two to improve themselves. I realize this is not an easy task in the current penitentiary environment.

[95] All three accused have accumulated quite a number of institutional infractions (Singh, 9; Ottley, 5; Ramlogan, 10). These include possession of contraband, inciting a disturbance, threatening assault, making a gross insult to a person and wilfully disobeying an order. Penalties range from a reprimand to the loss of privileges for a period of time. Ottley was also convicted of a criminal offence as noted above.

[96] Clearly these institutional infractions cannot constitute aggravating factors with respect to the underlying conduct as the standard of proof for these offences in the disciplinary setting is a balance of probabilities while aggravating factors in a criminal court must be proved beyond a reasonable doubt: R. v. Bisson 2017 CarswellOnt 9636, 2017 ONCJ 419, 140 W.C.B. (2d) 188 at para. 17; Section 724(3)(e) of the Criminal Code; R. v. Gardiner 1982 30 (SCC), [1982] 2 S.C.R. 368.

[97] The Crown relies on the institutional records to demonstrate that the rehabilitative potential for these men is not good. I admit to concern with respect to the offenders’ institutional records. They are obviously not model inmates. However, my impression is that disciplinary infractions are doled out liberally in the jails. I am unable to put any significant weight on the disciplinary records without hearing about the specific factual circumstances of the offences. In the end, I cannot ascertain whether these infractions are the result of an oppressive environment in the correctional facilities, perhaps with staff shortages as the catalyst, or whether the offenders are poorly behaved and constitute disciplinary problems.

THE CASE LAW

[98] The leading case on aggravated manslaughter is Clarke which sets a general range of 8-12 years (see para. 7). Clarke was a home invasion case in which the appellant was 29 years of age and was a friend of the victims. Manslaughter was arrived at by the “rolled up” no mens rea combination of an element of provocation together with alcohol consumption. The motive of the offender was not clear from the judgment. The Court of Appeal reduced the 14 year sentence to 11 years.

[99] The Clarke case does not set a ceiling for an aggravated manslaughter sentence. It was held in R. v. Devaney (2006) 2006 33666 (ON CA), 213 C.C.C. (3d) 264 (C.A.) at paras. 13-14 that a trial judge can depart from a range depending on the facts of the offence and the offender. The Court of Appeal cited Devaney and this principle in R. v. Atherley 2009 ONCA 195 and upheld 15 year sentences for a home invasion manslaughter. The offenders had long records and were on parole at the time of the killing. They inflicted gratuitous violence on the victim and left him bound and gagged. Another somewhat similar home invasion robbery manslaughter again resulted in a sentence of 15 years: R. v. Baptiste [2003] O.J. No. 3714 (C.A.).

[100] The Court of Appeal affirmed a 12 year sentence for a multiple stabbing manslaughter in R. v. Cleynert 2006 33851 (ON CA), [2006] O.J. No. 4038 (C.A.). The court agreed that the victim was vulnerable for the sole reason that he was unarmed during a fight that began as a fist fight. The accused was young but had a youth record for assault and threatening.

[101] In R. v. Jones-Salmon 2015 ONCA 654, [2015] O.J. 5020, the Court of Appeal affirmed a sentence of 13 years relying on Devaney. It was a home invasion in which the plan was to severely assault the two residents. There was a revenge motive. All offenders knew of the sawed-off shotgun to be wielded.

[102] Some of the home invasion cases relied upon by the defence lead to similar sentences. In R. v. Hong 2016 ONSC 2654, [2016] O.J. 2175, 11 years for the two manslaughter offenders was imposed. There was no plan, unlike in this case, to start inflicting deadly force upon entering the residence. In R. v. Bukhari [2007] O.J. No. 5807 (Ont. C.J.), 10 years was the sentence. In R. v. Chretien [2009] O.J. No. 2578 (S.C.), aff’d on other grounds 2014 ONCA 403, [2014] O.J. No. 2351 (C.A.), 12 years was imposed and parole was ordered delayed until one-half of the sentence was served. In R. v. Squires 2011 ONCJ 437, [2011] O.J. No. 6737, the sentence would have been between 13 and 15 years on a guilty plea. With credit for cooperation in the prosecution of a co-accused, the sentence was reduced to 9 years.

CONCLUSION

[103] These three men invaded Chris Hilario’s home, exploiting his obesity and the fact he could not, as a drug dealer, summon the help of the police. They out-numbered him three to one and were armed to the hilt with knives, a metal bar and gasoline to either burn him or threaten to burn him. Their object was his drugs and his money which they would take by force. Violence would be used and was used with little restraint.

