COURT FILE NO.: CR-20-70000164-0000
DATE: 20200902
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
PATRICK GAYLE
Christine Jenkins, for the Crown
Alexandra Mamo, for Mr. Gayle
HEARD: August 5, 2020
FORESTELL J.
reasons for sentencing
Overview
[1] Patrick Gayle entered a guilty plea before me on August 5, 2020 to a charge of manslaughter.
Circumstances of the Offence
[2] The facts, admitted by Mr. Gayle, are as follows:
(a) On July 1, 2019, Mr. Gayle entered a bar at Queen and Sherbourne Streets. He was previously banned from entering the bar because he was panhandling. Upon entering he was asked to leave by the bartender multiple times. He became agitated and upset. He stood in the doorway. When the victim, Dwain Adams, approached the door to leave, Mr. Gayle was blocking his way. Mr. Adams told Mr. Gayle to “get the hell out of the way”. Mr. Gayle responded by saying “fuck you, make me”. There was a verbal exchange. During the exchange, Mr. Adams, who used a cane to walk, raised his cane to his waist with both hands. Mr. Gayle then punched Mr. Adams in the face with a closed fist, causing him to fall backwards. Mr. Adams hit his head on the ceramic tile and lost consciousness. Mr. Gayle fled.
(b) Dwain Adams regained consciousness and returned to a table. An ambulance was called, and he was taken to the hospital. It was determined that he was suffering from a traumatic brain bleed. His condition rapidly deteriorated and by the morning of July 2, 2019, Mr. Adams was on life support. He died several days later as a result of a head injury consistent with falling and landing on the back of his head.
(c) The victim, Dwain Adams, was 61 years-old, and a frail cancer survivor. He was 5’7” tall and weighed 113 lbs. at the time of his death. Mr. Gayle was 46 years-old at the time. He was 5’7” tall and weighed 165 lbs. There was no known history of animosity between the two men.
(d) Mr. Gayle was identified by another patron of the bar as the person responsible for the injury to Mr. Adams. Mr. Gayle was located and arrested at a shelter, Seaton House, on July 2, 2019.
Background and Character of the Offender
Background
[3] Mr. Gayle is now 47 years-old. He was born in Canada but moved to Jamaica with his mother at a very young age. He did not return to Canada until he was about 24 years-old.
[4] In Jamaica, Mr. Gayle and his mother lived with Mr. Gayle’s grandparents and with his two sisters. His childhood and adolescence were marked by neglect and physical abuse by his mother.
[5] Mr. Gayle dropped out of school after grade nine or ten.
[6] He returned to Canada at age 24 with one of his sisters. He worked off and on in construction but eventually lost his employment around 2014. Mr. Gayle was diagnosed with schizophrenia around 2013 or 2014. He reports having experienced symptoms of his mental illness before the diagnosis. He reports self-medicating with street drugs, particularly crack cocaine. He began using crack cocaine when he was about 28 years-old and has been seriously addicted to crack for at least the last ten years. He also abuses alcohol and has done so for a significant period of time.
[7] Mr. Gayle has been prescribed medication for his schizophrenia but according to the records before me, he generally only takes his medication when he is in custody.
[8] Mr. Gayle has not had stable housing over the last 20 years. He has often been homeless and resided at shelters. He has had no contact with his family for the last ten years.
Criminal Record
[9] Mr. Gayle has a criminal record that begins in 2001 and contains 74 criminal convictions. His record includes 19 convictions for offences involving violence: 1 conviction for aggravated assault in 2001; 3 convictions for robbery in 2005, 2015 and 2017; 1 conviction for assault resist arrest in 2006; 3 convictions for assault police in 2008, 2015 and 2017; and 11 convictions for simple assault from 2001 to 2017.
[10] Although he has numerous entries on his record, Mr. Gayle has never received a penitentiary sentence. His longest custodial sentence was for the equivalent of 16 months’ incarceration for aggravated assault, assault and possession of property obtained by crime in 2001. In the 18 years between Mr. Gayle’s first conviction in 2001 and the date of this offence he has been on probation numerous times. He consistently failed to comply with probation orders, accumulating 19 convictions for failing to comply with court orders. He also has 12 convictions for drug related offences.
