COURT FILE NO.: CR-17-50000354-0000

DATE: 20190110

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Rob Kenny and Jim Cruess, for the Crown

• and -

TRE ROBERTS-STEVENS

Marcus Bornfreund and Norm Stanford, for the Defendant

HEARD at Toronto: October 19 and 31, 2018

REASONS FOR SENTENCE

Michael G. Quigley J.

Introduction

1In the early hours of April 14, 2016, Daniel Lypka was killed by a shotgun blast to his thigh at close range. Tre Roberts-Stevens was in possession and control of the firearm that killed Mr. Lypka at the time it discharged. Mr. Lypka bled to death at the scene. Mr. Roberts-Stevens was charged with second-degree murder. On June 1, 2018, the jury found him guilty of manslaughter. The issue on this sentencing is the fit sentence for this offender having regard to all of the facts and circumstances that inform that question.

Overview

2Even though there was an eight-year difference in their ages, Tre Roberts-Stevens and Daniel Lypka were friends. At the time of these events, Mr. Roberts-Stevens had just turned 21 and made his living from dealing illegal drugs, principally cocaine and marijuana. Since Mr. Roberts-Stevens did not own his own vehicle, at times during their relationship, Mr. Lypka, who was 28, would help Mr. Roberts-Stevens to deal drugs to his clientele by driving him around to make deliveries.

3The period from December 2015 to April 2016 would prove to be a tumultuous four months in their relationship. That relationship came to an end when Mr. Roberts-Stevens shot Mr. Lypka at close range in the parking lot behind 32 Vanevery St. in Toronto.

4However, in the fall of 2015, their relationship was somewhat less troubled. Mr. Lypka had acquired his second hand red Honda Civic and he was dating a woman named Alix Chaulk. They had known each other since high school. He cared for her a great deal and had wanted to date her since high school. She lived with her father in an apartment on the third floor at 32 Vanevery St.

5Mr. Lypka’s relationship with Ms. Chaulk began to come apart in late November 2015. Their relationship appears to have ended on Christmas Day, 2015. After the break-up, Mr. Lypka was very emotionally upset. His behaviour ranged from sending her angry and seemingly threatening text messages, to whimpering messages reflecting his love for her and even thoughts of suicidal ideation. He did not appear to be reacting rationally, but he also appeared to believe that she had been cheating on him with Mr. Roberts-Stevens.

6Ms. Chaulk had seen an increase in Mr. Lypka’s drug use that she could not abide. That, and his relationship with Crystal Newman, a friend who herself had a very serious cocaine addiction, were the triggers that brought an end to Ms. Chaulk and Mr. Lypka’s relationship. Mr. Lypka then went away to a friend’s place out of the city between Christmas and New Years. In the meantime, having met up with Ms. Chaulk on New Year’s Eve by happenstance, Ms. Chaulk and Mr. Roberts-Stevens began to develop an intimate relationship. As Mr. Roberts-Stevens put it in his evidence, they both wanted to have sex to put their respective problems with Daniel Lypka behind them.

7This new relationship caused conflict between Mr. Roberts-Stevens and Mr. Lypka. That conflict started to escalate. On January 3, 2016, Mr. Lypka told Ms. Chaulk’s family that she was doing drugs. That was untrue, but it caused Ms. Chaulk to be very angry with Mr. Lypka. That same day, Mr. Roberts-Stevens issued a serious threat against Mr. Lypka and his family. Crystal Newman overheard that threat while she was in the car with Mr. Lypka. On a Sunday morning, Mr. Lypka phoned his father in tears, expressing his belief that Mr. Roberts-Stevens was going to kill him and also do harm to his mother and sister. He asked where his father’s guns were. His father told him to call the police instead to report the threats that had been made.

8Mr. Lypka certainly contributed to the ongoing and increasing conflict. On January 5, 2016, Mr. Roberts-Stevens had to go to Belleville to appear on drug charges. Mr. Lypka knew that and he phoned in a tip to Belleville police saying that Mr. Roberts-Stevens had drugs in his car. He claimed he wanted to get Mr. Roberts-Stevens off the streets because he was afraid. Belleville Police pulled Mr. Roberts-Stevens over, but they did not locate any drugs. They did, however, arrest him for failure to comply with his recognizance, but then opted not to proceed on that charge and released him with no conditions.

9Nevertheless, Mr. Roberts-Stevens did respond to Mr. Lypka. At some time after the Belleville incident, Mr. Roberts-Stevens and Ms. Chaulk attended at Mr. Lypka’s house. He and Ms. Chaulk were yelling at Mr. Lypka. Mr. Lypka’s mother was present. She believed that her son was scared of Mr. Roberts-Stevens. Mr. Lypka came out of the house and out onto the driveway with a baseball bat in self-defence. In fact, other evidence showed that altercation was actually instigated by Mr. Lypka, who called and invited Mr. Roberts-Stevens to come to his house to settle the matter. Ultimately, Mr. Lypka’s mother broke the parties up without any violence from either side, and they went their separate ways.

10Two days later, however, Daniel Lypka phoned the Toronto Police Service in four separate calls within a half hour beginning at 6:30 a.m. He reported that someone was threatening him and his family, but he would not give his own name because he said he feared reprisal. He reported new threats that had occurred since the January 3 incident. Mr. Lypka was only willing to give his name after several calls. The Crown contended that his manner of speech on the phone showed that he was very frightened of Mr. Roberts-Stevens. Defence counsel contended he was not frightened, but rather drunk and still high from drug use at the time of that call.

11Regardless, there is no doubt that when police attended at his residence in response to those calls only an hour later, Mr. Lypka conceded to Officer Brown that it was he, Daniel Lypka, who had invited Mr. Roberts-Stevens to come to his mother's house for the altercation she ultimately witnessed. He acknowledged as well that he was angry with Mr. Roberts-Stevens for having stolen his girlfriend, and that he may have allowed his ego to get in the way.

12What is certain is that the totality of the evidence showed that Mr. Roberts-Stevens’ and Mr. Lypka had a relationship of both friendship and conflict for some years. They would be friends. They would have a falling out. There would be a conflict. Then they would be friends again. Crystal Newman’s evidence attested to their continuing up and down relationship.

13The evidence established that an important factor in their repeated re-association was that in addition to consuming alcohol, Mr. Lypka had a crack and cocaine drug addiction and Mr. Roberts-Stevens was a drug dealer who could supply him with the drugs he wanted. But as well, Mr. Lypka had a car, a red Honda Civic, and Mr. Roberts-Stevens needed a car to deal his drugs. Consequently, Mr. Lypka regularly drove Mr. Roberts-Stevens around while he was dealing drugs. Mr. Roberts-Stevens paid Mr. Lypka in drugs, and sometimes in cash, for that service. That was an ongoing dynamic between them, and as the story will unfold, the terms of that service relationship changed over the passage of time from late 2015 until Mr. Lypka’s death in April 2016.

14By late February or early March 2016, Messrs. Lypka and Roberts-Stevens had apparently moved beyond their January conflict relating to Ms. Chaulk. They were associating again. Mr. Lypka was supplying customers to Mr. Roberts-Stevens, and Mr. Lypka was either driving him, or increasingly, allowing Mr. Roberts-Stevens to use his red Honda Civic to drive himself. Mr. Roberts-Stevens was to pay for that usage by giving Mr. Lypka a percentage of his profits.

15Then, one day near the end of March, when they were with Crystal Newman in a car in a parking lot off Lakeshore Drive, Mr. Roberts-Stevens showed Mr. Lypka his new homemade shotgun, a so-called ‘slap-gun’. He claimed to have obtained that illegal weapon to defend himself against other competing drug dealers, but that was the weapon that later discharged during Mr. Lypka and Mr. Roberts-Stevens’ final meeting on April 14, 2016, and fired the shot that killed Mr. Lypka.

16By the end of March 2016, these two men were back in conflict again. Mr. Lypka evidently claimed that Mr. Roberts-Stevens owed him $2,000 relating to Mr. Roberts-Stevens’ use of Mr. Lypka’s car on his rounds to deliver drugs to customers. He had not paid and Mr. Lypka was angry. Fisticuffs broke out between them.

17Shortly after that event, Mr. Roberts-Stevens used Ms. Chaulk’s phone to obtain shotgun shells and gun oil from “A.J.”, intended for use in the slap-gun. The text message displayed a sense of urgency that appears to have been sufficient to cause Mr. Roberts-Stevens to take a cab to “A.J.” to get the shotgun shells and oil, rather than waiting for “A.J.” to respond.

18Thereafter, however, Mr. Roberts-Stevens and Mr. Lypka once again appeared to return to détente. By the next day, April 2, the two were together again, dealing drugs. However, as mentioned, the modus operandi of that relationship was changed somewhat. Instead of always driving Mr. Roberts-Stevens around, in the weeks leading up to his death on April 14, 2016, Mr. Lypka would loan his car to Mr. Roberts-Stevens for a percentage of the profits. This was a new arrangement for them as Mr. Lypka had previously only been willing to drive Mr. Roberts-Stevens around. This then became a new, and evidently the final, source of conflict between them.

19Late on April 11, the two had another conflict over a drug deal that did not work out. Mr. Lypka felt responsible and he repeatedly tried to call and text Mr. Roberts-Stevens to apologize. Mr. Roberts-Stevens was trying to ignore Mr. Lypka, but he was annoyed at all the calls and text messages. He responded “Bro, keep messaging and calling me and watch what I do.” Mr. Roberts-Stevens called Mr. Lypka at 11:13:41 p.m. that day and then ceased communication with him.

20Mr. Lypka became increasingly upset the next day. He repeatedly called and texted Mr. Roberts-Stevens asking about his car. Mr. Roberts-Stevens had Mr. Lypka’s car, but Mr. Lypka wanted it back. Mr. Roberts-Stevens was ignoring him. These repeated communications continued into the evening of April 13, when Mr. Lypka finally spoke to Mr. Roberts-Stevens. Mr. Lypka needed his car to do certain errands and needed some documents in the vehicle. He texted that he would report the car stolen if it was not returned, pronto.

21However, by the evening of April 13, Mr. Lypka still did not have his car back. He wanted it returned to him. He was becoming increasingly annoyed that he was being ignored by Mr. Roberts-Stevens. He was visiting that evening at his friend, Matt Morris’ house. They had been drinking and consuming drugs. Although there was no visible evidence that Mr. Lypka had “gone over the edge”, the toxicology evidence confirmed that he had cocaine and alcohol in his bloodstream. Nevertheless, as Mr. Morris observed, Daniel Lypka was angry and he wanted to have his car back. There were numerous text messages exchanged between Mr. Lypka and Mr. Roberts-Stevens, and even a couple phone calls, during the final short period when Mr. Roberts-Stevens and Mr. Lypka were actually only a few blocks apart from each other: at 2:25:48 a text “Yo, fam, where are you?”; at 2:35:57 a message that Daniel Lypka’s mother was just about to call the police to report the car as stolen; and then, finally, the last outgoing call from Daniel Lypka at 2:41:44 to Mr. Roberts-Stevens, four or five minutes before Daniel Lypka was killed. It was seven minutes later at 2:48 that the tenant, Paul Dixon, called 911 to report the shooting.

22The final confrontation resulted from Daniel Lypka driving out, accompanied by Mr. Morris, to locate his red Honda Civic. He was driving his mother’s black Toyota Yaris. Mr. Roberts-Stevens certainly knew that black Toyota Yaris car very well, because the evidence establishes that Mr. Lypka had used that same car to drive Mr. Roberts-Stevens around on his drug runs for some months, before Mr. Lypka acquired the red Honda Civic in November 2015.

23Just after 2:30 a.m. on April 14, these developments led Mr. Lypka and Mr. Morris to be parked in the black Yaris on Vanevery St., at the end of the driveway that led to the parking lot behind Alix Chaulk’s residence. Mr. Morris volunteered to walk in the driveway to look around. He came back within a minute to report that Mr. Lypka’s red Honda Civic was behind the building in the parking lot facing the fence, and that it was running, with the headlights on.

