ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – BOQIAO FAN
Oslyn Braithwaite and Imran Shaikh for the Crown
Brian H. Greenspan and Naomi M. Lutes for Boqiao Fan
Reasons for Sentence
MacDonnell, J.
1On October 4, 2019 Boqiao Fan was arraigned in this court on an indictment charging that on or about the 6th day of February, 2017, at the City of Toronto, he killed Haozhi Wang and thereby committed second degree murder. He pleaded not guilty. On October 30, 2019, on the second day of deliberations, the jury returned a verdict of not guilty of murder but guilty of manslaughter. Mr. Fan is before the court today for sentencing.
A. Introduction
2At the time of the material events, both Boqiao Fan and Haozhi Wang were 19-year-old international students from China. Sometime between approximately 11:10 p.m. and midnight on the evening of February 6, 2017 they were involved in two altercations inside the two-story house at 13 Hounslow Avenue in North York in which Mr. Wang resided with seven other international students. Mr. Fan resided elsewhere. Between the two altercations, Mr. Fan had left 13 Hounslow for perhaps 20 to 25 minutes, but had then returned. It was common ground that the first altercation was an unprovoked assault on Mr. Fan by Mr. Wang, and that any force that was used by Mr. Fan in response to that assault was for the purpose of defending himself and was no more than was reasonable for that purpose. The allegation that Mr. Fan committed murder was based on what occurred in the course of the second altercation.
3With respect to the second altercation, the allegation of the Crown was that Mr. Fan engaged in an unprovoked assault on Mr. Wang, punching him in the area of his head and neck. The Crown alleged that the punches thrown by Mr. Fan caused a rupture of Mr. Wang’s left vertebral artery, which then caused a subarachnoid hemorrhage that led to cardiac arrest and death. The Crown further alleged that at the time of the assault, Mr. Fan had the mental state required for murder.
4The position of the defence was that the second altercation began with an assault by Mr. Wang on Mr. Fan, that any force used by Mr. Fan in response was for the purpose of defending himself and was no more than was reasonable for that purpose. Thus, the defence said, Mr. Fan was acting in lawful self-defence. Further, the position of the defence was that the Crown had not proved beyond a reasonable doubt that any force applied by Mr. Fan in the second altercation was a significant contributing cause of Mr. Wang’s death. In any event, the defence said, Mr. Fan did not have the mental state required to make an unlawful killing murder.
5The determination of the jury that Mr. Fan was not guilty of murder but guilty of manslaughter necessarily represents findings that Mr. Fan was not acting in lawful self defence in the second altercation, that the force that he applied in that altercation was a significant contributing cause of Mr. Wang’s death, but that he did not intend to cause Mr. Wang’s death or to cause him bodily harm that he knew was likely to cause his death.
6Section 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”. Section 724(2) further provides that while a sentencing judge must accept all of the facts that were essential to the jury’s verdict, 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, 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: s. 724(3)(d) and (e).
7A fact will be relevant for the purposes of s. 724(2) if it will assist in the determination of a fit sentence. The judge should only find those facts that are necessary for that purpose. Accordingly, “the judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues”: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paragraph 18.
8The verdict of manslaughter in this case does not necessarily carry with it any findings with respect to the circumstances under which Mr. Fan returned to 13 Hounslow just prior to the second altercation, what his purpose was in returning, when he formed the intention to assault Mr. Wang, why he committed the assault, or how the assault unfolded. All of those things, however, are relevant to a determination of a fit and proportionate sentence. The facts in relation to those questions were in dispute at the trial and they remain in dispute for the purpose of sentencing. However, I am satisfied that the evidence adduced at trial was sufficient to enable me to make findings with respect to them.
B. The Evidence Pertaining to the Offence
9For about a year prior to the altercations that led to his death Mr. Wang had been dating another international student, Jiaqui Tan, who was known as Kiki. However, about a month before February 6, Kiki met Boqiao Fan, who was also an international student from China, and they began dating. Mr. Wang was unaware of this competing relationship until on or shortly before February 6. On February 6, and in particular during the evening hours of that day, Mr. Wang and Kiki engaged in an extended telephone and text message argument about Kiki’s relationship with Mr. Fan. Mr. Wang clearly communicated hostility toward Mr. Fan and implied an intention to assault him.
10Kiki was anxious to speak directly to Mr. Wang that evening in an effort to diffuse the situation. At about 10:45 p.m. she and Mr. Fan began driving to 13 Hounslow. When they arrived, Mr. Wang refused to come outside and so, after parking the car, Kiki and Mr. Fan went to the house and were let in by one of Mr. Wang’s housemates. Kiki and Mr. Wang had a conversation on the basement level. Mr. Fan waited on the main floor. Suddenly Mr. Wang ran up the stairs to the main floor, threatened Mr. Fan, and began pushing him into a main floor bedroom. Mr. Fan fell to the floor, and as he was attempting to get to his feet, Mr. Wang began punching him and swinging at him with a ceramic mug. In self defence, Mr. Fan hit back at Mr. Wang. As they grappled with each other they fell onto a desk and then to the floor, where they continued to fight. The altercation was broken up by two of Mr. Wang’s housemates.
