Court File and Parties
Court File No.: CR-17-70000526 Date: 2018-10-19 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Bradley Cheveldayoff
Counsel: B. Richards and E. Weis, for the Crown M. Murphy and J. Collins, for Mr. Cheveldayoff
Heard: 20 September 2018
S.A.Q. Akhtar J.
Introduction
[1] On 13 April 2016 three men stood outside the Tim Hortons coffee shop at the intersection of Bloor Street and Yonge Street in Toronto. One of those three men was Gabriel Nikov.
[2] At around 8:00 p.m., these men encountered a young woman accompanied by a male friend. That male friend was Bradley Cheveldayoff.
[3] The two groups spoke, the conversation darkened, and words were exchanged. This meeting would ultimately lead to Mr. Nikov’s death and Mr. Cheveldayoff’s manslaughter conviction.
Factual Background
[4] On the evening of 13 April 2016, Mr. Nikov and two acquaintances, Matthew Desir and Malique Kamara, stood in front of the Tim Hortons franchise located at the intersection of Bloor and Yonge, engaged in conversation. Mr. Kamara noticed Rhyza Monroe, an acquaintance from his neighbourhood, walking down Yonge Street with Mr. Cheveldayoff.
[5] Mr. Kamara greeted Ms. Monroe, and began chatting with her. During their conversation, Mr. Kamara asked who Mr. Cheveldayoff was and why he was with Ms. Monroe. Tensions arose as Mr. Kamara and Mr. Cheveldayoff discussed Mr. Cheveldayoff’s neighbourhood. Mr. Cheveldayoff broke off the conversation and ushered Ms. Monroe into Tim Hortons, telling Mr. Kamara that he would “be back”. Mr. Kamara, Mr. Desir, and Mr. Nikov remained outside.
[6] The three men deliberated about Mr. Cheveldayoff. According to Mr. Kamara, Mr. Nikov made comments indicating that he intended to rob Mr. Cheveldayoff when he returned.
[7] As Mr. Cheveldayoff and Ms. Monroe exited Tim Hortons, the three men obstructed their way. When Mr. Cheveldayoff stepped out, Mr. Desir reached out to take his arm and Mr. Nikov put his arms around Mr. Cheveldayoff from behind. A struggle ensued.
[8] Mr. Nikov pushed and shoved Mr. Cheveldayoff in and around an alcove adjacent to Tim Hortons and threw two to three accompanying punches. Eventually, Mr. Cheveldayoff managed to push Mr. Nikov away and the fight ended. A video surveillance camera situated outside Tim Hortons recorded the entire conflict lasting approximately 20 seconds.
[9] The two men separated and Mr. Nikov walked south on Yonge Street. Mr. Cheveldayoff initially appeared to run in the opposite direction but, within a few seconds, had turned around. He produced a gun and shot Mr. Nikov six times in the back as he was walking away. Mr. Cheveldayoff then fled the scene with Ms. Monroe.
[10] At the outset of his trial, Mr. Cheveldayoff pleaded not guilty to second degree murder but guilty to manslaughter, a plea that the Crown was unwilling to accept.
[11] At the close of evidence, the defence sought and obtained permission to advance the partial defence of provocation. The jury acquitted Mr. Cheveldayoff of second degree murder and found him guilty of manslaughter.
[12] He now stands to be sentenced for that offence.
Position of the Parties
[13] Ms. Richards, on behalf of the Crown submits that the appropriate sentence for this case is at the upper end of the sentencing range. She asks that a sentence of 18-19 years be imposed. In addition, she requests that the court invoke s. 743.6(1) of the Criminal Code, R.S.C., 1985, c. C-46, requiring Mr. Cheveldayoff to serve at least one half of his sentence before being able to apply for parole.
[14] Ms. Murphy, on behalf of the defence, submits that the appropriate sentence range in this case is 8-12 years. Ms. Murphy concedes that Mr. Cheveldayoff’s actions are at the upper end of the range and asks that a 12 year sentence be imposed and opposes invocation of s. 743.6(1) of the Criminal Code. Ms. Murphy also asks that Mr. Cheveldayoff be given credit for the harsh conditions that he experienced whilst awaiting trial in custody.
