Court and Parties
Date: 20180713 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Jean Guy Thibeault
Counsel: Daniel Brandes and Corie Langdon for the Crown Ashley Audet for Jean Guy Thibeault
Reasons for Sentence
MacDonnell, J.
[1] In April of 2015 Kenneth McGowan was 63 years old and living alone in a one-bedroom apartment at the south end of the third floor of a Toronto Community Housing building at 444 Lumsden Avenue in Toronto. Darren Tobias was living in a one-bedroom unit at the north end of the third floor. The defendant, Jean Guy Thibeault, 36 years of age at the time, was a friend of Tobias but a stranger to Mr. McGowan.
[2] Shortly before 3:30 p.m. on April 9, 2015, Mr. Thibeault knocked on Mr. Tobias’s door. After a brief exchange, Mr. Tobias turned to go back inside, at which point Mr. Thibeault suddenly and without provocation struck Mr. Tobias on the back of the head with an unknown object, wounding him. Mr. Tobias ran from his apartment to the office of the building superintendent where a 911 call was placed. Two police constables attended to investigate. Upon being told that Mr. Thibeault might still be in Mr. Tobias’s apartment, the constables proceeded to the third floor. When they arrived they found Mr. McGowan lying unconscious in the elevator corridor with his head in a pool of blood. He had suffered grievous head, face and brain injuries. Paramedics attended and transported Mr. McGowan to St. Michael’s Hospital where he lingered for a month, never regaining consciousness, until he passed away on May 9, 2015.
[3] Arising from those events, Mr. Thibeault stood trial in this court on charges of committing second degree murder on Mr. McGowan and aggravated assault (wounding) on Mr. Tobias. After two days of deliberation, the jury found Mr. Thibeault not guilty of second degree murder but guilty of manslaughter and guilty as charged of aggravated assault. Mr. Thibeault is before the court today for sentencing for those two offences.
A. The Facts
(i) the facts underlying the manslaughter conviction
[4] Section 724(2) of the Criminal Code provides that following a trial before a court composed of a judge and jury, a sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”. The jury’s verdict of manslaughter represents a finding that Mr. Thibeault intentionally applied force to Mr. McGowan, that he inflicted the grievous injuries that Mr. McGowan suffered, and that those injuries caused Mr. McGowan’s death. The verdict also represents a rejection of the position that Mr. Thibeault meant to kill Mr. McGowan or to cause him bodily harm that he knew was likely to kill him. The verdict does not necessarily carry with it any other facts with respect to the nature of the force used by Mr. Thibeault, the circumstances in which it was used or Mr. Thibeault’s state of mind at the time.
[5] Section 724(2) further provides that while a sentencing judge must accept all of the facts that were essential to the jury’s verdict, the judge “may find any other relevant fact that was disclosed by the evidence at the trial to be proven…” Where there is a dispute with respect to an “other relevant fact”, further evidence is required unless the sentencing judge is satisfied that sufficient evidence was adduced at the trial: s. 724(3)(a). Generally, the judge must be satisfied of the existence of a disputed fact on the balance of probabilities, but if the fact is an aggravating fact the judge must be satisfied beyond a reasonable doubt: s. 724(3)(d) and (e).
[6] A fact will be relevant for the purposes of s. 724(2) if it will assist in the determination of a fit sentence. The judge should only find those facts that are necessary for that purpose. Accordingly, “the judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues”: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paragraph 18.
[7] For the purpose of sentencing in this case, the nature and extent of Mr. Thibeault’s assault on Mr. McGowan and his state of mind at the time of the assault are central issues. I am satisfied that sufficient evidence was adduced at trial for findings to be made in relation to both of those issues.
[8] On the basis of the evidence, what happened to Mr. McGowan can only be characterized as a brutal beating. At the time of his admission to hospital, he was in a coma. His rating on the Glasgow Coma Scale was in the range of three to five. The Glasgow Coma Scale is used to assess the severity of head trauma. Fifteen is the highest number on the Scale and three is the lowest. A score of eight or less is associated with severe head trauma. Lacerations were evident to the side of Mr. McGowan’s right eye socket, over the bony ridge underneath the left eyebrow, and over the left side of the head. There was evidence of traumatic injury to both eyes. A CT scan revealed swelling and bleeding over the back of the skull on the left side and a hematoma over the right side. Extensive soft tissue swelling and subcutaneous emphysema were observed in Mr. McGowan’s face. The swelling and emphysema were associated with a multitude of complex and severe facial fractures, which included fractures across the cheek bones on both sides that left the upper half of the face separated from the lower half. The bone underneath the right eye socket was broken and the bones in the areas to the rear of the cheek bones on both sides were shattered into little pieces.