11By this point, Kiki had come up from the basement to the main floor. She and Mr. Wang went into the main floor bedroom to have a one-to-one discussion. Mr. Fan had a conversation with one of Mr. Wang’s housemates – Eric – that was aimed at restoring peace. He then took a seat in the kitchen area, lit a cigar and waited for Kiki and Mr. Wang to finish their talk. When Kiki emerged from the bedroom, she and Mr. Fan left the house and returned to their car.
12It was now 11:30 p.m. Mr. Fan and Kiki had been inside the house for about 20 minutes. Both Mr. Fan and Mr. Wang had suffered what appeared at the time to be relatively minor injuries. However, Mr. Wang was complaining of pain in his neck on the left side. His housemates were concerned about him and got him some ice. He lay down on the sofa in the living room with the ice on his neck and began talking on his cell phone to his friend Simon
13Approximately 20 to 25 minutes later, Kiki and Mr. Fan returned to 13 Hounslow. They parked at the rear, beside the garage. The garage is on the same level as the basement, and opens into it. Why Mr. Fan and Kiki came back was very much in dispute at trial. So too was what happened between Mr. Fan and Mr. Wang after Mr. Fan came back. The jury’s verdict represents a rejection of the defence position that Mr. Fan was acting in self-defence in the second altercation, but that does not necessarily mean that the jury rejected the entirety of his evidence. Accordingly, I will conduct my own assessment of the evidence in relation to those matters.
14Eric stated that after Mr. Fan and Kiki left, he started cleaning up the bedroom where the first altercation had occurred. As he was doing this, he received a text message from Kiki telling him to open the door because she had something she wanted to say to Mr. Wang. Eric, who I infer did not want further trouble, told Kiki to give him the message to pass on to Mr. Wang. Kiki told Eric that she regretted not slapping Mr. Wang on the face before leaving. She also left an audio clip for Eric to pass on to Mr. Wang, in which she insulted and disparaged him. Eric told her that he would pass on the clip to Mr. Wang, but he had no intention of actually doing so. He told her to go home.
15Eric stated that seventeen or eighteen minutes later, Kiki messaged him again and said that Mr. Fan had left his car keys and a cigar (or perhaps a cigar keeper) in the house. She asked if Eric would allow him to come in to retrieve those items. Mr. Fan was also messaging Eric at the same time with the same request. Eric told both of them to go home, that he would look for the items, and that if he found them he would return them to Mr. Fan another day. Kiki still wanted to come back. Eric told her that she and Mr. Fan could drive to the back door, by the garage, and that after he (Eric) found the missing items he would bring them out. Kiki asked again if Mr. Fan could come in to look, but Eric again refused. Oddly, in Eric’s opinion, Mr. Fan kept apologizing to him. He told Eric that he was just doing what Kiki wanted him to do.
16Mr. Fan testified that as he and Kiki were driving home following the first altercation, he discovered that his cigar keeper and the key to his Lexus were missing. After stopping at the side of the road and searching inside the car, he decided that they must have fallen out of his pockets during the first altercation. He confirmed that both he and Kiki then began messaging Eric, asking if Mr. Fan could come back and look for the items inside the house.
17Mr. Fan testified that Kiki parked at the rear of 13 Hounslow and they waited. While they were waiting, Kiki told him that Mr. Wang had sworn at her that evening – among other things he called her a bitch. He said that she also told him that she wanted to have a discussion with Mr. Wang, that she wanted to swear back at him, and that she wanted Mr. Fan to be present for that conversation.
18Mr. Fan testified that Eric reported that he could not find Mr. Fan’s things and that he suggested that Mr. Fan and Kiki should come to look for themselves. Eric opened the basement door and let them in.
19Mr. Fan said that when he and Kiki first entered into the basement, he said to Eric “I’m sorry for the fight and for putting you in a difficult situation”, or “I apologize for the inconvenience and trouble”. He said that Eric and Kiki began a conversation about another matter, and that to give them privacy he stood half way up the stairs waiting for them to finish. He testified that Eric told him to go up to the main floor to look for his things. He decided to go up for that purpose.
20Eric’s account was different. He told the police that after he opened the garage door Mr. Fan and Kiki came into the basement, into the corridor beside the basement bedrooms, one of which was Mr. Wang’s. Eric said that Kiki asked if Mr. Wang was in his room and that when he told her that he was not Mr. Fan proceeded “rapidly” up the stairs. Because Eric thought that Mr. Fan really was looking for his keys, he did not try to stop him, but because he also knew that Mr. Wang would not want to see Kiki, Eric told her to stay in the basement.