[11] A report prepared by a probation officer, Harriet Rusteau, indicates that Mr. Gayle reported sporadically and that he lacked motivation to attend programmes geared to rehabilitation.
Time in Pre-sentence Custody
[12] At the time of sentencing on September 2, 2020, Mr. Gayle will have spent 429 days in pre-sentence custody. Records from the Toronto East Detention Centre (“TEDC”) indicate that Mr. Gayle has no charges of misconduct in the institution. The records also disclose that he has been compliant with his medication.
[13] During the 13 months of incarceration Mr. Gayle was subject to 76 full or partial lockdowns. During lockdowns, inmates are locked in their cells with their cellmates. There is no privacy, including while using the toilet. Mr. Gayle was also triple bunked for 14 nights. This involves three inmates sharing a small cell and one inmate sleeping on the floor of the cell. The affidavit filed by Mr. Gayle indicates that the triple bunking and lockdowns caused him stress and discomfort. He has been offered access to the yard only 39.4% of the time that he has been incarcerated.
[14] Mr. Gayle has been incarcerated through the COVID-19 global pandemic. There have been no cases of COVID-19 at the TEDC. However, Mr. Gayle’s affidavit indicates that he has been fearful and anxious as a result of the close proximity of other inmates and the risk of contracting the virus. In addition, the cancellation of visits raised tension and frustration levels of other inmates in the jail.
Positions of the Parties
[15] The Crown seeks a sentence of 10 years before credit for pre-sentence custody. The Crown argues that a significant penitentiary sentence is necessary to further the sentencing objectives of specific and general deterrence, denunciation and the separation of Mr. Gayle from society.
[16] Counsel for Mr. Gayle submits that I should impose a sentence of 6 years before credit for pre-sentence custody. She argues that such a sentence, while taking into account deterrence and denunciation, would facilitate Mr. Gayle’s rehabilitation. It would also take into account the fact that Mr. Gayle will serve his sentence during the COVID-19 pandemic, a circumstance that is exceptional and makes the sentence more onerous than it otherwise would have been.
[17] Both parties agree that Mr. Gayle should receive credit on a 1.5:1 ratio for pre-trial custody.
[18] Counsel for Mr. Gayle submits that Mr. Gayle should receive a further credit of 6 months for the harsh conditions at the TEDC. The position of the Crown is that some further credit is merited but that 6 months is too long.
Victim Impact
[19] Victim impact statements were filed in this case. The statements describe the profound loss suffered by the family of Mr. Adams.
[20] The Victim Impact Statements describe the pain of the family members who watched Dwain Adams die over the course of several days after sustaining his head injury.
[21] His family members also describe the life of Mr. Adams. He contributed to his community. He experienced hardships, including cancer but faced and overcame those hardships with strength and dignity. Mr. Adams’ family and friends have lost his companionship and they have lost the opportunity to say goodbye to him. Their pain over their loss was palpable as they read their victim impact statements.
[22] The effect upon them, as disclosed by their Victim Impact Statements, has been significant. I have considered the impact of the offence as disclosed by the Victim Impact Statements in determining the appropriate sentence, while recognizing that no sentence that I can impose will ever compensate the family and friends of Dwain Adams for their loss or ease the pain that they continue to suffer.
Sentencing Principles and Analysis
[23] In determining an appropriate sentence there are principles and objectives established by the Criminal Code, R.S.C., 1985, c. C-46 and the caselaw that I must consider.
[24] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code, 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 the following objectives: (a) to denounce 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; …and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.”
[25] Although all sentencing objectives are relevant, depending on the facts of the case, the court is entitled to give different weight to the various objectives. Deterrence and denunciation are generally the dominant sentencing objectives in sentencing for manslaughter.