[9] In addition, there was bleeding around and within Mr. McGowan’s brain, the brain was bruised, and an MRI revealed features of diffuse axonal injury. The most common situations where axonal injuries occur are car crashes or falls from a great height. Dr. Cunningham testified: “Multiple blunt impacts to the head certainly can [cause this much damage] particularly if an implement has been used, because you can apply a lot more force if holding a weapon of some sort. But there need not be a weapon – a fist could do it, a foot could do it, especially if the head has been struck hard enough and enough times.” At the time of the post mortem examination, more than a month after the injuries were inflicted, Dr. Cunningham observed hemorrhaging in the scalp tissue both at the front of the head, just above the hair line, and over the top of the head, and in the muscles below the temples. He also noted that there was a healing skull fracture under the left temple and that the hyoid bone had been broken, which indicated that blunt force had been applied to Mr. McGowan’s neck.
[10] Although Dr. Cunningham was unable to categorically rule out the possibility that a single impact caused all of the injuries suffered by Mr. McGowan, he clearly believed that there were multiple blunt impacts. He said: “I can’t see …how a single impact could create all of these injuries… the number of injuries, the distribution of those injuries and the severity of the injuries would all support multiple impacts, I just can’t say how many.”
[11] With respect to the number of impacts and the mechanism by which they were delivered there is more than the opinion of Dr. Cunningham. There is also the evidence of the bloodstains that were found in the vicinity of Mr. McGowan’s body, and in particular the two spatter patterns that Detective Constable Albrecht testified were indicative of the application of force to Mr. McGowan’s head at a time when it was on the floor or inches above the floor. Further, there is the evidence that Mr. McGowan’s blood was found in various places on the sides and top of the Mr. Thibeault’s shoes, and that no trace of blood was found on Mr. Thibeault’s hands.
[12] When Dr. Cunningham’s evidence is considered together with the other evidence I have mentioned, the only reasonable inference is that Mr. Thibeault inflicted Mr. McGowan’s catastrophic injuries by repeatedly stomping on his head and face while he was lying defenseless on the floor of the elevator corridor.
[13] There is no direct evidence as to how Mr. McGowan came to be outside of his apartment at the time he encountered Mr. Thibeault. The circumstantial evidence, however, suggests that he was returning to his apartment after stepping out to deposit his trash in the garbage room on the north side of the elevators – he was clad only in shorts and a t-shirt with no shoes, he had left his apartment door wide open, and his television was on. I have no doubt that he did nothing to provoke Mr. Thibeault. What undoubtedly happened is that having just launched a violent unprovoked attack on Mr. Tobias, Mr. Thibeault did the same to Mr. McGowan.
[14] Consistent with the jury’s verdict, sentencing must be approached on the basis that Mr. Thibeault did not mean to kill Mr. McGowan and did not mean to cause him bodily harm that he knew was likely to kill him. There was no evidence that Mr. Thibeault had consumed drugs or alcohol on the day in question but, as I reminded the jury, there was evidence that he was behaving strangely both before and after the incident. That evidence probably left the jury with a doubt as to whether Mr. Thibeault foresaw that the harm he was causing to Mr. McGowan was likely to kill him. However, I have no doubt that whatever it was that caused Mr. Thibeault to act bizarrely, it did not affect him to the extent that he did not mean to cause serious bodily harm. And I have no doubt that while he did not know that what he was doing was likely to cause Mr. McGowan’s death, he did know that there was at least a risk that death could ensue from the brutal blows he was delivering with his feet to Mr. McGowan’s face and head.
[15] Even if, contrary to what I have just said, Mr. Thibeault did not know that the harm he was inflicting was putting Mr. McGowan at risk of death, I have no doubt that at the point when he decided to walk away, to leave Mr. McGowan alone and unconscious in a pool of blood, and to do nothing to obtain assistance for him, he appreciated that without urgent medical help Mr. McGowan could die. I acknowledge that Dr. Cunningham testified that he would not expect a layperson to be able to determine that Mr. McGowan was at risk of death merely from looking at him, but Mr. Thibeault was not just someone who happened upon Mr. McGowan lying in the corridor: he was the person who had inflicted all of the blows that had put Mr. McGowan in that position and that had caused all of Mr. McGowan’s injuries. He had knowledge that the hypothetical layperson Dr. Cunningham was contemplating did not have. Yet, he walked away, indifferent as to whether Mr. McGowan lived or died.