24Mr. Morris was uneasy. He urged Mr. Lypka that they should leave the scene and call police, but Mr. Lypka was determined to retrieve his vehicle. He told Mr. Morris to go home. He told Mr. Morris that he would go in to retrieve the car by himself. Mr. Morris did not agree and urged Mr. Lypka to change his mind, but Mr. Lypka appears to have had enough, and he was insistent he was going to get his car back.

25Mr. Morris started walking home and Mr. Lypka turned the car around and then started to drive slowly into the driveway toward the back parking lot, alone, and with his headlights turned off.

26Mr. Roberts-Stevens was sitting in the red Honda with Samuel Mansinghe as the Yaris emerged from the driveway into the back parking lot. Mr. Mansinghe was intoxicated. Mr. Roberts-Stevens was measuring out quantities of drugs for delivery to his customers. He claimed to not recognize the car, or Mr. Lypka. He claimed to believe it was a car containing one or more of a group of black assailants who he claimed had previously threatened him. While still seated in the Honda, and without having any real knowledge of the threat, if any, that awaited him, Mr. Roberts-Stevens nevertheless assembled and loaded the slap-gun with a shotgun shell, and then he emerged from the red Honda Civic.

27Although there were no witnesses to the shooting, Mr. Roberts-Stevens claimed that after a period that he thought was a couple of minutes, where the other person remained in the other vehicle, the other person got out and allegedly ran at him and a scuffle ensued. Mr. Roberts-Stevens testified that it was only at that point, as they both allegedly struggled with the slap-gun, that Mr. Roberts-Stevens realized the other person was not one of the black assailants who had previously threatened him, but instead was his friend, Daniel Lypka.

28Corroborating the forensic pathology evidence, Mr. Roberts-Stevens testified that during their scuffle, the weapon discharged at point-blank range into Mr. Lypka’s thigh. Paul Dixon, who was a resident of 32 Vanevery, heard the bang of the firearm discharging. A minute or two later, he looked out his window to see Mr. Roberts-Stevens standing over a body in the parking lot. Mr. Roberts-Stevens told him he had just shot someone and asked Mr. Dixon to call 911. Mr. Dixon called 911 at 2:48 a.m.

29However, Mr. Roberts-Stevens, and his passenger, Mr. Mansinghe, then fled the scene in the red Honda Civic. Over the hours that followed, after consulting with a friend, B.G., who “knew how to deal with these situations”, Mr. Roberts-Stevens disposed of his cell phone, the slap-gun and his clothing. None of those items were ever found. He caused his mother to cancel his phone contract. He left the red Honda Civic parked in a nearby residential neighborhood later that day, and it was later recovered.

30All of these actions were plainly intended to destroy evidence, and those actions will always be substantially aggravating.¹

31As a result of the discharge of the slap-gun into his thigh at point-blank range, Daniel Lypka sustained a mortal severance of his femoral artery. He bled to death at the scene.

32I wish to add that it is important for the Lypka family to accept that Daniel could never have survived that altercation. It was some ten or more minutes before police and emergency responders first arrived on scene. If he was not already dead when Mr. Roberts-Stevens fled the scene, based on the expert evidence and given the loss of blood, I am certain that Daniel Lypka would have passed away before help could arrive. The pathological evidence showed definitively that no one could have survived such a point-blank shotgun blast. It is evident to me that there was no possibility that Mr. Lypka could have survived that wound, even if qualified medical help had been on scene in the parking lot waiting for the event to happen.

The Impact of the Manslaughter Offence on Others

33Mr. Lypka’s mother, Helen Semshyshyn, his sister, Alexandra Lypka, his godmother, Lesia Rudd, and his future brother-in-law, Zack Langlois, all prepared victim impact statements that eloquently and poignantly described the devastating impact that Mr. Lypka’s death has had on them, individually and collectively as a family. Each of these family members delivered their Victim Impact Statements in court, telling the offender personally, and in emotional- and grief-filled language, about their individual and collective loss.

34Even more than three and a half years after the event and the initial shock of losing their son, brother, god son and future brother-in-law, each of these statements provide a vivid and poignant reminder that this family continues to experience serious and irremediable pain owing to Daniel Lypka’s forced and horrific removal from their lives, and that their lives are forever changed. They are all resigned to the reality that none of them, individually or collectively as a family, will ever be same as they used to be.

35It is beyond the scope of these reasons to repeat the totality of what these four individuals said before me about the devastating nature of their loss and its continuing impact on them, but there are a number of statements they made that provide insight into the depth of their loss and the grief they continue to experience.

36Daniel Lypka’s sister recalled, on a day she was going out after work to choose the venue for her wedding, the shattering experience for herself and her family of how each of them learned that Daniel had been killed. Her perception of good in the world has been shattered by the emotional impact of her brother’s death. She grieves that Daniel was not there to see her and Zack Langlois married last summer. Aside from the emotional trauma, she experiences daily physical impacts including ongoing and fearful lack of sleep, and an inability to deflate her anxiety. These have, and continue to take. a toll on her job as a teacher and her performance at work. She concludes her statement noting that “[i]t is easy to say move forward with your life, but it’s not a simple task when we know it was not Daniel’s time to leave us. I hope this can open up an understanding of just a small piece of our broken world that we now need to help each other walk through.”

37Helen Semshyshyn, Mr. Lypka’s mother, describes a catastrophic loss to their family and friends of the loss of their firstborn child. She describes how her family is mourning the loss of sharing in Daniel’s future, his hopes, his dreams, his expectations and celebrations of monumental experiences in life, like marriage and children, and that they are forever changed. Daniel’s brutal and senseless death has ripped apart their hearts. They have had to learn to live with this and the unbearable violence that took their son’s life. She states that the nightmares are endless. She and her husband, Bogdan, also feel guilt and know they will have to live with that, stating that “as parents, we should have known more about what was going on and protected him from such a deplorable human being.” They continue to require counseling and medical treatment, yet each session re-opens their wounds of the shocking tragedy and aftermath. They have also had to live with the uncertainty of a trial for two years, and from learning that Mr. Lypka died from a shot fired at close range from an unlawful homemade weapon that gave their son basically no chance of survival. Ms. Semshyshyn acknowledges the trial may now be over, but her own and her husband’s unbearable pain is endless.

38Daniel’s godmother, Lesia Rudd, succinctly explains that the family continues to experience bouts of emptiness, extreme sadness, anxiety and emotional agony. While their faith helps them through the difficult days of deep loss, she explains that all of their lives have been ruined by Daniel’s senseless killing.

39Finally, Alexandra’s husband, Zack Langlois, spoke eloquently and with unique thoughts and perspectives directly to Mr. Roberts-Stevens. He recounted getting to know his new and soon to be brother-in-law, who he loved being with, and seeing the beginnings of a relationship as brothers. He captures his grief and the finality of it all in the recognition that in life, often it is the simple things that are missed when they are taken away. For him, it is the loss of brotherhood and the knowledge that they will never again sit down together to have a beer, watch a hockey game, or fish off the dock at the family cottage. Zack explained how in the time after Daniel’s death, he tried desperately to comfort, emotionally support, and help his new family to find solutions for these life shattering problems, but acknowledges he has failed many times. The feeling of inability to salve their wounds eats at the very core of who he is, because he has had to accept that as a husband and son, the offender’s actions have caused a level of pain and suffering that he simply cannot fix. Astonishingly, in spite of it all, he had the generosity of spirit, the courage and the tenaciousness to express “thanks” to Mr. Roberts-Stevens. He concludes stating “[m]y brother showed us how to care for others, and his death has brought our family closer together and stronger each day; and for that legacy I am incredibly grateful.”

Circumstances of the Offender

40Mr. Roberts-Stevens is 23 years of age as he stands before the court today. He will be 24 in two months. On completion of his sentence he will return to live with his mother, Laura Stevens, in Mississauga.

41He had a close relationship with his father, but he passed away from illness when the offender was 16, three years before the predicate events. His mother said that was when his world fell apart. At the same time, his brother, London, became addicted to drugs. That is when the offender started to get into trouble with the law. He also has two older half sisters. He communicates regularly with the sister in Barbados, but not with the other one who lives here. He and his brother have had ups and downs in their relationship, but are regaining closer contact. He grew up in a stable home where there was no evidence of abuse of any kind.

42Mr. Roberts-Stevens was diagnosed with anxiety and suffered from depression commencing when he was 10. He took medication for those conditions until as recently as last year. He had multiple psychiatric assessments done when he was 10, and took counseling between 13 and 18 at Humber River Hospital while attending a school in Etobicoke for children with mental health difficulties. He had occasion to visit the Crisis Centre at St. Joseph’s Hospital between the ages of 16 and 18.

43He started selling drugs and committing youth offences as a teenager, including possession for the purposes of trafficking, dangerous operation of a motor vehicle, robbery, assault, and attempted theft under $5,000. He completed Grade 11. He has completed and received the General Equivalency Diploma while incarcerated on this matter. He hopes to attend Fanshawe College to study Sound Engineering and business at the completion of his sentence. He worked at Tim Hortons as a teen, and then on and off doing door-to-door sales. His most recent employment was for a windows and eavestrough company. Before being in custody, he was on social assistance and sold drugs to support himself financially.

44Mr. Roberts-Stevens had drug use problems starting at 13 years of age. He went from less regular to daily use while in high school. He was using MDMA when he was in high school until he turned 20. However, he was also becoming addicted since 2015 to Percocet and crack cocaine. He consumed a lot of alcohol as a teen and up until he was 20 years of age when that use appears to have been curtailed somewhat. Mr. Roberts-Stevens was by his own admission under the influence of Percocet in the days leading up to and at the time of Daniel Lypka’s death. He has quit Percocet during his pre-trial detention.

45Mr. Roberts-Stevens told the author of the presentence report that Daniel Lypka was his good friend and that he went into a depressive state because of what happened. However, he says he has been able to pull himself together over the past year adding that after the incident initially, he had suicidal ideations and was taking quantities of Oxycontin.

46While being in custody, Mr. Roberts-Stevens has converted to Islam and looked towards God to help him. He states this has helped him in the grieving process and with the stress of pre-trial and pre-sentence detention. He has also completed several courses, obtaining a Certificate of Completion for the CIAC Core Connections Program (Feb. 22, 2017), a Certificate of Achievement for the Cognitive Skills Workshop (August 2017), and he voluntarily participated in the Amadeusz education program at the Toronto East Detention Centre, through which he successfully earned his high school equivalency certificate from the Ministry of Education.

47The pre-sentence report concludes as follows:

The subject seems to have taken some steps to change his behaviour. He indicated wanting to and planning to make changes in his life which includes education. It appears that he is trying to cope with the impact the offence has had on his life and what made it so difficult for him as well, the victim is said to be his friend. It is important for him to get the help needed to make continuous changes in his life.

At this point the subject recognizes that his involvement in the Criminal Justice System outweighs the perceived benefits of his actions. [My emphasis.]

Positions of the Crown and the Defence

48Crown counsel submits that the general range of sentence established by the Ontario Court of Appeal for offences of manslaughter is 10-12 years, although I think that the case law more correctly establishes that range as 8-12 years. However, with the kind of aggravating features he says are presented in this case, Crown counsel submits that a 14-year term of imprisonment is warranted. He submits that the particular circumstances surrounding the killing of Mr. Lypka, combined with the fact that the offender was in breach of two firearms prohibition orders at the time of the killing, call for a sentence, not only at the top of the 12 year upper limit of the range, but with a further two years beyond that range.

49In further submissions for the Crown, Mr. Cruess argues for the imposition of a minimum sentence to be served by this offender, by way of an order delaying normal parole eligibility under s. 743.6 of the Criminal Code.