21Mr. Fan testified that when he got to the main floor he saw a person lying on the sofa across the room. He did not realize that it was Mr. Wang until he stood up. He said that he had not expected to find Mr. Wang there. There was a brief exchange of words between Mr. Fan and Mr. Wang. The exchange began with Mr. Wang asking, in substance, “Why are you back here?” Eric, who was still in the basement, stated that he heard Mr. Fan say “I’m sorry” and then the sounds of an altercation. Mike, who was on the main floor playing video games, 3 to 4 metres away, heard Mr. Wang’s question but he did not recall Mr. Fan saying that he was sorry. Mr. Fan testified that he said: “Sorry, I came back to look for some stuff”.
22The Crown’s position was that Mr. Wang never got up from the sofa, that Mr. Fan told him that he was going to beat him to death, that he pinned him down, and that he began punching him in the head and neck area. The position of the defence was that Mr. Wang stood up and confronted Mr. Fan, and that after a brief exchange of words Mr. Wang grabbed Mr. Fan by the hair and pulled him down on top of him onto the sofa. Mr. Fan agreed that he punched Mr. Wang in the upper body during this struggle but asserted that he did so only in an attempt to free himself from the clutches of Mr. Wang and that he stopped punching when Mr. Wang let go of his hair.
23The entire second altercation appears to have lasted less than 10 seconds. It ended when Mike intervened and pulled Mr. Fan away from Mr. Wang. It was immediately apparent that Mr. Wang was in severe medical distress. His body was in spasms, his eyes were rolling back in his head, he was having difficulty breathing and he was gasping. Within a matter of minutes his breathing stopped and his movements ceased. He had suffered a catastrophic subarachnoid hemorrhage, which was caused by a rupture of his left vertebral artery. He was rushed to the hospital, but nothing could be done to save him, and he was pronounced dead the following day.
24The jury heard evidence from two forensic pathologists – Dr. von Both, who was called by the Crown, and Dr. Chiasson, who was called by the defence. They agreed that the rupture of the vertebral artery was caused by blunt impact trauma to the left side of Mr. Wang’s neck or head. The position of the Crown was that the blunt impact was inflicted by Mr. Fan during the second altercation, and thus that Mr. Fan caused the death of Mr. Wang during that altercation. It was, of course, critical to the Crown’s case that Mr. Wang be shown to have caused the death in the second altercation because the Crown conceded that Mr. Fan was acting in lawful self-defence in the first altercation. The position of the defence was that it was more likely that the blunt impact that caused the rupture was inflicted during the first altercation and that the Crown had not proved that any force applied by Mr. Fan in the second altercation had exacerbated Mr. Wang’s condition or accelerated the process leading to the rupture.
25The jury was instructed that in order to find that Mr. Fan caused the death of Mr. Wang they had to be satisfied beyond a reasonable doubt either (a) that the blunt impact that triggered the rupture of Mr. Wang’s left vertebral artery occurred during the second altercation; or (b) that the blunt impact that triggered the rupture occurred prior to the second altercation, perhaps causing an incomplete tear or the artery, but Mr. Fan’s assault on Mr. Wang in the second altercation exacerbated the effects of the tear, causing it to completely rupture. The verdict does not foreclose either of those possibilities, but it necessarily means that each juror was satisfied that one of the two had been proved beyond a reasonable doubt.
C. Findings Of Fact
26As I have said, the verdict of manslaughter clearly represents a rejection of the defence position that Mr. Fan was acting in lawful self-defence when he punched Mr. Wang in the course of the second altercation, but it does not inevitably follow that the jury rejected his assertion that Mr. Wang initiated the altercation. If Mr. Fan were responding to an assault by Mr. Wang but the force he used to defend himself was excessive, the jury would have found that the defence of self-defence was not available. Accordingly, the verdict does not necessarily carry with it any findings with respect to how the assault unfolded, or what the circumstances were under which Mr. Fan came back to 13 Hounslow, or what his purpose was in coming back.
27I am not required to attempt to discern and retrace the route the jury followed to their conclusion that Mr. Fan was not acting in lawful self-defence. Having said that, I consider it unlikely that if they had accepted that he was assaulted by Mr. Wang at the outset of the second altercation they would have found that the force he used in response was more than what was reasonable in the circumstances. But, in any event, I can make my own determinations in that respect.
28I am satisfied beyond a reasonable doubt that Mr. Fan was not assaulted by Mr. Wang at any point during the second altercation and that he did not believe himself to be under the threat of an assault. The punches that he threw at Mr. Wang were not for the purpose of defending himself. Further, I am satisfied beyond a reasonable doubt that Mr. Fan had not left behind his car keys and cigar holder after the first altercation, and that neither he nor Kiki believed that he had. Their claims in that respect were concocted to persuade Eric to permit them to re-enter the house, and their purpose in re-entering the house was for Mr. Fan to punish Mr. Wang for his earlier behavior.
29In coming to those conclusions, I take the following considerations into account.
