Court File: CR-17-10000693-0000
DATE: 2019-06-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KYLE SPARKS MacKINNON
Susan Adams and Kerry Hughes, for the Crown
D. Sid Freeman, for Kyle Sparks MacKinnon
HEARD: May 22, 2019
Reasons for Sentence
MacDonnell, J.
[1] On November 22, 2018, Kyle Sparks MacKinnon and Jahmal Richardson appeared before this court and were arraigned on an indictment charging them with five offences: the second degree murders of David Eminess and Quinn Taylor, the attempted murder of Stewart Douglas, and the wounding of Earl McLean and Jethro Collado. All of the offences were alleged to have occurred in the early morning hours of January 31, 2016. On January 13, 2019, after 2½ days of deliberation, the jury found Mr. Sparks MacKinnon guilty of the two counts of murder and the two counts of wounding but not guilty on the count of attempted murder. Jahmal Richardson was found not guilty on all five counts. Mr. Sparks MacKinnon is before the court today for sentencing.
[2] By virtue of ss. 235(1) and s. 745(c) of the Criminal Code, the sentence to be imposed on Mr. Sparks MacKinnon for each of the two counts of second degree murder is a term of imprisonment for life without eligibility for parole until he has served at least 10 years of his sentences. It is open to me, after considering Mr. Sparks MacKinnon’s character, the nature of the offences and the circumstances surrounding their commission, and the recommendations of the jury, to increase the periods of parole ineligibility from 10 years to a maximum of 25.[^1] It is also open to me, after considering those same factors, to direct that the periods of parole ineligibility be served consecutively.[^2]
[3] With respect to each of the counts of wounding, Mr. Sparks MacKinnon is liable to a term of imprisonment of 14 years.
A. The Statutory Considerations
(i) the nature of the offences and the circumstances surrounding their commission
[4] I begin with a consideration of the nature of the offences and the circumstances surrounding their commission.
[5] Section 724(2) of the Criminal Code provides that following a trial before a court composed of a judge and jury, a sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”. The verdicts of guilty in this case represent findings by the jury that Mr. Sparks MacKinnon was one of the two gunmen who opened fire on David Eminess and Quinn Taylor in front of the New Ho King restaurant on Spadina Avenue in Toronto shortly after 3 a.m. on the morning of January 31 2016, that the shooting was a joint endeavor between the two gunmen, that because they were joint participants in the shooting both gunmen caused the deaths of Mr. Eminess and Mr. Taylor, and that when Mr. Sparks MacKinnon opened fire on the victims he had the intent required for murder.
[6] Section 724(2) further provides that while a sentencing judge must accept all of the facts that were essential to the jury’s verdicts, the judge may find to be proven any other relevant fact that was disclosed by the evidence at the trial. 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. Generally, the judge must be satisfied of the existence of a disputed fact on the balance of probabilities, but if the fact is an aggravating fact the judge must be satisfied beyond a reasonable doubt.
[7] I am satisfied that sufficient evidence was adduced at trial for findings to be made in relation to the matters set out below.
[8] At the time of their deaths, Quinn Taylor was 29 years of age and David Eminess was 26. Both were fathers of young daughters. Mr. Taylor was a talented musician who was pursuing a career as a beat writer, songwriter, arranger and producer. Mr. Eminess also had an interest in music. He had grown up in impoverished circumstances in Trinidad and when he was 16 his mother allowed him to come to Toronto, which he saw as an ideal place to seek a better life, a place with a fascinating music scene, and, ironically, a safe place. While there is no evidence as to how they came to know each other, Mr. Taylor and Mr. Eminess were acquaintances and perhaps friends. They were also acquaintances of Stewart Douglas. Mr. Douglas has for many years suffered from mental disorder, specifically schizophrenia.
[9] In the hours before their deaths, Mr. Taylor and Mr. Eminess had been drinking at a bar on King Street near Dufferin Street. At some point, they were joined by Stewart Douglas. At the end of the evening, probably when the bar closed, the three of them got into Mr. Taylor’s car and drove to Spadina Avenue in search of an after-hours club. Shortly after 3 a.m. Mr. Taylor parked the car on the west side of Spadina Avenue, south of Nassau Street, and the three men began walking north in the direction of the New Ho King restaurant. None of them were in possession of weapons of any kind.
[10] By coincidence, they found themselves in the midst of a group of nine males who were also walking north at the same time. Mr. Sparks MacKinnon was one of those males. It appears that Taylor, Eminess and Douglas were strangers to Mr. Sparks MacKinnon and his 8 companions. Although it would not have been apparent to an observer at the time, Mr. Sparks MacKinnon and at least one of his companions were carrying loaded handguns.
[11] Even though it was the middle of the night, there was a lot of pedestrian traffic on Spadina Avenue. The New Ho King was completely full and there was a lineup of people inside waiting for tables. Stewart Douglas did not know precisely where the after-hours club was located. When he, Quinn Taylor and David Eminess arrived at the front of the New Ho King, he decided to ask for directions. He approached someone in Mr. Sparks MacKinnon’s group and asked if he knew where the after-hours club was. The person told him he did not know. After a moment, Douglas repeated the question, at which point the person produced a handgun and shot him in the head. Miraculously, the bullet did not penetrate Mr. Douglas’s skull: it entered his head above the right eye and exited just above the right ear.
[12] There is no doubt that there were significant credibility and reliability issues with Mr. Douglas’s testimony and I cautioned the jury in very strong terms in that respect. The central concerns with respect to his evidence, however, were related to his purported description of the distinctive clothing worn by the person who had shot him. The Crown relied heavily on that description in support of its case against Jahmal Richardson. With respect to what had happened to cause Mr. Douglas to be shot, the concerns were much less significant. There was no real challenge to his evidence that he, Taylor and Eminess were in the area of the New Ho King looking for an after-hours club, that he was not certain where the club was, and that he was shot in the head within seconds of arriving near the front of the restaurant. I am satisfied that he was shot immediately after repeating his request for directions, and that he was shot for no reason other than the shooter found him irritating.
[13] There is no evidence that Mr. Sparks MacKinnon was the person who shot Mr. Douglas. Nor is there evidence that the shooting of Douglas was the product of a joint venture in which Sparks MacKinnon was involved. However, immediately after Douglas was shot Sparks MacKinnon produced a handgun and he and the other shooter began firing at Douglas’s companions – David Eminess and Quinn Taylor. Neither Mr. Eminess nor Mr. Taylor had done anything to provoke an attack. Neither of them posed any threat whatsoever to either of the shooters – who were, after all, backed up by seven other men.