50On behalf of Mr. Roberts-Stevens, defence counsel does not dispute that the circumstances surrounding the killing of Mr. Lypka bring this case within a sentencing range of 8-12 years. However, consistent with his position that Mr. Lypka’s death essentially resulted from a tragic accident, and in light of all of the circumstances, he submits the appropriate sentence for the manslaughter conviction is eight years’ imprisonment, less pre-trial and pre-sentence custody credit. He notes that sentencing ranges are flexible and that courts may depart from them if a departure is warranted. Further, he argues this is not a case where the time of parole eligibility of the offender should be extended. In other words, the defence submits that Mr. Roberts-Stevens should receive a total sentence of eight years’ imprisonment less pre-sentence custody credit, which would leave Mr. Roberts-Stevens with several more years to serve. However, were such a sentence to be imposed, I note that Mr. Roberts-Stevens would be eligible for parole almost immediately after sentence.

Findings of Fact

(i) Facts Underlying the Manslaughter Conviction

51Section 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”.

52The jury’s verdict of manslaughter represents a finding that Mr. Roberts-Stevens intentionally applied force to Mr. Lypka, that he inflicted the grievous injuries that Mr. Lypka suffered, and that those injuries caused Mr. Lypka’s death. The verdict also represents a rejection of the position that (i) Mr. Roberts-Stevens acted in self-defence or (ii) Mr. Roberts-Stevens meant to kill Mr. Lypka or to cause him bodily harm that he knew was likely to kill him.

53While I am required as the sentencing judge to accept all of the facts that were essential to the jury’s verdict, s. 724(2) further provides that 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, for such other relevant facts to be proven, the judge must be satisfied of the existence of the disputed fact on the balance of probabilities. However, s. 724(3)(d) and (e) stipulate that the judge must be satisfied beyond a reasonable doubt if the fact is an aggravating one.

(ii) Other Relevant Facts

54A fact will be “relevant” for the purposes of s. 724(2) if it will assist the sentencing judge to determine a fit sentence, but the judge should only find those facts that are necessary for that purpose. Accordingly, as R. v. Ferguson² instructs at para. 18, “the judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.”

55For the purpose of sentencing in this case, there are a number of issues raised by the parties that go to the circumstances of Mr. Lypka’s death, and Mr. Roberts-Stevens’ state of mind at the time that Mr. Lypka was shot. Those are relevant factual questions, but, subject to any reservations expressed later in these reasons, I am satisfied that sufficient evidence was adduced at trial for findings to be made in relation to most of those issues that I consider important and relevant to this sentencing process.

56There are a number of facts that are plainly made out on the evidence presented at trial relating to the slap-gun and the prohibition orders against Mr. Roberts-Stevens at the time of this homicide. The contested facts in issue largely relate to (i) whether Mr. Roberts-Stevens was assaulted by unknown competing drug dealers in March 2016 and bought the firearm to defend himself and his drug dealing business from those unknown people, and (ii) what the circumstances were and how events transpired in the minute or so before Daniel Lypka was fatally shot.

57However, based on the evidence at trial, I am satisfied to the criminal standard that Mr. Roberts-Stevens obtained the illegal “slap-gun” some weeks before April 14, 2016 when he shot Mr. Lypka. Daniel Lypka saw the pipe-gun once just after it was purchased. Whether Mr. Roberts-Stevens purchased that firearm and obtained the shotgun shells from A.J. for the purpose of defending himself against alleged unknown assailants or for the general protection of his drug dealing business, there is no doubt he bought the firearm to employ as part of his drug-dealing business. He bought it intending to use it.

58That lethal homemade firearm had none of the safety features associated with either legal or even most prohibited handguns. It had no “safety” to prevent unintended discharge. It was simply two oiled pipes, one sliding inside the other, a nail or screw in its cap as the firing pin, and a shotgun shell ready to discharge from the smaller diameter pipe. It had no purpose but to fire a shotgun shell. The purpose of that, in the context of Mr. Roberts-Stevens drug dealing business, was plainly to use it to “defend” himself. It is uncontroverted that Mr. Roberts-Stevens obtained shells for the slap-gun on April 1, 2016. He said he carried that prohibited firearm with him as he dealt drugs around the city of Toronto for at least those two weeks, however, there was no evidence that Daniel Lypka knew that he would have had it with him on April 13-14, 2016.

59I also find based on the evidence and his record, that Mr. Roberts-Stevens was subject to the terms of four different court orders – two breach of probation orders and two firearm possession prohibition orders – for the entire period he possessed and used this prohibited firearm, and during which Daniel Lypka was killed.

(iii) Findings on Core Factual Issues

60The jury’s verdict does not necessarily carry with it any other facts with respect to the nature of the force used by Mr. Roberts-Stevens, the circumstances in which it was used or Mr. Roberts-Stevens’ state of mind at the time. However, the core factual issues that inform the determination of a fit sentence here relate to exactly what the events were and how they transpired on April 14, 2016 leading to Mr. Lypka’s death, which can be determined from the evidence adduced at trial.

61Unlike in other situations where there is evidence provided by independent witnesses about the actual events of the crime, here there are only two possible evidentiary sources from which the facts can be determined. Those two sources are (1) the testimony of Mr. Roberts-Stevens, to the extent to which I accept and believe his evidence, and (2) the constellation of circumstantial evidence surrounding the events to the extent that they permit the drawing of reasonable inferences.

62There are several core questions which go to sentencing and which arise from the fundamental differences in the factual positions of the parties. They are core questions because, as the Manitoba Court of Appeal noted in R. v. Csincsa,³ while there are no clear and definitive principles governing the sentencing of a person convicted of manslaughter, the culpability of an offender's actions and the extent of violence or brutality will be paramount factors in determining the appropriate sentence.

63The first overriding question which must inform the second and third, is the extent to which I accept the evidence of Mr. Roberts-Stevens, or even if I do not accept or believe it, the extent to which it raises reasonable doubt in my mind about how the events transpired that led to Daniel Lypka’s death. In determining what happened, I am entitled to accept some, none or all of his evidence. However, as R. v. W.D.⁴ makes plain relative to the testimony of an accused, to the extent that I accept his evidence or am left in a state of reasonable doubt by it, then that will have significant impact on findings relating to his culpability and moral blameworthiness.

64Not surprisingly, Crown counsel urges me to reject most, if not all, of Mr. Roberts-Stevens evidence, at least in part to the extent of Mr. Roberts-Stevens’ testimony of his reasoning and rationale for what transpired early that morning when Daniel Lypka died.

65In the Crown’s submission, it was at least partly self-serving and conflicting in a number of instances. I agree, and will refer to some of those. However, it is clear that the jury did reject Mr. Roberts-Stevens testimony that the shooting was truly accidental or in self-defence. They were not left with a reasonable doubt from, and in my assessment must have rejected significant components of, Mr. Roberts-Stevens’ testimony, which then caused them to look at all the circumstantial evidence surrounding the shooting: the forensic evidence, the evidence relating to the scene, the fact that he did not call out for help or call 911 even though he had a phone, and the fact that what he did do was move Mr. Lypka and the black Yaris so that he could flee the scene and destroy evidence.

66Defence counsel put an entirely different interpretation of events into consideration, but it was based principally on Mr. Roberts-Stevens’ testimony, and, in my view, did not focus to the same extent or take full account of what the circumstantial evidence was. In the end, there were aspects of Mr. Roberts-Stevens’ testimony that I concluded could reasonably be true, even though I was not persuaded by that evidence, in the context of the evidence as a whole. In addition, there were aspects of his evidence that I simply did not believe and that did not leave me uncertain.

67The most important core factual issue, to my mind, is at exactly what moment during the short time during which the encounter took place, that Mr. Roberts-Stevens knew that the other person standing before him was not one of the alleged unknown black assailants who he claimed had previously threatened him, but instead, his friend Daniel Lypka. The second is whether Mr. Lypka was a vulnerable victim. The last is whether Mr. Roberts-Stevens had time to disengage.

68During the trial, we dissect and parse the events as the evidence is presented, as if they took place in slow motion over a substantial period of time. But it is critical to remember that from start to finish, from the moment that Daniel Lypka started slowly driving in the driveway and into the back parking area behind 32 Vanevery, until Mr. Morris heard the sound of the slap-gun discharging, was no more than 45 to 90 seconds, a minute and a half, say two at most.

69Critical to my findings on what transpired just before and after Daniel Lypka was killed are my conclusions on the credibility of Mr. Roberts-Stevens’ evidence relative to those events. First, there is no doubt that Mr. Roberts-Stevens assembled and loaded the pipe-gun while he was still inside Daniel Lypka’s red Honda, but after he saw the black vehicle pull in some distance behind him. As such, that firearm was loaded and ready to deploy before he really knew who he was facing. Eliminating the questions and paraphrasing Mr. Roberts-Stevens’ testimony given in chief in response to Mr. Stanford’s questions, his evidence was as follows:

I sat there for a second like debating on what to do. I just heard the car door open. I seen somebody come around the front of the car and I proceeded out of — I got out of the car and went towards them. I had the gun with me, holding it towards them with two hands - My one hand was on the hand — like the grip part I had made for it and the next hand was at the back of it.

Then the person like ran up towards me and then we struggled over the gun and the gun had went off and then I know at some point I realized it was Dan. I'm not sure at all at what point I realized it was Dan. I knew for sure it was him after the gun went off, when he dropped to his knees, I knew one hundred percent it was him.

Honestly, I couldn't tell you how long this struggle went on for. It felt fast, but it felt long at the same time.

He turned to the — the gun went off, I remember he stepped back a couple steps and he was holding his side. I don't know, like towards his thigh kind of. And then after that he dropped to his knees. When he dropped, sometime, like I dropped the gun and once he dropped to his knees, I went and I grabbed him. I tried to pick him up.... I dropped the gun sometime after I shot him, like in between when I shot him and he dropped to his knees. Once I seen him drop to his knees, I went and I grabbed him. I put his arm around my — like around my back. I grabbed him by the torso and I tried to carry him towards the — and to be honest, I remember thinking of bringing him to the red Civic at first and then I realized I was blocked in. And then.... I think I'm pretty sure I went to go bring him to the next car and then I felt dead weight and like I dropped to the ground with him.

70I wish to first comment on Mr. Roberts-Stevens’ testimony as a whole. I did not find him to be a fully forthcoming witness. There were a number of aspects of his evidence that I doubted to be accurate statements of what had actually happened. It was plain from his testimony that a number of aspects of his evidence, statements and answers made in chief, were contradicted or changed under cross-examination. Under vigorous cross examination by Crown counsel, Mr. Roberts-Stevens admitted that he was essentially focused on his own needs throughout the three months that preceded the killing, that he used his relationship with Daniel Lypka for his own benefit, that is, for the benefit of his drug dealing business, and that he did not follow through with a number of the promises he made to Mr. Lypka relative to the car and its use. While Mr. Lypka seemed to be trying to be on his good side, and to get new customers for him, Mr. Roberts-Stevens was also increasingly angered or at least strongly annoyed by Mr. Lypka continuously pestering him to get the money he was owed, and to have the car returned in the several days leading up to the shooting. He admitted the threats that had been made, not only in early January after Daniel Lypka and Alix Chaulk broke up and Mr. Roberts-Stevens immediately jumped into an intimate relationship with her, but also in the several days immediately before Mr. Lypka was killed.

71I was also struck by another aspect of Mr. Roberts-Stevens’ testimony. Triers of fact look for inconsistencies in testimony that may betray carelessness with the truth, or an effort to avoid fulsome answers and instead provide the minimum of what the witness thinks they need to say. One telling example that I found to be incredible was that Mr. Roberts-Stevens would testify, as he did, that after living with a roommate for an entire year, he did not know that person’s name. That entirely defies common sense and experience, and instead, betrays him protecting others from being identified. This was the common theme of claiming to know only street names of a number of the individuals who were part of this story, like A.J., North, K.M. and B.J.

