PETERBOROUGH COURT FILE NO.: CR-17-00912-00 DATE: 20181219 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JOSEPH CRAWFORD Defendant

Counsel: Lisa Wannamaker, for the Crown Jeff Herschberg, for the Defendant

HEARD: November 28, 2018

REASONS FOR SENTENCE

DI LUCA J.

[1] On November 28, 2018, Mr. Crawford entered a guilty plea to one count of accessory after the fact murder. On that date I heard sentencing submissions and received by way of evidence a moving victim impact statement as well as a number of exhibits. I reserved my decision so that I could give due consideration to determining a fit and proper sentence in this case.

[2] These are my reasons for sentence.

Agreed Facts

[3] In support of the guilty plea, I was provided with an agreed statement of facts that was marked as an exhibit. By way of brief summary, the following are the central agreed upon facts, as modified in submissions:

a. The deceased is Terrence “Terry” Pringle aged 42. At the time of his death, he lived in a basement apartment on Stewart Street in Peterborough. Ms. Samantha Hall lived at the same address, though in a different apartment.

b. Ms. Hall was unhappy because she believed that certain things were being said about her by Mr. Pringle. In particular, she believed that he had been telling people that she was dealing drugs for a motorcycle gang. As a result, she contacted Christopher Bolton and the accused, Joseph Crawford, and asked them to assault Mr. Pringle in order to “shut him up.”

c. An agreement was reached and Ms. Hall was to pay for the service with $60 dollars’ worth crack cocaine. Ms. Hall was to be provided with photographic proof that Mr. Pringle had been assaulted.

d. On November 25, 2016, a number of people gathered at the home of Christopher Bolton and a plan was put in place for an attack on Mr. Pringle. At approximately 10:00 p.m., Jordan Osbourne and two young persons departed the home and left for Mr. Pringle’s residence. Mr. Osbourne was carrying a hammer. One youth had a baseball bat and the other youth had a camera with which he was to document the assault.

e. The three entered Mr. Pringle’s apartment and Mr. Pringle was assaulted with the hammer and the baseball bat. He died as a result of injuries to the chest and head.

f. The three returned to Mr. Bolton’s residence and upon arrival, Mr. Osbourne announced that he “killed a guy.” A bloody hammer was handed to Mr. Crawford who proceeded to wash the hammer with bleach in the kitchen sink. When he was washing the hammer, Mr. Crawford knew that Mr. Pringle had been killed and that the hammer was one of the weapons used in the murder.

g. Mr. Crawford did not know in advance that Mr. Pringle was going to be murdered.

h. The hammer was ultimately recovered from Mr. Crawford’s girlfriend’s apartment where he had been living at the time. Mr. Crawford does not admit to putting the hammer in the basement.

i. Notwithstanding Mr. Crawford’s efforts to clean the hammer, Mr. Pringle’s DNA profile was found on a sample taken from the hammer.

j. In addition to the facts relating to accessory after the fact murder charge, Mr. Crawford also admitted that following his arrest and detention, he contacted a Crown witness by telephone on 4 occasions over a three week period. The purpose of these calls was romantic in nature. The calls were in violation of a non-communication order imposed upon detention.

The Victim Impact Statement

[4] A victim impact statement was prepared by Mr. Pringle’s parents, Bev and Ralph Kingston. The statement was presented in court by Mr. Pringle’s mother. His father was also in court with a large framed photo of Mr. Pringle.

[5] Mr. Pringle’s parents have been devastated by his murder. Their pain has not abated and they face each difficult day with courage and strength.

[6] They describe Mr. Pringle as a loving, caring and dedicated son who always tried to do right, including in this case where he had attempted to stop cocaine dealing in his apartment. Mr. Pringle helped his parents selflessly. He never left home or ended a phone call without saying “I love you.”

[7] At the time of his death Mr. Pringle had three children, Kyle, Katie and Nick, as well a grandchild, Ashley. There is no doubt that the loss of their father and grandfather is something that has deeply affected them, and will continue to affect them into the future. I can only imagine the grief that parents must go through when they bury a child. That grief must be magnified intensely where the child is himself a father and grandfather.

[8] Shortly after Mr. Pringle was buried, his mother was diagnosed with cancer. While grieving her loss, she has also had to undergo chemotherapy and radiation. To state the obvious, dealing with this loss of her son while also battling cancer can only be described as an unfathomable and crushing burden.

