Indictment No. 4711-998-17-0079
Superior Court of Justice
HER MAJESTY THE QUEEN
v.
ERICK REID
Reasons for Sentence
BEFORE THE HONOURABLE JUSTICE A. SKARICA
On November 5, 2018, at HAMILTON, Ontario
APPEARANCES:
A. McLean Counsel for the Crown
M. MacGregor Counsel for Erick Reid
Superior Court of Justice
Table of Contents
LEGEND [sic] Indicates preceding word has been reproduced verbatim and is not a transcription error (ph) Indicates preceding word has been spelled phonetically ... Indicates interruption .... Indicates incomplete thought and/or interruption
Transcript Ordered: November 26, 2018 Transcript Completed: November 28, 2018 Ordering Party Notified: November 28, 2018
MONDAY, NOVEMBER 5, 2018
Reasons for Sentence
SKARICA, J. : (Orally)
In the matter of R. v. Erick Reid,
Overview, Reasons for Sentence: Manslaughter
Overview
Odain Gardner and Erick Reid were both charged with first degree murder regarding the shooting of Neil Harris on February 18, 2016. On May 17th, 2018, a Hamilton jury found Odain Gardner guilty of first degree murder, and Erick Reid guilty of the lesser and included offence of manslaughter.
Pursuant to Section 724(2) of the Criminal Code, in order to properly sentence Erick Reid, I need to make findings of fact that are consistent with the jury’s verdict of manslaughter regarding Erick Reid (see R. v. Roncaioli, 2011 ONCA 378, para. 59). Aggravating factors must be proven beyond a reasonable doubt. (See R. v. Bengy, 2012 ONSC 4463, para. 7).
Findings of Facts
Neil Harris was a barber who operated a barber shop at 600 Upper Wellington Street in Hamilton. Evidence was also led that Mr. Harris had a sideline business and sold small amounts of marijuana to an inner circle of friends.
Essential to the Crown’s case were two Vetrovec witnesses, Devon Edwards and Justin Dumpfrey. Both these witnesses had criminal records and outstanding charges when they came forward to provide statements to the police. Despite these deficiencies, along with other credibility issues, the jury must have accepted their evidence.
I found them to be credible witnesses, notwithstanding many Vetrovec factors. As pointed out by the Crown in their address to the jury, Edwards and Dumpfrey did not know each other, yet their evidence confirmed the other in a number of details.
Edwards was present during the murder, while Dumpfrey was situated in a local hangout named “The Office”, where the two accused fled to shortly after the shooting of Neil Harris. Based on Edwards’ and Dumpfrey’s testimony, in combination with the cell phone records, I make the following findings of fact:
According to the cell phone records in Exhibit 44 at Tab 4, Odain Gardner, Erick Reid, Tyrone Abrahams — who was referred to as “Roach” — at approximately 10:00 to 10:30 a.m., were using cell phones which were connecting to cell phone towers near “The Office” located at 2016 Barton Street East, Hamilton. I infer that these two accused and Roach were making and/or finalizing plans to rob Neil Harris. Dumpfrey testified that shortly after the shooting, he met with Erick Reid. Erick Reid told Dumpfrey he thought it would be a robbery. Erick Reid wanted to get weed. Reid felt that Gardner was paid to shoot Harris, and it was a hit. Reid got no money out of it. Reid was angry and felt he was tricked, and it was an intention to kill by Gardner, which Reid was not told about.
Erick Reid denied saying most of these things to Dumpfrey when he testified. Reid’s evidence was that he stood by the door and did nothing. He was there to buy weed and get a haircut. That was Mr. Reid’s evidence.
In order to convict him of manslaughter, the jury must have rejected Mr. Reid’s explanation, and must have found that it did not raise a reasonable doubt. I agree with the jury’s conclusions.
Further, I find Mr. Reid not to be a credible witness. As one example, upon taking the stand, Mr. Reid swore to tell the truth, which means to tell the whole truth. In his testimony, he refused to name Gardner as the shooter; refused to name Roach as an accomplice; and conveniently suffered a “blackout” at The Office just after the shooting, and this allowed Mr. Reid to avoid answering difficult questions regarding the conversation/ argument that involved Mr. Gardner, Mr. Reid and Roach, as testified to by Dumpfrey.