72A second was Mr. Roberts-Stevens’ evidence of the words that were exchanged between him and the allegedly unknown assailant during the time from when they emerged from their vehicles, until the slap-gun discharged. None. Not a word was allegedly spoken. However, the other evidence, not only of their past relationship, but also of other altercations they had had, albeit not fatal, belied any suggestion that their final altercation could have or would have taken place in silence. I find that it could not have happened that way.

73The evidence showed that Daniel Lypka was always talking, and he would certainly have been talking during their confrontation, even if Mr. Roberts-Stevens was not. Further, the evidence of Ms. Kempson-Marsh, the sound engineer who lived next door or two doors over from 32 Vanevery St., also calls into question Mr. Roberts-Stevens claim that no words were spoken except to Mr. Dixon. Even though she was not certain whether she heard two or three voices, she testified that she believed she heard male voices speaking at about 2:45 a.m., before she heard the clanging of what she thought were two metal pipes.

74Those were examples to me of obvious weaknesses in Mr. Roberts-Stevens’ evidence, weaknesses that contributed to my unease about the truthfulness of many of his statements. However, my unease increased and was exacerbated by his continuous emphasis throughout the answers he was providing that he was giving those answers “honestly and truthfully.” Those of us who spend our days listening to the testimony of witnesses know that a witness’s exclamation of some fact, “honestly and truthfully”, is frequently a signpost that the answer is neither honest nor truthful. In this case, from the beginning to the end of his testimony over two and a half days, Mr. Roberts-Stevens used that expression 65 times when answering a question. Although this alone is not dispositive of Mr. Roberts-Stevens’ credibility, it is relevant given the other inconsistencies I have found in his evidence.

75Before moving on to my findings on the core events, however, I need as well to speak to Daniel Lypka’s character and interactions with Mr. Roberts-Stevens. First, Daniel Lypka was eight years older than Mr. Roberts-Stevens, not a seemingly natural gap in age between young friends. It was evident to me that the relationship between them was one of co-dependency. While his parents may not have thought or known about it, the evidence showed that Mr. Lypka had a drug dependency addiction. He also consumed a significant amount of alcohol.

76I do not fully accept the Crown’s claims that Mr. Lypka was frightened of Mr. Roberts-Stevens. The evidence showed otherwise. For example, Mr. Lypka’s acknowledgement to P.C. Brown that he, Daniel, had instigated the early January shouting match with Tre, and that he was overreacting to the break-up with Alix, casts doubt on whether he really was terrified when he called Toronto Police that morning, or whether as his slurred speech might suggest, and as the defence contended, he was still drunk when he made that call. Mr. Lypka and Mr. Roberts-Stevens had many ups and downs. They fell in and out of favour with each other with some frequency. Crystal Newman made this clear. However, it did not seem to be over matters that were true friendship matters, but rather their somewhat parasitic relationship relative to each other.

77Nevertheless, it was also plain to me from the playing out of the relationship that Mr. Lypka was understandably angry or annoyed when he finally came to realize that he was being taken advantage of by Mr. Roberts-Stevens. He appears to have come to realize that Mr. Roberts-Stevens was going to do whatever he wanted, and was not at all concerned about what Mr. Lypka thought or wanted, or the promises he had made to Mr. Lypka before. And that awakening by Mr. Lypka is what appears to have caused him and Mr. Morris to go on the fateful search for his red Honda Civic early on April 14, 2016.

78One of the available inferences is that Mr. Lypka showed up at the Vanevery St. address looking for a confrontation, that he instigated a physical confrontation with Mr. Roberts-Stevens, who was in possession of the firearm, that there was a physical struggle or altercation, and that the firearm discharged by accident. Mr. Lypka had cocaine in his system, which the toxicologist confirmed could cause aggression or reduced inhibition. He had some alcohol in his system, further reducing inhibition. And, sent Mr. Morris away and turned off the lights of his vehicle before pulling into the driveway.

79Nevertheless, while he may have come to the end of patience with Mr. Roberts-Stevens, and was finally going to stand up to him, I reject the defence efforts to characterize Mr. Lypka as the aggressor that evening. Defence counsel suggested he showed up armed, angry and in the full knowledge that Mr. Roberts-Stevens would be in possession of the slap-gun. The fact is that Mr. Lypka was unarmed, apart from the six inch pocketknife that was never opened. He had no firearm. In fact, there is no evidence of him ever having a firearm. While he knew that Mr. Roberts-Stevens possessed a home-made shotgun, there is no evidence that he had seen it more than once. There is no evidence that would have had him know that Mr. Roberts-Stevens would be facing him with a loaded homemade shotgun when, perhaps somewhat inebriated and full of “Dutch courage”⁵, he drove into the parking lot at 32 Vanevery St. to reclaim his car from his friend who had been abusing their relationship by failing to return the car earlier as promised.

80I also reject the submission that there was no evidence that Mr. Roberts-Stevens would or could have expected Mr. Lypka to show up there at that time. The very fact that they exchanged texts and phone calls as recently as 10 minutes before Mr. Lypka died suggests that it was far more likely that Mr. Lypka was trying to find Mr. Roberts-Stevens than that Mr. Roberts-Stevens was being pursued by the unnamed black assailants. I speak to this issue further below.

81In R. v. Cleyndert,⁶ the judge referred to the “vulnerability of the victim” as an aggravating factor on sentencing that requires denunciation. At para. 11 of its decision on appeal, the Court of Appeal stated as follows:

The trial judge referred to the "vulnerability" of the victim as an aggravating factor. In referring to the victim as "vulnerable", he relied on R. v. Garrison, 1999 CanLII 2875 (ON CA), [1999] O.J. No. 3782 (C.A.) and R. v. Clarke, 2003 CanLII 28199 (ON CA), [2003] O.J. No. 1966 (C.A.) as supporting the need for denunciation of attacks on the vulnerable, specifically, the elderly and the frail. Although the trial judge noted that the victim in this case was young and healthy, he explained that the victim was "vulnerable as a consequence of being unarmed and unaware that Mr. Cleyndert was armed with a weapon that he was prepared to use". The trial judge was clearly alive to the circumstances of this victim and, in our opinion, did not err in considering the appellant's use of a concealed prohibited weapon in a fistfight with an unarmed man as an aggravating factor on sentencing.

82Here, while Daniel Lypka was a healthy young man of 28 years at the time of his death, so hardly frail or aged, the Crown argues that Mr. Lypka was a vulnerable victim and claims that is an aggravating factor. The defence rejects this contention entirely. However, it is not only the age or frailty of a victim that is relevant to the issue of vulnerability, but there may also be vulnerability where the victim is either unarmed and/or unaware that the other person was armed with a weapon that they were prepared to use.

83Here, the defence claims Mr. Lypka was armed and fully aware that Mr. Roberts-Stevens would have been armed. It is true that Mr. Lypka was in possession of his pocketknife, but there is no evidence that it ever came into play in this altercation in any way, or that Mr. Lypka had ever previously used it as a weapon. More importantly, as I have explained, I reject the contention that Mr. Lypka would have had a reasoned awareness that Mr. Roberts-Stevens would be armed with the loaded slap-gun. He was somewhat inebriated, as was Mr. Roberts-Stevens: Mr. Lypka on cocaine and alcohol, and Mr. Roberts-Stevens on a large dose of Percocets. While he was angry, or at least annoyed at the circumstances, as was Mr. Roberts-Stevens, I have no doubt that Mr. Lypka believed at the time that he would be able to reclaim his car from Mr. Roberts-Stevens without incident. So to that limited extent, I do find that he was vulnerable, but I do not find it to be as important an aggravating factor as others, nor is it one that carries the same kind of weight as was accorded to vulnerability in either R. v. Cleyndert or R. v. Clarke.

84Returning to the evidence of how the shooting events transpired, it is certain that the headlights on the black Yaris were turned off as Mr. Lypka drove it slowly back to the parking lot behind 32 Vanevery St. and seemingly blocked the ability of the red Honda Civic to escape. Whether Mr. Roberts-Stevens immediately or only later in this brief window recognized that vehicle is uncertain, even though it was unquestionably a vehicle he knew well as associated with Daniel Lypka.

85I accept that the evidence shows that there were no external lighting fixtures in the parking lot itself, and that the parking area was “dark”. This was confirmed by P.C. Bayel, one of the first police officers to arrive on scene. P.C. Tamse, another of the four first police responders, said the area was very poorly lit, and essentially dark when he arrived. There was lighting on the street, but it was obscured by trees. He said the driveway itself was poorly lit.

86However, respectfully, I find that evidence does not answer the question, and I reject that it was anywhere close to being pitch black with no night vision being possible, at least at the time of the shooting. This is not at odds with the evidence of the officers, because by the time the police officers and other first responders arrived, the Honda whose headlights had been on had fled the scene. Nevertheless, the evidence also showed that there was at least some indirect illumination, perhaps partially obstructed, created by the lights from a store located on the next block, perhaps 50 or more feet to the west.

87Much more importantly, however, I find based on the evidence as a whole that at the time of the actual fatal altercation, and before the red Honda fled the scene, there would have been a fair bit of reflected illumination coming off the parking area fence to the north, from the headlights of the red Honda Civic which was parked facing that fence. Mr. Roberts-Stevens and Mr. Mansinghe were sitting in the car at that time, weighing out quantities of drugs. Mr. Roberts-Stevens said his headlights were turned off. I reject that evidence as entirely self-serving and contradicted by the evidence of Mr. Morris from only seconds before that he had personally observed the red Civic in the parking lot with the engine running and the headlights lights on. While it was certainly not fully lit to any extent, we all know from personal life experience the extent to which such reflected illumination can provide some light to a scene that is otherwise in the dark. That is what the lighting situation was at the time of the shooting.

88Mr. Roberts-Stevens said he believed that the dark vehicle that pulled into the parking lot was occupied by one person, who he believed to be one of the 3 to 4 unnamed black men who he claimed had assailed him the prior month. While he may have believed it, and I note he was under the influence of a fair quantity of Percocets at the time of the shooting, I found this evidence made little sense, considered in its entirety.

89There was no evidence whatsoever of the alleged unknown assailants having ever tried to track Mr. Roberts-Stevens since the alleged incident in March. There was no evidence of him being concerned about them when he was out dealing drugs. There was no evidence that explained how one or more of those alleged assailants could or would have arrived in that parking lot at that exact time when there was no evidence they had either followed Mr. Roberts-Stevens previously or knew where he lived and could be found. The more persuasive interpretation, given the phone calls between Daniel Lypka and Tre Roberts-Stevens that preceded the shooting by a mere 10 minutes, is that Mr. Roberts-Stevens should and must have known that he was only a couple blocks away from Mr. Lypka, and it was much more likely that Mr. Lypka would show up, rather than one or more of the alleged group of assailants.

90However, at least initially, and perhaps for 15 seconds as he emerged from the red Honda Civic after he had assembled and loaded the slap-gun, I do have at least a reasonable doubt whether Mr. Roberts-Stevens, high on Percocets, immediately recognized the Toyota Yaris vehicle or that it was Daniel Lypka. However, Mr. Roberts-Stevens’ own evidence shows that realization came to him seconds later, and I find it occurred certainly no later than when the driver of the black Yaris got out of the vehicle and started to approach him. But importantly, relative to moral culpability, that was after the slap-gun had been assembled and loaded, and after it was pointed at that other person, and before any scuffle commenced over the slap-gun.

91As soon as Mr. Roberts-Stevens knew that the other person was Daniel Lypka, he must also have known that Mr. Lypka would have been essentially unarmed, certainly not bearing a firearm, because there is no evidence that ever associated Mr. Lypka with any weapon other than his pocket-knife that was found, closed, on the ground near where his body fell.