30First, in his interview with Detective Worden, about 12 hours after the incident, Mr. Fan provided an account of the events that had occurred before, between and after the altercations. In that account he did not say anything about going back to 13 Hounslow to retrieve anything. The explanation that he gave Detective Worden for his return was that Kiki had told him that she had been verbally abused by Mr. Wang, who had sworn at her, humiliated her and called her a bitch. Mr. Fan told Worden: “Then we went upstairs, to look for her ex-boyfriend, wanted to talk to him again, to scold him briefly…just to scold him.” He confirmed to Detective Worden that by “we” he meant both him and Kiki. He was asked by Detective Worden why, having just been in a fight with Mr. Wang, he would have thought that this was a good idea. He responded: “Because my girlfriend wished to, she did not want to leave just like that after having been verbally abused”.
31The failure to mention anything to Detective Worden about returning to retrieve some property was not the omission of something that Mr. Fan might have thought to be irrelevant. According to his evidence at trial, a search for those items was the entire basis upon which Eric was persuaded to allow him to re-enter the house, and it was the entire purpose for him proceeding up to the main floor, where the second altercation occurred.
32Second, in his interview with Detective Worden, Mr. Fan said: “When I went upstairs, he [Mr. Wang] was lying on the sofa. Then, because I was angry, so I took off…my jacket.” If Mr. Fan had gone upstairs solely to look for his keys and cigar keeper, taking off his jacket at that point would make no sense. However, if he had gone up to confront Mr. Wang, the statement makes perfect sense.
33Third, Mr. Fan could not keep his story straight with respect to why and when he took off his jacket. He initially said that he took it off when he entered the basement. Why? “Just normal, when you go into a house you take it off…and also I was a bit angry”. Why, then, had he not taken it off the first time he came into the house, prior to the first altercation? “I didn’t think of taking it off, but as usual when I enter a house I have a habit of taking it off”. Why had he not taken it off while he was smoking his cigar and waiting for Kiki and Mr. Wang to finish their conversation in the main floor bedroom, after the first altercation? He said that at that point he was getting ready to leave. It was suggested that if he had come back only to look for his things, there was no need to take off his jacket; he responded that he was waiting for Eric and Kiki to finish a conversation they were having in the basement, that he was standing half way up the basement stairs waiting for them to finish, that he did not know how long they were going to be, and so he took his jacket off then. He said that this was two to three minutes before he proceeded, on his own, up to the main floor. As I have noted, however, he told Detective Worden that he took it off after he got to the main floor, when he saw Mr. Wang lying on the sofa.
34Mr. Fan’s explanations for why and when he took his jacket off simply did not hang together. Much more plausible than any of the explanations he offered at trial was the one he gave to Detective Worden 12 hours after the relevant events, and the compelling inference that emerges from that explanation is that he took the jacket off because he intended to engage in another altercation with Mr. Wang.
35Fourth, Mr. Fan’s description of the nature of the altercation, and in particular his claims that Mr. Wang had grabbed his hair at the front of his forehead and pulled him down onto the sofa, that he was only trying to get Mr. Wang to let go, and that he stopped punching when Mr. Wang did let go, were inconsistent with the testimony of Mike, whom I found to be both credible and reliable. I acknowledge that Mike did not see the beginning of the altercation: he turned to look after he heard the sounds of the struggle. He testified that he heard Mr. Fan say “Fuck your mother” as he was punching down toward Mr. Wang’s head. Mr. Greenspan suggested to Mike that Mr. Wang’s right hand was on top of the front of Mr. Fan’s head. Mike rejected that suggestion. He said, in substance, that this did not happen: “It’s not that I didn’t see it, it’s that his hand was not on [Mr. Fan’s] head”.
36Fifth, Mr. Fan’s description of the second altercation was inconsistent with what Eric said that he saw. Like Mike, Eric had not seen the beginning of the altercation – he ran up from the basement when he heard the noise – but not only did he not see Mr. Wang holding onto Mr. Fan’s hair, on his evidence Mr. Wang could not have been doing that. He said that Mr. Wang was lying on his right side on the sofa, with his face facing outward, with his right arm underneath him, and with his left arm pinned by Mr. Fan’s right knee. While Mr. Wang was in that position, Eric stated, Mr. Fan “kept hitting, he kept hitting Max”.
37I have no doubt that the representations that Kiki and Mr. Fan made to Eric about Mr. Fan having left keys and a cigar keeper behind were a ruse that they concocted in order for them to get back into the house so that Mr. Fan could assault Mr. Wang. Kiki had her own reasons to be angry at Mr. Wang and she may well have been goading Mr. Fan to teach Mr. Wang a lesson, Compliance with her wishes may have been one of the things motivating Mr. Fan to return. However, he was also motivated by his own anger at Mr. Wang for assaulting him and causing him injuries in the first fight, for damaging and soiling his leather jacket, and for using foul language toward Kiki. He was, as he told Detective Worden, “very angry”. The purpose of his return to 13 Hounslow was vengeance.