(ii) the impact of the manslaughter offence on others
[16] Mr. McGowan’s sister, Sylvia Costello prepared a victim impact statement that eloquently and poignantly described the devastating impact that her brother’s death has had on her. Even three years removed from the initial shock of losing him, she continues to suffer, and she is resigned to the reality that she will never be same as she used to be.
(iii) the facts underlying the aggravated assault conviction
[17] Mr. Thibeault and Mr. Tobias were friends and Mr. Thibeault was a frequent visitor to Mr. Tobias’s apartment. On the afternoon of April 9, 2015 Mr. Tobias heard a knock on his door. When he opened it, Mr. Thibeault was standing there with his hands behind his back. He was behaving strangely, not responding to what Mr. Tobias asked him. Mr. Tobias said that when he turned to go back into the apartment he was suddenly hit on the back of the head. No words had been exchanged prior to the blow. He said that he almost fell to the floor, but that he made it to living room and fell onto a bed. He said that Mr. Thibeault continued to pummel him but he managed to get free and to escape from the apartment. He fled to the superintendent’s office and the police were called. The blow to the back of his head left a gash that required four staples.
[18] There are reasons to suspect that Mr. Tobias was not being completely truthful about some of the details of the incident but his evidence that Mr. Thibeault struck him in the back of the head without provocation and caused a wound was not challenged and the jury obviously accepted the essence of his account.
(iv) the circumstances of the offender
[19] Mr. Thibeault is now 39 years of age. He was born in the province of Quebec. His father has had only a limited involvement in his life. Until he was 11, he lived with his mother at his grandparent’s home. He was then taken into care by the Catholic Children’s Aid Society and placed in a foster home in Scarborough where he remained for most of his adolescence. His foster parents were good and responsible individuals who provided him with a supportive network. They have maintained contact with him over the years, including while he has been in custody awaiting trial in this case.
[20] After graduating from high school Mr. Thibeault began working as a general labourer and roofer. He took a course at Ryerson to enable him to join a union for film production workers. When he was 32, he suffered a serious neck injury that made it very difficult for him to maintain employment. He was prescribed opioids to assist in pain management. Unfortunately, this led to the use of crack cocaine and heroin as a form of self-medication and he has developed a severe addiction to those drugs.
[21] Mr. Thibeault suffers from a disorder that manifests itself with what are known medically as pseudo seizures. Those seizures are triggered by emotional or psychological factors, not epilepsy, but they present in the same manner as epileptic seizures. He has had a number of those seizures while in custody awaiting trial.
[22] Over the years a number of medical practitioners have been involved with Mr. Thibeault, including some from CAMH. While in custody at the Toronto South Detention Centre he consented to participate in a mental health program designed to help inmates who have been flagged as having mental health concerns. He has met with the workers in the program monthly since March 2016. He has never been diagnosed as having a major mental illness, but in the course of his involvement with the mental health workers some common themes seem to repeat themselves, namely bizarre behavior, issues with impulse control, delusions and paranoia.
[23] Prior to his arrest for the offences in the case at bar Mr. Thibeault already had a criminal record consisting of 13 convictions. The record spanned the years between 1999, when Mr. Thibeault was 20 years of age, and 2014, when he was 35. Included in that record was one conviction for possession of a weapon, two convictions for assault, and one conviction for assault causing bodily harm. The latter conviction, which was entered on August 21, 2014, resulted in a sentence of imprisonment of nine months on top of nine months pre-sentence custody. The sentences imposed on Mr. Thibeault for his previous convictions had generally resulted in little or no custody.
[24] On February 21, 2015, after serving six months of his nine month sentence for assault causing bodily harm, Mr. Thibeault was released from prison. In the six or seven week interval between then and his attack on Mr. McGowan he was essentially homeless.
[25] Subsequent to his arrest for the offences in the case at bar and while in custody awaiting trial, Mr. Thibeault was charged with and convicted of assaulting a peace officer.