Mr. Crawford’s Background

[9] Mr. Crawford is currently 30 years of age. He had a very difficult upbringing as both his parents had substance abuse and other issues. He was both physically and emotionally abused as a child and was eventually separated from his siblings and placed in foster care.

[10] He has a long history of drinking and getting into trouble. He has also struggled with his demons, attempting suicide on at least two occasions, once just before his arrest on these charges and once again after his arrest while in custody.

[11] He has fathered two daughters. The first sadly passed away shortly after her birth. The second daughter, is now three years of age.

[12] Perhaps unsurprisingly, Mr. Crawford has a lengthy criminal record containing some 45 prior entries for a wide variety of offences including, theft and possession of stolen property, break and enter, assault, dangerous driving, aggravated assault, uttering threats, causing unnecessary suffering to animals, and breaches of various court orders.

[13] In short, his record is terrible. That said, it is remarkable that his longest sentence to date is one of approximately 9 months for assault cause bodily harm.

[14] Since his arrest, Mr. Crawford has re-established a relationship with a social worker who has been a support to him over the years. This social worker has seen changes in Mr. Crawford and is prepared to assist him upon his release from custody.

Pre-Trial Custody Credit and Duncan Credit

[15] Mr. Crawford was arrested on November 29, 2016. As of today’s date he has served 2 years and 20 days of pre-trial custody. The parties agree that Mr. Crawford should receive a minimum credit of 1.5 to 1 for his time in pre-trial custody. This amounts to 3 years and 1 month of credit.

[16] The defence seeks additional enhanced credit for the harsh conditions of his pre-trial incarceration. In this regard, the Crown and defence have tendered records and reports from Corrections Canada detailing the numbers and extent of institutional lockdowns during the period of Mr. Crawford’s incarceration. The Crown has also provided a summary of institutional misconducts as well as a letter detailing Mr. Crawford’s counselling efforts while in jail. Lastly, the defence has filed a chart detailing Mr. Crawford’s own counts of full and partial lockdowns while in custody. In this chart, Mr. Crawford notes that he was subject to additional days of full or partial lockdown not noted by the Corrections staff in their report. In fairness, he also notes that some days where Corrections staff noted a lockdown in their report were not days when he was actually under lockdown.

[17] In an affidavit filed on this issue, Mr. Crawford indicates that he was under either full or partial lockdown for approximately 177 days during his incarceration and not 160 days as set out in the Corrections records. He also notes that he had some special privileges as a pod and unit cleaner and, as such, was allowed out of his cell at times despite the lockdowns.

[18] Mr. Crawford also outlines the challenges that result from lockdowns, including loss of personal and medical visits, loss of access to laundry and showers, loss of programming, and increased agitation, tensions and violence between inmates.

[19] As set out in the affidavit, many of the lockdowns occurred for consecutive days. For example, on one occasion the lockdown was for 7 days, on 3 occasions the locks downs were for 5 days and on 4 occasions the lockdowns were for 4 days. As well, many of the lockdowns were separated by brief periods of time. For example, on 26 occasions the lockdowns were separated by only one day and on 14 occasions, the lockdowns were separated by only 2 days.

[20] A letter confirming Mr. Crawford’s role as wing cleaner at the jail was filed by the defence. The letter notes that Mr. Crawford is respectful and courteous towards Corrections officers and is generally well liked by Corrections staff.

[21] The Crown relies on institutional records which reveal that while incarcerated pending trial, Mr. Crawford has accumulated 7 misconducts, five of which involve physical acts against other inmates and two of which relate to verbal mistreatment of Corrections staff.

[22] A letter from a Mr. Scott Morrison, Social Work Supervisor at Central East Correctional, provides unclear information on Mr. Crawford’s attendance for Anger Management counselling while incarcerated. It appears that Mr. Crawford has attended some counselling where he has shown a degree of insight, but it also appears that Mr. Crawford elected not to attend a further cycle of counselling meetings. At best, this letter suggests that while Mr. Crawford has some insight, his anger management remains very much a work in progress.

The Positions of the Parties

[23] The Crown seeks an effective sentence of 4 years less credit for pre-trial custody for a net sentence of 1 year as of the date of submissions. The Crown opposes any Duncan mitigation/credit for harsh conditions of pre-trial incarceration.