Another witness who I find to be not credible is Jervais Dunkley. He was declared a hostile, adverse witness, and refused to answer most questions put to him by all counsel. His preliminary hearing testimony was filed on a KGB basis, but given the way Dunkley testified at trial, I put little weight upon his preliminary hearing testimony.
During the argument at The Office overheard by Dumpfrey after the shooting, Roach told the accused, “They fucked up and were hot.” Gardner told Roach that he had given Gardner a broken gun. The gun was jammed and Roach removed the bullets, stating, “See, it’s not broken.” Reid told Gardner it was supposed to be a robbery, not a killing. Gardner got mad and said that Reid was supposed to watch the door and not let Harris run out. Reid said it was not his job to watch the door, nor was his job to prevent Harris from running out the door. After this conversation, Mr. Reid changed his clothes and the clothes that Mr. Reid wore at the shooting, including Exhibit 15, Nike sweater, and the murder weapon, were given to Roach for disposal.
Reid testified that he never left the door area and did nothing at the murder scene. Jervais Dunkley more or less said the same thing in his Exhibit 12 preliminary hearing testimony.
I find that neither Mr. Reid or Mr. Dunkley are credible witnesses, and I totally reject their evidence that Reid did nothing at the barber shop.
Devon Edwards, who knows both accused, testified that he attended the barber shop in the afternoon. Mr. Harris was cutting another customer’s hair, that was Jervais Dunkley. Erick Reid and Odain Gardner entered the barber shop. Devon Edwards recognized them both. Reid went to Edwards and jammed a gun into Edwards’ waist and told him, “Don’t move, keep your head down.” Odain Gardner approached Neil Harris; Harris ran; Gardner shot him. Neil Harris fled outside, followed by Gardner and Reid.
In his initial police statement, Edwards indicated that the man who put a gun into his waist was wearing a black jacket with brown fur. Exhibit 4 videos indicate the smaller man was wearing a black jacket with brown fur. The smaller man is Gardner. Given the short timeframe of about 15 seconds of observation and the terror of the situation, I conclude that Edwards made an honest mistake regarding which man was wearing the black jacket with fur.
Two other witnesses, Melody Mack and Dan Lamothe, both honest and completely credible and reliable witnesses, testified that the deceased, Neil Harris, came out of the door followed by two black men. There was a brief tussle, which took only seconds. The deceased collapsed and the two black men ran south, going fast.
The Exhibit 4 video does not capture the door area of the barber shop and doesn’t capture the tussle outside the barber shop. However, I accept Mack and Lamothe’s evidence that there was a brief tussle just outside the door of the barber shop involving the deceased and both accused. Putting it all together, I find as a fact, beyond any reasonable doubt, the following scenario:
[1] At about 10:00 to 10:30 a.m., Gardner, Roach and Reid discussed a robbery that was to take place at the barber shop. Reid left a change of clothes at The Office, knowing they would return there after the robbery.
[2] Roach at that time, or shortly before or after the meeting, provided Gardner with an older firearm.
[3] Reid was told it was a robbery, however, Gardner knew and intended more. Gardner was going to kill Harris, but did not tell Reid this part of the plan.
[4] I find it reasonable to infer that, in all the circumstances that Reid knew that this was going to be an armed robbery with both Reid and Gardner possessing firearms. The bringing of handguns to a robbery satisfies the requirement — under party liability — of the bringing of firearms to a robbery, would lead a reasonable person to appreciate that bodily harm was a foreseeable consequence and a probable consequence.
[5] As can be seen from Exhibit 44, Tab 4, Gardner’s phone calls Reid’s phone at 4:07:07, near the murder scene, and they talk for 33 seconds, finalizing their plan to attend the Harris barber shop.
[6] Gardner and Reid attend the barber shop at 4:20 p.m. Reid thinks it is a robbery, but does not know Gardner’s plan to execute Mr. Harris.
[7] To what must have been a shock to both Gardner and Reid, when they entered the barber shop, Devon Edwards, who knows both of them, is there. They decide to proceed anyway.