[14] Crown counsel submitted that I should find that Mr. Eminess and Mr. Taylor were shot because they had witnessed the shooting of Douglas. That is, the Crown submitted that the motive was to eliminate Mr. Eminess and Mr. Taylor as witnesses. Such a motive would be a significantly aggravating circumstance,[^3] but as such it would require that I be satisfied of its existence beyond a reasonable doubt. I am not so satisfied. The more likely explanation, in my opinion, is that Eminess and Taylor were shot simply because they were associated with Douglas, who had irritated someone in Sparks MacKinnon’s group.
[15] As soon as the gunfire erupted, Mr. Douglas, Mr. Eminess and Mr. Taylor attempted to flee. Douglas made it a short distance south before collapsing against a storefront. He survived. David Eminess ran only a matter of feet before he was shot in the back of the head. He fell to the sidewalk, where he died. Although he had been hit by five shots, Quinn Taylor managed to make his way across Spadina Avenue where he collapsed into the alcove of an east side restaurant. EMS personnel rushed him to hospital, but he died a few hours later from hemorrhagic shock. Mr. Sparks MacKinnon, the other shooter and their seven friends all ran away. The time that had elapsed between the shooting of Mr. Douglas and the flight of Sparks MacKinnon and the others was approximately 20 to 30 seconds.
[16] Sixteen cartridge casings were found on the sidewalk at or near the front of the New Ho King restaurant. The ballistics evidence established that nine of the casings were fired by a .45 calibre Glock pistol. The remaining seven casings were fired by a .40 calibre handgun. Based on the totality of the evidence – and, in particular, the proximity of the .40 calibre casings to the front window of the New Ho King, the eyewitness descriptions of the shooter in front of the New Ho King, and the evidence concerning how the Glock may have made its way to where it was subsequently found in the backyard of a house on Nassau Street – I am satisfied beyond a reasonable doubt that Sparks MacKinnon was the shooter with the .40 calibre gun. The bullet that killed David Eminess was fired from that gun. Accordingly, I am satisfied beyond a reasonable doubt that it was Sparks MacKinnon who shot David Eminess in the back of the head as he attempted to flee for his life.
[17] Although Quinn Taylor was shot five times, only one bullet was recovered from his body after his death. It was fired by the Glock, which was in the possession of the other shooter. There is no direct evidence with respect to which gunman fired any of the other four shots that hit Mr. Taylor. However, before he died, Mr. Taylor provided a description of a person who had shot him. He described that person as a light-skinned black male, wearing a red sweater and a gold chain. That description matches the appearance of Mr. Sparks MacKinnon at the material time and is inconsistent with the appearance of any of the other 8 members of the group Sparks MacKinnon was with. I am satisfied beyond a reasonable doubt that in addition to shooting Mr. Eminess in the back of the head Mr. Sparks MacKinnon fired at least one of the shots that struck Mr. Taylor.
[18] While I have found that Mr. Sparks MacKinnon had the .40 calibre, for the purpose of sentencing nothing much turns on whether he had one gun or the other. Immediately after Douglas was shot, Sparks MacKinnon joined in a murderous fusillade aimed at both of Douglas’s companions. Whose bullets hit which victims is irrelevant to the extent of the moral blameworthiness of either shooter.
[19] The verdicts of the jury do not reveal whether the jury was satisfied that Mr. Sparks MacKinnon had a specific intent to kill as opposed to an intent to cause bodily harm that he knew was likely to kill. Bearing in mind the number of shots that Mr. Sparks MacKinnon fired at two defenseless men, and the fact that he fired one of those shots into the back of David Eminess’s head as he attempted to escape, I am satisfied beyond a reasonable doubt that he had the specific intent to kill both victims.
[20] The two counts of wounding pertain to injuries suffered by two persons who just happened be in the area at the time of the shooting. Earl McLean was walking southbound on Spadina Avenue after a night working security at a bar. As he crossed Nassau Street, south of the New Ho King, he heard the eruption of gunfire and he felt something hit his arm, but he was not sure what had happened. As it turned out, he had been shot in the left elbow. The bullet remained embedded in his arm for about 3½ months until it was surgically removed. Jethro Collado and a group of friends were also southbound on Spadina, a bit further south of Mr. McLean. They were looking for a restaurant. Mr. Collado was hit by a bullet on his left calf, just below the knee. The injury was described as a ‘through and through” gunshot wound.
(ii) the character of the offender
[21] The second matter that a sentencing judge is required to take into account in making decisions with respect to parole ineligibility is the character of the offender. Mr. Sparks MacKinnon did not testify at his trial and he declined the opportunity to address the court at the conclusion of the sentencing submissions. However, Ms Freeman advised the court that he was born in Nova Scotia on April 2, 1990. At the time of the murders of Quinn Taylor and David Eminess he was two months short of his 26th birthday. He is now 29. He has Indigenous roots through his mother’s side of the family, although the precise nature of those roots is unclear. At the request of Ms Freeman, I asked Aboriginal Legal Services to prepare a Gladue Report. After extensive efforts had been made, the Gladue writer advised that she was unable to produce a report because “we are unsure, as is [Mr. Sparks MacKinnon] about the specific nature of his Indigenous ancestry”, and because “even if his ancestry was somehow able to be confirmed we cannot address how being an Indigenous person has affected [his] life circumstances”. The writer cautioned, however, that she was not saying that Mr. Sparks MacKinnon is not an Indigenous person nor that there might not be relevant Gladue issues at play in this case.
[22] After receiving that information, Ms Freeman made efforts to confirm her client’s Indigenous background. After speaking to his aunt, his great aunt and his mother, she learned that his great-grandmother – his mother’s grandmother – was Mi’kmaq. Ms Freeman submitted: “While native heritage did not play a major role in his daily ritual, he has been subject to the intergenerational trauma that is a side-effect of the systemic issues that negatively impact Indigenous populations.” She described those issues as the long history of alcoholism, physical abuse and dysfunction running through Mr. Sparks MacKinnon’s maternal family line – the line with Indigenous background.