[24] The defence argues that a sentence of 2 ½ to 3 years is appropriate in this case. The defence notes that Mr. Crawford has already effectively served 3 years given his pre-trial custody. Lastly, the defence suggests that even if a sentence in excess of three years is required, Mr. Crawford should be given enhanced credit of 6 months for the harsh conditions of his pre-trial custody. Either way, the defence argues that a sentence of 1 day incarceration in addition to pre-trial custody is sufficient. The defence also suggests a period of probation on statutory terms.

[25] The defence does not oppose the Crown’s request for the following ancillary orders: a section 109 order for life; and, a DNA order. The victim fine surcharge is no longer applicable.

Principles of Sentencing

[26] The objectives of sentencing long recognized at common law have been codified in section 718 of the Criminal Code. They are: the protection of society and the maintenance of a just, peaceful and safe society through the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[27] Section 718.1 provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances.

[28] It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances must be considered.

[29] In terms of the offence of accessory after the fact murder, the guiding sentencing principles were set out some 26 years ago by Watt J. as he then was, in R. v. Wisdom, [1992] O.J. 3110 (Ont.Ct. (Gen.Div.)) at paras 27-29:

Accessoryship after the fact to a crime is an offence which constitutes an interference with the administration of justice. An offence has been committed by a principal offender, in this case the crime of murder. It is the purpose of the accessory, as it was of this accused, to enable, indeed to facilitate, the principal offender to escape detection and/or punishment for his or her criminal conduct. By the means adopted, whatever they may be, the accessory interferes with the investigation of crime and the detection of offenders. Serious crimes may go unsolved and dangerous criminals left at liberty only to re-offend. The resourceful accessory stifles the investigation and deflects attention from the true principal, as much as the suborned witness' perjury seeks to avoid successful prosecution. The due administration of justice is defeated in the event of success, as much in the one case as it is in the other.

Accessoryship after the fact frustrates the legitimate investigation of crime. It is as much a part of such investigation to clear the innocent, as it is to convict the guilty. To the extent that accessories deflect the investigation and investigators from their proper or true course, the attendant risks are obvious.

As it would appear to me, it is of the utmost public importance that all who are knowingly in touch with criminals and who might be minded, for whatever reason, to offer or furnish their assistance, ought to be alive to and fully cognizant of the fact that should they receive, comfort or assist them in order to enable the or a principal to escape, then they, the accessories, themselves run a substantial risk of losing their own liberty for a very significant period of time.

The factor or principle of superordinate importance in cases such as at present, in my respectful view, is that of general deterrence. The courts, whose task it is to ensure the due administration of justice, must devoutly set their face against and display their denunciation of any conduct, whether during the investigation or upon the trial of alleged offenders, that seeks to or does interfere with it. Put shortly, we shall brook no interference, actual or attempted, with the proper investigation of crime, as well the proper trial of alleged offenders. Those who set out with such a purpose shall be punished, and severely.

[30] As such, it is clear that the principles of denunciation and deterrence remain paramount in sentencing accessoryship cases, particularly where the root offence is murder. The protection of society must be fostered by a sentence that sends the message that assisting murderers in their efforts to escape or evade justice will result in significant jail time. That said, the court must nonetheless remain cognizant of the accused’s personal situation and rehabilitative prospects. The sentence imposed should not be crushing solely for the sake of denunciation and deterrence.

[31] In terms of the range of sentence, both counsel have provided casebooks containing cases from across Canada. These cases support a range of sentence of approximately 3 to 5 years for roughly similar offences committed by roughly similar offenders. Cases supporting this range include: R. v. Wisdom, supra, R. v. Dow, [2003] N.S.J. No. 130 (N.S.S.C.), R. v. Darby, 1016 ABQB 352, R. v. Gowen, [2011] NSSC 259, R. v. Hynes, 2014 NSSC 119, R. v. Matheson, 2015 NSSC 42, [2015] N.S.J. No. 52 (N.S.S.C.), R. v. Steadman, 2010 BCCA 382, and R. v. Tutin, 2004 NWTSC 20.

[32] I acknowledge that there are cases that fall below the three year mark. However, these tend to be cases where the accused has no criminal record, has entered a guilty plea, is not involved in significant acts involving the deceased or evidence relating to the murder, and often involve cases where pressure has been placed on the accused to participate in the offence. These cases include: R. v. Jayawardena, [2008] O.J. No. 3406 (Ont. S.C.J.), R. v. Chouinard, [2005] O.J. No. 3143 (Ont. S.C.J.), R. v. Turpin, [1990] O.J. No. 1126 (Ont. Ct. (Gen.Div.)), and R. v. Bedi, 2017 BCSC 292.