[8] Reid goes to Edwards and puts a gun to his waist and tells Edwards to keep his head down. Why did Mr. Reid tell Mr. Edwards to keep his head down? It is reasonable to infer that Mr. Reid did not want Edwards to witness Gardner pull out his gun in order to extort drugs/money from Neil Harris, pursuant to the plan as agreed to earlier by Reid and Gardner. What Reid did not know is that Gardner planned to kill Neil Harris.
[9] While Reid put a gun to Mr. Edwards’ waist and tells him to keep his head down, Gardner pulls out his gun and Neil Harris runs.
[10] Neil Harris is shot by Gardner. At some point, Gardner tries to shoot again, but the gun jams.
[11] Both Gardner and Reid follow Neil Harris out, and there is a tussle just outside the door of the barber shop. During this tussle, some of the fibres of Reid’s Exhibit 15 Nike sweater are transferred to Harris’ shirt. Obviously neither Gardner or Mr. Reid are prepared to assist a dying Mr. Harris or phone 9-1-1.
[12] Gardner and Reid flee and return to The Office. Both are mad at each other. Reid is mad because he was tricked to attend a murder. Gardner is mad because Reid failed to guard the door, due to the fact that Reid, upon seeing Edwards — or “Fats” as he knows him — went over to threaten Reid and was preoccupied with that activity.
[13] Reid changes into the clothes he left at The Office and gives the Exhibit 15 Nike sweater to Roach for disposal. Mr. Reid, prior to his arrival, had an opportunity to dispose of his gun. Gardner gives the murder weapon back to Roach, who originally gave it to Gardner for disposal.
[14] The police recovered the Exhibit 15 Nike sweater from Roach’s house.
[15] Reid stops communicating with Gardner around March 1st and leaves for Calgary, where his brother lives.
These findings of fact are consistent with either: the jury finding the accused guilty of manslaughter based on the basis of being a party as an aider, pursuant to Section 21(1)(b) of the Criminal Code to manslaughter, as per my instructions at page 189 to 195 of the Jury Charge; or is guilty of manslaughter based on the common purpose, Section 21(2) of the Criminal Code instruction, set out at pages 198 to 205 of my Jury Charge (see R. v. Roncaioli at paragraph 59 and R. v. Bengy at paragraph 7).
Circumstances of the Offence
My finding of facts, consistent with the jury’s verdict, makes Mr. Reid’s crime very serious, as it involves a planned robbery of an innocent, unarmed businessperson at his business establishment, by two men possessing firearms, at least one of which was loaded, where the likelihood of violence was very high. And indeed, a shooting occurred which resulted in the death of Mr. Harris.
Further, Mr. Reid pointed his firearm at an innocent bystander, Devon Edwards’ waist, and told him to keep his head down, which in these circumstances, must have been a very terrifying experience for Mr. Edwards.
The Circumstances of the Offender
Mr. Reid deliberately was involved in a plan to conduct a robbery, knowing that both he and his partner, Mr. Gardner, were armed with firearms. Mr. Reid was actively involved in a robbery and brandished a firearm to intimidate Devon Edwards to keep his head down, presumably so that Edwards could not witness the events that were about to transpire. And what Reid thought was to transpire was going to be an armed robbery of Mr. Harris, and did not suspect that something far more nefarious was about to happen.
Erick Reid is just 28-years-old, and was in his mid-twenties at the time of the offence. Despite his relatively youthful age, Mr. Reid has built up what I consider to be a very serious criminal record involving firearms and violence. I won’t read the sentences, but I’ll read the convictions.
May 1st, 2007: Robbery as a youth.
August 31st, 2009: Convicted of possession of a prohibited or restricted firearm with ammunition; possession of a Schedule I substance for the purpose of trafficking, and a fail to comply with recognizance.
October 24th, 2012: Assault causing bodily harm and fail to appear court.
March 17th, 2014: Armed robbery; and finally,
May 16th, 2016: Mischief under $5,000.
At the time of this offence, Mr. Reid would have been subject to a mandatory weapons prohibition order, which he seems to have had little regard for.
Mr. Reid has been in custody since his arrest since July 2016, a period of approximately 28 months.