[26] The range of sentences imposed in manslaughter cases is very broad. The reason for the range of sentencing for manslaughter was explained by the Supreme Court of Canada in R. v. Creighton:[^1]
…Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. …
[27] The moral fault of Mr. Gayle, assessed in accordance with the analysis in R. v. Creighton, is not at the upper range of the spectrum of blameworthiness for the offence of manslaughter. There was no weapon used; Mr. Gayle acted impulsively, apparently out of anger and a loss of self-control. He applied only one punch.
[28] Section 718.2(a) requires the court to consider any relevant aggravating and mitigating circumstances.
[29] Aggravating factors in this case are:
(a) The vulnerability of the victim, who was a 61 year-old frail cancer survivor;
(b) Mr. Gayle’s prior criminal record which shows a pattern of impulsive violent acts;
(c) Mr. Gayle’s flight;
(d) The fact that Mr. Gayle was on probation at the time of the offence; and,
(e) The fact that Mr. Gayle had been asked to leave the bar.
[30] Mr. Gayle’s remorse as demonstrated by his early guilty plea is a mitigating factor.
[31] A sentencing court is obliged to consider the circumstances of the offence and of the offender and to impose similar sentences for similar offences and similar offenders.[^2] I must consider the sentences imposed by other courts for similar offences and similar offenders. However, sentencing is a highly individualized process. It will be rare for a sentencing court to have the benefit of a prior identical case. The circumstances of offenders and offences vary widely. This is particularly true in sentencing for manslaughter.
[32] Counsel have helpfully provided me with sentencing cases involving similar circumstances. I will refer to some but not all of them.
[33] In R. v. Garrison,[^3] an offender grabbed the victim on the street and pushed or threw him to the ground, then went through his pockets. The offender used the victim’s credit card a short time later. The victim, who was an older man with health problems, suffered a head injury and died approximately four months after the attack. The offender in that case was convicted after a trial. He appealed his conviction and sentence. The Court of Appeal dismissed the conviction appeal but held that the sentence imposed, of 14 years’ imprisonment in addition to 10 months’ pre-sentence custody, was excessive. Like Mr. Gayle, the accused in that case had a criminal record. The accused in Garrison had approximately eighty convictions on his criminal record. Twenty-four of those convictions were for violence. The judgment of the Court of Appeal does not disclose the details of the prior convictions or the prior sentences in Garrison. The Court of Appeal imposed a sentence of 10 years’ imprisonment, noting that the cowardly attack on a vulnerable victim called for a denunciatory sentence and that the background of the offender was a significant aggravating factor.
[34] The case before me can be distinguished from Garrison by the guilty plea of Mr. Gayle which is a mitigating factor and the fact that, in Garrison, there was the additional aggravating factor of the robbery of the victim. Although the record of the accused in Garrison appears to be somewhat similar to that of Mr. Gayle, there is insufficient detail with respect to the prior sentences to draw a clear comparison.
[35] In R. v. Hanifan,[^4] the offender and victim got into an argument in a bar. After the victim left the bar, the offender approached the victim and struck him once in the face, causing the victim to fall to the ground and strike his head. The offender fled the scene but surrendered to the police the next day. The victim died a few days later. The offender in Hanifan had a criminal record but the details of the record are not set out in the judgment of the Court of Appeal. Mr. Hanifan did not plead guilty but was convicted after a trial in which he argued that he acted in self-defence. The Court of Appeal held that the sentence imposed of 6 years’ imprisonment was within the appropriate range in light of the severity of the blow and the tragic consequences.
[36] While the judgment of the Court of Appeal in Hanifan, as in Garrison, provides some guidance on the appropriate range of sentence for an offence of this type, the judgment provides no details of the criminal record of the offender. As in Garrison, the offender in Hanifan did not plead guilty and so the mitigating factor of remorse was absent. The circumstances of the offence however are very similar to the circumstances in the case before me.
[37] Counsel for Mr. Gayle has provided me with several cases in which the circumstances of the offence were similar, and sentences of 2 to 5 years were imposed on persons who were first offenders or who had minor criminal records. She submitted that these cases illustrate the lower end of the range for offences with similar circumstances. She also conceded that Mr. Gayle’s record is an aggravating factor, taking his case outside of that lower range.
