Court File and Parties
COURT FILE NO.: CR-18-4273 DELIVERED ORALLY AND MADE AN EXHIBIT: June 18, 2020 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – CHENG SUN
Counsel: Ilana Mizel, for the Crown Frank Miller, for the Defence
HEARD: January 31, 2020
REASONS FOR SENTENCE
Howard J.
Overview
[1] The offender, Mr. Cheng “Chris” Sun, was charged with one count of second degree murder, contrary to s. 235(1) of Criminal Code [1], in connection with the death of his wife, Weqiong Du-Sun, on June 28, 2017.
[2] Mr. Sun’s trial, by judge and jury, commenced on Tuesday, October 15, 2019.
[3] On the evening of Tuesday, October 29, 2019, the jury returned a verdict of not guilty of second degree murder but guilty of manslaughter, contrary to s. 236 of the Code.
[4] Mr. Sun is now before me for sentencing, the sentencing hearing having been held on January 31, 2020.
[5] I should note at the outset that in considering an appropriate sentence in this case of manslaughter by provocation, it is instructive to bear in mind the legislative amendments to the definition of provocation that were effected in 2015. Prior to that date, s. 232(2) of the Criminal Code described provocation in the following term:
What is provocation (2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
[6] In 2015, the Code’s definition of provocation was amended by the Zero Tolerance for Barbaric Cultural Practices Act, the stated purpose of which was, inter alia, to “provide that the defence of provocation is restricted to circumstances in which the victim engaged in conduct that would constitute an indictable offence under the Criminal Code that is punishable by five years or more in prison.” [2]
[7] Accordingly, as at the date of the offence in question, s. 232(2) provided as follows:
What is provocation (2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.
[8] I should also say that the attendance for the delivery of sentence in this matter was initially scheduled for March 26, 2020. However, as we all know, on March 15, 2020, the Chief Justice of the Superior Court of Justice (“SCJ”) announced that in order to protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the SCJ was suspending all in-person attendances, effective Tuesday, March 17, 2020, until further notice.
[9] Accordingly, by order of Morawetz C.J. dated March 15, 2020, for any accused person who had a criminal matter scheduled for any type of appearance in the SCJ in the month of March 2020, that matter was adjourned to June 2, 2020. By further order of Morawetz C.J. dated May 5, 2020, all criminal matters that had been adjourned to June 2, 2020, were further adjourned to July 6, 2020. By agreement of counsel, in respect of which the court extends its gratitude, and because Mr. Sun was and is already in custody, this matter was brought forward to today for delivery of sentence.
Factual Background
Circumstances of the Offence
[10] On the night of June 28, 2017, police responded to a 911 call made by Mr. Sun from the Break Time Corner restaurant, located in Leamington.
[11] When police arrived at the Break Time Corner restaurant at approximately 8:26 p.m., they went inside and located the body of the deceased, Ms. Du-Sun, who was a Chinese national.
[12] Mr. Sun had purchased the Break Time Corner restaurant in August 2015 with the initial thought and hope of providing a “good life” for himself and his new wife, whom he had married in March 2015, in China. However, neither party had any experience in running a restaurant business.
[13] It is fair to say that the couple’s hopes of running a thriving business and having a “good life” never materialized. Due to the couple’s lack of experience running a restaurant, the business started going downhill soon after they took over the business. After only four months, they could no longer afford to keep their staff.
[14] Relations within the marriage began to suffer. The couple was putting in long, hard days. It was essentially twelve hours a day for seven days a week. The couple’s long hours at the restaurant contributed to the stress of the marriage. By early 2016, Mr. Sun described Ms. Du-Sun as being very unhappy in the marriage and not happy in Canada. She did not speak the English language, and she did not have any friends or family in the Leamington area. They continually argued with each other.
[15] The business at the restaurant continued to worsen. By April 2016, the couple was forced to sell their home in Leamington and moved into an apartment in an apartment building in Leamington. At one point in 2016, they put the restaurant business up for sale through real estate agents, but despite their attempts, they were not able to sell it.
[16] Ms. Du-Sun left Canada the last two weeks of April 2017 and returned to China with her only daughter, from her first marriage, intending to meet the parents of her daughter’s boyfriend, by whom the daughter had become pregnant. Ms. Du-Sun returned to Canada alone on April 30, 2017. Her daughter had decided to stay in China permanently and to raise her child there. Ms. Du-Sun wished to be with her daughter, and so when she returned on April 30, 2017, she told Mr. Sun that she did not plan to remain in Canada but would be returning to China permanently. The evidence of Mr. Sun, however, was that, as he had become a Canadian citizen, there was “no way” he was returning to China.
[17] At that point, there was no real future of the marriage. Mr. Sun felt there was no way for him to ask Ms. Du-Sun to stay because she had already made up her mind about wanting to return to China permanently. The evidence of Mr. Sun was that he knew he should plan for divorce.
[18] The couple discussed what to do with the restaurant. By that time, it had already been a year since they put it up for sale, and it still was not sold. They talked about keeping the restaurant open until August 31, 2017 – that would be the two-year anniversary from when they took over the business on August 31, 2015. Basically, they both agreed that if the restaurant was still not sold by that date, Ms. Du-Sun would return to China so that she would be with her daughter when the baby arrived in September, and Mr. Sun would apply for bankruptcy. In any event, Mr. Sun knew that Ms. Du-Sun would be returning to China come September 2017.
[19] It is clear at that point, and I so find, that their marriage had de facto come to an end, and the two of them carried on in a partnership of convenience and circumstance, which was directed to the financial concern of winding up the restaurant business.
[20] Going into June 2017, their personal relations were getting even worse. The evidence of Mr. Sun was that Ms. Du-Sun was constantly complaining, blaming him all the time for their situation, throwing constant temper-tantrums, and calling him insulting and derogatory names. The evidence of Mr. Sun was that, as the days progressed in June 2017, Ms. Du-Sun was getting increasingly agitated and more anxious to leave Canada right away and return to China.