[26] At the conclusion of counsel’s sentencing submissions, Mr. Thibeault was given the opportunity to address the court. He began by stating: “First and foremost, I guess the question at hand is whether I have any remorse, and I have none because I still maintain my innocence. Do I have any compassion and heartfelt sympathies for the family? I do, but the truth has not been properly shared with the courts…” Mr. Thibeault then spoke of the reasons why he believes that he has not been properly convicted.
B. The Positions of the Parties
[27] It is common ground that while the two offences before the court call for a substantial term of imprisonment, Mr. Thibeault should receive credit on a 1.5 to 1 basis for the time he has spent in pre-sentence detention. He has been in custody since his arrest on April 9, 2015, just over 39 months ago. The parties agree that he is entitled a credit of 58½ months, or approximately five years.
[28] On behalf of the Crown, Mr. Brandes submits that the range of sentence established by the Ontario Court of Appeal for offences of manslaughter with the kind of aggravating features presented in this case is a term of imprisonment of between eight and twelve years. He submits that the particular circumstances surrounding the killing of Mr. McGowan call for a sentence at the top of that range. Mr. Brandes further submits that the wounding of Mr. Tobias merits a sentence of four years imprisonment to be served consecutively to the sentence for manslaughter. The Crown’s submissions, if accepted, would result in a total sentence of imprisonment of sixteen years, less five years credit for pre-sentence custody.
[29] On behalf of Mr. Thibeault, Ms Audet does not dispute that the circumstances surrounding the killing of Mr. McGowan bring this case within a sentencing range of eight to twelve years. She notes, however, that sentencing ranges are not inflexible and that courts may depart from them if a departure is warranted. In light of all of the circumstances, she submits, the appropriate sentence for the manslaughter conviction is eight years imprisonment and the appropriate sentence for the wounding of Mr. Tobias is two years, to be served concurrently with the sentence for manslaughter. In other words, Ms Audet submits that Mr. Thibeault should receive a total sentence of eight years imprisonment less five years credit for pre-sentence custody, which would leave Mr. Thibeault with three more years to serve.
C. Discussion
[30] Section 718 of the Criminal Code provides, in part, that 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 [six] objectives.” Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender.
[31] The objectives set forth in s. 718 sometimes pull in different directions. Which objectives will ultimately prevail will be a case-specific determination. In a case such as the case at bar, where the offender has intentionally committed an unlawful act that caused death, the objectives of denunciation and deterrence will inevitably be of paramount concern. However, the rehabilitation of Mr. Thibeault must also be an objective that the sentence seeks to achieve.
[32] Section 718.1 provides that whatever sanction is selected “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Section 718.2(a) provides that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender…” Further, pursuant to s. 718.2(b), a court that imposes a sentence must take into consideration the principle that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
[33] The latter principle necessarily draws a sentencing court to a consideration of sentencing precedents for analogous cases of manslaughter. The reality, though, is that manslaughter can be committed in a wide range of circumstances giving rise to a broad spectrum of moral culpability. Sentencing in manslaughter cases is quintessentially case-specific. However, the Ontario Court of Appeal has held that in cases where the conduct of the offender was accompanied by aggravating features, the appropriate sentence will usually fall within the range of 8 to 12 years: see e.g, R. v. Clarke, [2003] O.J. No. 1966; R. v. Devany, [2006] O.J. No. 3996, at paragraphs 35 and 38; R. v. Cleyndert, [2006] O.J. 4038, at paragraph 12; R. v. Jones-Solomon, 2015 ONCA 654, at para. 83; and R. v. Tahir, 2016 ONCA 136, at paragraph 2. That is not to say that for cases of “aggravated” manslaughter a sentence within that range is mandatory. Rather, “the exercise in each case is to impose a sentence that fits the facts and circumstances of the particular case and the particular offender”: Devany, at paragraph 34; see also R. v Clarke, 2014 ONCA 777, at paragraphs 30-32.
[34] I am unable to identify anything in the record of the trial or the sentencing proceedings that constitutes a mitigating circumstance for the purpose of sentencing in this case. Counsel for Mr. Thibeault pointed out that while he has a criminal record that includes offences of violence most of his convictions resulted in relatively lenient dispositions. The exception is the sentence for assault causing bodily harm, which resulted in what was effectively a sentence of 18 months imprisonment. That disposition is of concern because just eight months after it was made, and only six or seven weeks after Mr. Thibeault was released from prison, he committed the attacks on Mr. McGowan and Mr. Tobias. It is also a matter of concern that while in custody awaiting trial for the offences in this case Mr. Thibeault committed and was convicted of an assault on a court officer.