Mr. Cheveldayoff’s Personal Circumstances
[15] Mr. Cheveldayoff is now 24 years of age. His parents were teenagers when he was born and when he was three months old, he was surrendered to his aunt because his parents felt they were unable to raise him properly. At the age of four, his parents returned to his life. However, his time growing up was disrupted and Mr. Cheveldayoff did not form a close relationship with them. Prior to turning himself in on these charges, Mr. Cheveldayoff renewed contact although the interaction appears to have been minimal.
[16] Mr. Cheveldayoff was placed with the Children’s Aid Society when he was 9 years old and, again, when he was 12 years old. He was a Crown ward from 14 to 21 years of age. Mr. Cheveldayoff left the Niagara Region at 18 and came to live in Toronto in shelters as a result of his fractured childhood.
[17] Although there is some indication that Mr. Cheveldayoff is of aboriginal heritage through his father, he has indicated that he has no connection with aboriginal culture and has, in the past, refused to participate in counselling related to aboriginal culture.
[18] Even though he is only 24, Mr. Cheveldayoff has an association with the criminal justice system that no one would be proud of. He has youth entries for assault and for being unlawfully in a dwelling. However, the more troubling aspects of his record come as an adult.
[19] In May 2013 Mr. Cheveldayoff threatened to shoot a TTC bus driver on a public bus in full view of other passengers.
[20] In June 2013, some 28 days after the TTC bus incident, Mr. Cheveldayoff tried to sell marihuana to an uninterested prospective purchaser. Mr. Cheveldayoff produced a knife, threatening to punch the victim and cut up his face. He received a suspended sentence and probation for both offences on 10 October 2013.
[21] In August 2013 Mr. Cheveldayoff was involved in two robberies on strangers involving the use of a knife. In one of the robberies, Mr. Cheveldayoff slashed another youth across the face on a crowded subway platform when the victim refused to give Mr. Cheveldayoff his mobile phone. That cut opened up the victim’s cheek to the bone causing a very deep laceration six inches in length which required 22 stitches.
[22] These offences were committed whilst Mr. Cheveldayoff was on bail for the June offences and in breach of a curfew condition. He was convicted on 26 February 2014 on these charges and sentenced to 18 months’ imprisonment with a 2 year probationary term. The sentencing judge also prohibited Mr. Cheveldayoff from possession of any weapons for life pursuant to s. 109 of the Criminal Code. Mr. Cheveldayoff was released from custody sometime in January 2015.
Legal Principles and the Sentencing Range
[23] Section 718 of the Criminal Code requires the court to balance denunciation and deterrence with the prospects of rehabilitation and the promotion of responsibility.
[24] As both parties have acknowledged, the manslaughter offence attracts a broad range of sentences based on the fact that the offence can occur in a wide variety of circumstances: R. v. Creighton, [1993] 3 S.C.R. 3, at pp. 48-49.
[25] The Crown’s precedents, perhaps not unsurprisingly, are at the upper end of the range.
[26] In R. v. Higham, 2009 ONCA 147, the offender shot the victim whilst he sat in his vehicle, in a drug trade related killing. The sentencing judge took the view that even though the jury had found the offender guilty of manslaughter rather than first degree murder, his actions were “close to murder”. Accordingly, he imposed the equivalent of a 19 year prison term. The Court of Appeal for Ontario upheld the sentence finding, at para. 4, that the punishment was “not outside the range for a manslaughter that was close to murder in the circumstances described”.
[27] In R. v. Gray (1990), 64 Man. R. (2d) 284 (C.A.), the offender fatally stabbed the victim 12 times during a robbery. The court found evidence of planning and preparation. The appellate court found that the trial judge committed errors that warranted substituting the offender’s second degree murder conviction with manslaughter. Notwithstanding the verdict reduction, the court found that because the facts in the case came “near to the offence of murder”, a life sentence was the appropriate disposition.
[28] In R. v. Carrière (2002), 164 C.C.C. (3d) 569 (Ont. C.A.), in the course of an armed robbery of a convenience store, the offender chased the owner to the back of the store and a struggle ensued resulting in the owner being shot twice. Although originally convicted of second degree murder, the Court of Appeal substituted a verdict of manslaughter based on the intoxication defence. The offender was aboriginal and was therefore subject to the principles enunciated in s. 718.2 of the Criminal Code and the Supreme Court of Canada’s decision in R. v. Gladue, [1999] 1 S.C.R. 688. Nevertheless, the court imposed a sentence of 17 years imprisonment. It should be noted that Mr. Carrière had a lengthy criminal record including a sentencing history with two penitentiary sentences.