38While Mr. Fan’s desire for revenge was fueled by anger, his assault on Mr. Wang was not committed in the heat of passion, or on the sudden, or without reflection or consideration. Mr. Fan had been wronged by Mr. Wang in the first altercation, but that incident was over and done with. Peace had been restored. Mr. Fan and Eric had had a one-to-one conversation, away from Mr. Wang, in which they had discussed avoiding further violence. Before leaving, Mr. Fan had returned to the main floor, lit a cigar, and sat waiting calmly for Kiki to finish her conversation with Mr. Wang. Mr. Fan and Kiki then left. It was only after they left that the decision was made to return to confront Mr. Wang and it was then that they concocted the lost keys ruse to enable them to do so.
39In her closing address Ms Braithwaite characterized what Mr. Fan did as an ambush on an unsuspecting victim in his own home. In my opinion, that is an apt description of what happened. According to Eric, as I have said, when Kiki and Mr. Fan came into the basement from the garage, Kiki asked if Mr. Wang was in one of the basement bedrooms. When Eric said that he wasn’t Mr. Fan went “rapidly” up the stairs. Mr. Wang had been injured in the first altercation, he was not feeling well, he was lying on the sofa with ice on his neck holding his cell phone, and he was engaged in conversation with his friend Simon. When he saw Mr. Fan, he asked something like “Why are you back?” Mr. Fan may well have responded “I’m sorry, I’m just here to get my things”, as he claimed, but if he did, it was neither a true statement nor an apology. If he did make that statement, it was to disguise the real purpose for his return and to allay Mr. Wang’s suspicions. Mr. Wang never got off the sofa, he never laid a hand on Mr. Fan, and he did not grab Mr. Fan’s hair.
40After Mike pulled him away from Mr. Wang, Mr. Fan remained on scene while Mr. Wang’s housemates attempted to help him. When they were having difficulty getting through to Emergency Services Mr. Fan offered to drive Mr. Wang to the hospital. That offer was declined, but Mr. Fan and Kiki went on their own to the hospital, and Mr. Fan waited while Kiki went inside. When Mr. Fan heard that the police were inside the hospital and that they were looking for him he went in to find them and at that point he was arrested.
41Apart from the rupture of the left vertebral artery, the injuries suffered by Mr. Wang were not severe. There were multiple contusions and abrasions to his head and neck area, and a broken nose, but there were no lacerations or split skin, the only fracture was to the nose, and some of the bruising was not immediately visible to the naked eye. Importantly, it is not at all clear which injuries, apart from the broken nose and the rupture of the artery, occurred in which altercation. There was no evidence from the pathologists as to how much force would have been required to cause the artery to rupture.
D. The Circumstances of the Offender
42Mr. Fan is now 22 years of age. At the time of the offence, he was 19 years old, a few days short of his 20th birthday. He was born in China, in Canton Province. He is an only child. He grew up with his parents and grandparents, all of whom lived together as a family. He has an extended family in China. His mother has a diploma in international trade. His father has a degree in international finance and works in the banking industry
43His parents decided that he should learn English and get a Canadian education, and as a result he came to Canada in February 2013, when he was 16, first to Vancouver with his mother, and then to Ontario, where he attended St. Andrew’s College. In 2016 he enrolled at MacDonald International Academy, and he was attending school there at the time of the incidents in the case at bar. It was there, in January 2017, that he met and began a relationship with Kiki. He was in his final year of high school at the time, and he had applied to a number of universities, including OCAD. He is a very talented artist, and he is passionate about drawing, traditional Chinese brushstroke painting and other artistic endeavors.
44He was arrested on February 7, 2017 and released on bail 95 days later on May 12, 2017. After his release he enrolled in the Oshawa campus of Trent University, which was close to where his mother was living. She had moved to Canada to serve as his residential surety.
45The terms of his release required him to wear an ankle bracelet, which he did until he was taken into custody upon the delivery of the verdict. The bail order also required him to remain in his residence at all times except to attend court, to attend meetings with counsel, to attend school or to complete mandatory community service requirements, for medical appointments and emergencies, or if in the presence of one of his sureties. His sureties were his mother and a family friend.
46He is currently in his third year at Trent, with a B average. He has been majoring in business and economic courses. His plan was to receive a Canadian education and potentially to remain here. That plan is no longer feasible, as he will be deported once he is released on parole.
47He has no prior criminal record.
E. Mr. Fan’s Statement to the Court
48At the conclusion of the sentencing submissions Mr. Fan was given the opportunity to address the court. He began by apologizing to the family and friends of Mr. Wang, and by expressing his sorrow that Mr. Wang had passed away. He said that he does not know what he can do to compensate for what has happened, but that the incident will bother him for the rest of his life.
F. The Victim Impact Statements
49At the time of the sentencing hearing, Victim Impact Statements from Mr. Wang’s mother, Xiaomin Chen, and his twin brother Haoxiang Wang were presented. Ms Chen read her statement aloud. Haoxiang Wang’s statement was read by Crown counsel. It is clear from those statements that Haozhi Wang was a much loved son and brother, and that his death has irreparably devastated his family.