[23] Ms Freeman advised that Mr. Sparks MacKinnon’s maternal grandfather – his mother’s father – was an alcoholic who committed suicide. Mr. Sparks MacKinnon’s mother was one of her father’s 26 children. His maternal grandmother – his mother’s mother – was an alcoholic who worked the streets as a prostitute, often with Mr. Sparks MacKinnon’s mother – a young child at the time – in tow. When his mother was about 4 years of age she was taken into care by a social service agency, where she suffered sexual abuse. When she was 6 years of age she was moved into a residential setting with foster parents. Over the course of the next 6 years, she was physically abused by the foster mother and sexually abused by the foster father. While still in foster care, she started drinking and doing drugs. When she was 12 or 13 she ran away and became involved in prostitution.
[24] Mr. Sparks MacKinnon was born when his mother was 28. For at least part of the pregnancy, his mother was in jail. Due to her addictions, she was not able to care for him, and throughout his childhood he had no real relationship with her. He was constantly being moved among his grandparents, his aunts and his father. Ms Freeman advised that when he was under the care of his maternal grandmother he was beaten regularly and viciously. He had been diagnosed with ADHD at a young age and had been prescribed Ritalin. When he was 10, his father discontinued the Ritalin and, as a substitute, got him involved with a boxing club. For about 5 years he boxed regularly. He stopped attending the club when he was 15. As an adult, he has occasionally trained as a boxer for fitness reasons.
[25] Between the ages of 12 and 15, he spent more time with his father and his brothers but, unfortunately, his brothers would torment him. Further, he would see his mother prostituting herself, or high on drugs or alcohol, which left him ashamed and embarrassed in front of his friends. He advised Ms Freeman that his whole childhood seemed to represent rejection, to confirm that no one wanted him. He attended multiple schools in the Halifax area. He completed Grade 10 but dropped out during his Grade 11 year. He has had some legitimate employment in the past – landscaping, renovation and stock room work – but nothing of a consistent or long-term nature.
[26] He has a child, a daughter, who was born in August 2013. Ms Freeman advised that when he is out of custody Mr. Sparks MacKinnon has attempted to be actively involved with her. However, he has only been out of custody for about a year and a half of the five and a half years she has been alive. Ms Freeman advised that while in jail he has attempted to maintain a relationship with his daughter through jail visits and telephone calls.
[27] By age 15 Mr. Sparks MacKinnon had become involved in criminal activity. He advised Ms Freeman that he did so to get money so that he could move away. In the ten years leading up the murders in this case he had been convicted of 25 criminal offences, almost all of which involved violence, firearms or disobedience to court orders. He has been convicted twice for assault, four times for assaulting a peace officer, twice for assault with a weapon, and once for aggravated assault. The aggravated assault conviction, which was the most recent prior conviction, arose from an incident following a minor motor vehicle collision between a car driven by Mr. Sparks MacKinnon and a truck driven by the 22-year-old victim. As the victim was attempting to apologize and exchange insurance information, Sparks MacKinnon suddenly sucker-punched him twice in the face and then, when the victim fell to the ground, kicked him in the chest. The victim suffered serious injuries, including a broken nose and a shattering of the bone supporting the left eye. He required reconstructive surgery and has been left, on a permanent basis, with titanium netting to replace the shattered bone under his eye. The custodial portion of the sentence Mr. Sparks MacKinnon received for that offence – imprisonment for 15 months, less credit for pre-sentence custody – expired just seven months before he once again erupted into violence against strangers on a public street, in the case at bar.
[28] In addition to his convictions for offences of violence, Sparks MacKinnon has prior convictions for possession of a prohibited or restricted firearm with ammunition and possession of a firearm with a defaced serial number, for which he received a penitentiary sentence. He violated his statutory release from that sentence and was recommitted to custody. His disregard for court orders of all kinds - undertakings, recognizances, dispositions and probation orders – has been a constant theme throughout his criminal history and he has amassed thirteen fail to comply convictions. At the time he opened fire on David Eminess and Quinn Taylor, he was not only on probation (as a result of his conviction for aggravated assault) but also subject to three separate firearms prohibition orders.
[29] Undoubtedly, the picture painted by the information provided to the court by Ms Freeman is one of a difficult, unsettled and deprived childhood. The bleakness of that picture is somewhat tempered by the description provided by Mr. Sparks MacKinnon’s father in a letter presented on sentencing. He noted that his son “was always a loving and respecting son”, that he “was always active in sports, weight lifting, playing games and enjoying life. He liked to laugh, joke and be funny around family and friends. [He] was a good friend to others and would always comfort family and friends during difficult times”. He stated: “My son and I always had a loving relationship and he was especially close to his grandmother and was most shaken with her passing. As a father, I supported and encouraged my son in most things he took on. We continue to have a loving relationship and I will always love [him]”.
[30] In addition, letters were presented from Mr. Sparks MacKinnon’s older brother and his godmother attesting to positive aspects of his character.
(iii) the recommendations of the jury
[31] The third matter that a sentencing judge must consider when determining an appropriate period of parole ineligibility in a murder case is any recommendation made by the jury.
[32] Where a jury finds an accused guilty of second degree murder, the trial judge is obliged, before discharging the jury, to ask if they wish to make any recommendation with respect to the number of years that the accused must serve before becoming eligible for parole: s. 745.2 of the Criminal Code. In addition, where the accused “has previously been convicted of murder”, the trial judge is required to ask if the jury wishes to make any recommendation with respect to whether the parole ineligibility period for the subsequent murder should be served consecutively to the ineligibility period for the previous murder: s. 745.21 of the Code. When sentencing an offender for second degree murder who “has already been convicted” of another murder, and when deciding, pursuant to s. 745.51, whether the periods of parole ineligibility for those murders should be served consecutively, the judge is required to have regard to any recommendation made by the jury under s. 745.21.
[33] While the interval was a mere matter of seconds, the verdict convicting Mr. Sparks MacKinnon of the murder of David Eminess was delivered prior to the delivery of the verdict convicting him of the murder of Quinn Taylor. Accordingly, at the time of his conviction for the murder of Mr. Taylor, Mr. Sparks MacKinnon had “already been convicted” of a murder[^4] and the jury should have been asked not only whether they wished to make recommendations with respect to the periods of parole ineligibility that Mr. Sparks MacKinnon should be required to serve but also with respect to whether those periods should be served consecutively.