According to the pre-sentence report — I’ll refer to it as the PSR — Mr. Reid has no knowledge of his biological father but has a supportive, loving mother, who he is close to. His mother reports that Mr. Reid’s biological father was a violent and abusive man. Mr. Reid has a stepfather with whom his relationship is improving. Mr. Reid has five siblings from Mrs. Reid’s original marriage and two other siblings from Mrs. Reid’s relationship with his stepfather.
Mr. Reid left the family home at 16 and moved in with his grandmother until he was 18, at which time his grandmother passed away. Mr. Reid was close to his grandmother.
Mr. Reid has not completed high school and was described in the PSR as a general labourer who worked with his uncle for two years.
Mr. Reid indicated that he is a regular user of marijuana and has engaged in drug trafficking of marijuana and cocaine to support his own drug use/habit. The PSR indicates that his drug use is not problematic.
The PSR indicates that no mental/physical health issues have been identified, although Mr. Reid reports “situational depression”.
Mr. Reid admitted association with a local street gang, the Oriole Crescent Crips, but denied active participation.
Upon release, Mr. Reid is anticipating relocating to Alberta to be with his older brother, Derek Reid.
Impact on the Victim and/or Community
Mr. Harris was shot and killed for no apparent reason. He was happily married to Tanya Harris. The events surrounding the shooting and the death of her husband have, understandably, traumatized Ms. Harris and her family.
The robbery/killing of Mr. Harris involved yet another incident of the use of firearms by criminal elements, an event that is increasing and occurs far too frequently in our community.
The Victim Impact Statements
The deceased’s sister, Monica Harris, read her victim impact statement. She was very close to her brother and has been traumatized by the sudden loss of her brother. As she puts it, the news of her brother’s death, “still haunts her to this day.” Her son loved his uncle like a father. Mr. Harris had two children, including a 10-year-old son, “At a time when he needs his dad.” Monica Harris indicates that she and her family will never be the same.
Phyllis Harris is Neil Harris’ mother, and read in her victim impact statement. She also indicates that the family was forever changed, and to this day, they are grieving and are trying to make sense of this senseless act, brought on, as she puts it, “by two very despicable monsters.”
Tanya Harris, the wife of Neil Harris, described the day of her husband’s murder as “the worst day of her life.” Ms. Harris had a friend drive her and her two children to the hospital where Neil Harris was. When at the hospital, two police officers told her that her husband “didn’t make it.” Ms. Harris had to tell her children that their father was gone. She had to watch her children break down and scream in disbelief. Ms. Harris was devastated but tried to be strong for her children, who were extremely distraught.
Neil Harris was described as a loving person who was full of light and laughter. He was the type of man who helped many people, putting their needs before his own.
Neil Harris was the love of her life and an amazing father to their two children, and had an “amazing” bond with them. Neil Harris’ absence has left a constant and permanent void in the lives of her children and herself. Courtney, their daughter, now 23, was in university at the time and stepped away. Andre, their son, now 13 but 10 at the time, misses his dad and misses their time together. Andre is graduating from Grade 8, and his dad won’t be there.
She noted — that’s Mrs. Harris — that after the verdict, Mr. Reid cheered, and this was painful to her, as Mr. Reid participated in inflicting a lifetime of pain and suffering upon her that she and her family continue to endure.
The Position of the Crown and Defence
The Crown asked for a sentence in the range of 15 to 18 years. The defence asked for a sentence of four years.
The Legal Parameters
Manslaughter sentences can vary anywhere from a non-custodial sentence to a sentence of imprisonment for life. (See Section 236 of the Criminal Code.) The sentence depends on the circumstances of the offence and offenders (see R. v. Hermiz).
Section 236(a) of the Criminal Code also indicates that where a firearm is used in the commission of the offence, the minimum punishment is four years, and the maximum punishment is imprisonment for life.
Section 718.2(a) of the Criminal Code requires me to consider relevant mitigating and aggravating factors.
Mitigating Factors
[1] Mr. Reid did not strike or shoot Neil Harris.
[2] Mr. Reid has a very supportive family, his mother and siblings.
[3] Mr. Reid has already spent approximately 28 months in custody. This entitles him, on a 1.5 to 1 basis to a pre-trial credit of 42 months, or, three-and-a-half years.