G. The Positions of the Parties
50It is common ground that a sentence of imprisonment in the penitentiary is called for in this case. On behalf of the Crown, Mr. Shaikh submitted that the appropriate sentence would be one of 8 years imprisonment. On behalf of Mr. Fan, Mr. Greenspan submitted that a term of imprisonment in the range of 2½ to 3 years should be imposed, less 7 months credit for pre-sentence custody and the time spend under restrictive bail terms.
H. Discussion
51Section 718 of the Criminal Code provides, in part, that 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.” 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. Section 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.”
52The 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 denunciation and deterrence will often be of paramount concern. It must be made clear to the community, as well as to the offender, that the taking of a life by an unlawful act will incur a significant penalty. However, even in such a case, rehabilitation cannot be ignored, particularly for a young first offender such as Mr. Fan: R. v. Jiwa, 2012 ONCA 532, [2012] O.J. No. 3721 (C.A.), at paragraphs 26 to 37.
53Section 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…”
54In this case, there are a number of mitigating circumstances to be considered:
(a) at the time of the offence, Mr. Fan was relatively young, 19 years of age, just short of his 20th birthday;
(b) he has no prior criminal record and no history of antisocial behavior;
(c) he was a full-time student, doing well in his final year of high school, with good prospects for his future endeavors;
(d) since his release on bail he has continued to pursue post-secondary education;
(e) he has the support of his parents, who are obviously concerned about him;
(f) no weapons were involved in his assault on Mr. Wang; the assault was of brief duration; once Mr. Fan was pulled away, he made no effort to continue the assault;
(g) when he realized that Mr. Wang was seriously injured, Mr. Fan offered to drive him to hospital; he drove to the hospital with Kiki and waited for word on Mr. Wang’s condition; he voluntarily presented himself to the police at the hospital, and he was cooperative with the police subsequent to his arrest.
55In my opinion, Mr. Wang’s assault of Mr. Fan in the first altercation has minimal mitigating effect in relation to Mr. Fan’s conduct in the second. Between the altercations, peace had been restored, passions had cooled, Mr. Fan had the opportunity to regain his composure, and he used that opportunity to plan punishing Mr. Wang for his earlier behaviour.
56Further, the fact that it cannot be determined with certainty whether the progression from blunt impact to a full rupture of Mr. Wang’s vertebral artery began during the first altercation or during the second is not potentially mitigating. Both scenarios are possible, but in light of the evidence with respect to the immediacy of the symptoms one would expect from a full rupture and the evidence of the lay witnesses as to the sudden catastrophic change in Mr. Wang’s condition after he was assaulted by Mr. Fan, I have no doubt that the full rupture itself only occurred during the second altercation. However, because punching Mr. Wang in the neck and head while he was in a prone position, pinned down on the sofa, made bodily harm an entirely predictable outcome, a finding that the punches in the second altercation triggered the rupture by exacerbating an injury that had occurred in the first altercation rather than constituting the sole cause of the rupture would not mitigate the gravity of this manslaughter.
57The aggravating circumstances include the following:
(i); this is not a case where self-defence is unavailable because excess force was used; it is unavailable because Mr. Fan was not assaulted or threatened in any way at any point after he returned to the house the second time;
(ii) Mr. Fan’s assault on Mr. Wang did not occur spontaneously, or on the spur of the moment in the course of on-going events, or with little time to consider the potential consequences; the assault was planned and premeditated; carrying out the plan involved the concoction of a ruse to gain access to the victim, and persistence in pursuing that plan;
(iii) the assault was an ambush of an unsuspecting victim who was lying on a sofa, minding his own business;
(iv) the assault was effectively a home invasion;
(v) I have no doubt that causing hurt to Mr. Wang was the goal that Mr. Fan was pursuing when he returned to the house; in light of that, I am satisfied that bodily harm of some kind was not only objectively foreseeable as a consequence of the pursuit of that goal, it was something that Mr. Fan subjectively foresaw to be a likely consequence;
58Pursuant to s. 718.2(b), a court that imposes a sentence must also take into consideration the principle that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
59That principle necessarily draws a sentencing court to a consideration of sentencing precedents from analogous cases of manslaughter. The reality, though, is that because manslaughter can be committed in such diverse circumstances, attracting such a wide range of moral culpability, sentencing in manslaughter cases is quintessentially case-specific. In an oft-quoted passage from R. v. Henry, 2002 NSCA 33, at paragraph 19, Justice Roscoe offered some guidance for sentencing courts:
A significant distinguishing factor between cases where a low or non-penitentiary term is appropriate and those where a lengthy sentence is imposed for manslaughter is the moral blameworthiness or fault of the offender ... The court, while of course giving due weight to all the principles of sentencing must assess the extent of moral blameworthiness in a particular case, and should consider where on the spectrum, from almost accident to almost murder, the particular offence falls. Obviously, the nearly equivalent to murder offences will, in general, attract a sentence higher than the majority… and those closer to an accidental killing will generally fall below the average…” [citations omitted]
60In an effort to assist in identifying a sentence that would be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, both the Crown and the defence have referred to what they submitted were analogous cases.