[34] Regrettably, that did not happen. Through oversight, the jury was only asked to consider making a recommendation with respect to the first question and the jury was only instructed in relation to that question. After retiring to consider the matter, the foreperson announced that only two jurors wished to make a recommendation, and that both of them recommended leaving the ineligibility period at ten years. The error in failing to ask the second question was not brought to the court’s attention by either the Crown or the defence and the jury was discharged.
[35] At the time of the sentencing hearing, the court brought the failure to ask for a s. 745.21 recommendation to the attention of the parties. Neither the Crown nor the defence submitted that this error deprived the court of jurisdiction to make an order under s. 745.51 and I am satisfied that it did not. A similar error occurred in R. v. Brass, 2018 MBQB 182, and an analogous one in R. v. Bain, 2019 QCCA 460. In both cases, the court held that the failure to seek a recommendation from the jury did not preclude the court from making the order to which the recommendation would have been relevant: see Brass, at paragraphs 11 and 30; Bain, at paragraphs 26, 27 and 60.
[36] That is not to say that the failure to seek a recommendation is irrelevant to the parole ineligibility decision. In Brass, Crown counsel submitted that as a result of the failure to ask for a recommendation with respect to whether the periods of parole ineligibility should be served consecutively, it should be presumed that the recommendation would have been that they be served concurrently. The trial judge adopted that approach in Brass and I do so in this case as well.
B. The Victim Impact Statements
[37] Nine victim impact statements were presented in the course of the sentencing proceedings. One of those statements was from Jethro Collado, the young man who just happened to be walking along Spadina Avenue with his friends, looking for a restaurant, when he was hit by one of the 16 shots from the gunfire that erupted to the north of him. Mr. Collado wrote that although it has been three years since the incident, he continues to be anxious in public places, especially after dark.
[38] Michelle Eminess, the mother of David Eminess, who was known to the family as Michael or “Mikey”, wrote about the impact that the death of her son has had on her, on his bothers and sisters, and on his four-year old daughter. He had left the family home in Trinidad to seek a better life in Toronto when he was 16 years of age, but notwithstanding the geographical separation he had maintained close contact with all members of his family and especially with his mother.
[39] Seven statements were presented in relation to the impact that the death of Quinn Taylor has had on his relatives and friends. Those statements were prepared by Quinn’s mother Brenda MacIntyre, his father Gareth Taylor, his grandmother Pearl Taylor, his girlfriend Laura Achiaba, his aunt Shannon Levinsky, a family friend Charmalee Knox, and his music teacher Lisa Patterson. I will not attempt to set out all of the ways in which the death of Quinn has profoundly affected them. I would note, however, that the account provided by Brenda MacIntyre of the ways in which her life has been be devastated by her son’s murder was particularly moving.
[40] The victim impact statements pertaining to the loss of Quinn Taylor and David Eminess are an important reminder that those men were not just names in an indictment, that they were loved and loving sons, fathers, brothers and friends. They are also a reminder that in addition to the impact of crimes like those committed by Mr. Sparks MacKinnon on the immediate victims, those who are left behind all too often are left with scars that will never heal and lives that are forever diminished.
C. The Positions of the Parties
[41] Crown counsel submitted that Mr. Sparks MacKinnon should not be eligible for parole until he has served 30 years of his mandatory sentences of life imprisonment for the two counts of second degree murder. The Crown submitted that this result should be achieved by imposing periods of ineligibility of 15 years on each count, to be served consecutively. The Crown further submitted that concurrent terms of imprisonment of 8 years should be imposed on each of the two counts of wounding.
[42] On behalf of Mr. Sparks MacKinnon, Ms Freeman submitted that the authority provided by s. 745.51 of the Criminal Code to impose consecutive periods of parole ineligibility for multiple murders violates ss. 7 and 12 of the Charter of Rights. Two judges of this Court have already considered a challenge to 745.51 on that basis. After hearing full argument, both judges held that the section does not infringe the Charter: R. v. Husbands [2015] O.J. No. 2673 (S.C.J.) (Ewaschuk J.); R. v. Granados-Arana, 2017 ONSC 6785 (Campbell J.). In R. v. Scarlett, 2013 ONSC 562at paragraphs 43-4, Justice Strathy set forth the well-established principle that decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them. Put shortly, Justice Strathy held, such judgments should be followed unless the subsequent judge is satisfied that the judgments are plainly wrong. After carefully reviewing the reasoning in both Husbands and Granados-Arana, and after hearing the submissions of Ms. Freeman, I was not persuaded that the decisions in those cases are plainly wrong and the constitutional challenge was dismissed.
[43] Ms Freeman further submitted that, in any event, a period of parole ineligibility of 30 years would be harsh and excessive. She submitted that the appropriate period of ineligibility on each count of murder would be 12 years and that those periods should be served concurrently.
D. The Applicable Principles
[44] A period of parole ineligibility is part of the life sentence of imprisonment that is mandatory for an offender convicted of second degree murder. Accordingly, in determining what period of ineligibility should be imposed and whether, in the case of multiple murders, the periods should be served consecutively, the general sentencing principles set forth in Part XXIII of the Criminal Code must be taken into account: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at paragraphs 23-24; R. v. Millard, 2018 ONSC 1299, at paragraph 29; R. v. Granados-Arana, 2018 ONSC 1756, at paragraph 34; R. v. Zekarias, [2018] O.J. No. 6827, at paragraph 30 (S.C.J.).
[45] The fundamental purpose of sentencing “is to contribute… to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of [six] objectives.”[^5] Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender. Whatever sanction is imposed must comport with the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[^6] In addition, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.[^7] Further, the circumstances of Aboriginal offenders and the principles enunciated in R. v. Gladue[^8] must be considered.[^9]
[46] Where an offender is to be sentenced to terms of imprisonment for different offences that arise from separate events, the sentencing judge must consider whether the terms of imprisonment should be served consecutively.[^10] That is not to say that consecutive sentences can only be imposed where the offences arise from separate events, but whether they do is an important consideration: D.A. Thomas, Principles of Sentencing (London: Heinemann, 1970), at pages 47-48.