[4] Mr. Reid, in a statement made to the Harris family in court, apologized for his involvement. Mr. Reid stated he had no “bad intentions”, a somewhat dubious claim, since he was involved in a planned, armed robbery of Mr. Harris.
Aggravating Factors
[1] This offence involved, on Mr. Reid’s behalf, a planned and deliberate crime involving firearms by two people who knew the other was armed with a firearm.
[2] The victim, Neil Harris, was absolutely no threat to Mr. Reid, and was shot and killed by Mr. Reid’s accomplice, Mr. Gardner (see Section 718.2(iii.1) of the Criminal Code).
[3] Mr. Reid himself possessed a firearm and used it to intimidate an innocent bystander, who was a witness to the shooting and killing of Mr. Harris.
[4] This was a daytime robbery at a legitimate Hamilton business.
[5] Neil Harris was unarmed and did nothing to provoke the violence inflicted upon him.
[6] Mr. Reid has a significant criminal record which includes possession of firearms and robbery and crimes of violence.
[7] Mr. Reid possessed a firearm while being subject to a mandatory weapons prohibition order, pursuant to Section 109 of the Criminal Code.
[8] Mr. Reid struggled with the dying Mr. Harris, who had been shot. Mr. Reid did nothing to assist Mr. Harris and abandoned him on the street to meet his foreseeable death.
[9] Mr. Reid was involved in the disposition of items that could link him to this crime.
[10] Mr. Reid promised to tell the truth at trial, which means the whole truth, but he refused to identify the shooter, citing he was scared for his safety. I find this refusal to identify the shooter while under oath and promising to tell the truth, to be an aggravating factor. (See R. v. Omar, 2018 ONCA 599, paras. 22 through 26). It is to be noted as well that Justin Dumpfrey was in custody and he told the whole truth, including naming names, thereby showing considerable courage in the circumstances. Mr. Reid, on the other hand, took the cowardly and easy route of not naming names, pursuant to a criminal’s code of conduct, which is not adhered to by honest and upright citizens.
[11] The impact upon Mr. Harris’ family has been absolutely devastating. I have no trouble concluding that Mr. Harris’ family will never completely recover from the loss of the man they loved so very much.
The Principles of Sentencing
Where firearms are used against innocent victims who are shot and killed, the primary objective in dealing with violence of this nature are the sentencing principles of denunciation and deterrence (see Section 718(a), (b), (c) and (f) of the Criminal Code).
The accused has served the equivalent of 28 months in pre-sentence custody and is to be given the credit of 1.5 to 1 for each day spent in custody. (See Section 719(3.1) of the Criminal Code.) This would give him a credit of 28 plus 14 — 42 months, or three-and-a-half years.
The Case Law
Justice Watt outlines the task of a court in sentencing an accused guilty of a homicide as follows:
At paragraph 17 in the case of R. v. Browne — that is also quoted in R. v. Tsega, 2017 ONSC 2256, para. 6. Justice Watt says this:
The criminal law does not restore life. The objectives, principles and factors that govern the imposition of sentence are not meant to represent the value of the life that has been unlawfully taken. They are designed to reflect the moral blameworthiness of the person who commits an offence and the gravity of the offence, so far as the law is concerned, that he or she has committed.
Justice Hill in R. v. Hermiz, recognized that the crime of manslaughter attracts a broad range of sentences, depending on the circumstances. The spectrum of culpability ranges from near-accident to near-murder. As a general rule, severe sentences are imposed proportionate to the gravity of the offence of manslaughter. The sentencing court is obliged to scrutinize the case, the specific circumstances of the offence, and the offender. (See Hermiz at paragraphs 11 through 14).
There are no sub-categories of manslaughter for the purpose of comparing cases and imposing similar sentences. A court, instead, is required to compare the circumstances of each situation on a case-by-case basis. (See R. v. Devaney, 2006 ONCA 666, para. 34).
A trial judge is to impose a sentence that reflects the significance of the particular facts of the case because of the specifics of the victim, the nature of the crime itself or the history or chronic circumstance of the offenders. (See R. v. Atherley, 2009 ONCA 195, para. 4).