[38] It is clear that the circumstances of the offence and the circumstances of Mr. Gayle call for a significant penitentiary term. Although Mr. Gayle struck only one blow, that blow was directed at a vulnerable victim. I accept that Mr. Gayle acted impulsively, but I also must consider the evidence that Mr. Gayle has a long history of impulsive, violent acts.
[39] While rehabilitation is not the predominant sentencing objective, it is a relevant consideration. I have considered the submission of the Crown, that Mr. Gayle has been given opportunities to access programming through probation that have not been effective. However, I also note that there has been no real stability in Mr. Gayle’s life over the past 20 years during which he was often placed on probation. The lack of stability and structure in other aspects of his life have undoubtedly impacted on his compliance with probation and his ability to benefit from probation. Mr. Gayle had an extremely disadvantaged upbringing which has impacted on his ability to obtain an education and employment. He is homeless, uneducated and unemployed. He is mentally ill and an addict. He has no family support.
[40] Balancing these considerations and taking into account the relevant sentencing objectives of denunciation, deterrence, protection of the public and rehabilitation, I have concluded that a sentence of 7 years is appropriate. This sentence, in my view, meets the objectives of deterrence and denunciation without removing the opportunity for Mr. Gayle to rehabilitate himself. In reaching this conclusion I have also considered the fact that Mr. Gayle will serve his sentence during a period of time when the COVID-19 global pandemic will be ongoing. He will, by virtue of his placement in a congregate living setting, be at an increased risk. This is a factor which makes the period of incarceration more onerous.[^5]
[41] The remaining issue is what credit Mr. Gayle should receive for presentence custody.
[42] Mr. Gayle has served 429 actual days. Credited at 1.5:1 that is the equivalent of 21 months.
[43] In R. v. Duncan,[^6] the Court of Appeal found that, in appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 day credit set out in s. 719(3.1) of the Code. The Court of Appeal held that “in considering whether any enhanced credit should be given the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused”.
[44] I am satisfied that the conditions of Mr. Gayle’s pre-sentence incarceration were particularly harsh. In particular, I find that the triple bunking and lack of access to fresh air and exercise are conditions that are unacceptable. I have also taken into account the lockdowns, but I have given those lockdowns less weight since the majority were partial lockdowns and occurred in the evening. The assessment of enhanced credit need not be a mathematical formula. I find that the conditions justify credit of an additional 3 months.
Conclusion
[45] Therefore, I impose a sentence of 7 years before credit for presentence custody. With the credit of 24 months for pre-sentence custody, the sentence remaining to be served is a further 5 years’ imprisonment.
[46] There will be a s. 109 order prohibiting Mr. Gayle from possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[47] Manslaughter is a "primary designated offence" in s. 487.04, the section of the Criminal Code dealing with forensic DNA analysis and the securing of DNA samples. As such, s. 487.051(1) of the Criminal Code makes such an order mandatory. Therefore, I order that Mr. Gayle provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.
Forestell J.
Released: September 2, 2020
COURT FILE NO.: CR-20-70000164-0000
DATE: 20200902
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
PATRICK GAYLE
reasons for sentencing
Forestell J.
Released: September 2, 2020
[^1]: 1993 61 (SCC), [1993] S.C.J. No. 91 (S.C.C.) at para. 86
[^2]: Section 718.2(b) of the Criminal Code; R. v. Devaney, 2006 33666 (ON CA), [2006] O.J. No. 3996 (C.A.)
[^3]: 1999 2875 (ON CA), [1999] O.J. No. 3782 (C.A.)
[^4]: 2001 4000 (ON CA), [2001] O.J. No. 1576 (C.A.)
[^5]: R. v. Hearns, 2020 ONSC 2365; R. v. Studd, 2020 ONSC 2810; R. v. Steckley, 2020 ONSC 3410
[^6]: 2016 ONCA 754