[33] In Wisdom, supra, at para. 32, Watt J. provides a non-exhaustive list of factors useful in determining the quantum of sentence. These factors include:

a. the nature, extent and duration of the accessory's involvement;

b. the age and experience of the accessory;

c. the nature, extent and duration of the relationship, if any, between the accessory and the relevant principal;

d. the presence or absence of any coercion of or threat to the accessory or others to obtain the accessory's participation;

e. the nature of the accessory's assistance; and,

f. the antecedents, present status and realistic prospects of the accessory.

[34] Using this framework, I find the following facts to be aggravating:

a. Mr. Crawford was involved in advance of the murder of Mr. Pringle. He and Mr. Bolton were asked to arrange for an assault on Mr. Pringle. Mr. Crawford together with Mr. Bolton met with Mr. Osbourne and two youths and hatched a plan for the assault on Mr. Pringle. Mr. Crawford was not coerced or forced into this role. He agreed to be paid in crack cocaine and the assault was to be memorialized for confirmation purposes. This shows a high degree of involvement and corresponding high degree of moral culpability. That said, I accept that Mr. Crawford did not know in advance or intend Mr. Pringle’s murder.

b. Once Mr. Crawford was advised that Mr. Pringle had been murdered, he proceeded to clean the murder weapon in a manner that was intended to destroy its evidentiary value and linkage to the offence. I accept that his involvement with the murder weapon was relatively brief. There is a wide range of conduct that can fall within the offence of being an accessory after the fact of murder. Efforts to assist with moving or destroying a body will generally be viewed as significantly aggravating. While perhaps not as aggravating, efforts to destroy evidence, particularly evidence related to the actual murder weapon, are also towards the more aggravating end of the spectrum. The fact that this effort was ultimately not successful, does not, in my view, lessen this aggravating feature.

c. Mr. Crawford has a very long criminal record that includes several instances of violence and many instances of crimes against court orders and the administration of justice. It is remarkable that Mr. Crawford has somehow managed to avoid a penitentiary sentence despite his many convictions.

d. Mr. Crawford violated a non-communication order imposed following his detention on this offence. I accept that the breach of the order was not for the purpose of obstructing justice. Nonetheless, the breach is serious as non-communication orders are used to promote safety and protect the integrity of the process.

[35] I find the following facts to be mitigating:

a. Mr. Crawford has entered a guilty plea and accepts responsibility for his offence.

b. Mr. Crawford has demonstrated remorse for his conduct though his statement to the court. He apologized to Mr. Pringle’s family and indicated an awareness that his involvement in this offence has had significant consequences.

c. Mr. Crawford has some rehabilitative potential. Looking at his record, it would be tempting to conclude that he is beyond hope. However, I accept that he wants to make changes in his life. I accept that he has re-established a relationship with a social worker who is a positive influence. In view of his relatively young age and difficult background, I am not prepared to simply give up on Mr. Crawford.

[36] In my view, when I balance the applicable sentencing principles, consider the aggravating and mitigating facts of this case, and consider the range of sentences supported by the case law, I am satisfied that a sentence of four years is required in order to adequately denounce the offence and deter like-minded offenders. In my view, this sentence, while harsh, is not crushing. It also leaves open a hope for Mr. Crawford’s rehabilitation and reintegration into society.

Enhanced Credit – R. v. Duncan

[37] I turn next to assessing whether any mitigation or further enhanced credit should be granted on the basis of R. v. Duncan, 2016 ONCA 754. There is no issue that in instances where harsh pre-trial custodial conditions have impacted an accused, the courts have the discretion to mitigate a sentence or grant an enhanced credit for pre-trial custody.

[38] In this case, I have an affidavit from Mr. Crawford that provides his estimation of the number of times the jail he was in was subject to full or partial lockdowns. His records show 177 days of full or partial lockdown. By comparison, the jail records show 160 days over the same period.

[39] Mr. Crawford’s affidavit also provides some indication of the relative frequency and duration of successive lockdowns. It appears that on 38 occasions, the lockdown was for more than one day, including one lockdown for 7 days. On many occasions lockdowns were separated by only a few days or less.