[21] On June 28, 2017, the day that Ms. Du-Sun was killed, the couple drove to the restaurant in the morning to start meal preparations for that day. The evidence of Mr. Sun was that his wife was in a very bad mood and was speaking to him in a very angry tone. He testified that at some point that morning, Ms. Du-Sun asked him to give her some money for the purpose of returning to China. He refused, questioning why he should give her any money if she was leaving him.
[22] Later that same morning, Mr. Sun left the restaurant to run some errands in town. When he returned to the restaurant, he found the premises were empty. Apparently, Ms. Du-Sun had left the restaurant and returned to their apartment.
[23] Mr. Sun then also returned home, and when he entered the apartment, he found Ms. Du-Sun in their bedroom, packing some of her clothing and belongings into two suitcases. Surprised by this, he asked her what she was doing, and she answered that she just wanted to leave for China today. Mr. Sun testified that Ms. Du-Sun was highly agitated, “acting crazy,” and he could not calm her down. He believed she was going to leave for China that day or the following day. His testimony was that he had no idea why she wanted to leave so soon when they both had previously agreed that she would stay until the end of August. He felt Ms. Du-Sun was breaking the arrangement they had both agreed to, and that made him upset.
[24] At some point Ms. Du-Sun said to him that she wanted him to drive her back to the restaurant so that she could go online to look for plane tickets. Mr. Sun initially refused but later thought that he would take her to the restaurant, in the hope that maybe she would calm down and then they could do some business at the restaurant.
[25] When they arrived at the restaurant, Ms. Du-Sun went into the kitchen and sat down at the table where her iPad was, and she began to search online for airplane tickets. Mr. Sun sat down at the same table to her right, and he continued to try to persuade her to follow their agreement. His evidence was that she was becoming more irritated and was scolding him, and then asked him again for money. He refused. His evidence was that she asked him for money several times, all of which he refused.
[26] She got angrier and more agitated, and then she stood up. Mr. Sun was still sitting at the table, and a toolbox was sitting within his reach on a shelf underneath the table top. There was a claw-hammer sitting in the toolbox. There were also some cords or shoe-laces laying on the same shelf, just to the left of the toolbox, and those too were within easy reach of Mr. Sun as he was sitting at the table.
[27] The evidence of Mr. Sun was that when he looked up at Ms. Du-Sun again, he saw her holding a long kitchen knife in her hand, pointed at him, and he was within her reach. He testified that as she was standing there holding the knife towards him, she said to him, “if you don’t give me the money, we are going to have a final fight and settle it once and for all.”
[28] The evidence of Mr. Sun was that, at that moment, he felt “terrified,” “deeply saddened,” “explosive,” and “desperate” – and then his mind went blank. He testified that it felt like his brain exploded.
[29] Mr. Sun’s testimony was that he has no memory of the actual events or acts by which Ms. Du-Sun was killed. His evidence was that by the time he had regained his awareness and became observant of his surrounding, he recalled there was absolute silence, and then he saw the lifeless body of Ms. Du-Sun.
[30] I will return to the issue of Mr. Sun’s evidence concerning the knife in my analysis below.
[31] Mr. Sun ultimately left the restaurant but then returned to the premises later that same night, and I shall deal with those intervening events below. Upon his return to the restaurant, Mr. Sun took his cell phone and called the police on 911. He told the 911 operator what he had done, and they continued talking until the police arrived, at which time he went out the front door, was met by the police, and was arrested.
[32] A post-mortem examination of the deceased was conducted the following day by Dr. Edward Tweedie, an expert in the field of forensic pathology. The parties agreed that Dr. Tweedie was qualified to provide an expert opinion on the cause of death of Ms. Du-Sun.
[33] Testifying about the results of the autopsy he conducted on June 29, 2017, Dr. Tweedie said he observed multiple blunt force injuries to the head, neck, and extremities of the body of the deceased. Dr. Tweedie determined that 33 wounds had been inflicted on the body of the deceased, including 29 wounds that had been inflicted on her head or face by blunt force trauma, causing either bruising, abrasions, or lacerations. In particular, Dr. Tweedie observed at least 27 separate lacerations to the scalp of the deceased. Five of the wounds sustained to the head of the deceased were associated with depressed skull fractures, indicating that significant force had been applied, resulting in “pushed-in” or depressed skull fractures.
[34] Dr. Tweedie also observed evidence of ligature injuries to the neck of the deceased consistent with ligature strangulation caused by the cord that was found lying around the neck of the body. In particular, Dr. Tweedie noted that the dimensions of the ligature marks or “abrasion furrows” sustained to the body of the deceased were consistent with the dimensions of the cord found around her neck, such that Dr. Tweedie was of the opinion that it was “clear” that the injuries sustained to the neck were caused by the cord found around her neck. Dr. Tweedie concluded that significant pressure had been applied to the deceased’s neck, resulting in a fracture on the right side of the hyoid bone in the neck of the deceased.
[35] In the opinion of Dr. Tweedie, the cause of death of Ms. Du-Sun was the result of strangulation and blunt force head trauma.
[36] It was also the opinion of Dr. Tweedie that the deceased was alive at the time that all of her injuries were sustained.
[37] In keeping with his opinion that the deceased was alive when all of the injuries were sustained, Dr. Tweedie also observed several “defensive wounds” on the forearms of the deceased that are consistent with Ms. Du-Sun trying to defend herself and ward off the blows from the hammer during the attack of her person.
[38] Mr. Sun sustained no injuries to himself on the night in question.
Circumstances of the Offender
[39] No pre-sentence report was filed on the sentencing hearing. Mr. Miller explained that he did not request a pre-sentence report because he was of the view that it would add very little to the court’s appreciation of the circumstances of the offender given the lack of available collateral contacts of Mr. Sun in Canada or China.