61In support of their position that an eight-year term of imprisonment would be appropriate, Mr. Shaikh and Ms Braithwaite cited the decisions in R. v. Hanifan, [2001] O.J. No. 1576 (C.A.); R. v. Johnson, [2017] O.J. No. 2974 (S.C.J.); R. v. Johnny, [2016] B.C.J. No. 225 (B.C.C.A.); R. v. Burgess, 2016 NSPC 1, [2016] N.S.J. No. 3 (NSPC); and R. v. Wheatley (O.C.J., unreported, March 5, 2019).
62In my opinion, none of those cases supports the Crown’s call for an eight-year penitentiary term. In only one of them, Johnson, was a sentence as long as eight years imposed. However, in Johnson the court was sentencing an offender with 28 prior criminal convictions. Johnson’s record included three convictions for robbery, for which a four-year penitentiary sentence had been imposed; a conviction for assault causing bodily harm, for which a two- penitentiary sentence had been imposed; and convictions for resisting arrest, assault, and possession of a prohibited weapon. Johnson had also been convicted of a number of drug trafficking offences and several failures to comply with court orders. In addition, while serving the two-year sentence for assault causing bodily harm, he had been recommitted to prison for a parole violation. Arguably, the assault underlying Mr. Johnson’s manslaughter conviction was more serious than the assault committed by Mr. Fan, but whether it was or not, the judge who sentenced Mr. Johnson was dealing with a completely different species of offender than I am here.
63In Hanifan and Johnny the sentence was six years, in Wheatley it was five years, and in Burgess it was four years. Hanifan is really of no assistance as a sentencing precedent. In dismissing the offender’s appeal from sentence in that case, the only thing that the Court of Appeal said was: “[Given] the severe blow struck by the appellant, its tragic consequences and the appellant's criminal record, this sentence was within the appropriate range for this offence.” [emphasis added] The circumstances of the offence are set out in the report of the case – the offender had punched the victim once after they emerged from a pool hall where they had exchanged words, and the victim fell and suffered a fatal head injury – but there is no information with respect to the offender’s personal circumstances, and in particular no information as to the nature or extent of his criminal record.
64The facts of Johnny bear little resemblance to the case at bar. In that case, the offender committed a brutal beating of a 28-year-old mother of seven children, left her for dead in an abandoned house and went to a party. Apart from the age of the offender – 19 years – and the absence of any prior record, there is nothing similar between that case and this one. In Burgess, as I have said, the sentence was four years. The offender, a woman with no prior record, had pushed her father down a set of stairs. Whatever might be said to be the usefulness of that case in identifying an appropriate sentence for some instances of manslaughter, it contains nothing that would suggest that an eight-year sentence is appropriate here.
65The only case cited by the Crown that I find to be a useful comparator is Wheatley, although it too cannot be read as supporting an eight-year sentence for Mr. Fan. Wheatley was somewhat similar to this case in that the cause of death was the rupture of a vertebral artery as a result of a punch by the offender. The circumstances of the assault may have been worse than in the present case: after the victim was on the ground and unconscious, the offender kicked him with force in the upper body, and before fleeing from the scene he was observed to be going through the victim’s pockets. However, there was no suggestion that the assault was planned or premeditated. The offender had a minor and unrelated criminal record. After a plea of guilty, Justice Pringle imposed a sentence of five years.
66On behalf of Mr. Fan, Mr. Greenspan and Ms Lutes referred to 12 cases that, in their submission, supported the defence position that a sentence in the range of 2½ to 3 years should be imposed. Those cases, and the sentences imposed, are as follows:
R. v. Sharpe, 2019 BCSC 1754 (two years)
R. v. Tabbara, [2009] O.J. No. 4397 (Ont. S.C.J.) (two years less one day)
R. v. Isenor, 2007 NSPC 70 (three years)
R. v. Whitehead, 2014 NSSC 439 (three years)
R. v. Doherty, [1999] N.B.J. No. 534 (three years)
R. v. Hickey, 2011 NSSC 186 (three and one-half years)
R. v. Valente, 2012 ABQB 151 (four years)
R. v. Morris, 2018 BCSC 803 (12 months)
R. v. Doolan, 2018 BCPC 28 (two years)
R. v. Huth, 2014 BCSC 570 (two years less one day)
R. v. Henry, 2002 NSCA 33 (four years)
R. v. Braune, 2006 ONCJ 50 (two and one-half years)
67If the 12-month sentence imposed in Morris is excluded, the range of sentence revealed by those cases is from 2 years (or two years less a day) to 4 years. Nine of those cases were so-called “one punch manslaughters”, in which a single blow from the offender led to the death of the victim.1 Mr. Greenspan submitted that that description is apt for the circumstances of the manslaughter in this case.