92Defence counsel contended that the offender initially pointed the firearm at the male who got out of the dark vehicle while acting “in lawful self-defence”, based on Mr. Roberts-Stevens stated belief that it was one of the 3 to 4 unnamed men who he claimed had assailed him in March. I doubt whether that assertion is legally correct, given that self-defence calls upon the person allegedly threatened to look at the actual circumstances and threat, to respond reasonably, and to do more then respond to a mere speculative belief without taking steps to substantiate it.

93Regardless, the allegation of self-defence matters not given the evidence of what did happen. Furthermore, defence counsel acknowledged that at some point in time after the driver of the black vehicle started approaching him, Mr. Roberts-Stevens realized that individual was Daniel Lypka. The defence accepts that upon realizing that it was Mr. Lypka who was walking towards him, Mr. Roberts-Stevens no longer had any basis to continue to point the firearm at Mr. Lypka in alleged self-defence. Mr. Roberts-Stevens contended in his evidence that he only realized it was Mr. Lypka when they were virtually face-to-face, and after the struggle over the slap-gun had commenced, with both of them gripping at the two pipes.

94I reject this evidence. It is contradicted by the other relevant circumstantial evidence. I find that Mr. Roberts-Stevens would have recognized that the individual approaching him was Daniel Lypka well before they were actually face-to-face and struggling. By the time the individual started to approach him, it was seconds after Mr. Roberts-Stevens had come out of his vehicle with the assembled and loaded slap-gun. Mr. Roberts-Stevens acknowledges he was looking in the direction of the vehicle that had come in the driveway. Mr. Roberts-Stevens said the other person sat in their vehicle for 45 seconds to a minute, but this claim also seems inconsistent with other evidence that the entire incident from the time Daniel Lypka started in the driveway until the shot was fired was no more than 90 seconds. On the other hand, high on Percocets, Mr. Roberts-Stevens himself acknowledged that everything was essentially moving in slow motion from his perspective, so he might, as he testified, have felt that there was a longer passage of time than the external indicators suggest could have been possible before the individual who emerged from that vehicle was starting to approach him.

95Nevertheless, he could certainly see that the black vehicle was stopped between 15-20 feet behind the red Honda Civic in a position where the Honda was boxed in. Further, I am satisfied that there was enough light reflected off the parking lot fence to have permitted Mr. Roberts-Stevens to see that the person approaching him was not a dark skinned person, either a 6’5” person, or a black person of some other height, or a dark-skinned black man with braids who he feared.

96He would, and I find that he could, have seen that it was a shorter person, a white man without braids. It was Mr. Roberts-Stevens’ former friend, Daniel Lypka, whose white hands were clearly visible, as the evidence showed, even if his face may have been partly obscured by a hoodie. More importantly, while Mr. Roberts-Stevens tried to distance himself from having looked at the other person’s hands, only minutes earlier in his testimony he insisted that was exactly where he was looking to see if the other person was armed. He would necessarily have seen that the hands of the person in front of him were white, not black, even if he could not fully see the other person’s face, although the circumstantial evidence also suggests that was unlikely.

97I take further support for this conclusion based on the location and direction of movement of these two actors. When Tre Roberts-Stevens was out of the car, firearm assembled and looking in the direction of the man approaching him, his face would have been in shadow, because the reflected headlight illumination from the red Civic would have been coming from behind him, over his shoulders. However, as Daniel Lypka approached Mr. Roberts-Stevens, the forensic diagrams and exhibits show he would have been walking toward the illumination that I have found would have been present, and as such, the only reasonable inference is that, except to the extent that Mr. Roberts-Stevens’ body created shadow in front of him, he knew this was Daniel Lypka, not some claimed unknown assailant.

98Upon reaching that realization, which I find took place just before Daniel Lypka ran towards him and before the scuffle over the slap-gun actually commenced, Mr. Roberts-Stevens did not turn the firearm away. Instead, he continued to point the firearm at Mr. Lypka, even though there was more than adequate time for him to change his course of action by pointing the gun down or away from Mr. Lypka. Even if one accepts Mr. Roberts-Stevens’ initial momentary belief that the individual was one of the alleged unknown black assailants, and I have accepted that could reasonably be true for a moment, I find that belief must and would have evaporated as soon as he saw that the hands of the individual approaching him were white.

99I find that it does not matter whether Mr. Roberts-Stevens ever believed that he was acting in self-defence because, on the evidence that I accept, I find that he knew and recognized the other individual as Mr. Lypka by the time Daniel was approaching him, crossing the distance from the front of the black Yaris towards him as he stood at the back of the red Honda Civic, before any scuffle over the slap-gun commenced.

100There is no evidence of why Mr. Roberts-Stevens did not turn the weapon away, but instead continued to point it at Mr. Lypka, even if at a slightly downward angle. Mr. Roberts-Stevens was holding the two parts of the pipe-gun with his two hands, as he demonstrated before us. He was controlling whether it discharged. Without Mr. Roberts-Stevens’ testimony, there is no evidence of any sort of a conflict, struggle or scuffle between himself and Daniel Lypka, and what remains is the circumstantial evidence. What is clear, however, is that if he turned the firearm to the side when he had the opportunity, no scuffle would have ensued.

101That fatal failure on Mr. Roberts-Stevens’ part, arising out of his admitted possession and plain intention to use the slap-gun to protect his illicit drug dealing business, precipitated the struggle over the slap-gun that caused it to discharge at point-blank range seconds later into Daniel Lypka’s thigh, killing him in mere minutes. And it is that failure, and the possession of the pipe-gun for the purposes of protecting his drug trade, that are two of the most aggravating factors present in this tragic and senseless case, and that establish his moral culpability at a high level, even if not the highest level.

102That said, I reject any suggestion by the Crown, a submission I may have heard incorrectly, that Mr. Roberts-Stevens directly fired the firearm at Mr. Lypka from any distance. Whether there was a struggle over the gun, Mr. Roberts-Stevens certainly had control of it. However, the forensic evidence of the trajectory of the fatal shot and Mr. Roberts-Stevens’ evidence confirms that Mr. Lypka bladed his body sideways to get out of the way of the muzzle. However, the firearm was discharged before he could get out of the way, and he took the shotgun projectile at point-blank range in his thigh, killing him in minutes.

103There is no doubt that Tre Roberts-Stevens knowingly unlawfully killed Daniel Lypka. On all of the evidence, I find that it is plain that the jury was simply left with a reasonable doubt about his criminal intent at the critical moment, whether Mr. Roberts-Stevens intended to kill Mr. Lypka or intended to cause him bodily harm he knew or ought to know was likely to cause Daniel Lypka’s death after he recognized that the other person was, indeed, Daniel Lypka. And that is why Mr. Roberts-Stevens was acquitted of second-degree murder and convicted of unlawful act manslaughter. It was an entirely proper, and the correct, verdict in my view.

104Regardless, I also find that the evidence, particularly the blood stain and spatter evidence, and the position of Daniel Lypka’s body on the ground with his shirt pulled up and his jeans pulled down, does establish that after Mr. Roberts-Stevens shot Mr. Lypka, he did drag Daniel’s body out of the way, backed the Yaris out of the way, and then fled the scene. He did so without offering anything more than token solace or comfort to his friend, as Daniel’s life quickly seeped out of him. Mr. Roberts-Stevens’ evidence about trying to carry Mr. Lypka to the car seems to me largely refuted by the forensic evidence. But even if that evidence was accepted, it does not establish the offender as a good Samaritan. Instead, the weight of the evidence is that Tre Roberts-Stevens’ single driving concern in those moments, and indeed in the hours that followed, was himself and destroying evidence: the slap-gun, his cell phone, and his blood-stained clothing, all of which could have had important evidential value at this trial.

105Had the occupant of the first-floor apartment not looked out to see what was going on, to observe Mr. Roberts-Stevens standing over the body of his friend located in the place where he had just dragged it, there is no basis to believe that Mr. Roberts-Stevens would have done anything to assist Mr. Lypka. I make this finding because on his own evidence, he already had a minute or so of opportunity where he could have called 911, and neither did he call out loud on his own after the shot was fired for anyone who could possibly hear to help him. That is the response one would expect if he cared more about his friend than his own self-preservation. His request that Mr. Dixon contact 911 was made only after Mr. Dixon effectively caught him in a frozen moment, standing over Daniel’s body. And the evidence also showed that Mr. Roberts-Stevens was not going to wait around and comfort his friend. By the time Mr. Dixon had completed the 911 call, Mr. Roberts-Stevens had made good his escape, seen by Ms. Kempson-Marsh, as he sped away at a high rate of speed up Vanevery St. and away from the scene of the crime, with Samuel Mansinghe throwing up out the window of Daniel Lypka’s red Honda Civic.

Discussion

(i) Principles of Sentencing Applicable in this Case

106The purposes and underlying objectives of sentencing are set out in s. 718 of the Criminal Code. The fundamental purpose of any sentence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. The specific objectives are to denounce unlawful conduct, to deter the offender and others from committing such offences and to separate offenders from society where necessary. General deterrence to others is paramount, but where there is need for specific deterrence of the particular offender, that also will occupy a prominent place in deciding what sentence to impose. Nevertheless, it is equally plain that Parliament intended that rehabilitation of the offender would also occupy an important place in the hierarchy of sentencing values articulated in the Code.

107As Macdonnell J. observes in R. v. Kazenelson,⁷ 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 this, where the offender has intentionally committed an unlawful act that caused death, the objectives of general denunciation and deterrence, and specific deterrence of the offender, will inevitably be of paramount concern. However, to the extent that it is a realistic possibility, the rehabilitation of Mr. Roberts-Stevens must also be an objective that the sentence seeks to achieve.

108Section 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”.

109The latter principle necessarily draws the court into a consideration of sentencing precedents for analogous cases of manslaughter. The reality, though, is that sourcing relevant analogies is a matter of argument and perspective. Manslaughter can be committed in a wide range of circumstances giving rise to a broad spectrum of moral culpability or blameworthiness. Crown⁸ and defence⁹ counsel naturally and inevitably differ on what sentence is fit, and the appropriate analogies that should be applied, based on their differing interpretations of the events and positions on the moral culpability of the offender.

110The Supreme Court instructs in R. v. Stone that it is the contextual determination of the level of moral culpability of the offender that is key to the determination of the fit sentence in manslaughter cases.¹⁰ In R. Bidesi,¹¹ Butler J. refers to this analytical process at paras. 41 and 43. He writes as follows:

41 Evaluating the moral blameworthiness of the offender is the core task of the court when sentencing for manslaughter. In Stone, the Court approved of the statement of Fraser C.J. in R. v. Laberge (1995), 1995 ABCA 196, 165 A.R. 375 (Alta. C.A.), that even for impulsive killings there are different degrees of moral culpability. In R. v. Wall, 2010 BCSC 972 (B.C. S.C.) at para. 28, Fisher J. also cited Laberge for a suggested framework of three broad categories of manslaughter cases based on the level of risk involved in the crime.

... the nature and quality of the unlawful act and the method and manner in which it was committed are relevant to evaluating an offender's moral blameworthiness. The Court divided unlawful acts into three broad groups:

...those which are likely to put the victim at risk of, or cause, bodily injury; those which are likely to put the victim at risk of, or cause, serious bodily injury and those which are likely to put the victim at risk of, or cause, life-threatening injuries... [Emphasis in original.]

43 The defence also argued that sentences in excess of ten years for manslaughter are only appropriate where the offence is "close to murder" or where the circumstances include violent or prolonged assaults. That submission does not accurately reflect the law. Indeed, in R. v. Ahnert, 2014 BCCA 212 (B.C.C.A.) at para. 39, the court indicated that egregious cases may call for sentences longer than 14 years and rejected a mechanistic approach to sentencing for manslaughter…

111These references emphasize that sentencing in manslaughter cases is quintessentially case-specific. However, the Court of Appeal of this province 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.¹²

112That is not to say that for cases of so-called “aggravated” manslaughter a sentence within that range is mandatory. I note that defence counsel referred in his submissions to cases, which he said involved “aggravated” manslaughter, seeking to distinguish the facts of this case from those circumstances in aid of his submission that a sentence of six to eight years, before credit, would be a fit sentence in this case.