[40] Mr. Sun was born in China on March 11, 1966, and was 51 years of age at the time of the offence. He was 53 years of age at the time of trial. He was born in China and grew up in the north-east part of that country. His first language is Mandarin. Mr. Sun went to college for library studies. After graduation, he worked in a provincial library for about four years. In 1993, we went to a university in Japan and studied economics. After about five years, he obtained his bachelor’s degree, and he then went on to do graduate studies at the same university in Japan, where he obtained his master’s degree. Mr. Sun then went on in the doctoral program to obtain his Ph.D.; however, after about a year-and-a-half of doctoral studies, he left the program and came to Canada in 2002.
[41] Mr. Sun came to Canada with his first wife in 2002. They applied for immigration to Canada when Mr. Sun was studying in the doctoral program in Japan. His wife was the primary applicant because her English was good. At the time, Mr. Sun knew about 100 English words. His wife became pregnant when they were living in Japan.
[42] They came to Canada as immigrants in 2002, landed in Toronto, and later moved to Sherbrooke, Quebec, where they lived for about three years. Their child, a daughter, was born while they were living in Sherbrooke. Mr. Sun was not employed while they lived there, but he went to Sherbrooke University and studied French for about a year.
[43] In 2006, the family moved from Sherbrooke to Montreal. Mr. Sun found work at a hotel in Montreal. He worked there in the kitchen, cleaning dishes and doing other jobs.
[44] In 2007, while they were still in Montreal, the couple got divorced, and Mr. Sun moved out into a small apartment.
[45] In or about March 2008, his wife found a job in London as a computer programmer, and she moved there. Around the same time, in March 2008, Mr. Sun brought their daughter back to China and placed her in the care of his parents. He returned to Montreal and continued to work, but by the end of 2008, Mr. Sun had left Montreal and was living in London. Their daughter returned to their care in or about March 2009, and they were all then living together in London.
[46] Mr. Sun could not find work in London. He stayed at home to look after the daughter, and he was taking an “ESL” or English as a Second Language program.
[47] Mr. Sun became a Canadian citizen in 2010.
[48] However, relations with his estranged wife soured, and Mr. Sun moved out of their residence in 2013, as he did not want their quarrelling to impact their daughter. Mr. Sun found work as a labourer in Strathroy.
[49] However, Mr. Sun had no friends in the London area. He was interested in getting married again, so he registered himself on several dating websites, and it was through one of those websites that Mr. Sun first met Ms. Du-Sun, towards the end of 2014. As I have said, the couple married in China in March 2015.
[50] It is common ground that Mr. Sun has no criminal record.
[51] On my view of the evidence presented at trial, Mr. Sun impressed this court as being a hard-working, educated man, who is respectful, polite, and sincere, and who, for reasons I explain below, has demonstrated extreme remorse over his offending behaviour.
[52] At the conclusion of the sentencing hearing on January 31st, the court provided Mr. Sun with an opportunity to exercise his right of allocution, as contemplated by s. 726 of the Code. In his statement to the court, Mr. Sun gave voice to his remorse and simply stated that, “I will carry the guilt of this for my life.”
Impact on the Victims
[53] Subsection 722(1) of the Code directs a court to consider any statement of a victim prepared in accordance with that section.
[54] In this regard, on consent of the defence, the Crown has filed a victim impact statement that was prepared by Ms. Du-Sun’s daughter in China on March 1, 2020, which has been translated from Mandarin to English. The daughter, whose name I refrain from using here, was Ms. Du-Sun’s only child.
[55] It is difficult to put into words here the devastation that the daughter has experienced as a result of the untimely and tragic death of her mother. Not surprisingly, the daughter remembers the moment in time three years ago that she received the call from the police authorities in Canada, advising her that her mother had been killed. As the daughter writes, “I felt that my whole world was collapsing.” At that point, the daughter was six-months pregnant with her son, and she struggled to accept that she “had lost my nearest and dearest person.”
[56] The daughter speaks of the elation that her mother felt when she learned of the pregnancy. She speaks of how her mother would have been with her in the delivery room, but was not. She speaks of the life that her mother was supposed to have with her grandson, the joy she was supposed to experience because of him and with him, and that life experience lost. The daughter writes, “[u]nfortunately, she would neither get a chance to listen to my son call her grandma nor to watch him grow up, which is my biggest regret.” She speaks of how she feels unable even to hold a proper wedding ceremony because “I cannot bear that my most important day goes by without my mother.”
[57] The daughter also speaks of the physical impact that the news of her mother’s death caused her during the pregnancy. She writes that there were many times that she cried so hard over the loss of her mother “until it was totally dark in front of my eyes and then I had severe abdominal pain.” Consequently, the daughter had to go to hospital several times.
[58] The daughter writes that, for her, the departure of her mother “means the loss of my closest friend and my most dependable family member.” Perhaps even more poignantly, the daughter speaks of the loss of the opportunity to give back to her mother. The daughter is mindful of the years that her mother spent raising her and says, “[i]t is supposed to be the time that I should be able to give back to her but there is no chance left for me.”
Legal Parameters
[59] At the time of the offence, the provisions of s. 236(b) of the Criminal Code relevant to count no. 1 in the indictment provide that everyone convicted of manslaughter is liable to imprisonment for life.
Positions of Crown and Defence
[60] I have carefully considered the submissions of counsel for both parties. Both counsel essentially agree that the appropriate range of sentence in a case of manslaughter as a result of provocation would be 7 to 12 years.
[61] Ms. Mizel submitted on behalf of the Crown that, in the event this court finds that Mr. Sun was threatened with a knife, the appropriate sentence in the circumstances of the instant case would be imprisonment for a term of 11 years. However, if the court finds there was no knife, the appropriate sentence, Ms. Mizel submits, would be incarceration for 12 years.