[104] These men were willing to jeopardize the life of Chris Hilario and do serious injury in order to satisfy their greed. They were seduced by what an easy mark Chris appeared to be. It was consistent with all of this that they did not know or probably care terribly much whether there were other people who might be present during the home invasion. Josh Hilario was the victim of this criminal indifference.

[105] Josh Hilario was stabbed to death by Hakeem Ottley. Chris Hilario was stabbed numerous times by Ramlogan and or Singh. Chris was bludgeoned by Singh with the metal bar and gasoline was thrown on him. One brother was killed, the other brother was badly injured.

[106] Denunciation and deterrence, specific and general, are key sentencing principles in this case. The only mitigating factor, although a very important one, is rehabilitation and the importance of not imposing a crushing sentence upon men who have much of their lives ahead of them.

[107] In my view, the Crown’s sentencing position is eminently reasonable. Reviewing the home invasion jurisprudence, on its face, the seriousness of this offence exceeds the general range of 8-12 years suggested by Clarke. In other words, looking only at the offence, a justifiable sentence based on the precedents could well be significantly upwards of the general Clarke range. However, factoring in proportionality for the offenders, considering their youth and their foolishness partially born of that youth, and taking into consideration the Crown position, the terms I impose are: for Singh and Ramlogan, 11 years, and for Ottley, 13 years.

CREDIT FOR PRE-TRIAL CUSTODY

[108] The offenders were arrested in early July 2015 and have been in custody for almost three years therefore. By virtue of the R. v. Summers, 2014 SCC 26 credit of 1.5, this is equivalent to four and a half years of a judicially imposed sentence.

[109] The offenders all request enhanced credit because they were subject to full and partial lockdowns while in pre-trial custody. This is often referred to as a Duncan credit based on the decision of the Court of Appeal.

[110] Although the right to enhanced credit was recognized in R. v. Duncan 2016 ONCA 754, the court on the facts of that case found that the evidentiary basis for credit was not established. The court wrote:

6 … We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration.

7 While the pattern of "lockdowns" endured by the appellant is worrisome, without further evidence as to the effect of those conditions, we cannot say that the appellant suffered particularly harsh treatment entitling him to additional mitigation beyond the 1.5 credit. Consequently, although we agree that the trial judge misinterpreted the relevant provision, we would not reduce the sentence to reflect any added mitigation for the conditions of presentence incarceration.

[111] I am in the same situation as the court in Duncan. Material filed from the institutions demonstrate that there were numerous partial and full lockdowns and that many were the result of staff shortages. This is a serious problem. I agree with Justice Goldstein when he said in R. v. Jama 2018 ONSC 1252 at para. 20, “we should not simply normalize unacceptable conditions in a jail.” Criminal offenders lose their liberty. They do not lose their basic humanity. Incarceration of offenders must be consistent with societal values and our concept of common decency.

[112] However, like in Duncan, there was no direct evidence of the effect of the lockdowns on the three offenders. Circumstantial inferences do not permit me to conclude what the detrimental effect on these men was, if any. Consistent with Duncan, from my reading of the cases, enhanced credit has never been given without some specific evidence from the offender or from a correctional official. Neither has been proffered in this case. The leap from evidence of lockdowns to detrimental effect on the offenders is more speculation than it is permissible inference.

ANCILLARY ORDERS

[113] The Crown requests a Section 109 of the Criminal Code weapons prohibition for life and DNA databank orders for each offender. There is no opposition to these requests. I will make those orders.

[114] The Crown asked for a non-communication order under Section 743.21 of the Code for Singh and Ramlogan to prevent them from communicating while in custody. This provision allows for an order to not communicate during the custodial portion of sentence with “any victim, witness or other person.”

[115] Non-communication orders have generally been imposed to prohibit communication with complainants although orders have been applied on occasion to co-accuseds as well.

[116] I decline to make the order. Although there is a hint of the chemistry of a folie a deux between the two men, I do not believe the evidence is strong enough to indicate an ongoing concern of future in concert criminal activity sufficient to justify this type of restriction on communication and association.

SENTENCE

[117] In accord with these reasons, giving the offenders 4 and a half years credit for the three years they have been in pre-trial custody, I impose the following remaining terms for the offence of manslaughter: Manpreet Singh, 6 and a half years, Hakeem Ottley, 8 and a half years consecutive to any sentence he is currently serving, and Dave Ramlogan, 6 and a half years.

D. E. HARRIS J.

Released: June 20, 2018