[47] Notwithstanding the general authority to order that sentences of imprisonment be served consecutively, the sentences of life imprisonment required for each count in a multiple murder situation cannot be made consecutive to each other: Millard, supra, at paragraphs 23 to 26; R. v. Sinclair (1972), 1972 CanLII 1297 (ON CA), 6 C.C.C. (2d) 523 (Ont. C.A.). However, while the terms of imprisonment cannot be made consecutive to each other, the periods of parole ineligibility associated with them can be.[^11]
[48] Where consecutive sentences are imposed, the combined sentence – the totality – must not be unduly long or harsh or exceed the overall culpability of the offender.[^12] This principle extends to the exercise of the discretion to direct that periods of parole ineligibility be served consecutively: Millard, supra, at paragraph 39.
E. Discussion
[49] In a multiple murder sentencing case, the questions of what period of parole ineligibility would be appropriate for each count and whether the court should exercise its discretion to make the periods consecutive are interrelated. Whether sentencing for one murder or more than one, the objective is to arrive at a total period of parole ineligibility that is fit and appropriate for the offences and the offender.
[50] When sentencing for multiple offences, the Court of Appeal has held, a useful approach is first to determine what the appropriate total sentence should be and then to assign sentences for each offence and designate each as concurrent or consecutive to fit within the total: see, e.g. R. v. R.B., 2014 ONCA 840, at paragraphs 7-8; R. v. J.S., 2018 ONCA at paragraphs 63-66; R. v. J.H., 2018 ONCA 245, at paragraph 49; R. v. S.C., 2019 ONCA 199, at paragraph 20. When following that approach, the sentencing judge must take into account all of the principles and objectives of sentencing, including whether, as a matter of principle, separate and consecutive punishments are called for in relation to one or more of the offences. A determination that consecutive punishments are called for will in turn inform the determination of what the fit and appropriate total punishment should be.
[51] This approach is equally useful when determining the periods of parole ineligibility to be imposed for multiple murders. Where it is followed, and where one or more of the murders is first degree murder, it will often as a practical matter lead to consecutive ineligibility periods. The fact that the minimum period of ineligibility for one count of first degree murder is 25 years may well persuade the sentencing judge that the total period for all of the murders should be greater than 25 years. That is, the judge may well conclude that the minimum period of ineligibility for one murder should not be the maximum for all of them, which would be the result if concurrent periods of parole ineligibility were imposed. Thus, the judge might decide, a fit and appropriate total period of ineligibility would require that the separate periods be served consecutively.
[52] On the other hand, if all of the murders are second degree murders, the minimum period of ineligibility for one murder is not the maximum period for all of them. In that situation, it would be for the sentencing judge to decide whether a total parole ineligibility period of 25 years or less would be appropriate. If so, the appropriate total could be achieved with concurrent periods. If the judge were to determine that a total ineligibility period greater than 25 years was called for, the only mechanism for achieving that objective would be to direct that the periods be served consecutively.
[53] In my opinion, the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances offers no support for the position of the defence that a total period of ineligibility for parole of 12 years would be appropriate in this case. Indeed, that principle would not support a 12-year parole ineligibility period even if Mr. Sparks MacKinnon was only facing sentencing for one count of murder.
[54] The Ontario authorities in relation to parole ineligibility for single counts of second degree murder in cases, like this case, of brazen public shootings were thoroughly reviewed recently by Justice Code in R. v. Hayles-Wilson, 2018 ONSC 4337. He stated:
At the bottom end of the range are cases where a 12 year parole ineligibility period has been imposed. See: R. v. Maciel, 2007 ONCA 496; R. v. Paredes (2014), 2014 ONCA 910, 317 C.C.C. (3d) 415 (Ont. C.A.); R. v. Lewis, 2012 ONSC 2488. All of these cases involved somewhat unusual circumstances that were less aggravating or more mitigating and that justified situating the case towards the bottom end of the range. In Lewis, the accused was not the principal who fired the shots, he was 20 years old, he had a criminal record but he had "prospects for rehabilitation", the murder took place in a somewhat less public "vacant apartment", and the jury unanimously recommended the minimum ten year parole ineligibility period. In Maciel, the Court of Appeal imposed the parole ineligibility period as a court of first instance, after reducing a first degree murder conviction to second degree murder on appeal. By this point in time, the accused had already served eight years of his sentence and there had been a "fundamental change". He had been a 20 year old armed "drug dealer" with a prior record at the time of the offence. The murder took place at a drug-related meeting that was pre-arranged at a less public location where no witnesses would be present. The Court of Appeal was in a position to evaluate the accused, like the Parole Board, at a point where he had now made "real and continued progress for over eight years." He had developed "significant work skills", gained "personal insight into his prior behaviour", found "spiritual comfort and support" from attending church, and was "helping and mentoring others" in prison. As a result, there was now "good reason for optimism". Finally, in Paredes the shooting was in a very public place outside a bar on Yonge Street in Toronto, after a dispute with bouncers inside the bar. A completely innocent bystander was shot and killed when the accused fired his gun at the bouncers. However, the shooting appeared to be impulsive, the accused was licensed to own the gun, he was a 22 year old first offender, only one juror recommended more than the ten year minimum period of parole ineligibility, and the accused had "real rehabilitative potential," given that the offence was "out of character".[^13]
[55] In my opinion, all three of the cases referred to by Justice Code in that passage involved less serious offences and/or better situated offenders than does the case at bar.
[56] Justice Code also reviewed a number of cases in the mid-range of parole ineligibility – between 14 and 16 years: R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.) (15 years); R. v. Grant (2016), 2016 ONCA 639, 342 C.C.C. (3d) 514 (Ont. C.A.) (14 years); R. v. Doucette (2015), 2015 ONCA 583, 328 C.C.C. (3d) 211 (Ont. C.A.) (15 years); R. v. Monney, 2017 ONSC 1007 (15 years); R. v. John, 2011 ONSC 3313 (15 years); R. v. Stewart 2008 CanLII 70846 (ON SC), [2008] O.J. No. 5449 (S.C.J.) (16 years). I acknowledge that the circumstances of the murder in each of those cases were serious. I would note as well that in all of those cases the offenders were younger than Mr. Sparks MacKinnon.
[57] At the higher end of the spectrum, Justice Code referred to four cases. In R. v. Chambers, 2018 ONSC 2070, R. v. Belic, [2008] O.J. No 629 (S.C.J.), and R. v. Sarrazin, [2000] O.J. No 6047 (S.C.J.), parole ineligibility periods of 18 years were ordered. In R. v. Weese, 2016 ONCA 449, a period of 22 years was imposed.