[29] In R. v. Warner, 2018 ONSC 1799, the court imposed an 18 year sentence for the offender who shot his victim at a party over a “silly dispute” concerning music. The offender had a lengthy record and committed the offence whilst bound by a weapons prohibition order.
[30] Ms. Murphy, on behalf of Mr. Cheveldayoff, relies on cases at the lower end of the sentencing spectrum. In R. v. Docherty, 2010 ONSC 3603, the offender was convicted of manslaughter for killing the victim by stabbing him several times. The offender received a 12 year sentence. In R. v. Gill, 2011 ONSC 2598, a 24 year old offender shot and killed the victim at an engagement party after the victim had struck him in the head with a bottle during a fight. The offender was sentenced to 10 years imprisonment. In R. v. Hermiz, the offender was sentenced to eight years’ imprisonment after stabbing his victim following a fight in which he was attacked with a beer bottle.
[31] In R. v. Woodcock, 2010 ONSC 3752, two offenders were sentenced for their role in the death of Jane Creba outside the Eaton Centre in Toronto. The victim died after she was hit in the cross-fire during a gun shoot-out between two rival groups. Neither offender fired the shot that killed the victim. Both were given 10 year prison sentences. Finally, in R. v. Scopelliti, 2018 ONSC 4826, the offender was convicted of manslaughter for shooting his father in law after falling out over a change in the victim’s will. The trial judge imposed a sentence of 10 years’ imprisonment.
[32] I find, however, that these cases are of limited value when determining the appropriate sentence in this case. For example in Docherty, the victim was involved in a “loansharking” operation and had been pressurising the offender for payments. Moreover, at the time of the offence, Mr. Docherty had a dated record with very little jail time. In both Hermiz and Gill, the offenders had been struck in the head with a bottle shortly before committing the offence, and in the case of the former, the accused had no criminal record. As I have noted, in Woodcock, neither offender actually shot the victim but both still received a substantial sentence. It should also be noted that Mr. Woodcock had a minor record. Finally, in Scopelliti the offender had no previous criminal record and the sentencing judge found that the offence was “out of character” in terms of his history.
Prospects for Rehabilitation
[33] As part of the sentencing process, I am obliged to evaluate Mr. Cheveldayoff’s rehabilitation prospects. In my view, those prospects are very poor.
[34] As I have noted, his criminal activity, violent offences in a relatively short span of time, and offences committed on bail show his disregard for the legal process. The fact that Mr. Cheveldayoff was carrying a loaded gun whilst prohibited by a court order further demonstrates a lack of desire to change his ways and divert himself from a life of crime.
[35] Moreover, Mr. Cheveldayoff made various comments when serving probation that are disturbing when viewed in the context of his future outlook. In one meeting, in January 2015, the probation officer noted that Mr. Cheveldayoff seemed to find the questions he was asked “quite funny at times”. In another, in August 2015, Mr. Cheveldayoff remarked to the probation officer, that he did not need a formal education and went on to discuss “how drug dealers make a lot of money and that when caught & incarcerated, they have a lot of stashed money upon their release”. In another visit, when asked by the probation officer what Mr. Cheveldayoff was doing to earn money, he responded by stating that he did not have to answer any questions.
Victim Impact Statements
[36] Section 722(1) of the Criminal Code provides that:
When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.
[37] In R. v. Taylor (2004), 189 O.A.C. 388 (C.A.), at para. 42, the court directed that whilst victim impact statements (VIS) do not justify double punishment, the court must take them into account. In the court’s view the VIS, at the very least, help the judge understand the consequences of the crime more fully and apply sentencing principles in a more textured context.
[38] In this case, a large number of VIS were provided to the court. Some were read out by family members and friends.
[39] Mr. Nikov was an only child and his mother, Kelly Whetter, described the devastation to her personal life, particularly the feeling of loneliness and isolation that grips her when in the company of others. One passage in particular describes her loss:
Learning to control my anger is so hard. There’s a constant war inside me between the self that wants to give in to it and the self that knows how self-destructive that would be. Knowing that logically doesn’t really help, though. I have a lot of times where I’m absolutely paralysed, where all I can do is stay home. I cry for Gabe every day of my life and I’ll cry for him every day until I die.
[40] This court heard from Mr. Nikov’s grandmother and other friends and family about the impact of Mr. Nikov’s death on their lives and how they continue to cope with his absence from their lives.