113However, R. v. Devaney¹³ rejects the use of that terminology as unhelpful for the purpose of sentencing. It is unhelpful because adding a descriptive label to a set of facts within the defined offence of manslaughter adds an additional and unnecessary level of complexity to the sentencing exercise. 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.”¹⁴ I find a more helpful approach in determining the level of moral culpability is to have regard to the three categories described by the Alberta Court of Appeal in Laberge, above. That approach considers whether the unlawful act that resulted in death (i) was likely to put the victim at risk of, or cause, bodily injury, or (ii) was likely to put the victim at risk of, or cause, serious bodily injury, or (iii) was likely to put the victim at risk of, or cause, life-threatening injuries.

(ii) The Unrelenting Problem of Urban Gun Crime

114The sentencing of an offender always takes place in a context. In this case, it takes place within the context of the facts as I have found them. But of great public importance is also the context of the unrelenting and continuing gun violence that pervades in the city of Toronto, and other Canadian urban centres. This reality and its impact on sentencing has been addressed and spoken to strongly and eloquently, both by trial judges of this court and by the Court of Appeal.

115In the leading decision R. v. Danvers,¹⁵ the Court of Appeal was emphatic that, “death by firearms in public places in Toronto plague the city and must be deterred, denounced and stopped, and only the imposition of exemplary sentences will serve to deter criminals from arming themselves.” Danvers deals with a handgun, and emphasises that the use of handguns in public places cries out for lengthy sentences and increased periods of parole ineligibility.

116Defence counsel contends that the analogy of the homemade firearm in this case to a handgun is inappropriate, and that the better comparator is a long gun, a commercially made rifle or a shotgun. I do not accept that submission. This primitive, homemade firearm, possibly made by J.B. from plans freely available on the internet, for the cost of two lengths of pipe, a cap, a screw or nail, some oil and some shotgun shells, is a lethal and sole purpose killing tool. It has no trigger, no safety features whatsoever, and it does not even resemble a gun or a long gun. If it did, perhaps it would not have discharged, thereby killing Daniel Lypka. It is completely unregistered and unsupervised by its nature. It is a very frightening construction made out of commonly available objects, purchasable at the local hardware store. I can see no meaningful basis not to regard it as dangerous as a handgun, and in this case, it was concealed like a handgun in Mr. Roberts-Stevens’ gym bag.

117In Akhtar J.’s decision last year, R. v. Barton,¹⁶ he sadly observes that the uncontrolled possession of guns in the GTA is an event that does not even cause surprise in our courts anymore. It has become ubiquitous. The prevalent use of illegal firearms in this city, whose only purpose is to injure, to maim, and to kill, leaving victims dead and their families scarred for life, appears to show no sign of abating despite repeated judicial condemnation and increased sentences. Given the fact that the messages we have been sending continue to go unheeded, we have no alternative faced with this horror but to send increasingly clear and unambiguous messages to those involved in gun crime and violence that convictions will bear increasingly severe consequences.

118Justice Nordheimer speaks eloquently in R. v. P.P.J.¹⁷ about the need to protect the citizens of this city from people who are using these weapons in a pre-meditated and merciless manner. I accept that there was no pre-meditation here in the sense in which Nordheimer J. (as he then was) was referring to. Indeed, the jury’s finding of manslaughter and acquittal on the charge of second-degree murder specifically confirms that the killing of Daniel Lypka was not premeditated.

119However, I find that there was a different kind of pre-meditation present here, which was confirmed by Mr. Roberts-Stevens’ evidence. He bought this slap-gun to protect himself as he went about his drug business, carrying the gun with him for the purpose of facilitating that illegal business. And indeed, his actions were pre-meditated in specifically loading the gun and preparing it to fire just after 2:30 a.m. on April 14, 2016, as he sat in Daniel Lypka’s red Honda when all he had seen was a car coming into a car parking lot behind him, even if its headlights were turned off.

120The presence and anticipated use of a gun in this case was plainly pre-meditated. Mr. Roberts-Stevens possessed that gun for the purpose of permitting him to settle his own battles and to protect his illegal turf, as a significant and obviously busy drug dealer. In those circumstances, the presence of gun violence in this case leading to the death of an innocent, even if imperfect man, a son, a brother, a god son, and a brother-in-law, necessarily calls for the imposition of a significant sentence, and a strong message of general deterrence and denunciation about this behaviour, and a message of specific deterrence to this specific offender.

(iii) Aggravating and Mitigating Factors

121I find the following to be aggravating factors in the circumstances of this case:

(i) As noted above in paragraph 83, I have no doubt that Daniel Lypka believed at the time that he would be able to reclaim his car from Mr. Roberts-Stevens without incident, and he would not have had a reasoned awareness that Mr. Roberts-Stevens would be armed with the loaded slap-gun, ready to discharge. To that limited extent, I do find that he was vulnerable. But this is not as important an aggravating factor as others, and I find that it does not merit the same weight as was accorded to victim vulnerability in either R. v. Cleyndert or R. v. Clarke.

(ii) The use of a prohibited firearm is strongly aggravating. There was no trigger in this case. There were no safety features on it. There was no legal purpose whatsoever for the possession of a homemade firearm like this. By its very nature, it was both more dangerous and less reliable or safe than other commercially made firearms. Contrary to submissions, there was nothing in its appearance that could frighten or ward off others. It simply looked like two pipes. It had to be discharged to be of use, and its only purpose was to kill or maim.

(iii) The shooting took place in a residential area of Toronto. This tragic cascade of events arose simply from a car coming into a parking lot in the back of a residential building. It is an aggravating feature that Mr. Roberts-Stevens’ reaction to the car entering into the parking lot of a residential building was to immediately assemble and load the handmade firearm.

(iv) The mix of drugs and guns is a strongly aggravating feature. In R. v. Wong,¹⁸ the Court of Appeal states that the combination of drugs and guns has caused real tragedy in the GTA and must be treated as a serious aggravating factor on sentencing. By his own testimony, Mr. Roberts-Stevens bought and carried this gun so that he could continue his drug trade business, so that he could feel safe doing so, and so that he wasn’t muscled out of business. Even accepting that he was threatened at some earlier time, his actions simply reaffirm that he bought the slap-gun to make sure he could continue to be a drug dealer – to defend what he regarded as his drug dealing territory and clientele. That was why he had the gun with him. He bought it to use it if he needed to.

(v) While not exceedingly long, Mr. Roberts-Stevens’ criminal record is aggravating, not just in the number of convictions that he has amassed, but in their nature and consistency. Mr. Roberts-Stevens is a young man, which is a factor that goes to mitigation, as I will describe, but he had been amassing criminal convictions consistently since the age of 16 to the time of this offence, in April 2016, when he had just turned 21.

(vi) It is aggravating that Mr. Roberts-Stevens was breaching two probation orders relating to earlier offences at the time of these events in early 2016.

(vii) It is a serious aggravating factor that Mr. Roberts-Stevens was in violation of two weapons prohibitions orders at the time of this offence.

(viii) Finally, it is aggravating that the attack on Mr. Lypka not only tragically and unnecessarily ended his life, but also has irreparably devastated the lives of his mother and father, his sister, his godmother, and his brother-in-law.

122Let me now turn to address the mitigating factors in the circumstances of this case. They cannot simply be listed. They require a more fulsome discussion.

123First, Tre Roberts-Stevens is a young person. Normally, it is appropriate to consider younger people, with their limited life skills and their limited life experiences, as being better candidates when it comes to their potential for rehabilitation. In this case, Mr. Roberts-Stevens has now earned his high school equivalency certificate from the Ministry of Education through the Amadeusz education program at the Toronto East Detention Centre, and he has completed two other cognitive skills enhancement day programs. He told us he has found God in his life and converted to Islam. These are accomplishments that provide some reasonable hope that rehabilitation is possible in this case.

124However, Mr. Roberts-Stevens has no occupation or trade to fall back on and his only employment, other than selling illegal drugs for a living, which he relied upon for his livelihood for five or six years before these events, has involved working at Tim Hortons as a teen and then on and off doing door-to-door sales, I believe for a windows and eavestrough company. Those are not factors that, in my view, will reasonably provide him with a foundation that I can count upon to assist him in rehabilitating himself into a productive and law-abiding citizen. While he has expressed hope that he can attend Fanshawe College to study Sound Engineering and business at the completion of his sentence, at present, absent a better educational foundation, and significant life skills and anger management counseling, that remains largely a pipe-dream.

125Crown counsel suggests there are virtually no reasonable prospects of rehabilitation for Mr. Roberts-Stevens, but I do not accept that the forecast is quite that grim. What I do accept, however, is that his present prospects of rehabilitation are limited given his criminal past and an absence of law-abiding conduct, despite his progress in obtaining his GED equivalent while in custody. At present, it is difficult to see that, despite what might be his best efforts, he would have any occupation to turn to upon release other than to resume his life dealing drugs. If he has the personal determination, courage and tenacity to progress with it, in my view the strongest prospect he has for rehabilitation may and likely will be most assured by spending a longer period of time in federal incarceration. This is due to the broad panoply of programs and education that is available to inmates that can teach them trades, and anger and life skills management, and thereby better equip them for their release into the community after their sentence has been served.

126It is important and mitigating to consider that Mr. Roberts-Stevens is a youthful offender who had only spent 90 days in jail at the most during his five-year criminal career preceding this event, but I do not consider his record to be minor, including as it does convictions for trafficking offences, dangerous operation of a motor vehicle, robbery and assault and attempted theft. He had just turned 21 at the time of this offence, and he had never served any penitentiary time. Indeed, the longest period of incarceration he has served has been his pre-trial and sentencing custody.

127Defence counsel invokes the principles articulated by the Court of Appeal in R. v. Borde,¹⁹ where the offender had been convicted of aggravated assault by pistol-whipping the victim. However, the focus of the trial judge on deterrence and denunciation in that case was found to be in error. The Court of Appeal confirmed that the length of the first penitentiary sentence for a youthful offender should rarely be determined solely by objectives of denunciation and general deterrence. Instead, where an offender has not previously been to the penitentiary or served a long adult sentence, the court should proceed on the basis that the shortest possible sentence will achieve the relevant objectives. In that case, the court concluded that the serious nature of the offences and of the accused's youth record had to be balanced against the accused’s age and his chaotic background as part of a dysfunctional family raised in poverty by a mother with mental illness. More than in the present case, the court specifically observed that there was reason to be optimistic about the accused's prospects of rehabilitation.

128While the principles in Borde are relevant in this case, insofar as Mr. Roberts-Stevens has never served a penitentiary or long adult sentence, and given that he is a youthful offender, his circumstances are quite different. Mr. Roberts-Stevens does not come from a dysfunctional family background and was not raised by a mother who had mental illness in circumstances of poverty. Indeed, the pre-sentence report confirms that he grew up in a stable home where there was no evidence of abuse of any kind. Moreover, in this case the offender has been convicted of manslaughter, not simply an aggravated assault. Borde does not stand for the proposition that the mere fact that an offender is youthful or has never served a penitentiary sentence provides the foundation to impose a sentence in a manslaughter case that is materially less than the range of sentence otherwise established by the case law. While the sentence in Borde was reduced, a significant sentence was still required, and Rosenberg J.A. specifically stated that the sentence was justified, not only for purposes of general deterrence and denunciation, but as a matter of specific deterrence for that offender.²⁰ Despite his youth, he had revealed himself as a dangerous individual and a lengthy sentence had to be imposed.