[62] Mr. Miller submitted on behalf of Mr. Sun that, given especially the nature of the provocation, and notwithstanding the very cruel acts of violence that caused the death, a sentence of imprisonment of no more than seven years is appropriate in this case.
[63] I have considered the submissions of counsel for both the Crown and the defence, as well as the cases relied upon by both counsel, and their submissions on each other’s authorities. While a sentencing judge must respect the parity principle embodied in s. 718.2(b) of the Code and acknowledge that similar cases decided by other courts are useful for certain purposes, one must also recognize that because of the inherently individualized process of sentencing, the decisions in other cases turn on their own particular circumstances.
[64] Moreover, there is merit in Mr. Miller’s observation that when considering the appropriateness of sentences imposed for manslaughter by provocation in cases arising before 2015, one should bear in mind the legislative amendments to the definition of provocation effected by the Zero Tolerance for Barbaric Cultural Practices Act. Counsel advised that they were unable to find any reported decision for sentencing purposes in a case of manslaughter by provocation released after 2015.
Analysis
Principles of Sentencing
[65] The Supreme Court of Canada has said that the sentencing of an offender is “one of the most delicate stages of the criminal justice process in Canada.” [3] It requires “the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.” [4]
[66] The notion of proportionality is the fundamental principle in sentencing, and that important principle is enshrined in s. 718.1 of the Criminal Code, which provides that:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[67] In its seminal decision in R. v. Lacasse, the Supreme Court of Canada described proportionality as “the cardinal principle” that must guide sentencing courts in considering the fitness of a sentence imposed on an offender. As the Supreme Court explained, “[t]he 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.” [5]
[68] In Lacasse, the Supreme Court observed that determining “a proportionate sentence is a delicate task.” [6] Indeed, the Court described how an unfit sentence can undermine public confidence in the administration of justice:
The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives.
One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate. [7]
[69] Section 718 of the Code sets out certain objectives of sentencing and provides that:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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 the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[70] Section 718.2 of the Code sets out other sentencing considerations, including the following:
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, … (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[71] The Supreme Court has also repeatedly recognized that sentencing is an “inherently individualized process.” [8] In R. v. Nasogaluak, the Supreme Court described this individualized process in the following terms:
The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. … No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. [9]
[72] My task is to impose a sentence that is appropriate for Mr. Sun “based on the particular facts of the offence and of the offender within the applicable principles of law.” [10]
Disputed Facts
[73] Before proceeding further, it is incumbent upon me to make a critical finding of fact with respect to one central feature of the offence. The verdict of manslaughter returned by the jury was, of necessity, global in its scope. Juries, of course, do not give reasons for their verdict. The jury found Mr. Sun not guilty of second degree murder but guilty of the manslaughter of Ms. Du-Sun. Neither the indictment nor the verdict specified certain factors that may impact both the nature of the offence and the moral blameworthiness of the offender. In particular, counsel for the parties, and especially the Crown, seek a ruling from the court with respect to the central question of whether Ms. Du-Sun did in fact possess a knife that she used to threaten the offender.
[74] A roughly similar issue recently arose before my brother Munroe J. in R. v. Hanan [11], a sentencing decision delivered on March 2, 2020, which involved a situation in which the offender, Mr. Hanan, intentionally and unlawfully shot two people, killing one (a Mr. Guzhavin) and paralyzing the other (a Mr. Henriquez). In that case, the three men met twice outside the home of Mr. Hanan in the early evening on the date in question. During the second meeting, Mr. Hanan shot and killed Mr. Guzhavin and shot and wounded Mr. Henriquez. As to all counts, the defence of Mr. Hanan at trial was that he acted in lawful self-defence. On the charge of second degree murder of Mr. Guzhavin, the jury found Mr. Hanan not guilty of murder but guilty of manslaughter. The jury also found Mr. Hanan not guilty of the attempted murder of Mr. Henriquez. By their verdict, the jury rejected Mr. Hanan’s claims of self-defence, otherwise he would have acquitted.
[75] On the sentencing hearing before Munroe J., the central fact in dispute was the identity of the person who brought the gun to the final, fateful meeting in the driveway of Mr. Hanan’s home: Mr. Hanan or Mr. Guzhavin.
[76] In the course of his decision on sentencing, Munroe J. set out the applicable legal principles and proper approach to be followed where the court is required to resolve disputed facts for the purposes of a sentencing hearing, as follows:
- Legal Principles
Following a jury trial, the sentencing judge must sometimes determine the facts necessary to impose a fit sentence: R. v. Ferguson, 2008 SCC 6 (S.C.C.), at para. 16; R. v. Roncaioli, 2011 ONCA 378, at para. 59. The sentencing judge does not write on a clean slate. The judge must accept “the express and implied factual implications of the jury’s verdict”: R. v. Brown, [1991] 2 S.C.R. 518, at para. 15. The sentencing judge “must not accept as fact any evidence consistent only with a verdict rejected by the jury”: Ferguson, at para. 17. Then, if determining facts is necessary, the judge must not attempt to “follow the logical process of the jury” but rather must make an independent determination of the facts: Ferguson, at para. 18. The sentencing judge must only find the facts necessary for a just and fit sentence: Ferguson, at para. 18. Finally, when the facts are sought by the prosecution, or otherwise are aggravating, the prosecution has the burden to prove said facts beyond a reasonable doubt: Criminal Code, ss. 724(3)(b) and (e).
Section 724 of the Criminal Code of Canada provides, in pertinent part:
(2) Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence
(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial; (b) the party wishing to rely on a relevant fact … has the burden of proving it; (e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact….
- Principles Applied
I review the requested findings of fact in the following sequence: First, I must decide whether the requested finding is necessary for a just and fit sentence. If not, I need not make any determination as to that fact. If so, I must proceed. Second, I must decide whether the requested finding is an express or implied fact within the verdicts themselves. If so, that fact is determined by the jury verdict. If not, I proceed. Finally, if there was sufficient evidence adduced at the trial, I must make an independent finding as to that fact. I am satisfied that sufficient evidence was adduced at trial to resolve the factual issues now before me. [12]
[77] Adopting the approach recited by my brother Munroe J., I find that the requested finding is necessary for a just and fit sentence. Whether or not the deceased possessed a knife and threatened the offender with in moments before his attack on her is a question that clearly impacts both the nature of the offence and the moral blameworthiness of the offender.