[58] In Chambers, the accused shot three persons at a party after a dispute over music, and one of the victims died. The accused was 23 years old but he had a lengthy criminal record. In Belic, the accused took a loaded handgun to a student pub, created a confrontation, and shot and killed one person and injured two others. He was subject to a firearms prohibition at the time and he had an extensive criminal record that included offences of violence. In Sarrazin, the accused shot and killed a rival gang member on a public street corner in Ottawa, after some degree of planning and preparation. He had a prior record that was described as "not all that serious", but he was a member of a criminal street gang.
[59] The circumstances of both the offences and the offender in the fourth case referred to by Justice Code, R. v. Weese, have a number of similarities to the circumstances of the offences and the offender in the case at bar. In Weese, the accused and another man got into an altercation at a pub. They took their dispute outside and exchanged words. The other individual returned to the pub while the accused remained outside. Shortly thereafter, the accused fired 14 shots outside the bar from a semi-automatic handgun. Six people were hit. One of them, an innocent bystander, was killed. After a trial, the accused was found guilty of one count of second degree murder and four counts of aggravated assault. The parole ineligibility recommendations of the jury ranged from 10 to 25 years with five jurors making no recommendation. The accused was aboriginal and although he was only 25 years of age he had a lengthy record that included offences of violence and a previous shooting. The trial judge found that the accused showed no possibility of rehabilitation, that he had a complete disregard for court orders, and that he posed a significant risk to the safety of the public. She imposed a period of parole ineligibility of 22 years. On appeal, the accused argued that the trial judge had failed to give adequate weight to his circumstances as an aboriginal offender, and that an ineligibility period of 16 years would have been sufficient. The Court of Appeal found no error in the trial judge’s approach to the issue of parole ineligibility and the appeal was dismissed.
[60] In light of the foregoing authorities, a period of parole ineligibility of 12 years would fall well below the range for similar offense committed by similar offenders in similar circumstances even if Mr. Sparks MacKinnon were being sentenced for a single count of second degree murder. However, unlike the offenders in the cases referred to by Justice Code, Mr. Sparks MacKinnon is being sentenced for two killings. In accordance with the principle of proportionality, one would expect that the range of parole ineligibility for causing multiple deaths would be higher than the range for causing a single death.
[61] I have reviewed 28 multiple murder sentencing cases in which the possibility of consecutive periods of parole ineligibility was on the table as a result of the enactment of s. 745.51. In 16 of those cases, the court ordered that one or more of the periods of ineligibility be served consecutively; in the other 12 the court ordered that the periods be served concurrently. Put slightly differently, in 16 of the 28 cases the total parole ineligibility period was greater than 25 years, and in the other 12 it was 25 years or less.
[62] As with almost all sentencing decisions, whether a case fell into one category or the other was dependent on its particular circumstances. However, the most reliable predictor in this respect was whether the murders arose from a single event or series of events or from separate events or transactions.
[63] In 14 of the 28 cases, the murders occurred in the course of what was substantially a single transaction. In 9 of those 14 cases concurrent parole ineligibility of 25 years or less was imposed: R. v. Marki, 2018 ONSC 5106; R. v. McLeod, 2018 MBQB 73; R. v. Sharpe, 2017 MBQB 6; R. v. Koopmans, 2015 BCSC 2120; R. v. Klaus, 2018 ABQB 97; R. v. Ramsurrun, 2017 QCCS 5791; R. v. Baumgartner, 2013 ABQB 761;[^14] R. v. Salehi, 2019 BCSC 698; and R. v. Kionke, 2018 MBQB 71. In the remaining 5 single transaction cases, consecutive periods of ineligibility were imposed, resulting in total periods in excess of 25 years: R. v. Husbands, [2015] O.J. No. 2674 (S.C.J.); R. v. Vuozzo, 2015 PESC 14; R. v. W.G.C., 2015 ABQB 252; R. v. Bourque, 2014 NBQB 237; R. v. Garland, 2017 ABQB 198.
[64] In 4 of those 5 cases, however, there were circumstances, apart from the fact that more than one death was caused, that as a matter of sentencing principle justified a separate consecutive punishment. In Bourque, Garland, and Vuozzo the offender had deliberated the killing of multiple victims. In W.G.C. the second murder was committed to eliminate a witness to the first.[^15] Further, in Bourque, Garland, Vuozzo and W.G.C. the offender had been convicted of at least one count of first degree murder. As was discussed earlier, where one or more of the murders is first degree the only mechanism that a sentencing court has to reflect the fact that the offender committed multiple murders is to order that the periods of parole ineligibility be served consecutively. Otherwise, the minimum for one becomes the maximum for all, giving rise to what some have criticized as a ‘volume discount’. In Vuozzo this was a concern that the sentencing judge specifically took into account in deciding to make the periods of parole ineligibility consecutive.[^16]
[65] If Bourque, Garland, Vuozzo and W.G.C. are distinguishable in the manner I have suggested, what remains is that in 9 out of 10 single transaction multiple murder cases concurrent parole ineligibility was imposed.
[66] In the other 14 of the 28 multiple murder sentencing cases that I have reviewed, the murders occurred in the course of separate transactions. In 11 of those 14 cases, the periods of parole ineligibility were ordered to be served consecutively: R. v. Downey, 2019 ABQB 365; R. v. Hudon-Barbeau, 2018 QCCS 895; R. v. Brass, 2018 MBQB 182; R. v. Millard, 2018 ONSC 1299 (Code J.); R. v. Millard, 2018 ONSC 7015 (Forestell J.); R. v. Borutski, 2017 ONSC 7762; R. v. Saretzky, 2017 ABQB 496; R. v. Ostamas, 2016 MBQB 136; R. v. Zekarias, [2018] O.J. No. 6827; R. v. Granados-Arana, 2018 ONSC 1756; R. v. Baumgartner, 2013 ABQB 761.[^17] In 10 of those 11 cases, at least one of the murders was first degree murder,[^18] which, as I have said, left consecutive parole ineligibility as the only mechanism by which reflection could be given to the fact that the offender had committed multiple murders. In only 3 separate transaction cases have the periods of parole ineligibility been ordered to be served concurrently: R. v. Bains, 2015 BCSC 2145; R. v. Delorme, 2019 ABQB 2; and R. v. Rushton, 2016 NSSC 313. In both Bains and Rushton the murders were second degree murders, which gave the sentencing judges room, without resorting to consecutive sentences, to increase the parole ineligibility periods beyond what the offender might have received for a single murder.