129In my view, while Mr. Roberts-Stevens’ youth and prior sentences do require consideration, they cannot detract from the obvious fact that Mr. Roberts-Stevens has also demonstrated himself to be a dangerous individual – one capable of causing the death of another person – and those facts on their own necessarily command a significant sentence of incarceration that is within the range established by the case law. Moreover, insofar as I am asked by the Crown to impose a period of parole ineligibility under s. 743.6(1) of the Criminal Code, that exercise specifically requires me as the trial judge to focus on denunciation and deterrence in the public interest. It seems plain that Parliament understood well in enacting that provision, that in circumstances where a period of parole ineligibility is found to be necessary, it necessarily reduces, even if it does not totally eliminate, considerations relating to the first penitentiary sentence of a youthful offender.

130Turning to the issue of remorse, it is said, correctly, that remorse is a mitigating factor, but that an absence of remorse is not an aggravating factor.²¹ Mr. Roberts-Stevens may lack remorse for all his previous breaches of the law, and certainly, his approach to life and manner of living and securing his livelihood before Mr. Lypka’s death appear to have been totally unaffected by the penalties that were imposed upon him. He simply resumed his life as a drug dealer, right where he had left off. His lack of change that he testified about ties in with his purchase of the slap-gun, and as I have indicated, that factor does increase his moral culpability.

131However, I do not accept that Mr. Roberts-Stevens is not remorseful for killing Daniel Lypka. There was the evidence of Mr. Roberts-Stevens’ mother, who described his behaviour in the 24 hours following Mr. Lypka’s death in which she was with him, and during which he was weeping, vomiting, and saying over and over again “my friend” and expressing extreme remorse for the death of Mr. Lypka. Whether that was true remorse for what he had done, or rather self-pity and a product of fear, loathing and anxiety at the consequences that he would face is uncertain to me, but I do accept that he did express at least some form of remorse during that period.

132I have already described their friendship as parasitic to outside observation, but there was also evidence before the court that they actually were “friends” in a true sense, albeit friends who had fallings out. Mr. Roberts-Stevens’ emotional reaction to the statements made in court by the members of the Lypka family, and in particular Zack Langlois’ strong and thoughtful presentation, does suggest remorse, and it was genuine in my view. I do consider and sincerely hope the Lypka family will be able to accept Mr. Roberts-Stevens’ statement to them as a true expression of remorse. He said in part as follows:

I just want you guys to know that he did touch my heart in a lot of ways. There was a lot of things that he did try to motivate me to do. He did try to motivate me to get out of the drug trade. He did try to motivate me to, to change my life. He did try to motivate me to, to stop using drugs. And all that I can say really is I’m sorry and for those of you who do forgive me, I really thank, thank you for that. If there is any of [you] who don’t forgive me, at the end of the day, I can’t really blame you because you guys have a big part of your life that’s missing and there’s, honestly and truthfully for a lot of people that’s not forgivable, especially for the circumstances being -- I just, I don’t really know what to say other than I’m sorry. And I pray that one day that you guys could forgive me for my wrongs, and one day I could show this world that I’m a changed man.

133Whether Mr. Roberts-Stevens is a changed man, or can become one, and whether he can be rehabilitated and reformed into a law-abiding citizen, who leaves his criminal antecedents behind, remains to be seen, and is a matter entirely within his control and determination. Nevertheless, I do accept that he has shown remorse and that factor is mitigating, at least to some extent given the seriousness of the crime.

(iv) Decision on Sentence

134Despite the mitigating factors, and even taking them at their highest, I find that the predominant factors on this sentencing remain the aggravating ones. Mr. Roberts-Stevens told the court that he obtained an illegal firearm knowing it was in contradiction of his prohibitions and that he did so to fuel and protect his drug career. He stood there at about 2:43 in the morning on April 14, 2016, with a loaded homemade prohibited weapon fully prepared and intending to use it. He was pointing that firearm at a target when he really did not know whether that target was a threat to him or not. Once he knew that the other person was Daniel Lypka, and not a threat, he did not disengage, even though I have found that he had time to do so. He continued to point the firearm at Mr. Lypka. All of that conduct was likely to at least put Daniel Lypka at risk of serious bodily injury. Indeed, given that it was loaded with a shotgun shell and that they were only several feet apart from each other, that conduct was more likely to at least put Daniel Lypka at risk of life threatening injury if the shotgun were to discharge. I find that this places Mr. Roberts-Stevens’ moral blameworthiness in the upper third of the scale, even if not at the very top.

135In light of those circumstances, the principle of parity set forth in s. 718.2(b) of the Criminal Code makes plain that it is the upper end of the range of sentence of 8-12 years that is appropriate in this case. Crown counsel argues that in the absence of anything that in his submission meaningfully mitigates either the gravity of the offence or the extent of Mr. Roberts-Stevens’ moral culpability, the principle of proportionality calls for a sentence at the very top of that range, that is, a sentence before credit of at least 12 years, plus a further two years because of the presence of the firearm.

136Certainly, the presence of the illegal firearm is aggravating, but in my view it is not to be treated as a separate offence. Instead, its impact must be recognized within the applicable range. Mr. Roberts-Stevens is not being sentenced for both manslaughter and firearms offences: he is to be sentenced solely for manslaughter, albeit a death caused by possession and use of an illegal firearm contrary to two prohibition orders that bound him at the time of the offence. That factor is certainly relevant from the perspective of aggravation, say as compared to the use of a knife,²² but I reject the position that it calls for a sentence beyond 12 years.

137While I am required to ensure that the sentence imposed respects the principles of proportionality and consistency of sentences for similar offences,²³ the determination of a fit sentence will always remain an individualized process. I have come to the conclusion that the gravamen of this offence and the aggravating factors would call for the imposition of a sentence that approaches the top of the range. The specific factors that inform that conclusion are (i) the use of a prohibited firearm, (ii) the residential venue of the shooting, (iii) the strongly aggravating mix of drugs and guns, (iv) Mr. Roberts-Stevens’ failure to disengage at the point when he knew it was Daniel Lypka in front of him, (v) the serious aggravating violation of weapons prohibitions orders at the time of this offence, and (vi) the senseless death of Daniel Lypka and the irreparable devastation caused to his family.

138However, there are mitigating factors present as well that weigh in favour of a sentence that is somewhat lower. The specific factors that inform that conclusion are that (i) Tre Roberts-Stevens is a young person, (ii) there is at least some reasonable hope that rehabilitation is possible in this case, (iii) he has never served a penitentiary sentence before, and (iv) I do find him to be remorseful for Daniel Lypka’s death.

139Based upon the foregoing and for the reasons I have explained, I have determined that the fit sentence in all of the circumstances of this case, before credit, is a sentence of 10.5 years in a federal penitentiary.

(v) Delayed Parole Eligibility

140Finally, the Crown has requested that I make an order under s. 743.6(1) that Mr. Roberts-Stevens serve one-half of his sentence before he can apply for parole, based on the nature and circumstances of this crime. That section provides that a 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.

141I would first note that I am satisfied that proper notice was provided by the Crown of its intention to bring this application, and as such, procedural fairness safeguards have been properly observed.

142The decision in R. v. Zinck²⁴ remains the leading case on s. 743.6. The court laid out the appropriate framework for delaying parole eligibility in para. 33:

33. As mentioned above, courts must perform a double weighing exercise. First, they must evaluate the facts of the case, in light of the factors set out in s. 718 of the Code, in order to impose an appropriate sentence. Then, they must review the same facts primarily in the perspective of the requirements of deterrence and denunciation, which are given priority at this stage, under s. 743.6(2). The decision to delay parole remains out of the ordinary, but may and should be taken if, after the proper weighing of all factors, it appears to be required in order to impose a form of punishment, which is completely appropriate in the circumstances of the case. This decision may be made, for example, if, after due consideration of all the relevant facts, principles and factors at the first stage, it appears at the second stage that the length of the jail term would not satisfy the imperatives of denunciation and deterrence. [My emphasis.]

143I am first required to evaluate the facts of the case to determine the appropriate sentence. In this case I have determined it to be 10.5 years. I am then required to review those same facts solely from the perspective of the requirements of deterrence and denunciation. This is a secondary process where deterrence, both general and specific, and denunciation are the lens through which I must look at both the circumstances of the offence and the character and circumstances of the offender. It is the prosecution that has the burden of showing that this additional punishment is necessary.²⁵

144In R. v. Jageshur,²⁶ the court refers to R. v. Goulet,²⁷ where the Court of Appeal noted at para. 19 that at this stage of the process, rehabilitation considerations are entirely subordinate to general deterrence and denunciation, and the specific deterrence of the offender:

Where the Crown has adduced clear evidence that the offender will not be deterred or rehabilitated within the normal period of parole ineligibility, an order under s. 741.2 will be appropriate. A history of prior parole violations or violations of other forms of conditional release or evidence that significant prior custodial sentences have had little impact would be appropriate factors to consider in applying s. 741.2.

145While a delayed parole eligibility order will never be regular, and will always be the exception rather than the rule, I think it is important to note that there have been two different jurisprudential streams of thought in Canada relating to the circumstances that must be present before the order can be made. One stream embraces the theme and has focused on the remedy as being exceptional in nature, that is, as an “exceptional measure”.²⁸ The other stream, which originated in the Alberta Court of Appeal and is also referenced in Zinck, adopted a significantly broader approach to the interpretation of the provision and was summarized at para. 18 of R. v. Hanley²⁹ as follows:

This court has previously had occasion to consider the scope of s. 743.6 in R. v. Matwiy ... (1996), 1996 ABCA 63, 105 C.C.C. (3d) 251 (C.A.). This court did not impose on trial judges a requirement that they satisfy themselves that the circumstances were "extraordinary" or "unusual" or "particularly aggravating" so as to permit such an order to be made. The point made by Mr. Justice Iacobucci in R. v. Shropshire, supra, with respect to what is now s. 745.4 applies with equal force to this section. There is nothing in s. 743.6 which indicates that it is a condition precedent to its exercise that either the circumstances of the offence or the offender be in this "unusual" category, let alone so unusual, in order for a trial judge to impose an order under this section. To judicially impose such a threshold requirement would fetter and undermine the general discretion, which Parliament has given to trial judges. What the section does require, and this was confirmed by this court in Matwiy, is that the trial judge be convinced that denunciation or specific or general deterrence will not be properly met without a s. 743.6 order, taking into account all relevant circumstances. [My emphasis.]

146LeBel J. reconciles these seemingly discordant positions in Zinck as follows:

The judge must satisfy himself or herself that the order is needed to reflect the objectives of sentencing, with awareness of the special weight ascribed by Parliament to the social imperatives of denunciation and deterrence. Nevertheless, at the end of this intellectual process, the sentencing decision must remain alive to the nature and position of delayed parole in criminal law as a special, additional form of punishment. Hence it should not be ordered without necessity, in a routine way. This idea is acknowledged by Griffiths J.A., in Goulet (p. 65). It is this aspect of s. 743.6 that explains the development of the jurisprudential current emphasizing its exceptional nature. The other stream of jurisprudence, which shies away from using the vocabulary of an "exceptional measure", does not seem, in practice, to have applied s. 743.6 in a different manner. None of these judgments has suggested that a delayed parole order should be considered an ordinary measure, to be applied in the normal course; they agree that it should be invoked only on the basis of demonstrated need. [My emphasis.]³⁰

147Defence counsel in his submissions refers to R. v. Gill.³¹ That was a case where Daley J. declined the Crown’s application for the order, after referring to the passage in Zinck that I have just referenced. In that case, the offender had shown little previous regard for court orders, including in particular a weapons prohibition order and a term of house arrest. He had been a drug dealer for several years and customarily carried a handgun. Expert psychiatric evidence raised uncertainty relative to the offender’s prospects of rehabilitation and risk of reoffending. Nevertheless, Daley J. declined to issue the order and said:

In my view, the Crown has not established that the offender's circumstances are exceptional so as to give rise to a demonstrated need for additional punishment in the form of delayed parole eligibility.

While the offender has been found guilty of a very serious offence, which was committed at a time when he was in breach of prior court orders, in my view, the sentence imposed adequately addresses the sentencing objectives. Further, there is no clear and convincing evidence that demonstrates that he will not be deterred or rehabilitated within the normal period before parole eligibility.