Aggravating and Mitigating Features
[41] I will start with the aggravating features in this case.
[42] As described previously, Mr. Cheveldayoff has an unenviable criminal record for someone of his relatively young age. That record contains crimes of violence perpetrated on strangers, some of which were committed on bail.
[43] Mr. Cheveldayoff also chose to carry a loaded firearm into a busy downtown Toronto area risking that its use might result in multiple injuries or death. Sentencing principles require significant denunciation for firearms offences: R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at paras. 77-78.
[44] Moreover, not only did Mr. Cheveldayoff illegally possess the firearm by lack of any licencing authorisation, he was actually prohibited by court order from possessing any weapon for life. However, Mr. Cheveldayoff’s history shows that he has scant regard for the law or court orders. Finally, I repeat the fact that the victim in this case was unarmed and walking away from Mr. Cheveldayoff. Nor was this a single shot. Mr. Cheveldayoff discharged six bullets at close range while advancing towards Mr. Nikov.
[45] In mitigation, Mr. Cheveldayoff is a relatively young man. He pleaded guilty at the start of the trial. His childhood history, described earlier in these reasons, shows that the early part of his life was disruptive and dysfunctional.
[46] There is also the issue of provocation that arose because of the fight that preceded the shooting. This was the subject of a contested motion at the end of the trial. I found, very narrowly, that there was an air of reality to the partial defence based on the skirmish that occurred outside Tim Hortons. In doing so, I remarked that it was a close call and that I was prepared to give the benefit of the doubt to Mr. Cheveldayoff in leaving provocation to the jury. Ms. Murphy submits that, as well as acting to reduce second degree murder to manslaughter, the provocation in this case should also be treated as a mitigating factor.
[47] Ms. Murphy’s position is grounded in law: R. v. Stone, [1999] 2 S.C.R. 290, at paras, 232-37.
[48] The question in this case is how much weight can be given to the skirmish outside Tim Hortons as a mitigating factor? I accept that Mr. Nikov was the aggressor in this case. He and his friends ambushed Mr. Cheveldayoff outside the Tim Hortons and initiated the physical brawl that occurred.
[49] Ms. Murphy asked me to review the camera footage that captured the confrontation and fight. I have done so. I find that although there is no doubt that this tussle was an energetic skirmish where Mr. Cheveldayoff was thrown about and pushed around, there were no weapons used, no injuries sustained, very few punches thrown, and none of Mr. Cheveldayoff’s property was taken.
[50] As Stone, at para. 247, makes clear, provocation is “just one factor to be considered in assessing what end of the manslaughter sentencing range is approached in the circumstances of a particular case”. Here, its influence is limited. Although I accept that the jury found that the Crown had failed to disprove provocation beyond a reasonable doubt, there is a large disconnect, not found in the other cases put before me, between the scuffle and the shooting of an unarmed man who was walking away from Mr. Cheveldayoff when it seemed that hostilities had ended.
Application to Mr. Cheveldayoff
[51] Applying these principles to Mr. Cheveldayoff, I remind myself of the manner in which Mr. Nikov died.
[52] The factual mosaic of a brief senseless fight culminating in the death of one of the participants may not, sadly, be an uncommon occurrence in the city of Toronto.
[53] However, this particular instance is somewhat different. Although I agree with Ms. Murphy’s submission that without the fight there would have been no death, the links of the chain between the two events are not as strong as she seeks to persuade.
[54] There is no doubt that Mr. Cheveldayoff was the recipient of unwanted aggression. When he left the Tim Hortons, his exit was barred and he was grabbed from behind by Mr. Nikov and held in a bear hug.
[55] What followed, however, was a violent but brief skirmish which amounted to Mr. Cheveldayoff being thrown and shoved in the small area outside the coffee shop. I take to repeat that there were few punches thrown. There were no weapons used. There were no injuries sustained. There was no attempt to take any of Mr. Cheveldayoff’s property. The fight was over and Mr. Nikov signalled the end of hostilities by turning his back on Mr. Cheveldayoff, waving him off dismissively, and walking away.
[56] The mere fact that the shooting occurred seconds after the fight does not lessen its severity.
[57] Six bullets left Mr. Cheveldayoff’s gun as he advanced upon Mr. Nikov, who was walking away. Six bullets entered Mr. Nikov’s back because he was walking away. Three of those bullets passed through Mr. Nikov’s body, whilst the other three remained lodged within. Other innocent bystanders travelling across downtown Toronto were forced to witness Mr. Nikov’s killing and his dying body as he lay face down on the Toronto sidewalk. Face down because, when shot, he was walking away.