[67] An examination of the cases in which concurrent periods of parole ineligibility have been imposed for multiple second degree murders subsequent to the enactment of s. 745.51 reveals a range of ineligibility of between 18 and 25 years: see R. v. Bains, 2015 BCSC 2145 (18 years); R. v. Rushton, 2016 NSSC 313 (18 years); R. v. McLeod, 2018 MBQB 73 (18 years); R. v. Marki, 2018 ONSC 5106 (20 years); R. v. Salehi, 2019 BCSC 698 (20 years); R. v. Kionke, 2018 MBQB 71 (20 years); R. v. Sharpe, 2017 MBQB 6 (22 years); R. v. Koopmans, 2015 BCSC 2120 (22 years); R. v. Klaus, 2018 ABQB 97 (25 years); R. v. Ramsurrun, 2017 QCCS 5791 (25 years).[^19] That range is markedly higher than the range that a single count of second degree murder would normally attract, but a higher range is consistent with the the fact that the offender caused more than one death.
F. Conclusions
[68] The circumstances surrounding the murders committed by Mr. Sparks MacKinnon are chilling. The suddenness with which he opened fire on two defenseless strangers, intending to kill them simply because they were in the company of someone he and his companions found irritating, is shocking. His senseless response to that irritation reflects a twisted perception of the basic values of this community. So too does his utter indifference to the danger his actions posed to the lives and safety of anyone else who had the misfortune to be anywhere near him on Spadina Avenue that morning.
[69] Respect for the rule of law is an essential underpinning of a just, peaceful and safe society. If that respect is to be maintained, the misguided and dangerous values that led to the deaths of Quinn Taylor and David Eminess must be unequivocally denounced and respect for the sanctity of human life must be clearly affirmed. There is a pressing and substantial need to do what that the justice system can to deter not only this offender but also anyone else who might be inclined to resolve differences with others at the end of the barrel of a gun.
[70] I recognize that there is a significant element of tragedy in the circumstances into which Mr. Sparks MacKinnon was born and within which he was raised. Part of his ancestry is Indigenous and I take judicial notice of the devastating intergenerational effects of the collective experiences of Indigenous peoples, which have so often manifested themselves in alcoholism, physical abuse and family dysfunction. Those experiences, and Mr. Sparks MacKinnon’s particular background, provide a context that assists an attempt to understand how he came to be on the path that culminated in the murders of Quinn Taylor and David Eminess. The principles enunciated in R. v. Gladue, supra, must be considered in making sentencing decisions in this case, but those principles are not meant to be applied in a mechanical fashion. Generally speaking, the more violent and serious the offences the more likely it is, as a practical reality, that the terms of imprisonment for Indigenous and non-Indigenous offenders will be close to each other or the same.[^20]
[71] While I accept that Mr. Sparks MacKinnon’s unfortunate upbringing and his Indigenous ancestry played a role in how he came to be on the path that led to the murders of Mr. Taylor and Mr. Eminess, there is nothing before the court that suggests that he is either motivated or likely to choose a different path at any point in the foreseeable future. His criminal record for offences involving violence and firearms is disturbing. At the time of the murders, it had been just 7 months since the expiry of the 15 month sentence he had received for aggravated assault arising from a senseless explosion of violence after a minor motor vehicle collision. Of equal concern is his continuous history of disregard for court orders of any kind. In light of that history, it is hardly surprising that at the time he opened fire in front of the New Ho King restaurant he was not only on probation but also subject to three separate firearms prohibition orders.
[72] The only thing that can be said in support of hope for Mr. Sparks MacKinnon’s rehabilitation is that people can change and that dangerous offenders can ‘age out’. At the moment however, there is nothing to justify a belief that either of those things is apt to happen any time soon. He did not testify at the trial, and he declined the opportunity to address the court at the conclusion of the sentencing submissions. Accordingly, there is nothing to indicate that he accepts responsibility for what he has done, and there is no sign of remorse either directly from him or indirectly from anywhere else. The absence of such evidence is not an aggravating circumstance but its absence deprives him of a potential source of mitigation and deprives the court of a reason for optimism with respect to his rehabilitation: see R. v. Granados-Arana, 2018 ONSC 1756, at paragraphs 50 to 52; R. v. Zekarias, supra, at paragraph 44. There is no basis to believe that he has learned anything from his prior involvement with the criminal justice system or that he has any insight into why he does what he does.
[73] After the return of the verdicts on the counts of murder, the jury was asked if they wished to make a recommendation with respect to the number of years that Mr. Sparks MacKinnon should serve before becoming eligible for parole. After retiring to consider the matter, the foreperson announced that only two jurors wished to make a recommendation and that both of them recommended leaving the ineligibility period at ten years. Through oversight, the jury was not asked, as they should have been, whether they wished to make a recommendation with respect to whether the parole ineligibility periods should be served consecutively to each other. As I have explained, I will assume that the jury would have recommended that the ineligibility periods be served concurrently.
[74] Seeking the input of the jury in relation to parole ineligibility is not a mere exercise in public relations. As the 12 members of the community selected to sit in judgment of the offender, their opinions are a valuable insight into the degree of his moral culpability and I am statutorily bound to take those opinions into account. It must be said, however, that the jury had no information whatsoever about Mr. Sparks MacKinnon’s character. In particular, they were completely unaware of his serious history of violence, his prior penitentiary sentence for possession of a handgun with ammunition, the three firearms prohibition orders to which he was subject at the time he shot and killed the victims in this case, and the fact that he had only recently been placed on probation with a term requiring him to keep the peace and be of good behavior. Further, the jury had no information that would enable them to take into account, as I must, the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[75] Bearing in mind, then, the nature and circumstances of the offences, the character of the offender, and the recommendations of the jury, what is the total period of parole ineligibility that would be appropriate for Mr. Sparks MacKinnon?
[76] In answering that question, all of the principles and objectives of sentencing must be taken into account, including whether as a matter of principle consecutive periods of punishment are called for in relation to the murders. The question of how the sentences should be structured to achieve the appropriate period of parole ineligibility need not be addressed until after the length of the period is determined.