[78] On the second stage of the inquiry, in the particular circumstances of the instant case, I conclude that the factual finding in question – that is, that Ms. Du-Sun did in fact possess a knife that she used to threaten the offender – is a fact implied from the jury’s verdict.
[79] Ms. Mizel forcefully argues that it is open to me to find that the jury returned a verdict of not guilty of second degree murder but guilty of manslaughter simply because it was not convinced that the Crown had proven beyond a reasonable doubt that Mr. Sun was not provoked – and not necessarily because the jury was satisfied that Mr. Sun was threatened with a knife.
[80] Respectfully, I cannot accept that submission, for at least three reasons.
[81] First, fundamentally, I am bound by the jury’s verdict. Typically, in our charges to juries, we routinely and repeatedly tell members of the jury that they have become a judge in the case before them just as the presiding judge is also a judge of the case. We routinely and repeatedly instruct members of the jury that it is their job to decide from the evidence that they will see and hear what the facts are in the case, that they are the only persons who decide the facts, and that it is the job of the presiding judge to determine what rules of law apply in the case and to explain them to the jury. Those instructions cannot be regarded as merely lip-service. Rather, the jury’s determination of factual issues must be inviolably respected.
[82] In the instant case, the offender was accused of second degree murder. We routinely and repeatedly instruct members of a jury, as I did in the instant case, that “[o]ur law recognizes that, in some very limited circumstances, provocation may reduce a charge of murder to manslaughter” and that a “homicide that would otherwise be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.” In the instant case, the jury returned a verdict of manslaughter. As such, it follows from the jury’s verdict in the instant case, at a minimum, that the jury was not satisfied beyond a reasonable doubt that the offender was not provoked. I am bound by that result and any express or implied factual implications arising from it. Further, in sentencing Mr. Sun, I cannot take into account any fact that is inconsistent with the verdict of the jury. Clearly, I am bound by the jury’s verdict that the issue of provocation was a central element in their verdict. I must not make any findings that are inconsistent with the jury’s verdict.
[83] Second, respectfully, the submission of the Crown that I should consider whether the jury was truly satisfied that there was in fact a knife as opposed to simply not being satisfied that the Crown had proven beyond a reasonable doubt that Mr. Sun was not provoked strikes me as a request to embark upon the type of inquiry that R. v. Ferguson prohibits. It asks me to attempt to reconstruct the jury thinking process. In R. v. Ferguson, McLachlin C.J.C. expressly stated that, “the sentencing judge should not attempt to follow the logical process of the jury.” [13]
[84] Third, in his decision in R. v. Hanan, Munroe J. made the important point that the sentencing judge must have regard for the way the case was presented at trial. As I have said, in Hanan, the central issue at trial was self-defence. The jury was presented with two dramatically different versions of how the shooting happened. The two different versions came from the trial testimony of the only two living eye-witnesses to the event: the offender (Mr. Hanan) and the victim who was paralyzed (Mr. Henriquez). It was clear that both versions could not be true and, further, that only one version, that of the offender, had the deceased with a gun threatening the offender. It was clear that self-defence was available under only the offender’s version. In his sentencing decision, Munroe J. rejected the attempts by counsel for the offender to reconcile the jury’s conviction that the offender illegally possessed the gun with the jury’s rejection of self-defence, and held as follows:
By its guilty verdict on the firearms possession count, the jury necessarily found unlawful possession which meant, in this case, possession not in self defence. The defence seeks to parse seconds of time asserting that possession for some seconds was in lawful self-defence and possession for other seconds was not. I decline to go down this hair-splitting path and reject the defence submissions. Reasonableness must be applied to this issue: the reasonable factual implications of the jury’s verdict, express or implied. Reasonableness cannot be assessed in a vacuum but rather must be assessed in the context of the particular trial itself including how the case was tried and presented to the jury. Creativity of counsel in articulating a far-fetched scenario, not put to the jury, is not reasonable. By its verdicts, the jury found that Mr. Hanan brought the gun. [14]
[85] Having regard for the case that was presented at Mr. Sun’s trial, it is incontrovertible that the central defining feature of the case for the defence was the proposition that the deceased threatened Mr. Sun with a knife. Indeed, from the moment Mr. Miller delivered his opening address to the jury, after days of Crown evidence, and revealed the defence theory that Mr. Sun was threatened with a knife and was thus provoked into his violent frenzy, the entire complexion of the case changed dramatically. It is no exaggeration to say that the case became all about the knife. Indeed, figuratively, one might say it was only about the knife. The case that was presented by the defence was one of provocation based on the existence of the knife. The case that was submitted to the jury was provocation based on the existence of the knife. Indeed, in his closing address, Mr. Miller submitted to the jury that the jury “must” convict Mr. Sun of manslaughter because of the provocation. And the jury returned a verdict of manslaughter. In my view, it is simply not open to me at the sentencing stage to find that there was no knife. That finding is inconsistent with the verdict of the jury, especially having regard for the way the case was presented to the jury at trial.
Mitigating Circumstances
[86] Having made my finding on the disputed facts, I consider the following mitigating factors.
Lack of criminal record
[87] Mr. Sun had no criminal record at all. That is a primary consideration.
Out of character conduct
[88] To her credit, Ms. Mizel very fairly made the point that there were no prior domestic occurrences between the offender and the deceased, either alleged or before the court.