[58] If, as Ms. Murphy says, there would have been no death without the fight, then it is even more fitting to remind ourselves that there would have been no death without the gun. Mr. Cheveldayoff chose to take a fully loaded firearm into one of the busiest areas of the city, in violation of a court order prohibiting him from carrying any weapons. He did so only 14 months after being released from custody for another violent offence.
[59] This was a callous act committed in circumstances where there could have been more casualties than the single person who tragically died.
[60] As I have already noted, manslaughter is an offence that covers a wide spectrum of killing. This case however, like Higham and Gray, is one that is close to murder.
[61] Balancing the legal principles, precedents, and the aggravating and mitigating factors, I find the appropriate sentence in this case to be 16 years.
Pre-Sentence Custody
[62] Mr. Cheveldayoff has been in custody since 17 April 2016 meaning that his pre-sentence custody totals 916 days up to today’s sentencing date.
[63] Accordingly, he receives a credit of 1374 days when his pre-sentence custody is calculated at 1.5:1 pursuant to s. 719(3.1) of the Criminal Code.
[64] Ms. Murphy also asks for a further deduction based on the 267 days of partial and total lockdown Mr. Cheveldayoff experienced during his tenure at the Toronto South Detention Centre. There is no formula for calculating such a deduction: R. v. Kizir, 2018 ONCA 781, at para. 15. I take the view that two months should be deducted from the total sentence.
[65] From the 16 year period, I therefore deduct 3 years and 10 months, rounding up the pre-sentence custody. I deduct a further two months to leave a total of 12 years that remain to be served as imprisonment.
Delayed Parole
[66] Section 743.6 of the Criminal Code authorises a sentencing judge to delay parole eligibility to half of the sentence to a maximum of ten years. It reads as follows:
743.6 (1) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where an offender receives, on or after November 1, 1992, a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for an offence set out in Schedule I or II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.
(2) For greater certainty, the paramount principles which are to guide the court under this section are denunciation and specific or general deterrence, with rehabilitation of the offender, in all cases, being subordinate to these paramount principles.
[67] This section applies to Mr. Cheveldayoff because manslaughter is an offence listed in Schedule I of the Corrections and Conditional Release Act, S.C. 1992, c. 20.
[68] In R. v. Zinck, [2003] 1 S.C.R. 41, the court confirmed that the decision to delay parole is out of the ordinary and must be used in a manner that is fair to the offender: at para. 29.
[69] The Supreme Court endorsed a two-step framework for determining whether to delay parole:
- First, as always, the judge must determine the appropriate sentence. Parole ineligibility is not considered at this stage; the judge must consider all of the principles of sentencing and all of the relevant sentencing factors.
- Second, the judge “must review the same facts primarily in the perspective of the requirements of [specific and general] deterrence and denunciation, which are given priority at this stage, under s. 743.6(2) of the Criminal Code”: Zinck, at para. 33. At this stage, the judge must consider all of the factors of sentencing, but, to the extent of any conflict, the other factors are subordinated to those of denunciation and deterrence.
[70] Section 743.6 of the Criminal Code must not be applied routinely to every available offence. The judge must be satisfied that additional punishment is required to reflect the principles of sentencing, with particular attention to denunciation and deterrence. The ultimate decision must be alive to “the nature and position of delayed parole in criminal cases as a special, additional form of punishment”: Zinck, at para. 31.
[71] The language of requirement in s. 743.6 of the Criminal Code means that “If the court is satisfied that the sentence imposed at the first stage, with parole eligibility determined in the usual way under s. 120(1) of the Corrections and Conditional Release Act, would adequately address the objectives of denunciation and deterrence, an order under s. 743.6(1) of the Criminal Code is unnecessary” and so should not be imposed: R. v. Kormendy, 2017 ONSC 6426, at para. 121; see also R. v. Moore, 2014 ONSC 1788, at para. 71; R. v. Gray, 2013 ABCA 237, 556 A.R. 107, at para. 22; R. v. Murtaza, 2013 ONSC 4239, at para. 54.
[72] A number of cases have applied s. 743.6 of the Criminal Code to delay parole eligibility.