[77] The murders arose from a single series of closely related events that unfolded over the course of about 20 to 30 seconds. Many of the circumstances that tend to aggravate the gravity of one murder – such as that the shooting was unprovoked, the victims were unarmed and defenseless, the gunfire erupted in a public location, the lives of a multitude of innocent persons were put in danger, and a total of 16 shots were fired – also tend to aggravate the gravity of the other. Determining an appropriate period of parole ineligibility for each murder standing alone, and then directing that the periods be served consecutively, could result in a double-counting of the aggravating circumstances and a total period of parole ineligibility that is disproportionate to Sparks MacKinnon’s overall culpability.
[78] If Mr. Sparks MacKinnon were facing sentence for one murder, I would have concluded, based on the authorities cited by Justice Code in Hayles-Wilson, that a period of parole ineligibility of 16 to 18 years would have been appropriate. However, he is to be sentenced for two murders, and the principle of proportionality requires that the total period reflect the fact that he killed two people.
[79] In multiple murder cases arising from a single event in which concurrent periods of parole ineligibility have been imposed, the range of ineligibility is 18 to 25 years.[^21] There have been single transaction cases that have resulted in consecutive periods of ineligibility, and thus total periods that exceeded 25 years, but apart from R. v. Husbands each of those cases had one or more additional features that called for a consecutive punishment. If I have correctly distinguished those cases, Husbands is the only single transaction case that is outside the 18 to 25 year range.
[80] A total period of parole ineligibility of 12 years, as recommended by Ms Freeman, would fall well below that range. It would also fall well below what is necessary to achieve the primary objectives of denunciation and deterrence. However, notwithstanding that Mr. Sparks MacKinnon’s prospects for rehabilitation are bleak, a total period of 30 years of parole ineligibility would be excessive. When he was arrested for the murders on February 11, 2016 he was 25 years of age. If the Crown’s submission were accepted, he would be 55 years old before he was eligible to apply for parole.
[81] After anxious consideration, I conclude that the total period of ineligibility for parole that would be proportionate to the gravity of Mr. Sparks MacKinnon’s offences and the extent of his moral culpability in committing them is a period of 22 years.
[82] Mr. Sparks MacKinnon must also be sentenced for the two counts of wounding. The two wounding victims, Earl McLean and Jethro Collado, were hit by stray bullets from the gunfire that was aimed at Stewart Douglas, Quinn Taylor and David Eminess. Fortunately, the injuries suffered by Mr. McLean and Mr. Collado, while serious, were not life-threatening.
[83] Although Mr. Sparks MacKinnon did not intend to shoot either Mr. McLean or Mr. Collado, it was entirely foreseeable that an unintended target might be hit by one or more of the 16 shots that were discharged by the shooters. Mr. Sparks MacKinnon was utterly indifferent to that risk. He has a serious record for violence. His most recent conviction was for aggravated assault and he was on probation for that offence. Further, at the time of the shooting he was subject to 3 separate firearms prohibition orders. In my view, the appropriate sentence for each of the wounding counts is 7 years imprisonment. See R. v. Gordon, 2009 ONCA 170, and R. v. Boachie, 2008 ONCA 342. Those sentences are to be served concurrently with each other and with the life sentences imposed for the two counts of murder.
G. Disposition
[84] In the result, Mr. Sparks MacKinnon is sentenced as follows.
[85] On each count of second degree murder, he is sentenced to a term of imprisonment for life without eligibility for parole until he has served 22 years of the sentence. The periods of parole ineligibility are to be served concurrently with each other.
[86] On each count of wounding, Mr. Sparks MacKinnon is sentenced to a term of imprisonment of 7 years. Those terms of imprisonment are to be served concurrently with each other and with the terms of imprisonment imposed for the counts of murder.
[87] Because Mr. Sparks MacKinnon has been convicted of indictable offences involving the use of violence that are punishable by imprisonment for 10 years or more, an order under s. 109(1)(a) of the Criminal Code is mandatory. Because he has previously been convicted of aggravated assault, the order must be for life.
[88] Murder is an offence listed in paragraph (a) of the definition of “primary designated offence” in s. 487.04 of the Criminal Code and accordingly a DNA order is mandatory. Pursuant to s. 487.051(1), I authorize the taking of the number of bodily samples reasonably required for the purpose of forensic DNA analysis.
MacDonnell, J.
Delivered and Released: June 10, 2019
[^1]: s. 745.4 of the Code [^2]: s. 745.51. This provision applies notwithstanding that the periods of parole ineligibility are to be imposed in the course of the same proceedings for murders that occurred during the same series of events: see R. v. Vuozzo, 2015 PESC 14, at para. 24; R. v. Brass, 2018 MBQB 182, at paragraph 27; R. v. Downey, 2019 ABQB 365, at paragraph 4; R. v. Baumgartner, 2013 ABQB 761, at para. 34; R. v. Sharpe, 2017 MBQB 6, at para. 6. See also R. v. Husbands, [2015] O.J. No. 2674 (S.C.J.) [^3]: See R. v. Downey, 2019 ABQB 365, and R. v. W.G.C., 2015 ABQB 252 [^4]: See footnote 1, supra [^5]: s. 718 [^6]: s. 718.1 [^7]: s. 718.2(b) [^8]: 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 [^9]: s. 718.2(e); Gladue considerations are relevant to parole ineligibility decisions: R. v. Van Every, 2016 ONCA 87, at paragraph 87 [^10]: ss. 718.3(4)(a) and (b)(i). See also R. v. Granados-Arana, 2018 ONSC 1756, at paragraph 73. [^11]: S. 745.51 [^12]: s. 718.2(b) [^13]: At paragraph 19 [^14]: Baumgartner is a ‘mixed’ case. The offender shot and killed two persons and attempted to kill a third at one location. He then proceeded to another location where he killed a third person. The periods of parole ineligibility for the first two murders were made concurrent with each other but consecutive to the period of parole ineligibility for the separate transaction in which the third murder victim was killed. [^15]: In this respect, see also R. v. Downey, 2018 ABQB 365, at paragraph 58 [^16]: At paragraph 115 [^17]: See footnote 14, supra [^18]: In Ostamas the offender was sentenced for three counts of second degree murder [^19]: In both R. v. Klaus and R. v. Ramsurran the offender was sentenced for three murders; each of the other eight cases involved two murders. [^20]: R. v. Weese, 2016 ONCA 449, at paragraph 26 [^21]: See the cases listed in paragraph 67, supra.