Presence of provocation
[89] It is common ground that, by its verdict, the jury found there was provocation. It is also common ground that provocation is a significant mitigating factor. Mr. Sun did not initiate the assault. He reacted, albeit horribly, to the assaultive behaviour of the deceased. I agree with Mr. Miller’s submission that provocation is an important mitigating factor in any offence of violence, even where the offender’s reaction to the provocation is vastly excessive. [15]
Considerations of remorse
[90] I am satisfied that Mr. Sun is extremely remorseful for the killing of his wife. He demonstrated that remorse consistently and immediately. In my view, that was obvious from his dealings with the various police officers the night of his arrest, his lengthy interview the next morning with Detective Bawden, his evidence given at trial, and his allocution to the court at the sentencing hearing.
[91] Returning to the events of the night of the killing, when Mr. Sun came to his senses and realized his wife was dead, he wanted to do something, as he said, to pay a life for a life that had been taken. He began to consider ways to kill himself. He thought about using the electricity somehow to start a fire in the restaurant and burn it down, and he and Ms. Du-Sun along with it.
[92] However, in the course of trying to think of a way to kill himself, he thought of his only child. His daughter was living in London at the time. And so Mr. Sun decided he should go to London to visit his daughter and see her for one last time before he killed himself.
[93] Mr. Sun then drove to London to the house where his daughter lived. When he arrived there, he found his daughter was home, along with her mother. He embraced his daughter, who played the piano for him, and he sat and listened to her for about 20 or 30 minutes.
[94] After he said his goodbyes, he left his daughter’s home and drove back to the restaurant in Leamington. Mr. Sun remained intent on his plan to burn down the restaurant in order to kill himself. However, by the time he arrived in the parking lot at the restaurant, he realized that the restaurant was connected to two other buildings, and one of the other buildings had a second-floor residential apartment above two other businesses. There were lots of people there, and Mr. Sun did not want to do anything that could cause death to the other people.
[95] It was at that point that Mr. Sun took his cell phone and called 911.
[96] In his interview with Detective Bawden the following morning, Mr. Sun said that he did not “want life” and he asked the officer if he could ask the judge to kill him. It struck me that, sadly, it appeared to be an expression of hope. He mused aloud, wondering how it could be that a person such as himself, who had never killed a little bird, could have killed his wife. He called himself a “murderer,” and when he rebuffed the Detective’s offer of food and water, it was as if he did not believe he was deserving of the officer’s kindness on account of what he had done.
Post-offence action of responsibility
[97] I agree with Mr. Miller’s submissions that the offender’s post-offence actions carry some mitigating effect. In my view, Mr. Sun took responsibility for his actions and made no effort to avoid the consequences.
[98] In that vein, it bears repeating that it was Mr. Sun himself who called 911 that night and reported himself to the authorities, telling the dispatcher, repeatedly, that he had killed his wife. I appreciate Crown counsel’s point that the offender did not immediately contact the police after he realized he had killed his wife; however, his impromptu trip to London was not done to flee the scene but, rather, because he wanted to see his only child for what he believed would be one last time, before he took his own life.
[99] Once the police arrived on scene at the Break Time Corner restaurant, he essentially told any police officer with whom he had any substantive dealings that night that he had killed his wife. The same was true of his interview the next morning with Detective Bawden, during which he repeatedly told the officer that he had killed his wife. He was not evasive in his answers to the detective but was fully cooperative. The only two topics that he would not talk about were questions directed to particulars of his daughter or his deceased wife’s family, which he refused to answer, it was plain to me, not because he was trying to evade responsibility but out of concern for the privacy interests of those individual third parties.
[100] Moreover, as Mr. Miller observed, although Mr. Sun certainly had ample opportunity to do so, the offender took no steps to conceal the body of his deceased wife or the evidence of his crime. There was no evidence of any attempt to “clean up” the crime scene in the kitchen of the restaurant. Rather, the evidence at the scene indicates there was no such attempt. The bloody hammer was found laying next to the body, and the shoelaces or cords were still around her neck.
Aggravating Circumstances
Statutory consideration: s. 718.2(a)(ii)
[101] Clause 718.2(a)(ii) of the Code provides that the “evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family” shall be deemed to be an aggravating factor. Mr. Sun killed his wife in a crime of great violence, and domestic violence is a profound problem in Canadian society. Our Court of Appeal has said that “the extent of domestic violence is a serious social concern.” [16] It requires the court’s denunciation even where, as here, it appears there was no previous history of domestic incidents.
Brutality of the violence
[102] While I appreciate Mr. Miller’s comments that the taking of a person’s life by acts of violence is always very cruel, the brutality of Mr. Sun’s attack upon his wife here was simply staggering, having regard for, inter alia, the sheer number of blows, the placement of those blows to the deceased’s skull, the use of a claw-hammer to administer those blows, the “personal” element inherent in the act of strangulation, the fact that the deceased was alive at the time that all of her repeated injuries were sustained, and the presence of the defensive wounds on the deceased’s forearms, indicating a desperate but ultimately futile attempt by Ms. Du-Sun to escape the savagery of her husband’s attack.
[103] It goes without saying, as Mr. Miller concedes, that even though the deceased may have been the initial assailant, the brutality of the offender’s attack upon his wife was a grossly excessive and disproportionate response to the threatened assault.
Vulnerability of the victim
[104] It is well settled that, in manslaughter cases, the fact that the victim was vulnerable is an aggravating factor. [17]
[105] In this case, I accept Ms. Mizel’s submissions on point and consider that the victim was vulnerable by reason of her social situation within Canada. As I have said, Ms. Du-Sun did not speak the English language and had no friends or family other than her husband in the community in which she lived. Apart from her husband, it appears the deceased lived with a significant degree of social isolation. She did not work outside of the business owned by her husband, and the evidence suggests she was financially dependent on him. Indeed, even on Mr. Sun’s evidence, the argument that resulted in her death began with the deceased asking him for money, which he refused. At the time of her killing, the deceased was in the process of attempting to leave the country to return to her homeland and reunite with her only child in China and, again, on Mr. Sun’s evidence, it appears the deceased required the assistance of her husband even to accomplish that objective.