68I accept, based on the authorities relied upon by the defence, that for cases involving similar manslaughters and similar offenders, the general range of sentence to be considered is 2 to 4 years. I also accept that many of the mitigating features that were presented in those cases, such as the absence of a prior record, and/or excellent rehabilitative prospects, are also present here. However, there are two features of the present case that, in combination, distinguish it from those cases.
69First, in none of the 12 cases cited by the defence, and in only 2 of the 5 cases cited by the Crown, did the assault underlying the conviction for manslaughter occur within the home of the victim. In all 12 cases relied on by the defence, the assaults occurred in a public place. In 9 of them, the assaults occurred on the street. In the two cases in which the offence occurred within the victim’s home, Burgess and Johnson, the offender was a resident of the home. That is, the underlying assaults were not effectively home invasions. The fact that the victim met his death within his own home would nonetheless be an aggravating circumstance, but not as aggravating as a situation, such as is presented here, where the victim met his death at the hands of an intruder.
70Second, in 9 of the 12 cases relied upon by the defence the assaults were committed on the sudden, without premeditation or planning. In the three case where there was some opportunity for forethought – Sharpe, Henry and Valente – the extent of that opportunity was not extensive. Indeed, in Sharpe, where the offender delivered one punch to the victim who had thrown a lit cigarette at the offender’s girlfriend, and there was a brief gap between the offender learning what the victim had done and the assault, the sentencing judge decided that the assault had occurred “on the spur of the moment”.2 In Henry, the offender was involved in an initial altercation with the victim outside a bar, and then followed him up the street where he sucker punched him. That was really one continuous series of events. In Valente, the court accepted that “there was some degree of planning associated with the attack; it was not a spontaneous act”,3 but the extent of the planning cannot be discerned from the court’s reasons.
71In the case at bar, there was a gap of about 20 to 25 minutes between the altercations. In that interval peace had been restored, passions had cooled, and Mr. Fan had the opportunity to regain his composure. It was in that context that he and Kiki came up with a plan to get back into the house so that Mr. Fan could punish Mr. Wang for his earlier behaviour. And they persisted in that plan notwithstanding that the person whom they were asking to let them into the house, Eric, was reluctant to do so.
72In my opinion, the combination of those two circumstances – the entry into Mr. Wang’s home to commit the assault, and the element of planning and premeditation – move this case further along the moral culpability spectrum than any of the cases relied upon by the defence. Those circumstances increase both the gravity of the conduct underlying the manslaughter and the extent of Mr. Fan’s responsibility for that conduct. The principle of proportionality, therefore, calls for a sentence that is beyond the range suggested by the defence authorities.
I. Disposition
73It hardly needs to be said that the senseless death of Haozhi Wang was a terrible tragedy. He lost his life, and his family has been devastated. It was also a tragedy for Mr. Fan, even if it is one that he has brought upon himself.
74The search for the appropriate sentence in this case must be guided by the fundamental principle that the penalty be proportionate to the gravity of the offence and the degree of responsibility of the offender. In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, Justice Wagner observed that “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.”4
75Notwithstanding the many positive things to be said about Mr. Fan, his unblemished background, his excellent potential to be a valued contributing member of society, and the absence of a need for specific deterrence, the duty to impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender requires a greater punishment than that urged by the defence. The assault on Mr. Wang was a planned and deliberate ambush within what should have been the safety of his home. I acknowledge that Mr. Fan had no intention or desire to cause Mr. Wang’s death or to cause him harm that he knew was likely to cause death. However, he knew that bodily harm of some kind would be the likely result of his actions.
76After anxious consideration, I conclude that in all of the circumstances, the fit and appropriate sentence in this case is a term of imprisonment of five years. That sentence will be reduced to reflect the 95 days that Mr. Fan spent in custody prior to being granted bail, and the 7 days he has been in custody since the delivery of the jury’s verdict. The parties agree that those 102 days should be credited as 153 days, or just over 5 months. I am satisfied that Mr. Fan should receive a further credit of two months to reflect the fact that for almost 30 months he was required to abide by terms of house arrest. Accordingly, the sentence of 60 months that would otherwise be appropriate is reduced to one of 53 months.
77Because Mr. Fan has been convicted of an indictable offence involving the use of violence that is punishable by life imprisonment, a prohibition order under s. 109(1)(a) of the Criminal Code is mandatory. Pursuant to s. 109(2), I direct that Mr. Fan be prohibited from possessing any firearm, crossbow, prohibited or restricted weapon, ammunition and explosive substance for life.
78Manslaughter is a primary designated offence within the meaning of s. 487.04, paragraph (a) of the Criminal Code and accordingly a DNA order is mandatory. Therefore, I direct that Mr. Fan provide a sample of his DNA.
MacDonnell, J.
Delivered: November 6, 2019