[40] Mr. Crawford attests to the impact of these lockdowns and notes that when locked down, access to counsel, family visits, medical appointments, showers, and laundry are all restricted or limited. He also attests to the increase in tension and violence that results from prolonged or successive lockdowns. He also indicates that on 5 occasions he was required to sleep three inmates to a cell. By contrast, the jail’s records suggest this occurred only 3 times.

[41] Appended to the Corrections records are screen captures setting out Mr. Crawford’s institutional records. These records suggest that over a period of two years, Mr. Crawford was involved in 7 misconduct incidents within the jail. On two occasions he hurled insults at jail staff and on five incidents he was involved in some form of altercation with other inmates. For the most part, the records do not provide details as to the nature of Mr. Crawford’s alleged involvement. On this issue, I note that there is no indication as to whether a hearing followed the misconduct allegation and whether any finding was made. It does not appear that any of the incidents resulted in further criminal charges. I also note that while it appears that Mr. Crawford may have been disrespectful to jail staff on two occasions, the letter filed by the defence confirming his employment as a cleaner within the jail suggests that he is polite and well-liked by jail staff.

[42] On the face of the records, while I accept that Mr. Crawford has perhaps not been a perfect inmate, I am not prepared to find that his purported misconducts significantly impact the enhanced credit he should receive. More to the point, I am not prepared to find that perfection is required on the part of the inmate. Jails are notoriously violent environments. Given Mr. Crawford’s age and antecedents, it is hardly surprising that there are some apparently minor misconducts on his institutional record. This is not to suggest that the violence is acceptable in the custodial setting. It is not.

[43] In terms of Mr. Crawford’s counselling efforts, the letter by Scott Morrison (see para 22) is unclear and not very helpful. It appears that Mr. Crawford has opted out of attending a “cycle” of counselling sessions but has attended other counselling where he has demonstrated some limited insight. The best that can be said is that Mr. Crawford’s counselling efforts are a work in progress.

[44] Lastly, I note that Mr. Crawford’s employment as a cleaner would have resulted in some privileges that alleviated the impact of the various lockdowns. Indeed, he fairly acknowledges as much in his affidavit.

[45] In assessing how to measure the impact of the harsh custodial conditions and how to assess whether further mitigation is appropriate, I am guided by the case law provided by counsel including: R. v. Jama, 2018 ONSC 1252, R. v. Ward-Jackson, 2018 ONSC 178, and R. v. Innis, 2017 ONSC 2779; I note that there is no rigid or mathematical formula that is applied in assessing what further credit should be applied.

[46] The defence seeks additional credit of six months. The Crown suggests that no further credit is necessary. In my view, additional credit of four months is warranted in this case. I base this determination on the following:

a. While incarcerated for a period of approximately 2 years, Mr. Crawford was subject to a large number of lockdowns. I do not need to determine the exact amount and I find that it is likely between 160 and 177.

b. These lockdowns often lasted for more than one day, sometimes for several days at a time.

c. The lockdowns often happened is short succession, that is only a day or two apart.

d. I accept Mr. Crawford’s description of the impact of the lockdowns on himself and other inmates. I also accept that as a result of frequent lockdowns, tensions rise and violence ensues.

e. The impact on Mr. Crawford is moderated by virtue of his position as a cleaner which would have resulted in increased privileges and liberties to him despite the lockdowns.

f. I accept that he was triple bunked on a few occasions, though I do not know what the personal impact of the triple bunking was.

Sentence Imposed

[47] Mr. Crawford, please stand. For the reasons I have just given, I have decided that an appropriate sentence in this case is one of four years. From that gross sentence, I deduct 3 years and one month for pre-trial custody which has been credited at a rate of 1.5 to 1. I also deduct 4 additional months for the harsh custodial conditions.

[48] As such, the net sentence that remains to be served is one of 7 months from today’s date.

[49] Following completion of your jail sentence, you will be on probation for a period of 18 months on statutory terms and any other additional terms that I will discuss and decide upon with counsel momentarily.

[50] I also make the following ancillary orders:

a. A DNA order; and,

b. A section 109 order for life.

[51] I wish you good luck and hope you take this opportunity to turn your life around before it is too late.

Di Luca J.

Released: December 19, 2018

NOTE: As noted in court, on the record, these written reasons are to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written reasons that are to be relied upon.

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JOSEPH CRAWFORD REASONS FOR SENTENCE Di Luca J. Released: December 19, 2018