[106] The aspects of this case that speak to the social isolation and financial dependence of the deceased wife, as well as the opportunity for the husband to exercise a degree of control over his spouse, are similar to many features of domestic violence cases.
Impact on the victim’s family
[107] As I have reviewed above, the killing of Ms. Du-Sun has had a devastating and ongoing impact on her daughter in China and, in turn, her daughter’s young son, who will grow up never to have met or known his maternal grandmother. The impact here is generational.
Appropriate Sentence
[108] Turning to the appropriate sentence for Mr. Sun, I begin by noting that, consistent with counsel’s agreement on the applicable range, the Ontario Court of Appeal has held that in cases of manslaughter with aggravating circumstances, sentences generally range from 7 to 12 years. [18]
[109] The instant case is not without difficulty in finding the appropriate placement for Mr. Sun along the accepted range of sentence, in that, among other vexing features of this case, the offender killed his wife in what can only be described as a brutal and horrific manner, and yet his actions that fateful night were admittedly out of character for one who, apparently, had no history of domestic violence and who presents as a soft-spoken, gentle person.
[110] As I have said, the position of the Crown is that, in the event this court accepts that the deceased threatened the offender with a knife, as I have found and been compelled by the jury’s verdict to find, the appropriate sentence for Mr. Sun is one of 11 years’ incarceration.
[111] The Crown relies on the sentencing decision in R. v. Kimpe, a case in which the offender and his common law spouse of 11 years had an argument, in the course of which she taunted the offender about his poor sexual performance. The offender became enraged and choked her until she became unconscious. The offender then panicked and set the house on fire; however, the deceased had died before the start of the fire. The jury concluded that the offender was provoked by the taunting comments of and resulting argument with his spouse. The sentencing judge imposed a sentence of 10 years’ imprisonment for manslaughter concurrent with six months’ imprisonment for arson. The Ontario Court of Appeal upheld the sentence subject to a minor variation in the calculation for pre-sentence custody.
[112] That said, the relevant circumstances of Kimpe are not entirely similar to those of the instant case. In Kimpe, the sentencing judge found that the victim was particularly vulnerable due to her small stature, particularly in comparison to the size of the offender. While I have found that Ms. Du-Sun was vulnerable in the sense of social isolation and dependence on her husband, it cannot be forgotten that, at the critical moment in question, the deceased here was holding a knife and threatening the offender. That is not the same character of vulnerability that the partner in Kimpe experienced. The victim in Kimpe was unarmed.
[113] As well, an important aggravating factor in Kimpe, and one which gave rise to the second charge for which the offender was sentenced, i.e., arson, was the fact that the offender disregarded the lifeless body of his partner by setting the house on fire in order to conceal the evidence of his responsibility for her death. Those actions stand in stark contrast to the post-offence conduct of Mr. Sun, who, as I have explained, took responsibility for his actions and made no attempt to hide his involvement in the crime.
[114] In my view, the moral culpability of the offender in Kimpe was greater than that of the offender in the instant case. The provocation in Kimpe, a decision rendered prior to the 2015 amendments to the Criminal Code, was based solely on the deceased spouse’s verbal taunting and insults. In the instant case, the offender was threatened with a knife. The moral culpability of one who kills another because of mere verbal insults is far greater than one who kills as a result of being threatened with a knife.
[115] The Crown also relies upon the decision of our court in R. v. Klimovich [19], where the offender was found guilty of manslaughter in the death of his wife and was sentenced to imprisonment of 11 years. Although the viciousness of the attack in Klimovich is akin to the instant case – Mr. Klimovich stabbed his wife to death with two kitchen knives at least 30 times – the court expressly rejected the offender’s evidence that the victim was armed with a knife. That said, the court did accept that the deceased made some “provocative utterances” that, although not expressly described in the decision, appear to have emanated from an argument between the spouses, who had separated some six months prior to the wife’s death, concerning the offender’s responsibility for child support. [20]
[116] Again, similar to Kimpe, the result in Klimovich is distinguishable from the instant case, in that, the moral culpability of one who kills his wife because of an argument over child support is far greater than one who kills as a result of being threatened with a knife.
[117] Moreover, to the extent that the offender in Klimovich took the position that he suffered a dissociative episode immediately following the threat purportedly made by his wife, I note that his consulting psychiatrist gave evidence that it was “not likely” that the offender experienced the claimed dissociative episode at the time he killed his wife, though it was possible. Moreover, it is telling that his psychiatrist went on to say that, “it was just as possible that Mr. Klimovich was lying about his memory loss.” [21] In my view, that evidence stands in sharp contrast to the transparent conduct of Mr. Sun here, who readily admitted to all he encountered that he killed his wife, took full responsibility for his actions, and made no attempt to conceal his unlawful acts.
[118] The Crown also relies upon the 10-year sentence of imprisonment imposed in R. v. Scopelliti, where the offender was found guilty of manslaughter in the killing of his father-in-law. The victim was a physically frail, dying, 87-year-old man, whom the offender shot with a loaded handgun with a silencer attached. It was not disputed that the deceased “was once a leading figure in organized crime.” [22]
[119] In my view, the circumstances of Scopelliti are far removed from that of the instant case. Moreover, I agree with the submissions of Mr. Miller that Scopelliti is not helpful as a precedent for present purposes because it involved the use of a firearm in the commission of the offence and because, by reason of s. 236(a) of the Code, the offender was subject to a mandatory minimum sentence of imprisonment for at least four years. The reality that the best positioned offender who uses a firearm in the most mitigating fashion must receive a minimum sentence of four years’ imprisonment as a matter of law gives rise to an “inflationary floor,” which renders Scopelliti somewhat less than instructive for present purposes.
[120] For broadly similar reasons, respectfully, I am of the view that the balance of the authorities relied upon by the Crown are, for varying reasons, also distinguishable.