The circumstances of the offender fall outside the orbit of the exceptional cases that give rise to the need for delayed parole eligibility.³²

148The Crown relies upon Jageshur to support its contention that this is a case where the order should issue. Amongst the factors there that caused Clark J. to impose the order, were his observation that the offender was prepared “to blast” a police officer if he happened to be stopped while in possession of the illegal drugs he was purchasing for resale, and that he carried a handgun enabling him to do just that. However, there were other exceptional aggravating features, including a prior conviction in the United States for manslaughter, a failure to be rehabilitated while serving his sentence for that crime, an absence of remorse, and the fact that none of his prior history deterred him from again possessing a firearm that he was prepared to use to kill a man if necessary.

149Mr. Roberts-Stevens’ circumstances share some of the attributes that were present in Gill and some of those that were present in Jageshur. As in Gill, Mr. Roberts-Stevens has shown little previous regard for court orders, including in particular two weapons prohibition orders and two probation orders, he has been a serious drug dealer for at least five years, and he had taken to carrying the homemade slap-gun to protect his business. Although there was no expert psychiatric evidence raised in this case relative to the offender’s prospects of rehabilitation and risk of reoffending, as I will address further, they are also uncertain. As in Jageshur, Mr. Roberts-Stevens acquired the slap-gun to use it. He was plainly prepared “to blast” anybody who he regarded as a threat to his drug dealing business. And even though his prior sentences were not lengthy like in Jageshur, it is plain that he was not deterred either by those sentences and orders, either from returning immediately to the drug trade, or from acquiring a deadly weapon whose only purpose was to kill.

150In my view, however, there is an important additional factor here that does not appear to have been present in either of the two cases mentioned. That is Mr. Roberts-Stevens’ need for rehabilitation in order to specifically deter him from committing crime in the future, or from returning to life as a drug dealer, with the risk posed to the public of him again possessing another firearm. There are two distinct aspects to this need.

151First, let me repeat my previous observations, concerns and conclusions relative to Mr. Roberts-Stevens’ prospects for rehabilitation. In my view, his present prospects of rehabilitation are limited given his criminal past and an absence of law-abiding conduct, despite his progress in obtaining his GED equivalent and attending two, day-long counselling programs while in custody. At present, it is difficult to see that, despite what might be his best efforts, he would be specifically deterred upon release from resuming his life dealing drugs, because, as the evidence shows, he has no occupation or trade to turn to.

152As I emphasised previously, in my view the strongest prospect he has for rehabilitation and to be specifically deterred from returning to a life of crime upon release will be most assured by spending a significant period of time in federal incarceration.

153The reason is that during his incarceration, he will have access to the broad panoply of programs and education that is available to inmates. He will be able to learn a trade, to progress in first steps towards his goal of becoming a sound engineer, and he will be counselled and taught anger and life skills management. This is the discipline and structure that Mr. Roberts-Stevens has never had in his life, but that I find he must receive in order to equip him for his ultimate release into the community after his sentence has been served. In my view, only if that structure and discipline is imposed upon him for a significant period will the goal of specific deterrence for him be met, by increasing the likelihood of him achieving rehabilitation while serving that sentence.

154The problem is that given that Mr. Roberts-Stevens is entitled to pre-sentence custody credit of about four years, I am deeply concerned he will become entitled to apply for parole before the specific deterrence he requires can reasonably be expected to have achieved its goals. If I had been persuaded by defence counsel to impose a sentence as low as six to eight years, and I have not been, for all practical purposes, Mr. Roberts-Stevens would be eligible for statutory release the moment after he is sentenced here today. By my calculation, given the sentence of 10.5 years that I find to be the fit sentence for Mr. Roberts-Stevens, after taking account of his pre-sentence detention credit, he would be eligible for day parole, leading to full parole, in around 18 months’ time.

155I am mindful, as the Court in Zinck observes at para. 29, that a decision to delay parole “remains out of the ordinary”. But having weighed all of the circumstances, I find that it is reasonable to conclude that if Mr. Roberts-Stevens were not required to serve half of the sentence he will be required to serve after credit before being eligible for parole, that the principles of denunciation and deterrence, and specifically the specific deterrence of this offender, would not be adequately addressed.

156Not only do I conclude that a period of incarceration of just over a year and a half would be inadequate to ensure the specific deterrence of this offender, and the greatest likelihood of his rehabilitation, but I also consider that inadequacy, combined with the aggravating factors in this case (including the senseless and totally unnecessary death that was the result of Mr. Roberts-Stevens’ conduct in this case) do call for delayed parole eligibility for this specific offender.

157I find that the Crown has established that this offender's circumstances are exceptional and do demonstrate the need for delayed parole eligibility. As I have observed, the offender has been found guilty of a very serious offence, the killing of another human being, which was committed at a time when he was in breach of prior court orders prohibiting him from possessing the firearm that became the instrument of death. In my view, the sentence imposed will not alone adequately address the sentencing objectives.

158I find that there is clear and convincing evidence before me that demonstrates that Mr. Roberts-Stevens would not be deterred from returning to a life of crime, nor is he likely to be rehabilitated within the normal period before parole eligibility. That convinces me that general denunciation and deterrence, and the specific deterrence of this offender, will not be properly met without a s. 743.6 order, taking into account all relevant circumstances. The reason, frankly, is because at present, Mr. Roberts-Stevens knows no other life or form of occupation. It is these quite unique circumstances that cause me to find that this is an exceptional case that does give rise to the need for a period of delayed parole eligibility. I do not impose the order casually or lightly, but on the basis of my conclusion that there is a demonstrated need for it.

Disposition

159Mr. Roberts-Stevens, will you please stand.

160Mr. Roberts-Stevens, you have been convicted by the jury of manslaughter in the death of Mr. Daniel Lypka, and it now falls to me to impose sentence on you.

161You are entitled to receive credit on a 1.5 to 1 basis for the time spent in pre-sentence detention. You have been in custody since your arrest on April 15, 2015, for a total of 918 days up to October 19, 2018, and a further 82 days to today’s date, January 10, 2019, for a total of exactly 1,000 days. You are entitled to 1.5 days of credit for each of those days, and so you shall receive credit of four years, one month and 10 days³³ against the sentence I must now impose upon you.³⁴

162Since I have determined that the fit sentence in all of the circumstances of this case is a sentence of 10.5 years, after enhanced credit for your pre-sentence detention, I sentence you, Tre Roberts-Stevens, to a remaining sentence of six years, four months and 20 days.

163I am also ordering under s. 743.6(1) of the Code that you shall serve half of that sentence before being eligible for parole.

164The Ancillary Orders sought by the Crown will issue, including the mandatory provision of a DNA sample under s. 487.051 of the Criminal Code and a weapons prohibition for life under s. 109 of the Code.

165Those are my reasons for sentence.

Michael G. Quigley J.

Footnotes

1. 1R. v White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72.
2. 22008 SCC 6, [2008] 1 S.C.R. 96.
3. 3(1993), 1993 CanLII 14863 (MB CA), 85 Man. R. (2d) 241 (C.A.), referred to in R. v. Ndlovu, 2017 MBQB 157, at para. 26, where the offender pleaded guilty to manslaughter and was sentenced to nine years’ imprisonment for using his gang affiliation to obtain gang resources, a firearm, which was used to kill the victim.
4. 41991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
5. 5The Cambridge Dictionary of the English Language defines the noun “Dutch courage” as a colloquial but historically based expression for the confidence that some people get from drinking alcohol before they do something that needs courage
6. 6R. v. Cleyndert, 2006 CanLII 33851 (ON CA), [2006] O.J. No. 4038 (C.A.), at paras. 11-13. See also R. v. Garrison, 1999 CanLII 2875 (ON CA), [1999] O.J. No. 3782 (C.A.) and R. v. Clarke, 2003 CanLII 28199 (ON CA), [2003] O.J. No. 1966 (C.A.).
7. 72016 ONSC 25, 128 O.R. (3d) 752, at para. 22, aff’d 2018 ONCA 77, 139 O.R. (3d) 241.
8. 8Cases relied upon by the Crown on this sentencing include: R. v. Danvers, 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.); R. v. Barton, 2017 ONSC 4039; R. v. P.P.J., [2010] O.J. No. 5440 (S.C.), at paras 32-43; R. v. Wong, 2012 ONCA 767, at paras. 11-13; R. v. Cleyndert, 2006 CanLII 33851 (ON CA), [2006] O.J. No. 4038 (C.A.), at paras. 11-13; R. v. Jamieson, 2012 ONSC 1114, at paras. 2, 12-14, 24, 39-40, aff’d 2014 ONCA 593, at paras. 1-3; R. v. Ndlovu, 2017 MBQB 157, at paras. 32-39; R. v. Tahir, [2012] O.J. No. 6449 (S.C.), at paras. 8-55; R. v. Tahir, 2016 ONCA 136, at paras. 1-2; R. v. Jageshur, 2014 ONSC 5822, at paras. 34, 43-45, 87-93, 100-107; and R. v. Young, [2007] O.J. No. 311 (S.C.), at paras. 68-73.
9. 9Cases relied upon by the defence in this case include: R. v. Clarke, 2003 CanLII 28199 (ON CA), [2003] O.J. No. 1966 (C.A.), at paras. 6-8; R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 36; R. v. Scopelliti, 2018 ONSC 4826, at paras. 13-18, 26-29, 43-45; R. v. Corbett, 2015 ONSC 6118, at paras. 23, 24, 28-30; and R. v. Gill, 2011 ONSC 2598, at paras. 44-49, 51-53, 70-79.
10. 10R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 247.
11. 112017 BCSC 198.
12. 12See e.g, R. v. Clarke, 2003 CanLII 28199 (ON CA), [2003] O.J. No. 1966 (C.A.); R. v. Devaney (2006), 2006 CanLII 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.), at paras. 35, 38; R. v. Cleyndert, 2006 CanLII 33851 (ON CA), [2006] O.J. No. 4038 (C.A.), at para. 12; R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at para. 83; R. v. Tahir, [2012] O.J. No. 6449 (S.C.), at paras. 8-55, aff’d 2016 ONCA 136 (C.A.), at para. 2.
13. 13Ibid, at para. 33.
14. 14Ibid, at para. 34; see also R. v. Clarke, 2014 ONCA 777, 319 C.C.C. (3d) 127, at paras. 30-32.
15. 15(2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.).
16. 162017 ONSC 4039, at para. 64.
17. 17[2010] O.J. No. 5440 (S.C.).
18. 18R. v. Wong, 2012 ONCA 767, at paras. 11-13.
19. 19(2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.).
20. 20Ibid, at para. 39.
21. 21R. v. Corbett, 2015 ONSC 5125, at paras. 23, 24, 28-30.
22. 22See R. v. Jamieson, 2012 ONSC 1114, aff’d 2014 ONCA 593, where the offender was sentenced to 12 years for manslaughter in circumstances where the victim was killed by a single stab wound, while the offender was on probation, and where the offender did nothing to assist the victim.
23. 23R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.
24. 242003 SCC 6, [2003] 1 S.C.R. 41.
25. 25Zinck, at para. 31.
26. 262014 ONSC 5822, aff’d 2017 ONCA 15, para. 93.
27. 27(1995), 1995 CanLII 1198 (ON CA), 97 C.C.C. (3d) 61 (Ont. C.A.).
28. 28See Zinck, at para. 27, and cases cited there.
29. 29See Zinck, at para. 28, and cases cited there.
30. 30Zinck, at para. 31.
31. 312011 ONSC 2598.
32. 32Gill, above, at paras. 77-79.
33. 331,000 days at 1.5:1 credit equals 1,500 days, which is 4 years and 40 days.
34. 34Mr. Roberts-Stevens was also entitled to claim credit under R. v. Downes for time spent in totally or partially locked-down pre-trial detention facilities, but, through counsel, he specifically waived any such additional credit.