[73] In R. v. McColeman, 2018 ONSC 4388, the accused was convicted of a large number of sexual offences occurring over seven years against several vulnerable boys. Hennessy J. sentenced him to 17 years, less credit of 25.5 months. Hennessy J. delayed parole eligibility, noting, at para. 103, “At this time, the offender and the offences appear exceptional. They are out of the ordinary in terms of sheer numbers, frequency and degradation… The effect on the victims is deep, wide ranging and completely destructive of their personal integrity, their sexuality, their emotional and psychological health.” She concluded, at para. 104, “A delay in parole eligibility is warranted given the lack of insight and remorse shown by Mr. McColeman to his victims and his stated rejection of any need for treatment.”
[74] In R. v. Carty, 2015 ONSC 8144, the offender was initially charged with first degree murder, and pleaded guilty to conspiracy to commit murder. He was sentenced to 18 years. In considering the application for delayed parole eligibility, Fuerst R.S.J. noted that the conspiracy was to carry out the murders of two people in their home at night; the accused’s involvement extended over two weeks; he played an integral role in the conspiracy; and the conspiracy culminated in execution-style shootings that left one of the targets dead and another seriously injured. The accused had a record for firearms offences and committed the offence “while he was at liberty from arrest for a murder he committed earlier in Toronto”: at para. 36. Fuerst R.S.J. found delayed parole eligibility necessary for the purposes of denunciation and specific and general deterrence.
[75] In R. v. James, following a trial by judge and jury on first degree murder and robbery while using a firearm, the accused was convicted of manslaughter and robbery using a firearm. Trafford J. determined, at para. 77, that it was necessary to delay parole eligibility because the accused had a significant criminal record that included prior and subsequent robberies; he was unlawfully at large at the time of the offences; they were planned crimes, committed in relation to drug dealing, to reduce the risk of arrest and prosecution; and they were crimes in furtherance of a criminal lifestyle.
[76] The analysis in R. v. Young, combines the issues of credit and delayed parole eligibility. Mr. Young was found guilty of eight offences following a robbery and shooting. He was sentenced to 15 years’ imprisonment. Calculating credit for pre-sentence custody at 2:1, as was standard practice at the time, the sentence would be reduced by five years to ten years in prison, and he would regularly be eligible for parole after a little more than three years. At 1:1, he would be eligible after four years. A.M. Molloy J. held, at para. 71, that the potential for release in three to four years was not appropriate: it would not adequately serve specific deterrence or denunciation, and it would not allow him sufficient time to address his cocaine addiction. As such, Molloy J. gave Mr. Young credit at a rate of 1.5:1, for a sentence of 11 years after time served. She also ordered a delay in parole eligibility, so that he would only be eligible for parole after serving five and a half years.
[77] Conversely, other judges have been reluctant to use s. 743.6 of the Criminal Code.
[78] In Moore, the accused received a 12 year sentence for robbery, aggravated assault, various firearms offences, and disguise with intent. MacDonnell J. noted at, para. 72, that the sentence had been imposed because it was necessary to denounce the offender’s conduct and deter him and others. He concluded, at para. 72, “The Crown has not persuaded me the sentence will not adequately address those goals. Accordingly, the Crown has failed to establish that an order under s. 743.6 of the Criminal Code is required.”
[79] In R. v. M.M., the accused was found guilty of attempted murder, aggravated assault, firearms offences, and three counts of motor vehicle flight from police causing bodily harm. He was sentenced to 12 years and 8 months after credit for pre-trial custody. Glass J. concluded, at para. 69, “The incarceration imposed for the global sentence addresses specific and general deterrence together with strong denunciation of the conduct of the Defendant. To do more would be enlarging the sentence through the back door without foundation.”
[80] In R. v. Heaslip, the accused pleaded guilty to a charge of attempted murder committed in very violent circumstances. Kent J. declined to delay parole eligibility after imposing a 12 year sentence largely because of the accused’s rehabilitative prospects.
[81] Based on the above principles, I am satisfied that the sentence imposed on Mr. Cheveldayoff is of itself sufficient to denounce his conduct and provide a deterrent effect to others. I therefore conclude that an order under s. 743.6 of the Criminal Code is unnecessary in this case.
[82] Mr. Cheveldayoff is sentenced to a total of 16 years minus 4 years to take account of pre-sentence custody and the harsh conditions suffered at the Toronto South Detention Centre. There will also be a DNA order under the primary ground and a s.109 order for life.
S.A.Q. Akhtar J.
Released: 19 October 2018