[35] In his statement to the court at the conclusion of the sentencing hearing Mr. Thibeault stated that he has no remorse because he is innocent of the offences of which he has been found guilty. The fact that he pleaded not guilty, that he had a trial, and that he continues to maintain his innocence are not aggravating circumstances. However, remorse can be a significant mitigating circumstance in that it can provide a basis for a belief that the offender will refrain from similar conduct in the future. That circumstance is entirely absent in this case.
[36] There are, on the other hand, a number of circumstances that heighten the gravity of Mr. Thibeault’s conduct and that justify characterizing this case as an aggravated manslaughter. Those circumstances include the following:
(i) Mr. McGowan was a vulnerable victim. At the time he encountered Mr. Thibeault he was 63-years-old, he was in his bare feet, and he was clad only in shorts and a t-shirt. (ii) the attack on Mr. McGowan was effectively a home invasion. (iii) the attack was completely unprovoked. (iv) the assault can only be described as brutal; it involved multiple stomping blows to Mr. McGowan’s face and head while he was prostrate and defenseless on the floor. (v) the catastrophic injuries that Mr. McGowan suffered were the entirely predictable consequences of the brutality with which the assault was committed. (vi) Mr. Thibeault’s state of mind at the time he inflicted those injuries was not far removed from what would have made him guilty of murder and thus his moral culpability is very high. (vii) at the conclusion of the assault, Mr. Thibeault left Mr. McGowan lying unconscious in a pool of blood and walked away, making no effort to do anything to ensure that the medical intervention he obviously required was provided. He was indifferent with respect to whether Mr. McGowan lived or died. (viii) the attack on Mr. McGowan not only ended his life but devastated that of his sister.
[37] In light of those circumstances, the principle of parity set forth in s. 718.2(b) of the Criminal Code suggests the range of sentence of eight to twelve years referred to earlier. In the absence of anything that meaningfully mitigates either the gravity of the offence or the extent of Mr. Thibeault’s moral culpability, the principle of proportionality calls for a sentence at the top of that range.
[38] In relation to the conviction for aggravated assault, the Crown seeks a sentence of four years to be served consecutively to the manslaughter sentence. In my opinion, a sentence of four years would be excessive regardless of whether it was ordered to be served consecutively or concurrently. The wounding of Mr. Tobias, while necessarily serious, did not result in harm that extended beyond the four staples that were required to close the gash to the back of his head. I accept the defence position that a sentence of two years would be fit.
[39] I reject the submission that a consecutive sentence is called for. The wounding of Mr. Tobias was part of the same series of events that resulted in the attack on Mr. McGowan. Indeed, the allegation that it was part of the same transaction is what authorized the Crown to add it to an indictment charging Mr. Thibeault with murder: see s. 589(a) of the Criminal Code. Permitting the sentence for the wounding to be served concurrently with the sentence for manslaughter does not give Mr. Thibeault a free pass for what he did to Mr. Tobias. Rather, what he did to Mr. Tobias finds reflection in the assessment of the gravity of the entire course of conduct that led to the death of Mr. McGowan. It contributes to the characterization of the attack on Mr. McGowan as an aggravated instance of manslaughter.
D. Disposition
[40] For the offence of manslaughter, the appropriate sentence would be a term of imprisonment of twelve years. That sentence should be reduced to account for the time already spent in custody, which the parties agree should be credited as about five years. Accordingly the sentence that I now impose is seven years imprisonment. I also impose a sentence of two years imprisonment for the offence of aggravated assault, to be served concurrently with the seven-year sentence for manslaughter.
[41] Because Mr. Thibeault has been convicted of an indictable offence involving the use of violence that is punishable by life imprisonment, a prohibition order under s. 109(1)(a) of the Criminal Code is mandatory. Pursuant to s. 109(2), I direct that Mr. Thibeault be prohibited from possessing any firearm, crossbow, prohibited or restricted weapon, ammunition and explosive substance for life.
[42] Manslaughter is a primary designated offence within the meaning of s. 487.04, paragraph (a) of the Criminal Code and accordingly a DNA order is mandatory. Therefore I direct that Mr. Thibeault provide a sample of his DNA.
MacDonnell, J.