A very significant aggravating factor is that this crime was committed by two men possessing firearms: one for the purpose of murder, the other for the purpose of committing an armed robbery. I indicated in R. v. Warner, 2018 ONSC 1799, paragraphs 58 and 59:
R. v. Belic ...the Ontario Court of Appeal endorsed these comments of Justice Glass. Actually the appeal was abandoned but these are the comments that no one could criticize, and in fact, have been endorsed by the Court of Appeal on other occasions. Paragraph 13-15 of the Ontario Superior Court judgment states as follows:
“There is a constant outcry about the presence of illegal guns in Canadian communities. The Criminal Code has been amended over the years to reflect an increase in Parliament’s concern for the seriousness of gun-related offences.”
“With Neven Belic, the gun was not legally in his possession. He has been prohibited from possessing firearms in the past. A continuation of using illegal guns by a person cannot help but draw a greater concern for a serious sentence to a person in Mr. Belic’s position.”
“The use of illegal guns becomes an aggravating circumstance at a sentence hearing. Denunciation of violent conduct coupled with the use of an illegal gun becomes an important part of the sentencing process. Such denunciation leads to concern that the public at large be deterred from such conduct. With Mr. Belic’s continuous violent conduct, a sentence to discourage him from further violence cannot be overlooked.”
All those comments apply to Mr. Reid. I quote, at paragraph 59 of the Warner case:
The Court of Appeal indicated in the case of R. v. Quintin Danvers ...at paragraph 77:
“In conclusion, I fully endorse the following comments made by the trial judge in sentencing the appellant:
“It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence both general and more especially individual. The principles of denunciation and the protection of society. Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped, only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns.”
“Those comments...also apply to manslaughter sentences.”
Conclusion
For Mr. Reid’s purposes, this was a robbery gone bad. Both he and his accomplice were involved in a planned and deliberate crime that resulted in the death of a good, decent family man, from which his family will never recover. I believe that the continuing plague of death by firearm is an ongoing scourge to our community that must be deterred and denounced in the strongest possible terms.
Mr. Reid is not a youthful first offender. He has a criminal record for violence and firearm possession. He carried a firearm while being prohibited from doing so after being convicted of another firearm offence. He is not the loving, tender teddy bear as depicted by his mother in the PSR. His criminal record illustrates that Mr. Reid is a dangerous criminal who has not been deterred by previous criminal sentences.
In these circumstances, a lengthy penitentiary sentence is appropriate. I agree that this case is not a “near-murder” that merits the 18-year sentence imposed in Warner. However, it is a far cry from the “near-accident” scenario. This is a crime committed by a man with a significant record for violence, possession of firearms and robbery. In my opinion, the present case is closer to the circumstances outlined in Atherley. For Mr. Reid’s part, it involved the targeting of a vulnerable victim in an armed robbery by serious criminals.
Accordingly, the accused Mr. Reid is sentenced to 15 years in the penitentiary. He has served 28 months of pre-sentence custody for a credit of 42 months on a 1.5 to 1 basis. This is a 3.5 year total credit. The accused is therefore sentenced to a further 11.5 years in the penitentiary.
Ancillary Orders
[1] There will be a weapons prohibition pursuant to Section 109 of the Criminal Code for life.
[2] The accused will provide a sample of his DNA, as manslaughter is a primary designated offence (see Section 487.04 and Section 487.051(1) of the Criminal Code).
[3] Mr. Reid will abstain from communicating and contacting the immediate members of Mr. Neil Harris’ family while in custody, pursuant to Section 743.21 of the Criminal Code, and the order includes abstaining from contacting the following individuals:
- Monica Harris
- Phyllis Harris
- Tanya Harris
- Courtney Harris
- Andre Harris
That is the sentence of the Court. Remove the prisoner.
END OF PROCEEDINGS
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act
I, Susan Porter certify that this document is a true and accurate transcript of the recording of (Name of Authorized Person) Regina vs. Erick Reid in the Superior Court of Justice (Name of Case) (Name of Court) held at 45 Main Street East, Courtroom 608, HAMILTON (Court Address) Taken from recording: 4799_608_20181106_112415__10_SKARICT.dcr, Which has been certified in Form 1. November 28, 2018 (Date) (Signature of Authorized Person)