[121] As such, while I have some difficulty with the position of the Crown that the appropriate sentence in the instant case is one of 11 years’ imprisonment, at the same time I cannot agree, respectfully, with Mr. Miller’s submission that the sentence of incarceration here should be no more than 7 years. In my view, that sentence does not give sufficient voice to the need for deterrent and denunciatory sentences in cases of domestic violence.
[122] Consistent with my remarks above, I also note the comments of my sister Pomerance J. in R. v. Morgan, where the court observed that:
The courts have long recognized the gravity of offences involving domestic violence. The case of R. v. Inwood (1989), 48 C.C.C. (3d) 173 (Ont. C.A.) is often cited in support of the need for deterrent and denunciatory sentences in cases of partner assault. …
Parliament has also stressed the aggravating nature of partner violence, codifying it in s. 718.2 of the Criminal Code. In cases of this nature, courts must send a strong message that it is not acceptable to resort to violence in the domestic context. Partner violence is a serious social problem. [23]
[123] As I have explained above, my decision on sentencing must fully respect the jury’s finding that Mr. Sun was provoked and, in my view, the necessarily entailed implication that the jury accepted that the deceased possessed a knife, with which she threatened Mr. Sun.
[124] That said, as the sentencing judge, in my view, I also cannot lose sight of the fact that the deceased was a victim of domestic violence and that this victim of domestic violence was in the process of attempting to extricate herself from the circumstances of her social isolation in Canada and had pressing hopes of reuniting with her daughter and soon-to-be grandson in China, and that although the jury necessarily found that she engaged in provocative behaviour involving a knife, she was nonetheless killed by her husband as a result of an argument that ensued over her plans to return to her homeland.
[125] In the instant case, in my view, consideration of the appropriate sentence for Mr. Sun must focus on the objectives of denunciation, general deterrence, and the overriding goal of the protection of the public.
[126] In all of the circumstances of this case, I have come to the conclusion that a just, fit, and proportionate sentence for Mr. Sun in respect of his conviction for the manslaughter of his deceased wife is a total term of incarceration for nine (9) years.
Pre-sentence custody credit
[127] The offender seeks credit for his pre-sentence custody, which is appropriate.
[128] In terms of calculating the credit, the offender has been in custody since his arrest on June 28, 2017, up until today. Accordingly, Mr. Sun’s total time in pre-sentence custody is 1,086 days as of today. Multiplied by the presumptive enhanced credit of 1 to 1.5 days, [24] which I find is appropriate here, the 1,086 days Mr. Sun has already spent in custody results in a total enhancement for pre-sentence custody of 1,629 days or approximately 53.52 months or almost 4½ years.
[129] In the circumstances of the instant case, I find that the offender should be allowed a pre-sentence custody credit of 54 months.
Final Disposition
[130] With respect to Mr. Sun’s conviction on count no. 1 for the manslaughter of his deceased wife, contrary to s. 236 of the Criminal Code, I sentence Mr. Sun to serve a total sentence of nine (9) years’ incarceration.
[131] As I have found, Mr. Sun has been in custody since his arrest on June 28, 2017, and is entitled to a total credit for pre-sentence custody of 54 months.
[132] Therefore, the remaining sentence to be served by the offender is 54 months (108 months’ total sentence less 54 months’ credit). This is the equivalent of an additional 4 years and 6 months’ imprisonment for Mr. Sun beyond that which he has already served in custody.
[133] I direct that the offender be subject to a s. 109 weapons prohibition for life.
[134] In addition, DNA orders shall issue pursuant to s. 487.051 of the Criminal Code on count no. 1. Given the restrictions imposed by the current COVID-19 pandemic, for the sake of facilitating the taking of the samples of bodily substances reasonably required for the purposes of forensic DNA analysis, the DNA orders shall be executed on or before October 31, 2020.
J. Paul R. Howard Justice
Delivered Orally: June 18, 2020
Footnotes
[1] Criminal Code, R.S.C. 1985, c. C-46 (the “Code”).
[2] Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29, s. 7(1).
[3] R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450, at para. 1.
[4] Ibid.
[5] Ibid., at para. 12.
[6] Ibid.
[7] Ibid., at paras. 3-4.
[8] R. v. M. (C.A.), [1996] 1 S.C.R. 500, at p. 567.
[9] R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, 251 C.C.C. (3d) 293, at para. 43, citing R. v. L. (T.P.), [1987] 2 S.C.R. 309; R. v. M. (C.A.); and R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.).
[10] R. v. Johnson, 2016 ONSC 6656 (S.C.J.), at para. 18.
[11] R. v. Hanan, 2020 ONSC 1209 (S.C.J.).
[12] Ibid., at paras. 32-34.
[13] R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18.
[14] R. v. Hanan, at para. 44. [Emphasis added.] I acknowledge that the dictum in Hanan about “counsel … articulating a far-fetched scenario, not put to the jury” does not apply to the instant case. But that is not my point here.
[15] See, for example, R. v. Wan, [2012] O.J. No. 6542 (S.C.J.).
[16] R. v. Pitkeathly, [1994] O.J. No. 546, 29 C.R. (4th) 182 (C.A.), at para. 15.
[17] See R. v. Clarke, [2003] O.J. No. 1966, 172 O.A.C. 133 (C.A.), at para. 7; and R. v. Grandine, 2015 ONSC 18 (S.C.J.), at para. 212.
[18] R. v. Kimpe, 2010 ONCA 812, 271 O.A.C. 21, at para. 14.
[19] R. v. Klimovich, 2013 ONSC 2888 (S.C.J.).
[20] Ibid., at para. 17.
[21] Ibid., at para. 21.
[22] R. v. Scopelliti, 2018 ONSC 4826 (S.C.J.), at para. 5.
[23] R v. Morgan, 2017 ONSC 5618 (S.C.J.), at paras. 40-41.